Delhi District Court
State vs . Bijender @ Lalla on 23 March, 2016
FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 226/14 Unique Case ID No. 02404R0143182014 State Vs. Bijender @ Lalla S/o Sh. Mohan Lal R/o C16/7, Shahbad Dairy, Delhi FIR No. : 191/14 Police Station : Shahbad Dairy Under Sections : 304B/498A IPC & 25 Arms Act Date of committal to Sessions Court : 06.10.2015 Date on which judgment was reserved: 23.03.2016 Date on which Judgment pronounced : 23.03.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The law was set into motion on receipt of intimation vide DD no. 16A on 15.02.2014 at about 10.30 am regarding admission of lady namely Ms. Pinki in injured condition by her husband in BSA Hospital vide MLC no. 1912/14. Said DD entry was entrusted to SI Surender Kumar (PW12) for appropriate action.
2. As per case of prosecution, SI Surender Kumar alongwith Ct. Iqbal went to BSA Hospital, where MLC of Pinki, who was declared brought dead by the doctor concerned of BSA Hospital, was collected. State V/s. Bijender @ Lalla ("Acquitted") Page 1 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 Accordingly, SI Surender Kumar got the dead body of deceased Pinki preserved in Mortuary of BSA Hospital and intimated SDM, Narela, regarding the said incident;
3. It is further the case of prosecution that Sh. Satish Kumar (PW1) Tehsildar/Executive Magistrate visited the hospital, recorded statement (ExPW1/A) of Ms. Chanda Devi (PW9) i.e. mother of deceased. In said statement, she claimed that her daughter i.e. deceased Pinki got married with accused four years ago and since after the marriage, accused used to torture Pinki in connection with demand of dowry. She further claimed that she had paid a sum of Rs. 5000/ on one occasion and cash amount of Rs. 3000/ on another occasion to Pinki but despite that, accused used to give beatings to Pinki and used to harass her for bringing more cash amount from her parents. She had also tried to make accused understand but he did not pay any heed and kept on torturing her and ultimately, her daughter Pinki attempted to commit suicide by jumping from roof of the house two years ago and had sustained fracture on her leg. However, accused still did not mend his way and kept on harassing her to bring more cash amount from her parents. She therefore, raised suspicion over the involvement of accused in the death of her daughter;
4. It is further case of prosecution that in view of the said statement, SDM directed SHO to register the FIR in this case, Accordingly, FIR was got registered for the offences punishable U/s State V/s. Bijender @ Lalla ("Acquitted") Page 2 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 498A/304B IPC and investigation was entrusted to Inspector Sanjiv Kumar (PW10);
5. It is further the case of prosecution that during investigation, IO Inspector Sanjeev Kumar prepared rough site plan of the place of occurrence at the instance of Smt. Chanda Devi and seized the relevant exhibits i.e. blood stained bed sheet, broken pieces of bangles lying on bed sheet and also got the scene of crime inspected and photographed by crime officials. Accused was arrested on 15.02.2014 and he got recovered one country made pistol and cartridge from inside his house on 15.02.2014 itself. The relevant proceedings with regard to said arm and ammunitions was carried out and they were seized by IO. Relevant inquest proceedings were carried out by concerned SDM and after getting the postmortem examination on the dead body of deceased conducted from Autopsy Surgeon (PW2), dead body was handed over to the relatives. The relevant exhibits seized by Autopsy Surgeon were also collected by the IO. IO also got collected subsequent opinion with regard to weapon of offence from Autopsy Surgeon and got the relevant exhibits deposited in FSL and also got scaled site plan prepared through draftsman and filed the charge sheet before the Court;
6. It may be noted that further investigation was kept pending in this case and after receipt of Ballistic Result from FSL, Sanction U/s 39 Arms Act was obtained from concerned DCP and supplementary charge sheet was also filed before the Court.
State V/s. Bijender @ Lalla ("Acquitted") Page 3 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016
7. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to this Court.
CHARGES FRAMED AGAINST THE ACCUSED
8. After hearing arguments on the point of charge, this Court framed the charge for the offences punishable U/s 498A/304B IPC and separate charge in respect of offence punishable U/s 25 Arms Act against accused Bijender @ Lalla, vide order dated 16.01.2015, to which he pleaded not guilty and claimed trial.
