Indian Kanoon - Search engine for Indian Law

Delhi District Court

State vs 1. Harish Kumar on 20 March, 2011

                                    1

 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE­VIII & 
       INCHARGE ADDITIONAL SESSIONS JUDGE:  
               ROHINI COURTS DELHI


SESSIONS CASE No. 123/2010/2003


State        Vs              1. Harish Kumar 
                             S/o Late Sh. Kundan Lal 
                             R/o B­927, Sector­1, 
                             Avantika, Rohini, Delhi. 


                             2. Sanjay @ Puran @ Kaalu 
                             S/o Late Sh. Kundan Lal 
                             R/o B­927, Sector­1, 
                             Avantika, Rohini, Delhi. 


                             3. Smt. Jamuna Devi 
                             W/o Late Sh. Kundan Lal 
                             R/o B­927, Sector­1, 
                             Avantika, Rohini, Delhi. 


FIR No.                      240/2003

Police Station               Rohini

Under Sections               498­A/304­B/34 IPC. 


Date of Institution:         01.08.2003


Date when arguments          16.03.2011
were heard


                           State Vs. Harish etc
                                           2



Date of Judgment            28.03.2011



JUDGMENT

1. The SHO of P.S: Rohini has challaned the accused persons to face trial for the offences under Sections 498­A/304­B/34 IPC. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused by complying with provisions of Section 207 Cr.P.C has committed the case to the Court of Sessions as provided under Section 209 Cr.P.C.

BRIEF FACTS OF THE CASE

2. The prosecution case is that on 05.05.2003 one DD No. 7B was got recorded in the police station Rohini telephonically by Constable Vimal Kumar posted at Sanjay Gandhi Hospital stating that a woman Manisha W/o Harish Kumar was brought to the hospital in burnt condition. The copy of said DD No. 7B was given to ASI Kishan Lal who along with Constable Lal Chand went to the Sanjay Gandhi Hospital and obtained the MLC of the victim Manisha. The doctor informed him that the patient was in 100% burnt condition and could expire any time. The doctor also gave endorsement that patient was fit for statement. The victim woman gave statement that she got married State Vs. Harish etc 3 two years ago. ASI contacted the SDM (S.B) telephonically but could not contact him, then ASI Kishan Lal in the presence of doctor Ranjana CMO recorded the statement of Manisha aged 23 years who stated that she used to live with her family and was got married with Harish son of Kundan Lal R/o B­927 Avantika, Sector­1, Rohini, Delhi. Out of the wedlock, she has a child 1½ years old named Mahesh @ Akash. Her husband Harish used to sell covers of T.V and fridge on patri (pavement) at Gaffar Market, Karol Bagh. After the marriage, Harish never went to her parents house. Her mother­in­law Naina Devi W/o Kundan Lal used to love her Jethani (wife of elder brother of Harish) more than her so she was annoyed. Therefore, in the night at about 12.15 a.m, she poured kerosene oil on her which was lying in a can in the house. At that time, Harish was sleeping at the first floor and the other family members were under it. She locked the room in which Harish was sleeping and after pouring kerosene oil, put herself to fire. The neighbours on listening her cries, came there and put off the fire by throwing water on her. She did not want that anybody should be sent to jail for this incident. Her husband used to love her.

After recording the statement of victim, the crime team was called at the spot by ASI Kishan Lal. The photographer also came there and took photographs of the spot. From the spot, the exhibits kerosene oil, matchbox, matchsticks, pieces of burnt clothes were seized in State Vs. Harish etc 4 different pulandas by the police and sealed with the seal of KL. When ASI Kishan Lal returned to the hospital, the victim had died. Thereafter, ASI Kishan Lal went to the house of SDM and informed him about the incident. The SDM directed to send the parents of the deceased to his office. The brother Tula Ram, father Ranjha Mal and mother Mrs. Ram Pyari went to the office of SDM. SDM gave the statement of Tula Ram to ASI Kishan Lal with his endorsement to take action as per provisions of law. The rukka was given by ASI Kishan Lal to the Inspector Kishan Kumar on which he made endorsement for registration of case under Sections 498A/304B/34 IPC and investigation was assigned by him to himself.

