Delhi District Court
Fir No. 345/12 State vs . Virender 1 Of 201 on 20 February, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI. SC No. 44690/15 FIR No. 345/12 PS : Karawal Nagar U/s. 302/304B/498A IPC State Versus Virender S/o Sh. Vikram Singh R/o B-15, Gali No. 8/2, Panchal Vihar, Karawal Nagar, Delhi. Date of Committal : 04.01.2013 Date of Arguments : 20.02.2017 Date of Pronouncement : 20.02.2017 JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 15.09.2012, a DD no. 19B was lodged by Ct. Sanjeev via telephone with PS Karawal Nagar regarding cylinder blast in Street no 2, opposite Ambedkar Gate, Shiv Vihar, Delhi, which was assigned to SI Shri Charan. Thereafter, investigation was assigned to Insp. who FIR No. 345/12 State Vs. Virender 1 of 201 along with staff reached the spot of incident where he came to know that the injured had been removed to GTB Hospital. At GTB Hospital, IO collected MLC of injured Preety who was hospitalized. IO informed the Ld. SDM / Executive Magistrate concerned who recorded the statement of injured Preety that she was cooking food in kitchen on gas stove and one kerosene bottle put on a slab fell down on her when she was putting off the utensils from the slab and spread over her clothes and caught fire from gas stove. It is further narrated that she ran outside of kitchen to save herself and her husband also tried to save him and during this process his hands also burnt. It is further stated she caught fire by accident and no one was responsible for it. Initially, family members had also not shown their suspicion on anyone, but during the treatment injured Preety died on 19/09/2012 and intimation was flashed to PS vide DD No. 31A. On 20/09/2012, postmortem was conducted on the dead body of the deceased on completing the formalities by the Ld. Executive Magistrate and dead body was released to the LRs after postmortem.
1.1. On 20/09/2012, complainant Jitender Kumar Panchal made a complaint with SDM / EM concerned that earlier her daughter made a statement under the influence of her in-laws that no one was responsible for her death, but later on she disclosed him that deceased was subjected to cruelty for dowry demands by her in-laws FIR No. 345/12 State Vs. Virender 2 of 201 and even on the day of incident her husband had quarreled with her as she wanted to make a call to them, but accused poured kerosene oil on her and sat her on fire. On the basis of this statement, FIR under section 304B/498A IPC was lodged against the accused. IO seized the exhibits from the spot and arrested the accused in this case. Accused has been charge sheeted.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. This court has framed charges against accused u/s 304B/498A IPC and an alternative charge under Section 302 IPC on 30.01.2013. Accused pleaded not guilty and claimed trial.
4. To prove the allegations, prosecution has examined PW1 Jitender Panchal, PW2 HC Shailender Singh, PW3 HC Chander Bhan, PW4 Akash Panchal, PW5 Bhupender, PW6 HC Narender, PW7 Ct. Narender Kumar, PW8 Ct. Manjeet Singh, PW9 Smt. Kusum, PW10 Ct. Sanjay Kumar, PW11 HC Mahesh, PW12 W/HC Deval, PW13 Ct. Mahesh Yadav, PW14 Ct. Sanjeev Negi, PW15 Sh. V.P. Singh, the then Executive Magistrate, PW16 Madan Pal, PW17 Dr. Abhishek Kumar, PW18 SI U. Balashakaram, PW19 Dr. Parmeshwar Ram, PW20 Dr. Priyal Jain, PW21 Insp. Lekh Raj, PW22 SI Shri Chand and closed PE.
FIR No. 345/12 State Vs. Virender 3 of 201
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C. and his statement was recorded. Accused has not preferred to lead defense evidence and closed DE.
