Delhi District Court
1- G.V. Siddaramesh vs . State Of Karnataka 2010 (1) Jt 639: on 12 August, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 197/1/09
State
Versus
1- Varun Yadav S/o Sh. Sajjan Lal Yadav,
2- Sajjan Lal Yadav S/o Late Sh. Ganga Dan Yadav,
3- Arun @ Monu S/o Sajjan Lal Yadav,
(Smt. Sharda Yadav W/o Sajjan Lal, Declared P.O)
All accused persons are R/o House No. 36A, Extension-2,
Nangloi, Delhi.
(i)Case arising out of FIR No.272/2009
U/S: 498-A/304-B/34 IPC
P.S. Nangloi
(ii) Date of FIR 15.07.2009
(iii) Date of Institution 21.12.2009
(iv) Date of Final Arguments 06/08/10
(v) Judgment reserved on 06/08/10
(iv) Date of judgment 12/08/10
JUDGMET
The brief facts of the case are that on 13.7.2009 after receiving the
information at P.S. Nangloi vide DD No. 24A, ASI Shiv Narain along
with Ct. Sumit had reached at Satyabhama Hospital and obtained the
S.C. No. 197/1/09 Page1/69
MLC No. 574/2009 of the Pavita and as the present case is of poison
within seven years of marriage. PW21 ASI Shiv Narain moved an
application for recording the statement of patient before the doctor who
told him that patient is unfit for giving the statement. In the hospital ASI
Shiv Narain met PW4 Virender Singh father of the patient Pavita , who
informed to ASI Shiv Narain that Pavita was married about four years
back and there was some matrimonial dispute between the parties. ASI
Shiv Narain passed this information to the SHO and SDM. The
SDM/Executive Magistrate B.P. Mishra, after receiving the said
information, visited the hospital on the same day but police official or
Executive Magistrate could not record the statement of the deceased as
she was declared unfit for statement and on the next day i.e. 14.7.2009 the
deceased could not survive and she was declared dead. Thereafter the
dead body was sent for post mortem in Sanjay Gandhi Hospital. Father
PW4 Virender Singh and brother PW13 Vipin Yadav of deceased
received dead body of deceased after conducting the postmortem in
Sanjay Gandhi Memorial Hospital Govt. of NCT of Delhi on 15.7.2009.
The viscera and sample seal were seized vide seizure memo Ex. PW3/A
by ASI Shiv Narain. He has also seized one liquid , sample seal and one
pouch which was stuck on the bottle which was handed over to him by the
S.C. No. 197/1/09 Page2/69
doctor and was seized vide memo Ex. PW3/B. ASI Shiv Narain also
moved an application before the CMO for preserving the dead body under
the supervision of Ct. Sumit vide Ex. PW21/A and also moved the
application before the CMO for recording the statement of Pavita vide Ex.
PW21/B. In that application the doctor has given the opinion that the
patient is unfit for statement. DD NO. 24A and 29A to this effect is
marked A and B. ASI Shiv Narain prepared the brief facts vide Ex.
PW7/E and counter signed by the SDM and also recorded the identifying
statement of dead body vide Ex. PW7/G and PW4/B.
On 15.7.2009 PW7 B.P. Mishra, Executive Magistrate/SDM has
recorded the statement of PW13 Vipin Yadav, the brother of the
deceased, PW4 Virender Singh, father of the deceased and PW6 Smt.
Anita Yadav W/o Vipin Yadav. PW13 Vipin Yadav stated before the
SDM that the marriage of his sister Pavita Yadav was solemnized in
November, 2004 with Varun Yadav S/o Sajjan Singh R/o H. No. 36
Exten. IIA, Nangloi, Delhi and she has blessed with a son aged about 3
years. Just after 5-6 months of marriage, in laws of his sister Pavita
started harassing her for dowry and repeatedly used to demand money,
and according to their capacity, they give cash to them and used to request
them not to harass and torture his sister, but they in greed of more dowry,
S.C. No. 197/1/09 Page3/69
continued to harass and torture his sister. The complaint of which his
sister used to make him again and again and they used to make
understand their sister that things will be normal by the passage of time,
But her in laws continued to mentally harass , abuses and taunted her.
On 13.7.2009, when he along with his father went to leave his sister at her
in laws house, they had talks with the in laws of his sister, they assured
that in future they will not harass his sister. When he(PW13) and his
father(PW4) were coming back from Pavita in law's house, his father
Virender Singh told that he had left his mobile phone in the house of in
laws of Pavita. Thereafter when they went to matrimonial house of his
sister, they found that his sister lying on the floor in bitter pain and
around her, her father in law, mother in law, husband Varun and Dever
Monu were standing. On seeing them, Varun and Monu ran away and his
sister pointed out towards a pouch which was lying on the floor and told
that these persons have administered the same. They, at once lifted his
sister and the said pouch and took her to nearby Satya Bhama Hospital
and requested the doctor to treat her and showed the said pouch to the
doctor which was given to his sister. The doctor told that the same was
Celphos(Aluminum Phosphate) and it is difficult to save a person who
consume the same. On 14.7.2009 in the evening his sister declared died
S.C. No. 197/1/09 Page4/69
by the doctor. It is further stated that father in law Sajjan Singh, mother
in law , husband and devar Monu are responsible for the death of his sister
as they used to harass and torture her again and again for dowry and these
persons have killed her by giving Celphos.
Apart from the statement of PW13 Vipin Yadav, statement of PW4
Virender Singh father of the deceased, PW6 Smt. Anita Yadav Bhabhi of
the deceased Pavita was also recorded by Executive Magistrate/SDM
PW7 B.P. Mishra. In the statement of father, brother and sister in law of
decease there were allegation regarding the cruelty on account of demand
of dowry and harassment to the deceased Pavita.
The investigation of the present case was transferred to PW23 SI
Rajinder Singh from ASI Shiv Narain PW21. On 15.7.09, the statement
of Virender Singh, Vipin Yadav and Anita was recorded and list of
dowry articles was given to SI Rajinder Singh and the dowry article were
returned by complainant on 25.7.09. On 24.7.09 accused Varun
surrendered before the court and his arrest memo and personal search
memo vide Ex. PW4/G and PW4/G1. On 25.7.2009 two days police
remand was taken and complainant also joined in the investigation. IO
had gone to the house of the accused Varun. The dowry articles were
seized by him after being identifying by the complainant and a seizure
S.C. No. 197/1/09 Page5/69
memo of the dowry articles was prepared, signed by Mohd. Inaam and
Paras Nath neighbourer as independent witnesses and also recorded their
statement. He has also seized the Car Maruti -800 registration No.
DL2CAC2157 vide memo Ex. PW4/H which was parked in front of the
house of the accused persons and deposited the same with the MHC(M).
ASI Shiv Narayan seized empty pouch, stomach wash, viscera against the
seizure memo and same was also deposited to MHC(M).
On 18.8.09 the investigation of the case was transfer to SI Partap
Singh on transfer of previous IO SI Rajinder Singh. He started search of
the other accused persons but none could be traced out. Only accused
Varun was in judicial custody at that time. PW SI Partap Singh obtained
the NBWs against all other accused persons from the concerned court and
also obtained documents, handing over memo is Ex. PW1/A from the
hospital, wherein pair of gold bangles, pair of ear-rings and gold chain
were received by Sajjan Lal Yadav from the hospital which were
belonging to deceased Pavita and the same were seized vide memo Ex.
PW1/B. The complainant joined in the investigation and he produced
various photographs of marriage and marriage card which were seized
vide seizure memo Ex. PW4/F. The other witnesses were also joined in
the investigation and their statement was recorded by Investigation
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Officer. SI Partap Singh also seized the medical bills of deceased Pavita
which were handed over by the complainant and same are Ex. PW4/E1 to
E18 and seized vide seizure memo Ex. PW4/D. IO SI Partap Singh had
also joined Sudesh Yadav in the investigation and on 22.9.09 seized
various articles comprising of monthly booklet , newspapers, photocopy
of certificate of registration and I card of accused Arun Yadav and seized
vide seizure memo Ex. PW25/A. The said documents are Ex. PW11/B,
Mark A and Mark B and PW11/C collectively are Ex. PW11/C, D, E and
F, he also recorded statement of witness and prepared the challan. SI
Partap Singh PW25 also prepared supplementary challan and challan was
put up before the court. The DD 24A is mark P-25X and DD No. 29A is
mark Ex. P-25Y. he had also collected the PM report Ex. PW14/A and
sent the case property to the FSL Rohini and result were also obtained
and the same is Ex. PW25/B. IO later on also recorded statement of PW
Vinod Kumar , Neetu and Subhash and got accused Sharda Devi
declared Proclaimed Offender. He arrested the accused Sajjan Lal and
Arun Yadav on 21.1.2010 as they have surrendered in the court. Both the
accused persons were interrogated by SI Partap Singh and their personal
search and arrest memo are Ex. PW24/A and A1 and PW24/B and
PW24/B1. He also recorded statement of PW Ct. Vinod with respect to
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the arrest of accused Sajjan Lal and Arun @ Monu and supplementary
chargesheet was also filed before the court.
After completion of committal proceeding , charge framed as
prima facie case has been made out for the charge u/s 498A/304B/34 IPC
upon the accused Varun Yadav, Sajjan Lal and Arun Yadav. All the
accused persons wanted to contest the case as pleaded not guilty to the
charge alleged against them.