In his statement, Tula Ram the father of victim has stated in brief that they got married their deceased sister on 21.02.2001 with Laloo @ Harish Kumar R/o B­927, Rohini Sector­1, Avantika, Delhi according to Hindu rites and customs. After about 1 or 1 ½ month of the marriage his brother­in­law used to quarrel with his sister after consuming liquor. Sometimes he used to demand dowry. After the quarrel, his brother­in­ law used to contact them on telephone to take back his (Tula Ram) sister otherwise he would break her legs and throw her down. Two/three times, he (Tula Ram) went to pacify the matter to the matrimonial home of his sister. He came to know about burning of his sister as per telephonic information received in the house No. 147­C of his neighbourer.

State Vs. Harish etc 5 Thereafter, he went to Sanjay Gandhi Hospital, where she was admitted, along with his neighbour Murli. He saw his sister Manisha in unconscious state and froth was emitting from her mouth and the doctor was taking prints of her fingers. He suspected that his sister was ill treated and was forced to burn herself. In the burning of his sister, his brother­in­law Harish, his elder brother (Jeth) Sanjay and their mother Jamuna Devi were involved so legal action should be taken against them.

During the investigation, the spot was inspected, the site plan was prepared, the statements of witnesses were recorded by investigating officer. SDM directed the postmortem on the dead body to be got conducted. After postmortem the dead body was returned to the relatives of the deceased. In the hospital, the doctor took out a payal and ear tops from the body of the victim which were handed over to Constable Lal Chand and were seized by ASI Kishan Lal. ASI Kishan Lal also obtained crime report etc which were handed over to investigating officer. The photostate copy of the marriage card of the deceased was handed over by her brother Tula Ram to the investigating officer. The exhibits were sent to CFSL for report. On completion of investigation, the accused persons were challaned, as referred before.

State Vs. Harish etc 6 CHARGE AND PLEA OF ACCUSED:­

3. The prima facie case for the offences under Sections 498A/304­B/34 IPC was found to be made out against all the accused persons, so they were charged accordingly on 24.12.2007 to which they pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

4. In support of its case the prosecution has examined 19 witnesses in all. To have assessment of the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.

PW­1 is HC Rajinder Singh. He deposed that on 05.05.2003 he was posted as duty officer in P.S Rohini. At about 5.35 p.m, a rukka was handed over to him by the SHO P.S: Rohini, on the basis of which he registered FIR no. 240/03 which is proved as Ex PW 1/A. He also made his endorsement on the rukka which is proved as Ex PW 1/B.

5. PW­2 is Constable Satish Kumar. He proved the copy of DD register in respect of DD 7­B dated 05.05.2003 P.S Rohini as Ex PW 2/A.

6. PW­3 is HC Sajjan Kumar. He deposed that on 05.05.2003 he had gone to Sector­1, Rohini along with SI S.P. Vashishth, Incharge State Vs. Harish etc 7 Crime Team and on his direction he took five photographs of the spot which are proved as Ex P­3­A1 to A­5. The negatives are also proved by him as Ex P­3­A6 (collectively).

7. PW­4 is Vipin. He deposed that on 04.05.2003, he was sleeping in the inner room of his house. On hearing noise of "bachao­ bachao" coming from outside, he got up and came out. He noticed that a large crowd had collected outside and there was fire in the staircase of house of Harish. His neighbour Anil Kumar was also standing there. He asked him (Anil Kumar) to get water. Anil brought water in bucket and he (PW­4) poured the water on the fire. The fire was extinguished. Due to commotion, all the family members of Harish got up by then and came in the gallery. They claimed that all the doors of their house was bolted and the staircase was locked from inside. They threw the key from upstairs and requested him (PW­4) to open the lock. He (PW­4) accordingly opened the lock. Thereafter Harish asked him to take out the TSR. He immediately took out his TSR. Manisha who was totally burnt was wrapped in a blanket and was taken to hospital by Harish, his mother Jamna Devi and himself. On reaching the hospital, he brought a stretcher and took Manisha in the emergency. His statement was recorded by the police on the next day.