9. In support of its case, prosecution examined thirteen witnesses namely PW1 Sh. Satish Kumar, PW2 Dr. Mukesh Kumar, PW3 Sh. Ravinder Kumar, PW4 ASI Ram Kumar, PW5 Dr. Kuldeep Singh, PW6 Ct. Ravinder, PW7 HC Suresh Kumar, PW8 Sh. Rahul, PW9 Smt. Chanda Devi, PW10 Inspector Sanjeev Chahar, PW11 Ct. Amar Singh, PW12 SI Surender and PW13 Sh. Chander Shekhar, during trial.
10. Before proceeding further, it is necessary to note that accused made statement during trial on 23.02.2016 that he was not disputing the contents of FSL results dated 17.10.2014 & 20.11.2014 prepared by Dr. Puneet Puri, Sr. Scientific Officer (Ballistic), factum of grant of sanction U/s 39 Arms Act by Ms. Shweta Chauhan, the then Additional DCP, factum regarding seizure and preparation of seizure memo in respect of his hand swab taken by Ct. Sandeep, factum regarding depositing viscera sample in FSL, Rohini by Ct. Nagraj, factum regarding collection of State V/s. Bijender @ Lalla ("Acquitted") Page 4 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 exhibits from Mortuary by SI Ram Kumar, factum regarding preparation of scaled site plan by Draftsman Inspector Mahesh Kumar, factum regarding registration of FIR No. 191/14 by Duty Officer HC Chander Mohan, relied by prosecution in this case and he had no objection in case said documents are read in evidence. In view of said statement, both the FSL results dated 17.10.2014 & 20.11.2014, Sanction U/s 39 Arms Act, Seizure memo of hand swab and sample seal, copy of FIR and scaled site plan were exhibited as Ex.PX1 to Ex.PX6 respectively and the relevant prosecution witnesses namely Dr. Puneet Puri, Ballistic Expert, FSL Rohini, Ct. Sandeep, Ct. Nagraj, SI Ram Kumar, Inspector Mahesh Kumar (Draftsman) and Ms. Shweta Chauhan (the then Additional DCP), were dropped from the list of witnesses on 23.02.2016.
11. Thereafter, statement U/s 313 Cr.P.C. of accused Bijender @ Lalla was recorded, during which all the incriminating evidence were put to him. However, he denied the same and claimed that he is innocent and has been falsely implicated in this case. His defence is of general denial. However, the accused opted not to lead evidence towards his defence.
12. I have heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Counsel Sh. Suraj Prakash Sharma, Adv. on behalf of accused. I have also gone through the material available on record.
13. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies State V/s. Bijender @ Lalla ("Acquitted") Page 5 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
14. PW3 Sh. Ravinder Kumar: He is a formal witness who had identified dead body of deceased Pinki, vide identification statement Ex.PW1/F before Executive Magistrate in BSA Hospital and had also received dead body of deceased Pinki, vide receipt Ex.PW3/A. This witness has not been cross examined by accused despite grant of opportunity.
15. PW8 Sh. Rahul & PW9 Smt. Chanda Devi : They are brother and mother respectively of deceased Pinki. However, they have not supported the case of prosecution on material points. Although, they deposed that Pinki got married with accused about four years prior to her death and was residing in her matrimonial house situated at C16/7, Shahbad Dairy, Delhi and had expired on 15.02.2014 due to gun shot injury in her matrimonial house, but they did not utter anything incriminating against accused with respect to the charge that accused had subjected deceased to cruelty or had harassed her with a view to coerce her or any persons related to her to meet his unlawful demands or that he gave beatings to deceased or that he had subjected deceased to cruelty or harassment in connection with demand of dowry soon before her death. Rather, both these witnesses deposed contrary to the case of prosecution State V/s. Bijender @ Lalla ("Acquitted") Page 6 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 and denied all the relevant suggestions put to them on the lines of prosecution story during their respective cross examination conducted on behalf of State. Both the said witnesses categorically testified that they cannot tell as to how and under what circumstances, Pinki had received gun shot injury. PW8 denied to have made police statement Mark PW8/A before the police during investigation. Although, PW9 admitted her signature appearing on statement Ex.PW1/A recorded by Executive Magistrate but she denied the contents of said statement to be disclosed by her before Executive Magistrate. She claimed that her signatures were obtained by police officials on numbers of blank documents and categorically denied the entire contents appearing in statement Ex.PW1/A during trial.