Prosecution in support of its case examined 25 witnesses. During
the prosecution evidence counsel for complainant moved an application
for dropping of PW Vinod KUmar S/o Amar Singh, Virender S/o Amar
Singh, Kailash Yadav S/o Bhagwan Singh, Subhash S/o Jai Bhagwan,
Sudesh Yadav S/o Bhagwan Dass and Rakesh S/o Sohan Lal who are
very close relatives of the accused persons but the submission was
declined.
Father, brother and sister in law of the deceased are the material
witnesses who have been examined by prosecution as PW4, PW6 and
PW13 respectively and they have deposed series of incident of cruelty
and unlawful demands of dowry.
PW4 Virender Singh in his examination stated that accused Sajjan
Lal told him that instead of cash and motorcycle, he should buy him a
S.C. No. 197/1/09 Page8/69
car. PW4 Virender Singh acceded the demand of accused Sajjal Lal and
gave him a Maruti 800 car at the time of marriage. Till six months of
marriage the matrimonial relations between his daughter and accused
were fine. Accused Varun did some petty job and after that he had no job
and then he started harassing his daughter. Accused Varun along with
his daughter started visiting his house about two three times in a month
and on every occasion he used to take some money through his daughter.
The father in law, mother in law and his son in law then slowly started
torture his daughter. They used to press her to bring more money from
him. PW4 Virender further deposed that about one year before the death
of his daughter Pavita, accused Sajjan Lal, Sharda Yadav and Varun
Yadav had called him to their house and told him that Varun Yadav is
unemployed and demanded two lakhs rupees from him. He expressed his
inability to meet the demand. After that the accused persons occasionally
used to torture his daughter. On 5.3.2009 he was transferred from Delhi
to Siliguri and after that accused persons stated torturing his daughter. On
5.7.2009a telephone call was received from his daughter that she should be saved otherwise the accused persons will kill her. On 5.7.2009 he called his son Vipin Yadav that he should bring Pavita to h is house on 11.7.2009 when he came to Delhi and his son Vipin has brought Pavita to S.C. No. 197/1/09 Page9/69 their house. His daughter Pavita told him that the accused persons have demanded money from her also. She ( deceased Pavita ) also alleged that the accused persons had also beaten and abused her in filthy language and made false allegation of illicit relation with accused Arun @ Monu. She also told that accused persons will kill her. PW4 Virender told h is daughter that tomorrow i.e. 12.7.2009 her in laws will come on the occasion of the function and that he would talked to them. On that day accused Sajjan Lal and h is brother in law ( Salsa) Rakesh came to attend the function, who told him that he should come to his house on 13.7.2009 along with his daughter and accused Sajjan Lal also told him that all the conversation will take place in his house as he was not interested to talk on 12.7.2009.
It is further stated by PW4 Virender Singh that on 13.7.2009 he along with his son Vipin, daughter Pavita and daughter in law Anita visited the house of the accused person. He along with Sajjan Lal, Sharda Devi, Varun Yadav, his son Vipin and daughter Pavita then went to the first floor to have a conversation which continued for about two three hours. The accused persons told him that in future, they will not torture or harass his daughter and that whatever has happened has happened. After that he along with his son Vipin then left the house of S.C. No. 197/1/09 Page10/69 the accused persons and found that his mobile phone was not with him and he told his son that he might have left it, in the house of the accused. He goes back to the house of the accused persons along with his son, when he went to the first floor where they all were sitting, saw all the accused persons along with Sharda Devi present in the adjoining room. On seeing them, accused Varun and his brother Arun @ Monu ran away from the room. When he entered the room he saw his daughter Pavita lying on the floor of the room and she was vomiting and she gives signaled by her hand that accused persons had given her this thing (Inhone Mujhe Ye de Diya.) He picked up the pouch and with the assistance of his son also picked up his daughter Pavita and took her to nearby Satybhama Hospital. ASI Shiv Narain came from the local police station Nangloi who went inside the room and told that his daughter was not fit to give the statement. On 14.7.2009 in the evening his daughter Pavita was declared dead and he himself had deposited the medical bills. In causing the death of his daughter all the four accused persons i.e. Sajjan Lal, Sharda Devi, Varun and Arun are responsible.
It is further stated by PW4 Virender Singh that at the time of marriage he had given one gold chain to Varun which the parents of Varun used to say that the gold chain is very light in weight and in laws of S.C. No. 197/1/09 Page11/69 Pavita also used to torture and harass her regarding the chain and demanded that a heavy chain should be given and accordingly to meet the demand of heavy chain, he purchased a heavy chain and gave it to Varun.
PW13 Vipin Yadav and PW6 Anita Yadav also corroborated deposition of PW4 Virender Singh regarding the demand of dowry and cruelty committed by accused persons.
Apart from these three witnesses, prosecution has also examined PW1 Dr. Manisha, who categorically admitted that deceased Pavita was admitted to the Hospital on 13.7.2009, it was a case of celphas poison at home and she had handed over one pair gold kangan, both ear rings and gold chain of the patient Pavita to Sajjan Lal vide Ex. PW1/A and same was seized vide seizure memo ex.PW1/B. In the cross examination PW1 Dr. Manisha has stated that deceased Pavita has told her that she had mistakenly consumed the poison and requested to save her life and the patient remained conscious, restless or anxious till 14.7.2009 till 1 am. The patient had remained on ventilator for one day.
PW2 Dr. Ashish Ratan Pal proved the MLC vide Ex. PW2/A. He has given the opinion that the patient was unfit for giving statement. The patient was admitted in hospital with alleged history of consuming poison (Celphos) at home about 10 minutes ago i.e. 11.15 am. S.C. No. 197/1/09 Page12/69
PW3 Ct. Sumit is the witness of seizure of the viscera vide memo Ex. PW3/A and same was deposited with the MHC(M).
PW5 HC Suresh Kumar is the Duty Officer and proved the registration of the FIR in the present case being FIR No. 272/09 and proved the computerized copy of the same vide Ex. PW5/A and his endorsement on the rukka vide Ex. PW5/B. PW7 B.P. Mishra is the Executive Magistrate and proved recording of statement of PW Virender Singh, Anita and Vipin Yadav and also got conducted the post mortem on the body of deceased vide Ex. PW7/C and D. He has also filled up form 25.35 (1) B and also recorded the identification statement of the dead body by Vipin and Virender Singh vide Ex. PW7/G and PW4/B. PW8 Vinod Kumar, PW10 Rakesh Yadav , PW12 Subhash, PW17 Harpal Singh , PW19 Dharambir, PW22 Neetu and Sudesh, Virender, Rakesh are declared hostile, who did not support the case of the prosecution, even through they have been cross examined by Ld. APP for State at length.
PW9 Rakesh Yadav stated that he heard from somebody that the Pavita has mistakenly consumed something. He did not know anything about this case.
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PW11 Sudesh Yadav is the Editor of `Baijor' News Magazine and proved the attendance of the accused Arun Kumar @ Monu and stated that accused Arun was working as an employee as a Chief Editor from August 2008 to till date. Accused Arun is also related to him being his Bhanja and residing with him for the last four/five years and given the certificate of his employment and attendance vide Ex. PW11/B, time sheet Ex. PW11/C, attendance register vide Ex. PW11/D and original copy of newspaper Ex. PW11/E and magazine vide Ex. PW11/F. PW14 Dr. Manoj Dhingra proved the post mortem report vide Ex. PW14/A and his signatures at point A. He has also perused the FSL report and deposed that there is presence of allumnium phosphide ( Celphas) and also stated that the death in the present case was a result of alluminium phosphide (Celphas) poisoning.
PW15 Dr. Gopal Sharma, Managing Director of Satyabhama Hospital who prepared the death summary of the deceased Pavita vide Ex. PW15/A. He has also proved the medical bills of Pavita vide Ex. PW14/E1 to E17.
PW16 Raj Pal Yadav neighborer of the accused Sajjan Lal who stated that he have visiting terms with accused and on 13.7.2009 came to know that Pavita, daughter in law of Sajjan Lal had been admitted to S.C. No. 197/1/09 Page14/69 Satybhama Hospital for consuming poison and he went there. On the next day he had again went to the hospital where the deceased had expired and the relatives of the girl family told the relatives of the boy family to leave the hospital as there is some apprehension of scuffle and fight. After that he returned back to his house. IO also recorded his statement.
PW20 HC Ravinder Kumar was the MHC(M) and proved the entry regarding receiving the case property in register No. 19 & 21 as well as filing of FSL result vide Ex. PW20/A. PW24 HC Vinod Kumar stated regarding arrest of the accused Sajjan Lal and Arun @ Monu vide arrest memo and personal search memo Ex. PW24/A and A1 and PW24/B and B1.
PW21 ASI Shiv Narain, PW23 SI Rajinder Singh and PW25 SI Pratap Singh are the Investigation Officer's , they have carried out investigation time to time during the proceeding and prepared the documents as exhibited as well as recorded the statement of witnesses.
After conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C recorded. Accused persons denied the allegation and examined one defence witness DW1 Inderjeet Singh. who deposed that, the marriage between Varun and Pavita was solemnized on 28.11.2004 and he being t he relative of Sajjan Lal having visiting terms S.C. No. 197/1/09 Page15/69 since before the marriage of Pavita and used to ask about Pavita, to which Pavita always says that she is happy. Till 13.7.2009 he never heard any complaint from Pavita.