As the witness has not disclosed complete facts, he was State Vs. Harish etc 8 cross­examined by Ld Additional Public Prosecutor in which he admitted it correct that there was smell of kerosene in the staircase where Manisha had sustained burns. Pawan had given a telephone call from mobile phone to parents of Manisha. He had told the police in his statement about having attended marriage of Manisha and Harish which had taken place 2 ½ years back and also that Harish used to go to his in­laws house on some occasions. He has denied the other suggestions put on behalf of State to him and was confronted with portion X to X of statement mark P­4­A.

8. PW­5 is Anil Rawal. He deposed that in the month of May 2003, he was sleeping inside his house at night. On hearing noise, he came out and saw fire in H.No. 927 belonging to accused Harish. There was fire on the staircase at the ground floor. This witness corroborated with the statement of PW­4 Vipin with regard to extinguishing of fire as well as taking of Meenakshi to the hospital.

As the witness has not disclosed complete facts, he was cross­examined by Ld Additional Public Prosecutor in which he admitted it correct that he had told the police in his statement that house of Harish was a three storeyed, one with a tenant on the ground floor, mother and brother of Harish on the first floor and Harish and his wife on the second floor of his house. The grill on the staircase was locked from inside.

State Vs. Harish etc 9 There were some match sticks lying near the staircase and smell of kerosene was present. He had also observed a plastic can downstairs near the staircase. He further admitted it correct that he told the police in his statement that family members of Harish had called parents of Manisha who had taken her along with them and had left her back in the house of Harish after some days. This witness has denied the other suggestions put on behalf of State to him and was confronted with portion X to X of statement mark P­5­A.

9. PW­6 is Lekh Raj. He deposed that on 21.02.2001 his sister Ratna got married to accused Harish. They had given sufficient articles including jewellery and household goods in the marriage of his sister. Immediately after her marriage, his sister was harassed by her mother in law Jamuna Devi along with Jeth Sanjay, Dewar Sony and Jethani Lata. Accused Harish at the instance of his mother and brothers used to beat his sister on account of dowry. Lata Jethani of his sister used to taunt her that she could not live in the house till she brought 10 tolas gold and Rs 50,000/­ in cash. On the asking of his sister, the said demand was fulfilled by his parents but even then the accused persons were not satisfied and kept troubling and harassing his sister. Whenever he used to go to her house, his sister used to tell him that she was in trouble (Pareshan) and was not being given enough food and was made to do the State Vs. Harish etc 10 entire household work.

PW­6 further stated that in the year 2002, his sister told him that the accused persons were troubling her as they were not in a position to set up their patri shop. She also told him (PW­6) that accused asked her to get Rs 1 lakh from him or else they would kill her. On 18.03.2003, on the eve of Holi, he went to his sister's house along with a box of sweets. His sister told him that on the previous night, she had been beaten in a closed room by the accused persons along with Lata and Dewar Soni. She also told him that the accused persons had claimed that they would show her death to be an accident before the police and thereafter would get Harish married again somewhere else. She also told him that accused Jamuna Devi had claimed, as she was a widow, no harm would come to her. His sister also showed her injuries to him. He pacified his sister and told her that he would arrange Rs 1 lakh. He tried to arrange Rs 1 lakh but could not arrange the same. Thereafter he applied for loan from LIC. Accordingly, on 22.04.2003, he went to the house of accused persons along with Rs 10,000/­ and handed over the said money to his sister, who handed over the same to her mother in law Jamuna Devi and Lata ridiculed him. Harish gave two three slaps to his sister and caught hold of her hair and threw her down. Harish further claimed that till the money would not be obtained, she would be beaten. Jamuna Devi and Sanjay told him to get another sum of Rs 90,000/­ or State Vs. Harish etc 11 else, he should be prepared for funeral of his sister. Thereafter they all told him to leave their house.