In her cross examination, PW9 deposed that after marriage of Pinki with accused, she did not acquire knowledge that accused was having any weapon with him. She admitted that Pinki was short tampered even before her marriage with the accused.
POLICE WITNESSES
16. PW4 ASI Ram Kumar: This witness is the Incharge of Mobile Crime Team (Outer District). He deposed that on 15.02.2014, he alongwith other members of Mobile Crime Team had visited the place of occurrence, where he had inspected the said place and got the same photographed through Ct. Ravinder. He proved his report dated State V/s. Bijender @ Lalla ("Acquitted") Page 7 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 15.02.2014 as Ex.PW4/A. He deposed that at the time of his inspection, blood stained bed sheet was lying in the room on first floor and few broken pieces of bangles were also lying over the said bed sheet. He has not been cross examined by accused despite grant of opportunity.
17. PW6 Ct. Ravinder: This witness had accompanied ASI Ram Kumar (PW4), being photographer posted in Mobile Crime Team, to the place of occurrence on 15.02.2014. He deposed that he had taken six photographs of the place of occurrence from different angles. He exhibited negatives thereof as Ex.PW6/A1 to Ex.PW6/A6 and photographs as Ex.PW6/B1 to Ex.PW6/B6. He also deposed that one blood stained bed sheet having broken pieces of bangles were lying in the room situated on first floor of house no. C16/7, Shahbad Dairy, Delhi.
In his cross examination, he could not disclose the name of Finger Print Proficient who had accompanied them to the spot. He also could not disclose the exact size of the room, wherein the aforesaid articles were found lying. He also could not disclose if there was any window in the said room or not. He also could not disclose the colour of broken pieces of bangles. He deposed that scene of crime was not disturbed by him or by any other member of Mobile Crime Team or by local staff of PS Shahbad Dairy in his presence. He denied the relevant suggestions put to him on behalf of accused.
18. PW7 HC Suresh Kumar: This witness was working as Duty Officer in PS S.B Dairy on 15.02.2014. He deposed about the State V/s. Bijender @ Lalla ("Acquitted") Page 8 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 factum of receiving information from Duty Constable of BSA Hospital regarding admission of lady Ms. Pinki in injured and unconscious state by her husband Bijender and she having been declared brought dead. He deposed that said information was recorded by him vide DD no. 16A and contents thereof were telephonically informed to SI Surender Kumar for necessary action. He proved copy of said DD entry as Ex.PW7/A. In his cross examination, he deposed that SI Surender Kumar had left PS S.B Dairy vide DD no. 8A on 15.02.2014 at 8.20 am for attending some other call and that is why, SI Surender Kumar was telephonically informed about the contents.
19. PW10 Inspector Sanjeev Chahar: He is the IO of this case. He has deposed about the investigation carried out by him after registration of FIR till filing of chargesheet. He deposed that he had prepared rough site plan Ex.PW10/A at the instance of Smt. Chanda Devi (mother of deceased) and had lifted blood stained bedsheet and also several pieces of broken bangles from inside the room situated on first floor of the matrimonial house of deceased. After carrying out relevant proceedings including preparation of sealed pullanda, said exhibits were seized vide memos Ex.PW10/B and Ex.PW10/C respectively. He was handed over seizure memo (Ex.PX4) of hand swab of accused and sample seal. He had also arrested accused vide memo Ex.PW10/D and also recorded his disclosure statement Ex.PW10/F. In pursuance of said disclosure statement, accused had got recovered one country made pistol State V/s. Bijender @ Lalla ("Acquitted") Page 9 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 from below the mattress of the bed from room situated on first floor of the matrimonial house on 15.02.2014. He had prepared its sketch Ex.PW10/G and seized the same vide memo Ex.PW10/H after preparing its pullanda sealed with the seal of SKC. On the next day, Autopsy was got conducted on the body of deceased Pinki and dead body was handed over to relatives. Relevant exhibits were got deposited in FSL through Ct. Nagraj on 16.04.2014 and thereafter, scaled site plan (Ex.PX6) was got prepared through Draftsman Inspector Mahesh Kumar on 07.05.2014. On receipt of Ballistic Result, he had obtained sanction U/s 39 Arms Act and had also collected subsequent opinion from Autopsy Surgeon. He identified the said pistol as Ex.P1, cartridge case as Ex.P2, broken pieces of bangles as Ex.P3 (colly.) and blood stained bedsheet as Ex.P4 during trial.