6. I have heard the arguments of both the parties and perused the record. As per the allegations of prosecution, accused caused cruelty towards deceased Preety and committed her murder thereby setting her ablaze after pouring kerosene oil. To prove these allegations, prosecution has examined the family members of the deceased and they have deposed in terms of their previous statements given to police. Since the case is pertaining to dowry death after causing cruelty to the deceased, accordingly, a presumption of dowry death u/s 113B of Indian Evidence Act is against the accused which is to be rebutted by accused during trial, subject to certain criteria has laid down by the law and various courts regarding it.
6.1. The Hon'ble Supreme Court of India in 2015(2) JCC 1385 titled Major Singh & Anr. V. State of Punjab has laid down certain criteria to sustain conviction under section 304B IPC. The following essential ingredients are to be satisfied:-
(i) The death of a woman should be caused by the burns or bodily injury or otherwise than under 'normal circumstances';
FIR No. 345/12 State Vs. Virender 4 of 201
(ii) Such a death should have occurred within seven years
of her marriage;
(iii) She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband;
(iv) Such cruelty or harassment should be for or in
connection with demand of dowry and;
(v) Such cruelty or harassment is shown to have been
meted out to the woman soon before her death.
6.2. The Hon'ble Supreme Court of India has further laid down a proximity test between the dowry demands and death to determine dowry death as held in Hira Lal & Ors V. State (Govt. of NCT) Delhi, 2003 (2) JCC 1182. The determination of the period which can come within the term "soon before death" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before"
would normally imply that the interval should not be much between the cruelty or harassment concerned and death in question. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concern, it would be of no consequences. As such, all these ingredients are to be satisfied by the prosecution to secure the conviction under section 304B IPC.
FIR No. 345/12 State Vs. Virender 5 of 201
7. Now it is to be seen as to whether prosecution has proved this case on the criteria laid down by the Hon'ble Supreme Court of India in Major Singh & Anr. V. State of Punjab or not.
UNDER SECTION 498A r/w 304B IPC
7.1 (i) The death of a woman should be caused by the burns or bodily injury or otherwise than under 'normal circumstances'. It is first criteria to be satisfied by the prosecution to raise a presumption under Section 113B of Indian Evidence Act to convict accused under Section 498A read with Section 304B IPC. In the present case, the death of deceased Preety occurred by setting her ablaze by pouring kerosene oil on her. This allegation has been leveled by the complainant to that the accused used to harass deceased to bring more dowry demand from her family members and in failure to meet out those demands, she was killed.
7.2. Deceased Preety was married with accused on 04.07.2010 and died on 19.09.2012 under the circumstances otherwise than normal. PW1 Jitender Panchal has also deposed that deceased got married with the accused according to Hindu Rites and Customs and engagement ceremony took place 8 days prior to the marriage and one motorcycle demanded by accused which was given in the engagement. It is further deposed that on 15/09/2012 at about 11:30 am, brother in law of deceased informed him by telephonically that FIR No. 345/12 State Vs. Virender 6 of 201 deceased had burnt, but, on the way he was informed that deceased hospitalized in GTB Hospital. It is further deposed that his relatives asked him to go to the house of the deceased to visit the spot of incident and then he realized that the incident disclosed to him was entirely different to the actual facts. It is further deposed that on 17/9/2012, his sister-in-law and mother-in-law disclosed that the deceased was washing clothes at the time of incident when she was set on fire. PW4 Aakash Panchal has also corroborated to PW1 that he heard the conversation of his parents that deceased was subjected to cruelty on account of demand of motorcycle. Contrary to it, PW5 Bhupender has deposed that accused came to him on the day of incident to inform police and ambulance and his hands were burnt. It is further deposed that he informed the ambulance and thereafter deceased was removed to hospital by the accused through van belonging to his companion. However, PW9 Kusum has deposed that deceased was subjected to the cruelty for dowry demands and she was killed by accused in failure to meet out these demands. It is further deposed that deceased informed her about this fact. PW15, Executive Magistrate, Sh. V. P. Singh has also corroborated both facts that earlier deceased made a statement that she was burnt accidently and thereafter complaint made a complaint against the accused thereby alleging the cruelty and also that the deceased was killed consequent to it. As such, the first criteria stands satisfied that deceased died under abnormal circumstances.