This witness further deposed that on 02.05.2003 he had withdrawn a sum of Rs 4800/­ from the bank and on 03.05.2003, he went to the house of his sister with Rs 5,000/­ cash. All the accused persons ridiculed him and his sister and gave them time of only two days to meet their demands. He was told either to arrange money or arrange the funeral of his sister. From there, he straightaway went to the shop of his brother Om Parkash and told him everything. On 04.05.2003, at about 8.00 a.m, he went to the house of accused persons along with his brother Om Parkash. Om Parkash tried to reason out with Harish not to harass their sister. However, accused Harish started calling them foul names. Accused Jamuna Devi demanded Rs 85,000/­ from his brother. His brother with folded hands told them that they were not in a position to pay that much. At this, Lata asked them if their sister was valued at less than Rs 85,000/­ by them. She also told them that if their sister were to die, they should keep their money with themselves and enjoy it. Sanjay and Sony claimed that if anyone was killed and money paid to the police no harm shall be caused. Harish told them to see their sister for the last time. His (PW­6) father had also told him that even earlier Harish had demanded Rs 5 lakhs from him. Harish had never visited their house after making that demand. About two months after the marriage, Harish State Vs. Harish etc 12 had beaten his sister and had given a telephone call to them to take her back or else he would kill her by throwing her down.

It is further stated by this witness that in May 2001, his brother had brought back his sister from her matrimonial home. Accused Jamuna Devi and Harish came to their house along with 3/ 4 other relatives and had taken back his sister after assuring that they (accused persons) would not harass her any more. After the birth of his (PW­6) nephew Akash, his father had gone to the house of his sister and had given Rs 5,000/­ to Jamuna Devi. On 05.05.2003, he came to know that his sister had been burnt to death by the accused persons. When he reached hospital, his sister had already expired. Thereafter, he went to the police station to lodge FIR but was told by ASI Kishan Lal to come on the next day. On the next day, he was told that his statement would be recorded by the SHO. He gave his statement to the SHO which is written in his own handwriting and the same is proved by him as Ex PW 6/A. On 11.09.2003, his brother Tula Ram showed him a statement of his sister but he told him (Tula Ram) that the statement could not be of their sister as the facts stated therein were partly incorrect.

10. PW­7 is Tula Ram. He corroborated with the statement of PW­6 Lekh Raj with regard to ill treatment of his sister as well as demands made by the accused persons. This witness also stated that two State Vs. Harish etc 13 months after the marriage, Harish made a demand of Rs 5 lakhs from his parents to which they refused. On 05.05.2001, Harish gave a telephone call at his house and told him to take his sister back or else he would break her legs and throw her down. He immediately went to the house of his sister and saw that she was bleeding from her lips which were swollen. There were also blood stains on her chunni. He asked her sister to come with him, on which accused Jamuna Devi slapped him and stated that if he took back his sister in this condition, their family would be degraded. Sanjay pushed him. At that time, smell of liquor was coming out from both Harish and Sanjay. However, he brought back his sister in that condition. On way his sister told him that Jamuna Devi was asking her that she had four brothers and even then why they were not in a position to pay the money. His sister also told him that she had been beaten by Sanjay, Harish and Jamuna Devi. He left his sister at the house of his mother. After about 3­4 days, Harish went to the house of his mother for taking back his sister but his mother refused to send her and stated that she (his sister) would be sent only if elders of the family came to take her back. On this, Harish caught hold of arm of his sister and dragged her from the second floor to the ground floor. When their neighbourers Murli and Sujata came there, Harish left his sister and went away. After about one hour Harish gave a telephonic call to his mother and abused her.

State Vs. Harish etc 14 It is further deposed by this witness that after about 20­25 days Bua of Harish gave a telephonic call to his mother and told that they would be coming to her (mother) house on the next day. On the next day, Harish, Jamuna Devi, Bua, her husband and two other relatives came to their house and assured that there will be no grievance in future. Thereafter, all of them left along with his sister. When his Bhanja was 3­4 months old, Jamuna Devi gave a telephonic call to his house and told that his father had only given Rs 5,000/­ on the birth of his Bhanja Akash whereas they (accused persons) had demanded Rs 1 lakh. He (PW­7) asked Jamuna Devi as to from where he would arrange so much money to which she replied that people sell off their houses for their sister. He told her, as he could not give Rs 1 lakh, he would make arrangement and give something for the happiness of his sister. After some days, he gave Rs 20,000/­ to Jamuna Devi after withdrawing the said amount from the account of his wife. Thereafter, all remained well for some days. Subsequently one day, he received a telephonic call from Harish for making arrangement of money or else he (Harish) would break legs of his sister and throw her down. He (PW­7) immediately went to the house of his sister and saw her weeping. She told him that her in laws only wanted money. His Bhanja Akash was lying on the floor and was weeping. He picked up his Bhanja and brought them to his house. After three days, when he returned from work at night, his sister told him that State Vs. Harish etc 15 father of Akash (Harish) had given a telephonic call asking for pardon and had requested her to return back. He refused to sent her back to her matrimonial home. However, his sister was adamant that she had to live in her matrimonial home. Due to this, on the next day, he went and left his sister in her matrimonial home.