I have heard the arguments of Ld. APP, counsel for complainant and accused persons and also gone through the material place on record as well as to the authorities cited by them.
Ld. APP for State and counsel for complainant jointly argued that PW4 Virender Singh PW6 Anita and PW13 Vipin Yadav are the material witnesses who were duly cross examined by defence counsel at length and during the cross examination, no suggestion was put to these witnesses that car was not demanded and the same was not given in the marriage and nothing was extracted from the mouth from the these witnesses which would help the accused persons or can disprove the prosecution story. The defence of accused persons are that there is no previous complaint from date of marriage, till death, it does not hold any water as these witnesses categorically stated that as they wanted to save the marriage of the deceased, therefore they did not make any complaint against the accused persons. PW4 Virender Singh, PW6 Anita and PW13 Vipin Yadav have corroborated each other, the ingredients of harassment and torture caused to deceased Pavita time to time on account S.C. No. 197/1/09 Page16/69 of not meeting out of the continuous demands of dowry . Further more the fact that soon before her death, deceased Pavita had informed her father about the continuous harassment and raised an apprehension that she would be killed by her in laws, has been proved by the father of the deceased and corroborated by the PW6 Anita and PW13 complainant Vipin Yadav. Even otherwise also when fat her and brother of deceased, PW4 and PW13 respectively, again went to house of the accused to search the mobile of the father of deceased, the averments, regarding cause of death conveyed to her father and brother, sequrely comes under the category of dying declaration as prescribed under section 32 of Indian Evidence Act.
It is further contended by Ld. APP for State that on the perusal of the deposition of PW1 Dr. Manisha which reflects that same is in contradiction with the ocular testimony in the shape of deposition of PW4 Virender Singh, PW13 Vipin Yadav and PW7 B.P. Mishra, Executive Magistrate, PW21 ASI shiv Narain and PW12 Dr. Ashish Ratan Pal, under whom the deceased was treated and prepared the MLC. PW4 Virender Singh has already raised allegation against the Investigation Officer for recording false statement of some witnesses, from the very inception of the initiation of the proceeding. The falsity of the deposition S.C. No. 197/1/09 Page17/69 of this witness is reflected from the fact that this witness i.e PW1 Dr. Manisha was not the concerned doctor who treated the deceased Pavita at Satyabhama Hospital, rather this witness is the co-owner of the hospital and she had no business to give her opinion about the condition of the deceased. The hospital is situated near the house of accused persons and one of the accused Sajjan Lal being a police official is having capacity to influence the said witness i.e. PW Dr. Manihsa otherwise also it is well settled law that whenever there is a conflict between the medical opinion and the ocular testimony, the ocular testimony will be prevailed. Further the falsity on the part of PW1 Dr. Manisha personally examined the deceased has not been supported by any document of the hospital which also suggested that this witness has been planted by the Investigation Officer with the help of accused Sajjan Lal. Therefore, the fact that deceased was not fit for statement is clearly established from the testimony of the eye witnesses i.e. PW4 Virender Kumar and PW13 Vipin Yadav S/o PW4 Virender Singh. Hence the testimony of PW1 Dr. Manisha is unreliable to the effect that the patient was brought by accused Sajjan Lal and she personally examined her. Her (PW1 Dr. Manisha) testimony is also doubtful to the effect that she has seen the husband of the deceased Varun Yadav in the hospital. This falsity is supported from S.C. No. 197/1/09 Page18/69 the fact that Varun Yadav was not know to the witness then how she come to know about the name of Varun Yadav and this has not been explained by this witness. It is pertinent to mention here that PW2 Dr. Ashish Ratan Pal who actually examined the deceased Pavita on 13.7.2009 very categorically stated that the patient was irritable and disoriented as a result of which she was not conscious of her surroundings and the patients was not answering the basic questions clearly regarding her name, age etc. Therefore, the deposition of PW1 becomes extremely doubly. The fact that the deceased was unfit for statement is also corroborated by the PW7 B.P. Mishra, Executive Magistrate and PW21 ASI Shiv Narain.
It is further argued that PW15 Dr. Gopal Sharma, Managing Director, who is also one of the owner of Satya Bhama Hospital also falsely stated that jewelery article was given to accused Sajjan Lal. Since PW15 and PW1 are the owner of the hospital Satyabhama Hospital and they manipulated the aforesaid things as well as document Ex. PW1/A. Therefore, their testimony are contrary to the other independent witnesses. The main defence taken by the accused persons are that one day before the day of incident, some quarrel took place between the deceased and her brother , due to which she consumed poison at Gurgaon and the father S.C. No. 197/1/09 Page19/69 and brother of the deceased got her admitted in the hospital near to her matrimonial home only save their skin, which is not tenable in view of the fact that the defence taken by the accused persons while applying for their bail admitted the presence of PW4 and PW13 i.e. father and brother of the deceased in the house of accused persons on 13.7.2009. The fact that the aforesaid accused persons along with co accused Sharda Devi absconded from their house after the incident as well as death of deceased Pavita and further that fact that neither the accused persons nor their relatives claimed the dead body of the decease to perform the last rites of the deceased, which will brought the adverse inference against the accused persons and point out the needle of guilt towards the accused persons. The defence of the accused is also not sustainable since the accused persons has made any complaint against the father and brother of the deceased with respect to the alleged allegation of consuming poison at Gurgaon due to quarrel between deceased Pavita and her brother.
It is further contended that PW8 Vinod Kumar, PW9 Rakesh Yadav, PW10 Rakesh Yadav, PW11 Sudesh Yadav, PW12 Subhash, PW16 Raj Pal Yadav PW17 Harpal Singh, PW18 Virender KUmar and PW19 Dharambir are very close relative of the accused persons and they are cited as prosecution witness by the IO in conspiracy with these S.C. No. 197/1/09 Page20/69 witnesses or the accused persons with the oblique motive to save the accused persons from the punishment. It is highly unbelievable that these witnesses who are very close relatives of the accused persons and in no circumstances would depose against their close relative i.e accused, so their deposition cannot be relied upon.
LD. APP and Ld. Counsel for complainant further submitted that PW4 and PW13 stated regarding the cause of death of the deceased since the deceased was lying on floor and vomiting and all accused persons were standing around her and after seeing PW4 and PW13 accused Varun and Arun ran away from the spot and the deceased while giving signal towards a pouch told that " Inhone Mujhe Ye De Diya" and thereafter the PW4 and PW13 took the deceased and said pouch to the nearby hospital i.e. Satyabaham Hospital Nangloi which is almost 250 meters away from the house of accused persons and after her death, nobody claimed the dead body of the deceased therefore, the PW4 and PW13 received the dead body of the deceased and cremated her in Gurgaon. All these facts clearly established beyond any doubt that the deceased was given poison forcefully by the accused persons. Therefore, it is clear that the death of the deceased has been caused in unnatural circumstances.
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The second ingredients of section 304B is that the death must have been occurred within seven years of the marriage of the deceased, and this fact is also not disputed by the accused persons. As regarding the third ingredients of the offence u/s 304B IPC which says that it has to be proved that soon before her death, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for and in connection with any demand of dowry. PW4 specifically deposed, that on 5.7.2009 a telephone call was received from his daughter on his mobile phone that she should be saved otherwise the accused persons will kill her. On 11.7.2009 his son Vipin had brought Pavita to their house. Pavita told him that accused persons have demanded money from her also accused persons had beaten her and used abusive language and false allegation of illicit relationship with accused Arun @ Monu. She also told to PW4 Virender Singh that the accused persons will kill her. The event dated 5.7.2009 and dated 11.7.2009 is just prior to 3 to 8 days before consuming poison, so there is no doubt that there was harassment and cruelty in pretext of demand of dowry by the accused persons, prior to the death of the deceased. The deceased was subjected to cruelty and harassment on account of unlawful demand of dowry soon before her death. On 13.7.2009, after leaving the matrimonial house of the deceased S.C. No. 197/1/09 Page22/69 Pavita by the PW4 and PW13, the accused persons got annoyed as they apologized for their conduct, harassment and cruelty in connection with demand of dowry, committed by them and they assured that in future they will not repeat such event.
It is further submitted by Ld. APP for State that u/s 113 B of Indian Evidence Act speaks about that there must be some material to show that 'soon before' the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only presumption can be drawn that a person has committed the dowry death of a woman. It is then up to accused persons to discharge this presumption. However, the accused persons have not brought on record anything substantial to dispel the theory of the prosecution. However during the cross examination, the accused persons taken a defence that one day before the date of incident, quarrel took place between the deceased and her brother on account of ancestral property and on the next day she consumed the poison. The father and brother of the deceased got her admitted in a hospital near to the house of the accused persons only to save their skin, the defence which is demolished through the testimony of the PW1 and PW2 . The accused persons have not rebutted or discharged the presumption. It is well settled law that the prosecution has to S.C. No. 197/1/09 Page23/69 brought on record the quality of the evidence and not the quantity of evidence which play the important role in decision of the case. The dying declaration of the deceased, has been corroborated by the evidence of PW4 and PW13 beside their testimony satisfying the ingredients of the offence with which the accused persons are charged. The prosecution in supports of its contentions also relied upon following authorities and prayed for conviction of the accused persons for the offence with with they have been charged.