FIR No. 345/12 State Vs. Virender 7 of 201 7.3. (ii) Such a death should have occurred within seven years of her marriage. This criteria is also satisfied as the deceased got married on 04.07.2010 and died on 19.09.2012 which is within the period of 7 years of her marriage and this criteria also stands proved.
8. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. This criteria is to be satisfied by the prosecution. To prove the allegations, the testimony of PW1 Jitender Kumar is material. PW1 has given his written complaint Ex.PW1/D before the Ld. SDM/EM. As per this complaint, he alleged that on 15/09/2012, he was informed by the brother-in-law and sister-in-law of the deceased about the incident at about 11:30 am whereas the incident took place at about 9:00 am, they have got recorded the statement of the deceased in their favor after taking her into confidence before his reaching to hospital. It is further deposed that on 17/9/2012 deceased disclosed to him on his insistence that on the intervening night on 14-15/09/2012, her husband had a quarrel with her and taunted that she belonged to a poor family and had no relations with him. It is further stated that accused also assaulted her as she wanted to make to her parents and snatched her mobile and smashed. It is further disclosed him that accused poured kerosene oil on her by bottled and set her on fire and accused also did not try to save her. However, this complaint FIR No. 345/12 State Vs. Virender 8 of 201 Ex.PW1/D has no allegation of dowry demands ever raised by the accused or family members. Similar allegations have been reaffirmed by the PW1 before this court as well, but again his all dowry related demands are pertaining to prior to marriage. Rather there is no specific allegation pertaining to dowry demands soon before the death of the deceased.
8.1. PW4 Akash Panchal has also corroborated the facts that he heard from his parents that accused had demanded one motorcycle make pulsar or Apachi from them as accused was not satisfied by the motorcycle given at the time of marriage, but he was not aware as to when he heard this conversation between his parents and was also not aware as to who used to harass the deceased. PW9 Kusum has also deposed the similar facts as deposed by PW1 Jitender that a number of dowry articles were given in the marriage of the deceased with the accused but accused and his family was not satisfied. It is further deposed that the deceased used to tell her that accused, her brother-in-law and sister-in-law used to harass her for more dowry demands and even she paid Rs. 20,000/- to deceased to pay to accused after borrowing it from her brother. It is further deposed that about 15 days prior to the date of incident, she along with her son / PW4 went to the house of deceased, but brother of accused and her wife did not allow them to meet accused thereby making the deceased busy in repeated household works. Thereafter, FIR No. 345/12 State Vs. Virender 9 of 201 accused raised a dowry demand of Rs. 1,00,000/-. It is further deposed that deceased also informed her many times that she was subjected to cruelty by the accused and his family members. However, this abovesaid testimony is contradictory to her own earlier testimony where he deposed that deceased was subjected to cruelty for a dowry demand of Rs. 50,000/- and one motorcycle and it is a material contradiction in her testimony. Contrary to it, she has admitted during cross examination that the deceased and accused had been residing in a tenanted premises and she never visited that tenanted premises and only her son i.e. Akash Panchal visited there, whereas PW4 was not aware about this fact. As such, this fact could not be proved beyond doubt that any such demand was ever raised or meet out by the family members of the deceased. The source of information of PW1 to make allegations was PW4 and PW9, but they have not supported the allegations of the PW1 and no direct demand was ever made by the accused from him directly.