In his cross examination, he admitted that crime team officials had thoroughly inspected the place of occurrence and had also took photographs thereof. No resident agreed to join the investigation despite being requested by him to do so. However, he did not note down their names and addresses and also did not serve any written notices upon them for joining the investigation. He also deposed that none of the neighbourers made any statement before him to the effect that deceased was ever treated with cruelty by accused or that there was any demand of dowry from the side of accused from deceased Pinki.
20. PW11 Ct. Amar Singh: This witness had joined investigation with IO Inspector Sanjeev Chahar. He deposed on similar State V/s. Bijender @ Lalla ("Acquitted") Page 10 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 lines as deposed by PW10 whose testimony has already been discussed hereinabove.
21. PW12 SI Surender: This witness had visited BSA Hospital on 15.02.2014 on receipt of information vide DD No. 16A (Ex.PW12/A). He deposed that Smt. Chanda Devi (mother of deceased) met him in the hospital. He informed Executive Magistrate who also reached in the hospital and recorded the statement made by mother of deceased. He also met accused in the hospital and since concerned Executive Magistrate had made endorsement for taking appropriate legal action, below statement of mother of deceased, he took accused to PS Shahbad Dairy, where FIR was got registered on the direction of concerned IO. Thereafter, he alongwith Ct. Iqbal and accused visited the spot and got the scene of crime inspected and photographed through crime team officials. He also got the accused medically examined from BSA Hospital and seized the pullanda containing hand swab of accused vide memo Ex.PX4.
In his cross examination, he admitted that he himself had not recorded statement of Smt. Chanda Devi in the hospital. He also admitted that he did not stood as witness on the proceedings conducted by Executive Magistrate. Crime team officials had taken complete search of the place of occurrence. However, he denied the suggestion that Smt. Chanda Devi had not made any statement before the Executive Magistrate or that her signatures were obtained on blank papers, which were subsequently converted into her statement (Ex.PW1/A) as per their State V/s. Bijender @ Lalla ("Acquitted") Page 11 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 convenience. He also denied that country made pistol was not got recovered by the accused.
OFFICIAL WITNESS
22. PW1 Sh. Satish Kumar: This witness was posted as Executive Magistrate Narela. He deposed that on receipt of call from SI Surender Kumar of PS S.B. Dairy, he had visited BSA hospital, where he had recorded statement Ex.PW1/A of Smt. Chanda Devi (mother of deceased). Thereafter, he had issued direction to concerned SHO for taking appropriate action. He had also moved application Ex.PW1/B to the Head of Department for getting autopsy on the body of deceased to be conducted by concerned doctor. He had also prepared brief facts Ex. PW1/C. He had also filled up Form No. 25.35(1) (B) Ex. PW1/D. He had also recorded statements Ex. PW1/E and Ex. PW1/F of Smt. Chand Devi and of Sh. Ravinder Kumar respectively with regard to identification of dead body of Pinki.
In his cross examination, he deposed that when he was recording statement of Smt. Chanda Devi, no other person was present there. He had recorded her statement in the Reception of the Mortuary of BSA hospital. He denied the suggestion that he had conducted inquest proceedings in an unfair manner or that no such statement was given to him by mother of the deceased or that he had prepared her statement at the instance of IO of the case.
State V/s. Bijender @ Lalla ("Acquitted") Page 12 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 MEDICAL WITNESSES:
23. PW2 Dr. Mukesh Kumar:This witness had conducted postmortem examination on the dead body of deceased Pinki in BSA hospital Mortuary on 16.02.2014. He proved his report as Ex.PW2/A. He deposed that the cause of death of deceased was due to combined effect of hemorrhagic shock and injury to the abdomen and vertebral column due to gun shot injury.
He further deposed that on 29.08.2014, he had received written request from IO Inspector Sanjeev Kumar for providing subsequent opinion with regard to the weapon of offence. After examining the relevant material, no subsequent opinion could be given by him on account of insufficient information made available to him. He prepared his report Ex.PW2/B. He has not been cross examined by accused despite grant of opportunity.
24. PW5 Dr. Kuldeep Singh: This witness had examined deceased Pinki on 15.02.2014 in BSA Hospital, vide MLC no. 1912/14 Ex.PW5/A. He deposed that Pinki was declared brought dead and her dead body was referred to Forensic Medicine Expert for further management, opinion and sample collection.