1- G.V. Siddaramesh Vs. State of Karnataka 2010 (1) JT 639:
2010 (3) SCC 152.
2- Soran Singh Anr. Vs. State 2010 LE (Del) 149 (DB Judgment passed on 16.3.2010).
3- Mukesh Vs. State 2009 96) AD (Del) 502; 2009 (2) JCC 1433. 4- Sukanti Maharana Vs. State of Orissa 2009 JT 697; 2009 (9) SCC 163f 5- Vidhya Devi and Anr. Vs. State of Haryana 2004(9) SCC 476. 6- Appasahed And Anr. Vs. State of Maharashtra Appeal Crl. No. 1613 of 2005 ( Judgment dt. 5.1.07).
7- Pawan Kumar & Ors. Vs. State of Haryana 1988 (3) SCC 309. S.C. No. 197/1/09 Page24/69 8- Trimukh Maroti Kirkan Vs. State of Maharashtra. 2007 Crl. L.J. 20.
Per contra, Ld. Counsel for the accused persons submitted that there is no previous complaint or letter which can show that the deceased was harassed or dealt with cruelty at any point of time du ring the period since from marriage to the death of the deceased. Prosecution has not taken the finger print from the spot and IO did not investigate from where the pouch of Celphas ( Aluminum Phosphate) purchased or come to the deceased. MLC Ex. PW2/A, postmortem report Ex. PW14/A and FSL report Ex. PW24/A, except these document nothing scientific evidence is on record. PW1 Dr. Manisha has categorically admitted that deceased Pavita was admitted to the hospital on 13.7.2009 and it was a case of celphas poison at home. PW1 has further admitted that she has handed over one pair gold Kangan, both ear rings and chain from neck of the patient to Sajjan Lal, fat her in law of the patient vide Ex. PW1/A. In the cross examination she admitted that ' the Pavita has told her that she had mistakenly consumed the poison and requested to save her life. The patient remained conscious, restless or anxious till 14.7.2009 till 1 am". It is very clear from the deposition of PW1 that Pavita, the S.C. No. 197/1/09 Page25/69 deceased was remained conscious restless or anxious from 13.7.2009 at about 11.15 am to 14.7.2009 but surprisingly no statement of deceased was got recorded by the police or by the SDM, which creates a reasonable doubt on the parts of the prosecution case. PW2 Dr. Ashish Ratan Pal proved the MLC Ex. PW2./A , who stated that whatever patient was speaking was clear. It is further stated by PW1 Dr. Manisha in her cross examination that the deceased was in speaking terms till 12 midnight. The father of the deceased Pavita is an educated CBI official , if there is any foul played by any one or by the accused, they must be insisted to the police to record the statement of the deceased in the hospital, but he did not do so. PW21 ASI Shiv Narain in his deposition has also stated that he meet father of deceased Pavita and informed him that Pavita was married about four years and there was some matrimonial dispute between the parties. PW21 ASI Shiv Narain further in cross examiantion admitted that father of Pavita namely Virender Singh had met and told him that he was in CBI and that the present matter is their internal household matter. As such he do not wanted to proceed any action. The deposition of PW1 Dr. Manisha before whom deceased given her dying declaration that she had herself consumed poison, shows much confidence and same is liable to be taken into consideration under section S.C. No. 197/1/09 Page26/69 32(1) of Indian Evidence Act. Further in the deposition of PW1 Dr. Manisha that the deceased Pavita told her that she has mistakenly consumed the poison. PW11 Rakesh Yadav and PW12 Subhash have also stated that at about 1 pm, he had conversation with Pavita and he asked her that why she had done such an act, Pavita told him that she had a scuffle with her brother and because of that she had consumed poison Pavita had also stated that she had committed a mistake and that she should be saved. PW 16 Rajpal Yadav, PW17 Harpal Singh, PW18 Virender Kumar, PW19 Dharambir also supported the version of PW1 that deceased Pavita has taken the poison herself and she has not made any allegation against any person before aforesaid PWs. If the police or SDM would recorded the statement of Pavita in the hospital she would tell the true facts which she had stated before Dr. Manisha PW1 and this unfortunate case would not be registered. Prosecution has no answer that is why the case not register during the period 13.7.2009 to 14.7.2009 if there was any foul play by accused persons and why did not father of Pavita PW4 Virender Singh not made any complaint to PW21 ASI Shiv Naraina. There is no document like complaint or letters or anything made by the deceased Pavita or her parents against the accused persons during her survival days. To prove the charge's under section 498A and S.C. No. 197/1/09 Page27/69 304B, prosecution has produced three star witnesses of the case PW4 Virender Singh , PW6 Smt. Anita and PW13 Vipin Yadav. PW4 Virender Singh , father of the deceased Pavita in his examination in chief has alleged that on 28.11.2004 he got married his daughter Pavita Yadav with the accused Varun Yadav, before marriage he told Sajjan Lal Yadav, who is the father of Varun Yadav that he will give Rs. One Lac cash and one motorcycle at the time of marriage. The accused Sajjan Lal told him that instead of cash and motorcycle , he should buy him a car. He acceded the demand of accused Sajjan Lal and gave him a Maruti 800 car at the time of marriage. He further stated that car was got financed by him and said car is still registered in his name. PW4 has also alleged that one accused Varun along with his daughter had come to his house and told him that he had no job and had to get money for committee. On his asking he gave him Rs. 10,000/- after withdrawing it from the account of his wife. The father in law , mother in law and son in law then slowly started torturing to his daughter. They used to press her to bring money from her father. The accused Varun Yadav used to accused Pavita that she is having illicit relations with her Dever i.e. accused Arun @ Monu and that child born out of the wedlock was also not his. About one year before the death of his daughter Pavita accused Sajjan Lal, Sharda Yadav S.C. No. 197/1/09 Page28/69 and Varun Yadav had called him to their house and told him that Varun Yadav is unemployed and demanded two lacs rupees from him. He expressed his inability to meet the demand, after that accused persons occasionally used to torture his daughter. The accused persons did not allow to his daughter to leave the house and did not permit her to talk with anybody. It is also stated by PW4 that a telephone call was received from his daughter on his mobile phone that she should be saved otherwise accused persons will kill her and she is being detained as a prisoner. On 13.7.2009 accused Sajjan Lal told him that he had to meet his one demand and that his daughter Pavita shall not be allowed to keep a mobile phone and that whenever he wished to talk to his daughter, he should first converse to Sajjan Lal and then to his daughter Pavita. On his, asking his daughter Pavita handed over the mobile phone to Sajjan Lal. After that he along with his son left the house and thereafter he found that his mobile phone was not with him, he returned back with his son, he saw that all the accused persons were there and on saw them accused Varun Yadav and his brother Arun ran away from the room. PW4 Virender Singh when entered the room saw that his daughter Pavita was lying on the floor and vomiting, she signed by hand that accused persons given this things. He picked up the pouch and his daughter Pavita with the assistance of his son S.C. No. 197/1/09 Page29/69 and rushed to nearby Satya Bhama Hospital. PW4 is the star witness of the prosecution case, but he tried to manipulated the story and most of the portion of his examination in chief are either improvement or contradictory with his statement recorded by the SDM or IO under section 161 Cr.P.C and the same are inadmissible , untrustworthy and having less confidence. There is no cogent evidence , however allegation of harassment and demand of dowry made by PW4 , PW6 and PW13 but same are general in nature and no specific allegation in nexus of harassment or cruelty for or in connection of demand of dowry was proved by the prosecution. Out of the 25 witnesses 13 witnesses are public witness and ten witnesses are hostile who are examined by prosecution but they did not support the case of the prosecution and stated one by one that Pavita has herself mistakenly consumed poison.
The said fact is also proved by the evidence of PW1 Dr. Manisha thus these 10 witnesses are independent witnesses and are not related to the case in hand, their testimonies are reliable and evidence of these witnesses cannot be discarded. It is a case of suicide by taking the poison and no one is at fault. There is no evidence that deceased was forced , aided, instigated or conspired by any of the accused persons , as the PW4 and PW13 stated that on 13.7.2009 Pavita has come with them S.C. No. 197/1/09 Page30/69 after attending a function at her parental home. PW7 B.P. Mishra who conducted the inquest proceeding, PW14 Manoj Dhingra conducted the postmortem, PW15 Dr. Gopal Sharma issued death certificate , PW20 HC Ravinder and PW24 HC Vinod Kumar are the formal in nature. PW21 ASI Shiv Narain deposed that he had initially enquired the case on DD No. 24A but no case was registered on 13.7.2009 and 14.7.2009. PW22 SI Rajinder Singh had recovered the dowry articles and prepared the seizure memo and arrested the accused Varun.