8.3. Further, PW15, the then Ld. SDM / E.M. has deposed the contrary facts to the testimonies of family members of deceased thereby deposing that on 15/9/2012, he was informed by the SHO concerned about the incident that one lady had sustained burn injuries. He visited GTB Hospital and met injured Preety and recorded his statement Ex.PW15/A in verbatim as deposed and she was able to speak. It is further deposed that he also read over the FIR No. 345/12 State Vs. Virender 10 of 201 statement to the deceased and thereafter obtained his thumb impressions at point A. He attested the statement at point X and directed to SHO concerned to take action as per law vide his endorsement Ex.PW15/B. He also recorded the statement of complainant who is PW1 which is Ex.PW15/C and also read over the statement to him and accepted correct. Perusal of the statement of the deceased which is Ex.PW15/A has proved that deceased was very well in her senses after the incident and made her statement thereby exonerating her husband and all others and termed the incident as accident. Rather deceased narrated the entire incident properly and also disclosed that accused tried to save her and his hands also burnt during this process. This statement has been duly corroborated by the testimony of PW5 Bhupender that accused approached to him to inform PCR and ambulance and his hands were burnt. PW16 Madan Pal, who is the landlord of the premises where incident took place, has also deposed that accused sustained such burn injuries during incident. MLC of the accused which is Ex.PW19/B has also proved this fact that the accused not only tried to save the deceased but also sustained burn injuries during this attempt and it falsify the allegations of the complainant that accused neither tried to save the deceased after setting her ablaze not visited hospital to meet her after the incident.
FIR No. 345/12 State Vs. Virender 11 of 201 8.4. Contrary to the allegations of the prosecution, PW15 has admitted that the father of the deceased was not present at the hospital at the time of recording the statement of the deceased and this fact has been duly corroborated by PW1 that he reached at the hospital after a lot of delay. Similarly, the statement of PW1 recorded by the PW15 which is Ex.PW1/A has only pointed out a doubt about the incident and concluded the statement thereby asserting that incident might be result of a quarrel between the deceased and accused and entire complaint is silent about the dowry demands soon before the death of the deceased. In fact, the subsequent compliant Ex.PW1/D is against the dying declaration of the deceased Ex.PW15/A. As such, there is no reason to disbelieve this dying statement of the deceased and to discard it just because of a compliant made by the complainant which may not be ruled out to be an outcome of the family anger of the deceased after the death of the deceased. The contents of the compliant have no basis as there is no independent witness to these allegations which have been leveled by the complainant. Contrary to it, admittedly, neither the complainant nor any family members ever made any compliant against the accused or family members in past against regarding any cruelty or harassment regarding dowry demands to prove that she was ever subjected to any cruelty or harassment for such dowry demands.
FIR No. 345/12 State Vs. Virender 12 of 201 8.5. The requirement of Section 304B IPC is that the deceased must be subjected to cruelty and harassment soon before her death, but there is no allegation in the all the statements of PWs that deceased was ever subjected to any harassment or cruelty and this requirement could not be satisfied. The statement of PW9 Kusum has a number of improvements emerged during her cross examination which are also fatal to this case. Even the allegations of dowry demand of Rs. 50,000/- or Rs. 1,00,000/- are also found improved and afterthought in the similar manner as complaint Ex.PW1/D made by the complainant. MLC of deceased which is Ex.PW19/A had duly proved that the deceased was fit to make statement as deposed by PW15. Even deceased also gave the alleged history of incident to the doctor who prepared MLC as disclosed in her statement Ex.PW15/A that she sustained burn injuries accidently while cooking. This MLC has also corroborated the dying declaration of the deceased which is Ex.PW15/A. As such, it stands proved that the deceased was not subjected to any cruelty or harassment for dowry demands and the entire story of the prosecution has been concocted after the death of the deceased at the instance of family members.
8.6. As such, after going through the testimonies of all family members, it is revealed that the testimonies of all PWs are persistent that no dowry demand was ever made by accused or his family FIR No. 345/12 State Vs. Virender 13 of 201 members from deceased or family members. Even the dispute between the accused and deceased may be a petty quarrel but not a dowry dispute. In fact, there was no demand of dowry or cruelty in this case against the deceased which was the basic requirement of Section 498A and 304B IPC and prosecution has failed to prove by testimonies of all family members of deceased that deceased was ever subjected to any cruelty or harassment in connection with demand of dowry. This material ingredient could not be proved by the prosecution.