In his cross examination, he deposed that he had not collected any exhibit like clothes of deceased. There was no mentioning of any gun shot injury in the MLC Ex. PW5/A. State V/s. Bijender @ Lalla ("Acquitted") Page 13 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 ELECTRONIC EVIDENCE:
25. PW13 Sh. Chander Shekhar: This witness being working as Nodal Officer in Bharti Airtel Limited, produced relevant documents i.e. Customer Application Form (CAF), attested copy of Election I Card, CDRs for the period between 07.02.2014 to 16.02.2014 and Cell ID Location Chart in respect of SIM Connection No. 9650849857. He deposed that said SIM connection was issued in the name of Suraj S/o Sh. Pat Ram, as per CAF. He exhibited photocopy of said CAF as Ex.PW13/A, attested copy of Voter ICard as Ex.PW13/B, CDRs for the aforesaid period as Ex.PW13/C, Certificate U/s 65B of Indian Evidence Act as Ex.PW13/D and Cell ID Location Chart as Ex.PW13/E. He has not been cross examined by accused despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED
26. While opening the arguments, Ld. Additional PP referred to the testimonies of prosecution witnesses examined during trial, in order to bring home his point that the public witnesses who are family members/relatives of deceased Pinki have turned hostile precisely for the reason that they have been won over by accused. He submitted that death of Pinki has taken place within seven years of her marriage with the accused and she has died unnatural death as per autopsy report proved by PW2 Dr. Mukesh Kumar. He therefore, urged that no benefit should be given to the accused.
State V/s. Bijender @ Lalla ("Acquitted") Page 14 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016
27. On the other hand, Ld. defence counsel vehemently argued that the prosecution has miserably failed to establish the charges levelled against accused beyond shadow of doubt as none of the star witnesses relied by prosecution, supported its case during trial. Therefore, accused is entitled to be acquitted in this case.
28. As already discussed above, the accused had been sent to face trial for offences punishable U/s 498A/304B IPC on the allegations that he had harassed deceased and subjected her to cruelty in connection with demand of dowry and deceased was subjected to cruelty by accused soon before her death in connection with demand of dowry. In addition thereto, he has also been charged for the offence punishable U/s 25 Arms Act on the allegations that he got recovered country made pistol from below the mattress of the bed kept inside room of his house on 15.02.2014.
29. The term 'dowry' has not been defined in Section 304B of IPC, but since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of Section 304B IPC as held by Hon'ble Supreme Court in the matter titled as "Satvir Singh Vs. State of Punjab" reported at 2001 (4) Crimes 45.
Section 2 of Dowry Prohibition Act defines dowry as under: "2. Definition of 'dowry': In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly State V/s. Bijender @ Lalla ("Acquitted") Page 15 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016
(a) by one party to a marriage to the other party to the marriage or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (or any time after the marriage) in connection with the marriage of the said parties, but does not include) dower or mehar in the case or persons to whom the Muslim Personal Law (Shariat) applies."
30. A careful analysis of the abovereferred definition would show that dowry would include property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. But, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agreed to give some cash, valuable security or property to her husband or inlaws after marriage, that would also be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry.
31. If the husband or any other person related or connected to him, demands something from the girl or her parents or any other person State V/s. Bijender @ Lalla ("Acquitted") Page 16 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 related to or connected with her, saying that the article being demanded by them was expected to be given or ought to have been given in marriage, that also, to my mind, would constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized.
32. The prosecution was enjoined to prove the following ingredients for proving its case in respect of offence punishable U/s 304B IPC:
(i) That death of deceased Pinki had been caused by burn or bodily injury or otherwise than under natural circumstances;
(ii) The death of deceased Pinki occurred within seven years of her marriage;
(iii) That deceased Pinki had been subjected to cruelty or harassment by accused in connection with demand of dowry; and
(iv) That such cruelty or harassment was caused by accused to the deceased soon before her death.
33. In "Kamesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar" reported at 2005 III AD (S.C.) 261, Hon'ble Apex Court has held State V/s. Bijender @ Lalla ("Acquitted") Page 17 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 as under: "xxxxxx
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have been 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.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Xxxxxxx"
34. Similar view has been taken by Hon'ble Apex Court in recent decision delivered in the matter titled as "Kanwar Pal Vs. Shakuntala & Ors." reported at 2015 IV AD (DELHI) 450.