It is further contended that PW25 SI Partap Singh is the IO of the case, who has filed a report under section 173 Cr.P.C against the accused Varun and also filed supplementary challan against the accused Arun @ Monu and Sajjan Lal. DW1 Inderjeet Singh was examined by the accused in their defence who proved the defence version of the accused. Hence in the present case, prosecution is absolutely failed to prove its case. Ld. Counsel has also relied upon following judgments:
1- Narayanamurthy Vs. State of Karnataka , 2008 (2) JCC 1372. 2- Appa Sahab & Anr. Vs. State of Maharashtra 2007 II AD (SC)417. 3- State of Rajasthan Vs. Teg Bahadur & Ors. 2003 (3) JCC 1515. 4- Arvind Singh Vs. State of Bihar, 2001 II AD (Cr.) SC77. 5- Kans Raj Vs. State of Punjab & Ors. 2000(2) Crime 213 (SC). S.C. No. 197/1/09 Page31/69
6- Munna Lal Vs. State 1997 JCC 467. 7- Sham Lal etc. Vs. State of Haryana etc. decided on 20.2.1997. 8- Surinder Kaur & Anr. Vs. State of Haryana 2004(4) SCC 109. 9- Baljeet Singh & Anr. Vs. State of Haryana 2004(3) SCC 122. 10- Ashok Vishnu Davare Vs. State of Maharashtra 2004 (9) SCC 431. 11- Vidhya Devi & Anr. Vs. State of Haryana 2004 (9) SCC 476. 12- State of Orissa Vs. Niranjan Mohapatra & Ors. 2005 (9) SCC 578. 13- Sanchita Kaur 7 Ors Vs. State Govt. of NCT of Delhi, 2004 (3) JCC 1884. 14- Savitri Devi Vs. Ramesh Chand & Ors. 2003(2) JCC 881. 15- Sushil Kumar Sharma Vs. Union of India & Ors. AIR 2005 (SC) 3100. 16- Meka Ramaswamy Vs. Sasari Mohan & Ors. 1998(1) Crime 138 (SC).
Therefore, it is prayed by defence counsel that the accused persons may be given benefit of doubt and they all be acquitted from the charges leveled against them in the interest of justice.
In view of the submission made by the parties, inter alia the accused persons raise question of law in the present case. The contention is, that every demand by the husband or his family members cannot be S.C. No. 197/1/09 Page32/69 termed as ' dowry demand' with in the meaning of section 2 read with section 4 of the Dowry Prohibition Act, 1961 and consequently the death of the deceased cannot be termed as a ' dowry death' within the ambit and scope of section 304-B of the Indian Penal Code. As such no conviction can be followed u/s 304B IPC.
It is a settled cannon of criminal jurisprudence that the question of law has to be examined in light of the facts and circumstances of a given case. The accused persons are facing charged for the offence u/s 304B and 498A IPC. This penal section 304B clearly spells out the basic ingredients as well as the matters which required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury of the death occurring otherwise, than under normal circumstances, in any manner within 7 years of the marriage. It is the first criteria which the prosecution must prove. Secondly, that ' soon before her death' she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for , or in connection with , any demand for dowry then such a death shall be called' dowry death' and the husband or the relative, as the case may be, will be deemed to have caused such a death. Explanation to this section requires that the S.C. No. 197/1/09 Page33/69 expression' dowry shall have the same meaning as in section 2 of the Act. The definition of dowry under section 2 of the Act. 'Dowry' means any property or valuable security given or agreed to be given either directly or indirectly by one party to another by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this section are of a very wide magnitude. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression in connection with the marriage cannot be given a restricted or a narrower meaning. The expression in connection with the marriage even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be in connection with the marriage and not so customary that it would not attract on the fact of it, the provisions of this section.
It will be appropriate to refer to certain examples showing what has and has not been treated by the courts as 'dowry'. Apex Court in case of Ram Singh Vs. State of Haryana {(2008) 4 SCC 70} held that the S.C. No. 197/1/09 Page34/69 payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression' dowry' Again in the case of Satbir Singh Vs. State of Punjab {AIR 2001 SC2828}, this court held that the word 'dowry' should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word 'dowry'. The Apex court in the case of Madhu Sudan Malhotra Vs. K.C. Bhandari {(1988) Supp. 1 SCC 424}, held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc., to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of section 2 of the Act. The definition of 'dowry' is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of the court in the case of State of Andhra Pradesh Vs. Raj Gopal Asawa {(2004) 4 SCC 470}.
As regarding the provision of section 304B of the IPC the most S.C. No. 197/1/09 Page35/69 significant expression used in the section is ' soon before her death'. In our view, the expressions ' soon before her death' cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and there, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course , these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
Supreme Court in case titled as Tarsem Singh Vs. State of Punjab {AIR 2009SC 1454}, held that the legislative object in providing such a radius of item by employed the words ' soon before her death' is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct nexus between her death and the dowry related cruelty or harassment inflicted on her similar view was expressed in the case of Yashoda Vs. State of Madhya Pradesh {(2004) S.C. No. 197/1/09 Page36/69 3 SCC 98}, where the Apex court observed that determination of the period would depend on the facts and circumstances of a given case.
However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If th is so, the legislature in its wisdom would have specified any period which would attract the provisions of th is section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient where after, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course will have to be examined on the facts and circumstances of the each case.
The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression ' demand for dowry' will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, in S.C. No. 197/1/09 Page37/69 connection with the marriage is an expression which has to be give a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provision of section 304 B where other ingredients of section 304 B are satisfied, in the even, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basis ingredients of section 304B, the court will presume by deemed fiction of law that the husband of the relatives complained of, has caused her death. Such a presumption can be drawn by the court keeping in view of the evidence produced by the prosecution in support of the substantive charge under section 304B of the IPC.
Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of section 304B were not satisfied, rebut the same, while referring to raising of presumption under section 304B of the Code, in the case of Kaliyaperumal Vs. State of S.C. No. 197/1/09 Page38/69 Tamil Nadu {AIR 2003 SC 3828} stated that following ingredients which should be satisfied:
1- The question before the court must be whether the accused has committed the dowry death of a woman( this means that the presumption can be raised only if the accused is being tried for the offence u/s 304B IPC).
2- The woman was subjected to cruelty or harassment by her husband or h is relatives.
3- Such cruelty or harassment was for or in connection with any demand for dowry.
4- Such cruelty or harassment was soon before her death.
In the light of above essential ingredients for constituting an offence under section 304B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the ' dowry death' and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence.
S.C. No. 197/1/09 Page39/69
Counsel for the accused persons while relying upon the case of Tarsem Singh ( Supra) contended that the concept of ' soon before the death' is not attraction relation to the alleged harassment or cruelty inflicted upon the deceased, in the facts of the present case. The oral and documentary evidence produced by the prosecution does not suggest and satisfy the essential ingredients of the offence.
Similarly, reference was also made to the judgment of this court in the case of Appasahed Vs. State of Maharashtra {(2007) 9 SCC 721} , to substantiate the contention that there was no co -relation between giving or taking of the property with the marriage of the parties and, as such the essential ingredients of section 2 of the Act were missing. Accordingly, it is argued that there was no demand of dowry for Rs. Two lacs which was not the demand of dowry by the accused persons, but it was merely an understanding that for his better business, at best , the amounts of Rs. 2 and 2 ½ lacs were to be made voluntarily from the father of the deceased and no demand of allegation was made by PW4 Virender Singh in corroboration with the deposition of PW6 Anita and PW13 Vipin Yadav has not substantiated the allegation with the ingredients of definition of section 2 of the Dowry Prohibition Act 1961.
On the contrary Ld. Counsel appearing for the complainant and Ld. S.C. No. 197/1/09 Page40/69 Public Prosecutor while referring upon the judgment titled as Devi Lal Vs. State of Rajasthan, 2007, 14 SCC 176 argued that the relatives and particularly PW4 Virender Singh, PW6 Smt. Anita and PW13 Vipin Yadav i.e. father, sister in law ( Bhabhi) and brother of the deceased have specifically mentioned the acts of harassment, demand of dowry and the deposition of all the three witnesses are corroborated, reliable and trustworthy. Since the alleged offence has been taken place within the four corners of the boundary wall of matrimonial home of deceased and all the atrocities has been caused by the accused persons within the para fit wall. As such accused persons well within the knowledge of the fact which they can explain. The accused persons have committed the offence with malafide intention will not be made a self allegation. The deceased on the contrary have communicated all the atrocities as caused by accused persons to PW4, PW6 and PW13 through telephonic conversation and personal meeting by herself. The other 9/10 witnesses who have not supported the case of the prosecution and made a hostile version are deliberately cited prosecution witness by the Investigating Officer in collusion with the accused persons as the IO hands in glove with the assailants. In case titled as S.K. Zakir Vs. State 1983 CrLJ 1285 it was held that " despite some witness turned hostile , the charge S.C. No. 197/1/09 Page41/69 against the accused can be established if there are other evidence to support the prosecution case and it reliable. It is up to the court to carefully analyze the evidence and reach a conclusion whether that part of evidence consistent with the prosecution is accepted or not."
It is also contended that an absolute accuracy in the statement of witnesses is not a condition precedent for conviction. He relied upon the following dictum of the court in Devi Lal's case (supra). Indisputably, before an accused is found guilty for commission of an offence, the court must arrive at a finding that the ingredients thereof have been established. The statement of a witness for the said purpose must be read in its entirety. It is not necessary for a witness to make a statement in consonance with the wording of the section of a statute. What is needed is to find out as to whether the evidence brought on record satisfy the ingredients thereof.