PW­7 further stated that after 2­2½ months, Jamuna Devi gave a telephonic call at his house and told that all her three sons had only received Rs 25,000/­ and were demanding Rs 75,0000/­ more. He told her that he did not have the money and his mother is unwell and even then he will talk to his mother. His mother got encashed two FDRs worth Rs 70,000/­ and told him to give the said money to in­laws of his sister. He reached the house of his sister at night where all the three brothers were consuming beer and sharab. He handed over Rs 70,000/­ to Jamuna Devi and told her that in case they demand more money from them, he would make a complaint to the police. Thereafter there was no demand of money from him. However, in laws of his sister demanded Rs 1 lakh from his elder brother Lekh Raj. This witness corroborated with the statement of PW­6 Lekh Raj with regard to taking loan from LIC and giving Rs 10,000/­ to Jamuna Devi.

It is further stated by PW­7 that on 03.05.2003, his brother further gave sum of Rs 5,000/­ to Soni Devar of his sister. Soni said "Tum Kanglo Ki Is Se Jayada Aukat Ho Hi Qya Sakti Hai". In­laws of State Vs. Harish etc 16 his sister raised demand of Rs 85,000/­ as they had received Rs 15,000/­. This witness corroborated with the statement of PW­6 Lekh Raj with regard to narrating the entire facts to Om Parkash as well as the threat made by accused persons. This witness also deposed that on 17.05.2003, he had given a handwritten statement to the SHO, Rohini which is proved as Ex PW 7/A. He had also made statement before the SDM which is proved as Ex PW 7/B. On 12.05.2003, he had handed over copies of wedding photograph of his sister along with copy of ration card to the police which were seized vide memo Ex PW 7/C. On 24.05.2003, he had handed over copies of statements of accounts of his mother and his wife to the police which were seized vide memo Ex PW 7/D. On 05.05.2003, the dead body of his sister had been handed over to Sh. Prahlad vide receipt Ex PW 7/E. On 06.05.2003, accused Harish was arrested in his presence by the police.

On 05.05.2003, a neighbour of his mother came to his house in the morning and told him that his sister had been burnt. He immediately gave a telephonic call to the house of his sister. Lata (Jethani) of his sister informed him that his sister had caught fire and had been taken to Sanjay Gandhi Hospital. He first went to Wazirpur J.J. Colony where his mother was residing. His mother had already received the information through his mama. Thereafter, he along with his neighbour Murli went to Sanjay Gandhi Hospital. He saw that his sister State Vs. Harish etc 17 had received 100% burns and froth was coming out of her mouth. She was not in a position to speak.

11. PW­8 is B.M. Patnaik. He deposed that on 05.05.2003 at about 3.55 a.m, he received a telephone call of one lady who told that Manisha had received burns and was admitted in the hospital. On his asking, she told that she was sister in law of Manisha and that she would call again to tell the name of the hospital. After some time the lady called up again and said that Manisha was admitted in Sanjay Gandhi hospital. She also told him (PW­8) that she was not able to contact parents of Manisha and that he should inform them. Mother of Manisha had given keys of her house to him as she was not at home. After some time telephone of her house rang. He went there. Cousin brother of husband of Manisha told him on phone that he could not contact Tula Ram and that he (PW­8) should go and inform him (Tula Ram) that Manisha was admitted in hospital. He reached house of Tula Ram at 4.15 p.m and informed him about the telephone calls. Thereafter, they both went to Wazirpur, J.J. Colony. After reaching there, they came to know that parents of Tula Ram had already received the information. He along with Tula Ram went to Sanjay Gandhi Hospital. Parents of Manisha came there in TSR. They reached there at about 5.00 a.m and saw Manisha in burnt condition. One lady was also sitting besides Manisha.