9. (iv) Such cruelty or harassment was for or in connection with any demand for dowry. This ingredient is connected with the ingredient (iii) and I have already observed hereinabove that prosecution has failed to prove that cruelty or harassment was ever caused by accused to deceased in connection with or regarding the dowry demand. As such, there was no dowry demand or cruelty for such dowry demand ever caused by the accused to the deceased at any point of time and PWs have categorically denied this fact. As such, this ingredient also could not be proved.
10. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. This criteria is also not meet out by the prosecution in the absence of any dowry demand at any point of time to prove the offence under Section 304B FIR No. 345/12 State Vs. Virender 14 of 201 IPC.
11. To raise the presumption u/s 113-B of Indian Evidence Act, prosecution was supposed to prove that deceased was subjected to cruelty 'soon before her death' and criteria of 'soon before death' has been laid down in Hira Lal & Ors V. State (Govt of NCT) Delhi, 2003 (2) JCC 1182 that the interval between dowry demand and incident should not be much. As such, the parameters of 'proximity test' between dowry demand and incident of death of deceased to prove the dowry death could not be satisfied in this case. As such, prosecution has failed to prove any of ingredients of dowry demand or dowry death or cruelty to deceased by accused.
12. Medical Evidence and Expert Opinion: Postmortem report of deceased Ex.PW20/A has proved the cause of death as 'Shock as a result of ante mortem infected flame burn involving ninety percent of total body surface area' and report was prepared after postmortem conducted by PW20 after completing the formalities by PW15 vide documents Ex.PW115/E, Ex.PW15/F, mark PW15/1 to PW15/6, Ex.PW11/A to Ex.PW10/E and on identification of dead body vide statements Ex.PW1/B and Ex.PW4/A. It is not disputed that the cause of death of deceased Preety was burn injuries and postmortem report Ex.PW20/A has just corroborated it. FSL report Ex.PW21/D has also proved that the sealed parcels were containing FIR No. 345/12 State Vs. Virender 15 of 201 the residue of kerosene oil and it is not disputed in any manner. The statements of the deceased and family members have also corroborated this fact that she caught fire by falling the kerosene bottle on her and it is not against the accused, accordingly, it could not be proved that the death of deceased was result of cruelty or harassment caused by the accused.
13. Further, the photographs Ex.PW10/A-1 to Ex.PW10/A-15 of which negatives are Ex.PW10/B1 to Ex.PW10/B15 have also failed to prove any incriminating circumstance or adverse evidence to prove the guilt of the accused. PW8 Manjeet Singh has also corroborated the spot of incident as depicted by the photographs. Two sarees were lying in burnt condition at the spot besides blouse and petticoat. One 2 litre bottle containing kerosene oil was also found in the kitchen besides one candle and burnt match sticks which were seized by SI Sri Chand vide seizure memo Ex.PW8/A and Ex.PW8/B. The clothes were maximum burnt and only 8% to 10% were remaining which has also duly proved the extent of the incident. Scene of Crime Report Ex.PW18/A has also failed to point out anything adverse except modus operandi of incident and observation of seized articles as proved by the PW8. It is again not adverse to accused. Rather PW Sri Chand seized these articles on the day of incident i.e. 15/09/2012 whereas he deposited with MHCM on 19/09/2012 as deposed by the PW3 HC Chander Bhan vide entry FIR No. 345/12 State Vs. Virender 16 of 201 Ex.PW3/A and no explanation has been tendered to this delay as to why he kept all these exhibits with him for such a long time of four days. Even the same were sent to FSL on 05/10/2012 which is again delayed without explanation and such delay is also fatal to this case. As such, in view of medical and expert opinion placed on record by the prosecution, it could not be proved that deceased was subjected to any cruelty or harassment which led her to commit suicide on instigation by accused. As such, there is no medical or expert evidence against the accused.