Now we may proceed to discuss the evidence led by the prosecution in the present case. In order to bring the issues raised within a narrow compass, statement of accused persons may be referred . It is settled principle of law that dual purpose is sought to be achieved when the courts comply with the mandatory requirement of recording the S.C. No. 197/1/09 Page42/69 statement of an accused under this provision. Firstly every material piece of evidence which the prosecution purposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as h is own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C. Furthermore, the statement u/s 313 of the Cr.P.C can be used by the court in so far as it corroborates the case of the prosecution. Of course conviction per se cannot be based upon the statement u/s 313 of the Cr.P.C.
The accused persons have also examined DW1 Inderjet Singh who is also a near relative of the accused as Smt. Sharda W/o Sajjan Lal is niece's daughter of his brother in law as he never heard any complaint from Pavita and she used to say that "she is happy". It is denied that accused Varun used to alleged against Pavita that she is having illicit relationship with accused Arun and child born out of the wedlock was not of them as would be evident from the death of the deceased by consuming poison where the deceased committed suicide for the reason given by the accused that it was a dowry death as harassment and cruelty inflicted S.C. No. 197/1/09 Page43/69 upon her by accused and his family members. In the post mortem report it was noticed that the death was caused due to consuming of Celphos . The post mortem report and FSL report entirely demonstrated the death of the deceased was due to the spread of the poison in the whole body. Father of the deceased PW 4 Virender Singh has stated that initially for the period of six months after marriage everything was all right but later on her husband and her in laws started teasing, taunting and beaten her by making false allegation and and demanded money. The deceased also told that the accused persons would kill her. PW4 Virender Singh told that on 5.7.09 his son PW13 Vipin to call her sister to his house when he will come to Delhi on 11.7.2009 then PW13 Vipin had brought Pavita to their house. On 5.7.2009 telephonic call was received by PW4 from the Pavita that she should be save otherwise accused persons will kill her. On 12.7.2009 the accused Sajjan Lal and his brother Rakesh came to attend a function and after attending the function, Virender Singh started talking with Sajjan Lal but Sajjan Lal told to PW4 Virender Singh that he should come to his (Sajjan Lal) house on 13.7.2009 along with his daughter Pavita and all the conversation will take place in his house and Sajjan Lal is not willing to talk on 12.7.2009. Therefore on 13.7.2009 Virender Singh PW4 and PW13 Vipin along with his daughter deceased S.C. No. 197/1/09 Page44/69 Pavita had gone to the house of Sajjan Lal and went to first floor for conversation which continued for about two three house and the accused persons have assured that they will not torture and harass his daughter and whatever happened as happened. Later on when PW4 gone again to the house of Sajjan Lal to take his missing mobile as he forget and saw that his daughter was lying on the floor and vomiting and she signaled towards the pouch. Thereafter deceased was taken to Stayabhama Hospital. The pouch was shown to PW2 Dr. Ashish Rattanpal and stated that the said pouch is of Celphos ( Aluminum Phosphate) and person who consumed it is rare possibility of survive. From the date of marriage 28.11.2004 to 13.7.2009 there was no written complaint to any authority regarding harassment, cruelty or unlawful demand b y husband or in law's. From the deposition made by PW4, PW6 and PW13 it revealed that the deceased Pavita was living in matrimonial home in deep stress and she was mentally and physically harassed for one reason or for other. She is under stress, dishearten, gloomy, nervous or depressed for the reason of physical and mental harassment by inlaws or deceased being tortured, maltreated or harassed by accused Varun Yadav. The another story revealed from the deposition of witnesses that there was a extra marital affairs of the accused Varun Yadav with Neetu. PW22 S.C. No. 197/1/09 Page45/69 Neetu in her cross examination by APP denied the suggestion that she has regular visiting terms with the family of the accused Varun Yadav at their house. She did not know whether Pavita has any suspicion regarding having her affair with accused Varun. She has no knowledge as to whether the Pavita has committed suicide as she was having suspicion on her relationship with Arun @ Monu. It is also denied that she has shifted her residence since her previous residence is close to the house of accused Varun or that she was in to steady relationship with accused Varun.
Having noticed the principles governing the case based on the circumstantial evidence, the court proposes to consider the circumstances relied upon by the prosecution. The first circumstance sought to be relied upon by the prosecutions that the deceased died in unnatural circumstances. A human death may be a natural one or homicidal one or accidental or suicidal one. It is not the case of anyone that the deceased Pavita has died a natural death. Therefore, the question which falls for determination of is whether she died a homicidal death or a suicidal death or an accidental death. The medical evidence on record shows that deceased having a Celphos , which has been spread in her blood which is poison and as per post mortem and FSL result. PW14 Manoj Dhingra S.C. No. 197/1/09 Page46/69 who conducted the post mortem on the dead body of the deceased and after receiving the FSL report opined that there is presence of Allumunium Phosphide ( Celphos) in the body of deceased Pavita. He has not found any visible external injuries on the body of the deceased. However in the statement u/s 313 Cr.P.C the accused persons denied the fact for their non awareness and alleged that due to the quarrel between brother and sister she have consumed poison at her residence (Gurgaon). Thereafter brought to Satyabhama hospital which is near to the in law's house with motive to save their skin and falsely implicated the accused persons. In the deposition u/s 313 Cr.P.C the presence of accused Sajjan Lal in the hospital was established by PW1 Dr. Manisha and PW15 Dr. Gopal Sharma and on Ex. PW1/A because Sajjan Lal's signatures also being shown the presence of Sajjan receiver of the wearing jewelery by Pavita. Satyabhama Hospital is hardly 250 meters away from the matrimonial home and within 10 minutes the complainant with his father Virender Kumar has arrived at Satyabhama Hospital. PW21 ASI Shiv Narain stated that SDM concerned has come to the hospital after receiving the said information on the same day. The police official and Executive Magistrate could not be recorded statement of the deceased as she was declared unfit for statement and on the next day i.e. on 14.7.2009 S.C. No. 197/1/09 Page47/69 deceased could not survive and she was declared dead by the doctor. Nobody from the side of accused persons appeared in the Satyabhama Hospital or in Sanjay Gandhi Hospital. Therefore , in these circumstances the dead body was being received by father and brother of the deceased and cremated at Gurgoan. There is no explanation made by the accused persons that why they were not present in the Satyabhama Hospital or in Sanjay Gandhi Hospital to attend the patient and at the time of conducting the postmortem and cremation of the deceased nor any effort made to claim the dead body and from the circumstances and deposition made by the prosecution witnesses it is matter of proof that the deceased death of not an accidental death. This plea of the accused persons is falsify by their own conduct, as there is no complaint has ever been lodged by the accused persons against the complainant and his family member, even the presence of PW4 and PW13 was admitted on 13.7.2009 by the accused persons in the bail application. The testimony of PW4, PW6 and PW13 make it clear that the behaviour of the in law's of the deceased was not good at all and no cardinal affairs towards the deceased and in the circumstance the deceased Pavita has decided to put an end to her life by committing suicide in normal course. It is also revealed from the admission of the accused in their bail application that S.C. No. 197/1/09 Page48/69 there was harassment or cruelty upon the deceased for one reason or the other either for unlawful demands and having extra marital affairs of accused Varun Yadav with PW22 Neetu which draw adverse inference against the accused persons.
As per section 498A " whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purpose of this section " cruelty" means:-
(a) any willful 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.
The deceased was subjected to harassment or cruelty by her husband and inlaws for one reason or for the other. The deceased after S.C. No. 197/1/09 Page49/69 more then four years of marriage have been blessed with male child even though the deceased was forced to leave matrimonial house time and again to time and could not live in her matrimonial house as she was under immense mental strain and not happily, even not please with behaviour and attitude of her in law's. On 13.7.2009 on account of some overt act direct communicated her and atrocities committed upon her by her in laws which perceived as an affront to her dignity. The deceased frequently visited to her parents and also make telephonic call even though soon before her death i.e. on 5.7.2009,11.7.2009 and 12.7.2009 and even on 13.7.2009. The accused persons did not came forward to save her life, neither deposit the medical expenses nor claiming he dead body or attend the last rites ceremonies of deceased Pavita.
As regarding to the improvement and the contradiction as pointed out by Ld. Defence counsel in the testimony of the father (PW4 Virender Singh) of the deceased regarding physical and mental cruelty meted out to his daughter get corroboration from the testimony of PW6 Anita his daughter in law, PW13 Vipin Yadav his son. The post mortem report Ex. PW14/A and the FSL report Ex. PW25/B also have a direct nexus with the death of deceased.
The circumstances and the motive sought to be relied is also being S.C. No. 197/1/09 Page50/69 formally established by the ocular evidence of PW4, PW6 and PW13 as well as the scientific evidence. The evidence tendered in the court of law by the prosecution is direct and circumstantial evidence on account of the facts in issue are relevant grounds from which , one can by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum which brought the guilt towards accused persons.
The contradiction and improvement made in the statement of PW4, PW6 and PW13 are natural and bound to be occurred since these witnesses are kith and kin of deceased Pavita and at the time of recording their statement by Ld. SDM they were under the agony and deep trauma as they came after cremation of deceased Pavita. The main focus of the parent's of the deceased are that as to how life of the Pavita is to be saved and the matrimonial life of Pavita should not be disturbed. As such due to the nervous shock or gloomy the deposition in the manner as deposed before the court has not been recorded by Ld. SDM. The deceased was died on 14.7.2009 in the evening at 5.50 pm. The complaint was made on 15.7.2009 by PW13 Vipin Yadav brother of deceased, as such the natural and significance flow at the stage since all family members are being under deep depression and trauma and suffering mental pain, agony and there is no such delay for lodging the FIR. Soon after death S.C. No. 197/1/09 Page51/69 of deceased the FIR was lodged, during 13 and 14 July 2009 the period when the deceased was admitted in hospital and under treatment in the Satyabhama hospital, the complaint was not lodged with the object to save the life and matrimonial relation of the deceased Pavita.