35. Hon'ble Apex Court in the matter titled as "Kanwar Pal Vs. Shakuntala And Ors." reported at 2015 IV AD (Delhi) 450, has held that the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. In that case, it was observed from the evidence of the prosecution witness and in particular PW1 and PW4 that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased. The onus was also on the prosecution to prove beyond reasonable doubt the ingredients of Section 489A IPC. Relevant portions from the judgment read as under: State V/s. Bijender @ Lalla ("Acquitted") Page 18 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 "xxxxxxxx In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific appellant on the deceased........
In our considered opinion, the evidence of DW1 (the appellant) and Ext. D19 cast a reasonable doubt on the prosecution story that the deceased was subjected to harassment or cruelty in connection with demand of dowry. In our view, onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 498A, IPC and the essential ingredient of offence under Section 498A is that the accused, as the husband of the deceased, has subjected her to cruelty as defined in the Explanation to Section 498A IPC. Similarly, for the Court to draw the presumption under Section 113B of the Evidence Act that the appellant had caused dowry death as defined in Section 304B, IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment of cruelty, neither of the offences under Sections 498A and 304B, IPC has been made out by the prosecution.
xxxxxxx"
36. Now, adverting back to the facts of the present case. In order to establish the aforesaid ingredients, the prosecution, had cited two public witnesses who have been examined as PW8 and PW9 during trial. From the testimonies of said prosecution witnesses and the material available on record, it has been duly established beyond doubt that State V/s. Bijender @ Lalla ("Acquitted") Page 19 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 deceased was married with accused about four years prior to date of her death i.e. 15.02.2014. It has also been established on record that deceased Pinki was residing alongwith accused at her matrimonial house no. C16/7, Shahbad Dairy, Delhi soon after her marriage till her death. PW2 Dr. Mukesh Kumar i.e. Autopsy Surgeon has opined in Autopsy Report Ex.PW2/A that death of Pinki was due to combined effect of hemorrhagic shock and injury to the abdomen and vertebral column due to gun shot injury and injury no. 1 was sufficient to cause her death in the ordinary course of nature. From the evidence led by prosecution on record, there is no iota of doubt that Pinki died as an unnatural death and also that her death had taken place within seven years of her marriage with the accused.
37. Nevertheless, it is quite evident from the discussion of testimonies of aforesaid two public witnesses that none of them has supported the case of prosecution on material points. Rather, both the said witnesses have testified contrary to the case of prosecution by deposing that they had no knowledge as to why deceased had committed suicide in this case. Although, they deposed that they had come to know about the fact that Pinki had expired due to gun shot injury, but they categorically testified during their chief examination that they had no knowledge as to how and under what circumstances Pinki had received gun shot injury. The said fact coupled with the admission made by PW9 (mother of deceased) during her cross examination that deceased was State V/s. Bijender @ Lalla ("Acquitted") Page 20 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 short tampered even prior to her marriage with the accused, assumes great significance. IO i.e. PW10 Inspector Sanjiv Chahar has also admitted in his cross examination that none of the neighbourers made statement before him during investigation that deceased Pinki was ever treated with cruelty by the accused or that accused had raised any demand of dowry from deceased during her life time. All the relevant allegations concerning demand of dowry made by accused and alleged acts of cruelty and harassment of deceased caused by accused, remained unsubstantiated during the course of trial. PW8 and PW9 denied to have made statements Mark PW8/A and Ex.PW1/A respectively during the course of investigation. Instead, PW9 claimed that her signatures were obtained on certain blank papers by police official and she denied to have made any statement before Executive Magistrate. In other words, both the family members of deceased, who as per the case of prosecution, had blamed the accused for compelling deceased to commit suicide, have turned hostile to the case of prosecution. None of said public witnesses deposed anything against the accused. None of them testified that accused ever demanded dowry from deceased or from any of her family members at any point of time during her life time.
38. There is also no evidence available on record showing that accused had subjected deceased Pinki to any sort of cruelty or harassment either soon before her death or at any point of time during her life time after entering into marriage with her. The prosecution has also failed to State V/s. Bijender @ Lalla ("Acquitted") Page 21 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 lead any evidence showing or proving that there was any sort of cruelty or harassment directly or indirectly from the side of accused for or in connection with demand of dowry or that there was any act attributable to the accused which led deceased Pinki to commit suicide. In other words, both the aforesaid key witnesses of prosecution have given clean chit to the accused. In the absence of any cogent evidence being available on record in this regard, Court has no other option but to hold that prosecution has miserably failed to bring home the guilt of accused in respect of offences punishable U/s 498A/304B IPC beyond shadow of doubt.