14. Identity of Accused: Identity of accused is not disputed as both parties are relatives and well known to each others. In fact, identity of accused stands established.
15. Arrest of accused: Arrest of accused is not much disputed. Admittedly, the FIR was lodged on the basis of statement of PW1 which is Ex.PW1/D and PW15 directed the SHO concerned after recording the statement vide endorsement Ex.PW15/G and SHO concerned lodged the FIR Ex.PW2/B on the basis of rukka Ex.PW21/A. Accused was arrested vide arrest memo Ex.PW6/A and his personal search was conducted vide memo Ex.PW6/B and arrested was made from his house when the police reached there and family members called him. Disclosure statement of accused which is Ex.PW6/C was recorded. As such, arrest of accused is not FIR No. 345/12 State Vs. Virender 17 of 201 disputed and stands proved.
16. Defense: Accused has taken a defense that he has been falsely implicated. In absence of proving any material on record, it stands proved that the accused did not commit the offence for which he has been discharged.
17. Under Section 302 IPC: An alternative charge u/s 302 IPC has been framed against the accused but prosecution has not collected or proved any such material on record that the death of the deceased Preety was murder and was not an accident. Deceased made a statement before her death duly recorded by the PW15 and this statement Ex.PW15/A has duly proved that it was just an accident while cooking food and not a murder. None of the witnesses has deposed anything to such extent that accused murdered the deceased. MLC and PM report have also not proved the incident as murder. PW5 and PW16 have duly proved that the accused himself sustained burn injuries while saving the deceased during incident and this fact has been duly corroborated by the testimony of deceased as well as MLC of accused Ex.PW19/B. The statement of complainant Ex.PW1/A and complaint Ex.PW1/D have also pointed out only suspicion and testimonies of family members of the deceased have revealed that they were not so prompt to respond the call of brother of accused about the incident. PW1 reached at the FIR No. 345/12 State Vs. Virender 18 of 201 hospital after such a long time as admitted during cross examination. PW9 mother even did not visit the rented accommodation of the deceased yet she deposed about the demand of dowry of Rs. 1,00,000/- whereas no such compliant was ever made against the accused prior to the death of the deceased. The testimony of the brother of the deceased was also based on hearsay and he never come across any such fact which could have proved that he ever witnessed any such incident which may prove that accused committed the murder of the deceased. Investigation has also not proved any such incident that accused is involved any such incident. Rather PW15 Ld. Ex. Magistrate has admitted that prior to the compliant Ex.PW1/D, there no allegation either by the complainant or deceased Preety against the accused in their statements that accused committed any offence. This fact has also been corroborated by IO Insp. Lekh Raj that statement of the deceased was recorded by Ld. SDM on the day of incident. It is also admitted that no allegation was leveled by any one against the accused prior to the compliant made by complainant on 20/9/2012 regarding dowry demands or dowry death and admittedly complaint was made only after the death of the deceased, whereas the family members of the deceased met IO during the period of hospitalization to death. As such, prosecution has failed to prove that accused committed any murder of the deceased and this offence also could not be proved either by direct evidence or circumstantial.
FIR No. 345/12 State Vs. Virender 19 of 201
18. Keeping in view the fact and circumstances of the case, I am of the considered opinion that prosecution has failed to prove the charges against the accused beyond reasonable doubt. In fact, merely on this ground that deceased died within 7 years of marriage, it cannot be a ground to conclude that it was a dowry death. Accused is entitled for a benefit of doubt. I hereby acquit the accused of all charges framed against him. Bail bond cancelled. Surety discharged, subject to furnishing of Bail Bond u/s 437A Cr.P.C. File is consigned to record room.
Announced in open court (Devender Kumar)
today on 20.02.2017 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 345/12 State Vs. Virender 20 of 201