In case titled as Ravinder Kumar Vs. State of Punjab, 2001 VII AD (SC) 2009 wherein it was observed that " the law has not fixed any time limit for lodging FIR and delayed FIR is not illegal. Though prompt lodging of FIR is ideal, that by itself does not guarantee the genuineness of the version given in it. Whenever there is delay reasons, if any. But, delay by itself cannot be the sole ground to doubt and discard the entire case of the prosecution though it does put the court, on guard, to look for explanation, if any."
Yet another circumstances alleged by the prosecution against the accused persons are that deceased has made a verbal dying declaration to Virender Singh, her father and Vipin Yadav, her brother who stated that when they had gone to inlaws house to fetch their mobile , saw his daughter Pavita lying on the floor and was vomiting and she signaled toward the accused persons that they have given this thing ( Inhone Muje Ye De Diya). On the contrary to it PW1 Dr. Manisha stated that that S.C. No. 197/1/09 Page52/69 patient has told to her that she has mistakenly consumed the poison and requested to save her life. PW21 ASI shiv Narain stated that the PW4 Virender did not complaint to him and stated that it is their internal family matter and do not want to take any action. PW2 Dr. Ashish Rattan Pal has stated that Pavita was unfit to give statement at 12.30 pm and could opined to this effect on MLC Ex. PW2/A. He further stated that the patient was conscious, irritable and disoriented. PW1 Dr. Manisha has not given any treatment to the deceased nor witness of the MLC Ex. PW2/A. PW4 and PW13 are the close relatives of the deceased. The quality of evidence lead to establish oral dying declaration was sufficient to record the conviction but the same cannot be used as substantive piece of evidence.
In case titled as Sunder Singh Vs. State of Punjab AIR 1962 SC 1211, it has been observed that " After considering the evidence led by the prosecution to prove oral dying declaration of the deceased, the High Court has come to the conclusion that the oral dying declaration is not reliable. On the facts and circumstances of the case, court also proposes to consider the evidence led by the prosecution witnesses for the purpose of satisfying whether the deceased had made oral dying S.C. No. 197/1/09 Page53/69 declaration before her close relatives and others." The evidence of those witnesses would indicate that the deceased had stated before them that she was administered poison. However, from the deposition of PW4 who stated that "when they went to matrimonial house of his daughter, they found that his sister lying on the floor in bitter pain and around her, her father in law, mother in law, husband Varun and Dever Monu were standing. On seeing them, Varun and Monu ran away........" PW13 Vipin Yadav stated that " When they traveled about 2 km. From the house of Sajjan Lal his father remembered that he has left his mobile phone in the house of Sajjan Lal. They returned back to the house of Sajjan Lal to take the mobile phone. On reaching the house of Sajjan Lal, he saw Pavita @ Gudiya lying on the floor and she was vomiting. Surrounding Pavita accused Sajjan Lal, his wife Sharda, his son Varun and his other son Arun @ Monu were standing......" The testimony of PW4 Virender KUmar and PW13 Vipin Yadav shows that they have made enquired with the injured Pavita as to what happened where upon the Pavita told by signaling towards the pouch that they had given this to her. Both the witnesses has stated that all the accused persons, including Sharda mother in law of the S.C. No. 197/1/09 Page54/69 deceased was present but the gesture as given by deceased Pavita has nowhere indicated that who individually has administered the poison to her, out of the person who present in the house. All jointly cannot give poison to the Pavita, one must have a specific role in the commission of the act but no role has been assigned to any individual. Pavita injured admitted in the hospital by PW4 & PW13 and Dr. Manisha PW1 has not prepared the MLC nor made any endorsement therefore, her testimony which is contradict to the deposition of PW4 Virender Singh, PW6 Anita and PW13 Vipin Yadav cannot be inspired confidence. The initial IO PW21 ASI Shiv Narain and PW7 B.P. Mishra, Ld. SDM has made effort to record the statement of the deceased Pavita after due consultation with the doctor, patient Pavita was being declared unfit for statement till she was survived. As such her statement could not be recorded.
Having notice to the requirement of the law that the death under section 304 B IPC as also presumption under section 113B of the Evidence Act the prosecution has to establish by cogent evidence that the death in the case had occurred within 7 years of marriage subject to cruelty or harassment of in laws, raise the presumption that suicide has been abetted, wherein, criminal trial of accused husband .... The only S.C. No. 197/1/09 Page55/69 presumption can be raised contrary to it when the specific allegations of cruelty and demand of dowry from the side of the in law. The parameters of 'abetment' have been stated in section 107. Section 107 says that a person abets the doing of a thing, who instigated any person to do that things or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy or the person should have intentionally aided any act or illegal omission.
In order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. The word "instigate" used in section 107 IPC, cannot be restricted to use of actual words. It has to be given wider meaning commensurate with common experience of life. When evidence showed that the accused prior to the incident threatened her, forced her to divorce and treated her with cruelty, inference can be drawn from such acts that such cruel conduct of the accused( husband) led the wife and provoked her to commit suicide. So he is guilty of abetment of suicide. Similar view was observed in case titled as Ram Kumar Vs State of Madhya Pradesh 1998 Cr LJ 952 (MP).
The act or conduct of the accused, however insulting and abusive S.C. No. 197/1/09 Page56/69 those may be, will not by themselves be sufficient to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts consequence of suicide. Even if the words uttered by the accused or his conduct in public are sufficient to demean or humiliate the deceased and even to drive her to commit suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused intended by his acts, consequence of a suicide. It is not enough if the acts of the accused caused persuasion in the mind of the deceased to commit suicide. It is not what the deceased 'felt' but what the accused 'intended' by his act which is more important in this context. Of course, the deceased frail psychology which forced her to the suicide also may become relevant, but it is only after establishing the requisite intention of the accused.
Before invoking the provisions of section 306, it is necessary to establish that the deceased has been subjected to cruelty within the meaning of section 498A IPC. Only in the event those facts are established, a presumption in terms of section 113A of the Evidence Act could be raised. It is immaterial for section 306 whether the cruelty or harassment was caused 'soon before her death' or earlier. If it was caused 'soon before her death' the special provision in section 304 B would be S.C. No. 197/1/09 Page57/69 invocable, otherwise resort can be made to section 306 IPC.
The ingredients for abetment for suicide would be satisfied only if the suicide is committed by the deceased due to direct and alarming encouragement/incitement by the accused leaving no option but to commit suicide. Further, as the action of committing suicide is also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories, one normally, where the deceased is having sentimental tie or physical relations with the accused and the second category where the deceased is having relations with the accused in official capacity. In case of second category, the strict interpretation is called for. If on account of any abnormal reaction of an employer, the employee commits suicide, it cannot be said as abetment of incitement to commit suicide unless there is a direct action by the accused leaving no option but to commit suicide.
The mere fact that woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was S.C. No. 197/1/09 Page58/69 of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. Similar view also taken in case titled as Hans Raj AIR 2004 SC 2790, 2004 Cri LJ 1759 (SC).
In case titled as Nirmala Devi 1983 Cri LJ (NOC) 230 (P&H) wherein it was observed that where the dying declaration categorically stated that the accused maltreated her and taunted her for bringing insufficient dowry owing to which she took the extreme step of burning herself, the conviction was upheld. The earlier positive suggestion by the husband to his wife to commit suicide and later the negative attitude adopted by him is not dissuading her to go ahead with his earlier suggestions to put herself to fire would bring the accused within the mischief of section 306 IPC.
In case titled as State Vs Siddaraju 2000 Cri LJ 4220 (Kar) it was observed that the wife committed suicide shortly after her husband contracted second marriage within two years of earlier marriage. First wife, deceased, was being ill-treated by her husband and his second wife was not even given food. The court convicted the husband for the offence under sections 306 and 498A, holding that the evidence conclusively established a direct nexus between the cruelty and the suicide. S.C. No. 197/1/09 Page59/69
It was held in Catina of judgment of Apex Court that such a test is in appropriate circumstances always called for, it also to be kept in mind that a test of proximity cannot be reduced to a cut and dried formula. From the statement of the witnesses, it was apparent that some cruelty in whatever manner was perpetrated upon the deceased on account of non- payment of a part of the dowry and once it was held that cruelty in any form was present from the accused before the suicide by the deceased within a period seven years from the date of her marriage, section 113A of the Evidence Act shifts the burden on the accused to rebut the presumption that the suicide has been abetted by her husband or his relatives.
In order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. The word "instigate" used in section 107 IPC, cannot be restricted to use of actual words. It has to be given wider meaning commensurate with common experience of life. When evidence showed that the accused prior to the incident threatened her, forced her to divorce and treated her with cruelty, inference can be drawn from such acts that such cruel conduct of the accused led the wife and provoked her to commit suicide. So he is guilty of abetment of suicide. Similar view was observed in case titled as Ram S.C. No. 197/1/09 Page60/69 Kumar Vs State of Madhya Pradesh 1998 Cr LJ 952 (MP).