39. This brings me down to the offence punishable U/s 25 Arms Act. The prosecution alleged that in pursuance of his disclosure statement (Ex.PW10/F), accused had got recovered country made pistol from below mattress of the bed kept inside the room of his house bearing no. C16/7, Shahbad Dairy, Delhi on 15.02.2014. For the said purpose, the prosecution has examined PW10 Inspector Sanjiv Chahar and PW11 Ct. Amar Singh as the recovery witnesses.
40. No doubt, both the said witnesses have deposed on identical lines to the effect that accused had got recovered the country made pistol (Ex.P1) on 15.02.2014, but testimonies of both the said police official do not inspire confidence inasmuch as no sincere effort is shown to have made by them for joining independent public witness at the time of recovery of said arm, despite the fact that public witnesses were very State V/s. Bijender @ Lalla ("Acquitted") Page 22 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 much available at that time. Both the said police witnesses have admitted in their respective cross examination that place of alleged recovery was surrounded by residential houses and public persons were available over there. Although, both of them claimed that residents were requested to join the investigation and none agreed, but said explanation is nothing but mechanical excuse given by police officials in order to cover up their lapses committed during the course of investigation. In their further cross examination, both the said witnesses have admitted that neither any written notice was served upon any resident of the locality for joining the proceeding nor their names or addresses were noted down and no legal legal action whatsoever as warranted under Section 188 IPC for not providing cooperation to the Police Authority, is shown to have been taken against any of the residents of the said locality.
41. In a case law reported as Anoop Joshi Vs State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases, it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the State V/s. Bijender @ Lalla ("Acquitted") Page 23 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 police in investigation as a citizen, which is an offence under the IPC."
42. There is one more reason, which makes the recovery of pistol at the instance of accused doubtful. As per the admitted case of prosecution, it was PW12 SI Surender Kumar, who alongwith Ct. Iqbal and accused had gone to the place of occurrence, which is also the place of alleged recovery of pistol at the instance of accused, on 15.02.2014. PW12 himself deposed that he had got the place of occurrence inspected and photographed through crime team officials on 15.02.2014 itself. He has admitted in his cross examination that crime team officials had taken complete search of the place of occurrence before preparing crime team report, which is found to have been prepared at the spot itself. The perusal of Crime Team Report (Ex.PW4/A) would reveal that inspection was carried out in between 11.15 am to 12.15 pm on 15.02.2014. Despite the fact that place of alleged recovery of arm was thoroughly searched by crime team officials, pistol (Ex.P1) could not be found during the course of inspection thereof conducted by crime team officials. The testimonies of crime team officials i.e. PW4 ASI Ram Kumar and of PW6 Ct. Ravinder are also relevant on this issue. As per their ocular version, one blood stained bedsheet and several broken bangles alone were found lying in the room situated on first floor of house no. C16/7, Shahbad Dairy, Delhi, during the course of inspection conducted by them. In this backdrop, it does not stand to reason as to why pistol (Ex.P1) escaped State V/s. Bijender @ Lalla ("Acquitted") Page 24 of 25 FIR No. 191/14; U/s 498A/304B IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 23.03.2016 attention of crime team officials as well as attention of local police officials namely PW12 SI Surender Kumar and Ct. Iqbal.
43. For all these reasons, I am of the view that prosecution has failed to establish beyond pales of reasonable doubt that accused got recovered country made pistol (Ex.P1) from room of house no. C16/7, Shahbad Dairy, Delhi.
44. Moreover, it is well settled law that whenever two views are possible on the basis of evidence available on record, the view in favour of accused should be adopted by the Court. Still, if any authority is required, then reference with advantage can be made to the judgments of Hon'ble Apex Court reported at 2014 (8) JT 329 and (2011) 6 SCC 343.
45. In the light of aforesaid discussion, accused namely Bijender @ Lalla S/o Sh. Mohan Lal is hereby acquitted of the offences charged against him. He is directed to be released forthwith if not required in any other case. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in open Court today
On 23.03.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s. Bijender @ Lalla ("Acquitted") Page 25 of 25