Under section 106 of the Evidence Act provided the burden of proof facts within the knowledge on any person, to the burden of proving that fact is upon him. But the accused persons have not proved that facts as alleged to have been demanded money by the complainant. The prosecution has to proceed on the fact that there were eye witness and substantial evidence to the fact of the murder/abetment of suicide. The prosecution evidence put forth against the accused and that what transpires after the victim was being directed to assault was within the knowledge of the witnesses and succeeded in proving the facts. so it was established fact that deceased Pavita was subjected to cruelty and harassment by the accused Varun Yadav. In such circumstances, the plea of counter allegation against the witness does not fall back on the rule of burden of proof u/s 106 of Evidence Act. Generally the burden of proof, allegation against the accused persons were lying on the prosecution. Section 106 of Evidence Act rely in exceptional cases and from limited extent. There is no question of shifting the onus of proof but the aid of section 106 of the Evidence Act can be taken when the prosecution as led the evidence which if placed with the suspicious conditions or make doubt prima facie case if there is certain facts within the knowledge of S.C. No. 197/1/09 Page61/69 the accused it was then to prove, in support of their evidence and otherwise court would justify to reached at the natural conclusion from the evidence produced by the prosecution. As observed in case titled as AIR 1973 Ajmer 17 (18).
The abetment of suicide is confined to the case of persons who aid and abet the commission of suicide by the hand of the person himself who commits the suicide. When another person, at the request of, or with the consent of, the suicide, had killed that person, he is guilty of homicide by consent, which is one of the forms of culpable homicide. The parameters of 'abetment' have been stated in section 107. Section 107 says that a person abets the doing of a thing, who instigated any person to do that thing or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy or the person should have intentionally aided any act or illegal omission. The explanation to section 107 says that any willful misrepresentation or willful concealment of a material fact which he is bound to disclose, may also come within the contours of 'abetment'.
Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. More active role S.C. No. 197/1/09 Page62/69 which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under section 306 IPC.
Before invoking the provisions of section 306, it is necessary to establish that the deceased has been subjected to cruelty within the meaning of section 498A IPC. Only in the event those facts are established, a presumption in terms of section 113A of the Evidence Act could be raised. It is immaterial for section 306 whether the cruelty or harassment was caused 'soon before her death' or earlier. If it was caused 'soon after her death' the special provision in section 304 B would be invocable, otherwise resort can be made to section 306 IPC. This view has been taken in case titled as Harjit Singh (2006) 1 SCC 463; Satvir Singh (2001) 8 SCC 633.
Ordinarily, offences against married women have been committed within the four corners of a house and normally direct evidence regarding cruelty or harassment on the woman by her husband or relatives of the husband is not available. Hence, while deciding as to whether a woman was harassed or ill -treated by her husband or his relatives, various factors and circumstances can be considered by the court, such as dying declaration of the woman, if any, extra judicial confession by the S.C. No. 197/1/09 Page63/69 accused, injuries or burns, if any, on the person of the woman, motive place, time, demand, if any of dowry, physical or mental cruelty shown towards wife, conduct of the husband and also the conduct of th relatives of the husband etc. In a case titled as Gurbachan Singh AIR 1990 SC 209 it was observed that " In case of dowry death, husband was convicted of the offence under section 498A, on the basis of testimony of PW7, who deposed that the deceased had told her that her husband demanded a scooter and scolded deceased for not bringing a cot as dowry and had also shown her the injuries and complained that the accused husband had inflicted the injuries on her failure to bring the scooter. The conviction was held proper".
Therefore, in view of the aforesaid discussion and circumstances which revealed that when deceased Pavita was brought in the hospital she was disoriented, pulses were weak, conscious, irritable and unfit for giving statement, her vital parameters were not normal. The accused persons were attended the functions for opening an Educational Office by PW13 Vipin Yadav under the name and style of " Radha Krishan Group of Education " at Gurgaon on 12.7.2009 at the residence of PW4 Virender Singh. This fact has also been corroborated by PW4 Virender S.C. No. 197/1/09 Page64/69 Singh, PW6 Anita Yadav and PW10 Rakesh Yadav and PW13 Vipin Yadav and admitted in the bail application of the accused persons, it is admitted that the said function was attended by Sajjan Lal, Rakesh ( brother in law) and other relatives. PW12 Subhash also admitted that the Sajjan Lal and his brother in law Rakesh has gone to attend the function on 12.7.2009 at the house of his Samdhi Virender Singh and on 13.7.2009, PW4 Virender Singh, PW13 Vipin Yadav and deceased Pavita had come to the house of the accused persons and they had talked about the matrimonial dispute with regard to relationship of accused Varun Yadav with Neetu and tried to console to the complaint of Pavita and this fact also admitted in bail application and proved in deposition of PW4, PW6 and PW13 specifically. At around 10.15 am some talks were going about Neetu. Pavita was having doubt regarding having some affairs with Neetu with her husband i.e. accused Varun Yadav. During the talk Pavita was in angry mood left and went to the first floor and consume poison. This fact also proved by the ocular evidence and admission of the accused persons in bail application dated 15.2.10. Now defence case change his defence. Pavita has consumed the Celphos, which established that the deceased Pavita has been abetted due to extra marital affair and family dispute as has been creation of accused Varun S.C. No. 197/1/09 Page65/69 Yadav and Sajjan Lal.
As regarding to the accused Arun @ Monu the prosecution has relied upon certain documents like time sheet, attendance register which has been seized vide memo Ex. PW11/A shows that the accused Arun @ Monu working as Chief Editor from August 2008 to till date, at Meerut in the press of PW Subhash Yadav. It is matter of record that the PW Subhash Yadav, Editor of 'Bajor' News Magazine is real Mama of the accused Varun and Arun and he himself has produced the attendance register and the time sheet which shows the attendance of the accused Arun at 59/16, Pragati Nagar, Meerut, U.P from August 2008 to till date. The said document placed and proved in the deposition of prosecution witnesses during trial and same is taken in account and considered for the purpose of just decision of case.
It is misfortune on the part of the prosecution that they have been assigned an incompetent investigation which either deliberately placed on record the said documents as well as also cited few witnesses who are kith and kins of the accused persons. No doubt the atrocities, harassment and cruelty can be caused individually or by the other mode of communication but for the purpose of cruelty and harassment as per the provision of section 498A there are direct, trustworthy, reliance and S.C. No. 197/1/09 Page66/69 ocular evidence on record. The harassment for the purpose of household work. The conduct and the untoward behaviour of the accused Varun Yadav even though using abusive language publicly are sufficient to humiliate and drive her to commit suicide. Therefore, from the facts and circumstances and the ocular trustworthy testimony of the prosecution witnesses prove that the accused Varun Yadav instigated and created such circumstances which drive the deceased Pavita to end her life as she was under deep depression, disheartened and gloomy. The death of deceased Pavita by abetment by her husband Varun Yadav is within the parameters of section 113 B of the Indian Evidence Act and lead the conviction for offence u/s 306/498A IPC. Accordingly accused Varun Yadav is convicted for offence punishable u/s 306/498A IPC.
So far as accused Sajjan Lal, he is also head of the family. He has to control and supervised all the affairs of the family and any atrocities/injuries with some family member. The testimony of the PW4 Virender Singh, PW6 Smt. Anita and PW13 Vipin Yadav are ocular and trustworthy to bring home the guilt of the accused Sajjan Lal for offence u/s 498A within explanation (i). The testimony of PW4 Virender Singh, PW6 Smt. Anita and PW13 Vipin Yadav cannot be disbelieved as all have deposed and made allegation of cruelty and harassment not only S.C. No. 197/1/09 Page67/69 against the accused Varun Yadav but also against the accused Sajjan Lal also. The prosecution has brought quality of evidence in examination of aforesaid three material witnesses who proved the ingredients of the offence punishable u/s 498A against the accused Varun Yadav and Sajjan Lal. Therefore, accused Sajjan Lal is also convicted for offence punishable u/s 498A IPC.
So far as with respect to the accused Arun @ Monu, I do not find any direct, indirect or circumstantial evidence against him. He has not been named individually and assigned any specific role, which is of such nature as likely to drive deceased Pavita for harassment or cruelty or to abet her for the commission of crime. There are enough documents relied upon by the prosecution through PW Subhash Yadav shows presence of Arun @ Monu at Meerut UP from August 2008 to till the date of commission of offence. Therefore, prosecution unable to prove charges against the accused Arun @ Monu. Therefore, accused Arun @ Monu S/o Sajjan Lal is acquitted.
Therefore, in view of the aforesaid discussion and circumstances of the case the prosecution is able to prove its case against the accused Varun Yadav for offence punishable u/s 306/498A IPC and against the S.C. No. 197/1/09 Page68/69 accused Sajjan Lal for offence punishable u/s 498A. Accordingly accused Varun Yadav S/o Sajjan Lal Yadav is hereby convicted for offence punishable u/s 306/498A IPC and accused Sajjan Lal S/o Late Sh. Gangadan Yadav is hereby convicted for offence punishable u/s 498A IPC.
ANNOUNCED IN THE OPEN COURT TODAY ON 12.08.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No. 197/1/09 Page69/69