State Vs. Harish etc 18 He came out after some time and stood in the corridor. Parents of Manisha came there at about 5.15 a.m. At about 5.30 a.m, they came to know that Manisha had expired. He came back to his house at 6.15 a.m. His statement was recorded by the police after about seven days. He also stated that he is also known as Murli.

12. PW­9 is Sh. Ranjha Ram, who is father of deceased Ratna @ Manisha. He corroborated with the statement of PW­7 Tula Ram regarding ill treatment of his daughter as well as demands made by her in laws.

13. PW­10 is Constable Lal Singh. He deposed that on 05.05.2003, he was posted at P.S Rohini. At about 3.45 a call was received from Sanjay Gandhi Hospital to the effect that Manisha, an injured was got admitted in the hospital. On receipt of this information, he reached hospital with ASI Krishan Lal. From the hospital, he himself reached at the spot i.e B­927, Sector­1, Avantika, Rohini, Delhi as directed by ASI Krishan Lal. On reaching the spot, he found a can containing some kerosene oil, burnt matchsticks, a matchbox and burnt clothes. Crime team reached the spot. Photographer of the crime team, took photographs of the spot. The burnt clothes were turned into a parcel after keeping the same into a polythene bag. SHO of police station State Vs. Harish etc 19 Rohini also reached the spot. The investigating officer also reached the spot and sealed the parcel containing burnt clothes with his own seal. The burnt matchsticks and the matchbox were turned into a separate parcel and sealed by the IO with his own seal bearing impression "KL". The can containing some kerosene oil was also turned into a parcel and sealed with the aforesaid seal by the IO. Recovery memo was prepared regarding seizure of the parcels and he attested the same. The recovery memo is proved as Ex PW 10/A. From the spot, he reached SGM hospital where the investigating officer handed over him a rukka. He took the rukka to the P.S and got the case registered. In the hospital, statement of Manisha was recorded by the IO in presence of the doctor. Before autopsy on the dead body of Manisha, the doctor handed over him one pajeb and a pair of gold ear rings. He handed over the same to the investigating officer, who took the same into possession vide recovery memo Ex PW 10/B, after that same was sealed by the IO with the aforesaid seal. Case property was deposited with the MHC(M). This witness also identified plastic can as Ex P­1, burnt matchsticks and matchbox as Ex P­2 collectively and burnt clothes as Ex P­3.

14. PW­11 is Tarsem Kumar. He deposed that he is an auto driver. About 3/ 4 years back, during the night, he got up for urination and saw through the mesh wire door of their house, persons present in State Vs. Harish etc 20 the front of the house of accused persons. He came out of his house and found that there was fire in the staircase of the house of accused. People were saying that wife of Lalu had set herself on fire. Persons from the neighbourhood were throwing water. He along with Soni, younger brother of Lalu and a boy namely Pawan, reached Ambedkar Hospital but found that no such injured had been brought there. From there, they reached Sanjay Gandhi Memorial Hospital. They were not allowed to go inside and remained sitting outside the hospital.

15. PW­12 is Dr. R.K. Punia, Assistant Professor, SMS Medical College & Hospital, Jaipur, Rajasthan. He deposed that on 05.05.2003, he was posted at SGMS hospital, Mangolpuri as a HOD and Junior Specialist, Department of Forensic Medicine. On that date, he had conducted postmortem examination on the dead body of Smt. Manisha @ Ratna Devi, wife of Harish Kumar. Inquest papers submitted by SDM Kartar Singh vide request application Ex PW 12/A. As per inquest papers, there was history of burnt, then admitted at SGM hospital on 05.05.2003 at 3.10 a.m and died on 05.05.2003 while under treatment, at 6.00 a.m on the same day.

External Injuries:­ There were second and third degree burnts were present all over the body except soles of fit. Smell of kerosene was present, cutical was State Vs. Harish etc 21 blackened and peeled off at places exposing area showed redness. Scalp hairs were burnt and cinged.

Internal Injury:­ There was no internal injury. Soot particles were found in the respiratory tract.

In his opinion, death was due to shock as a result of burns. Antemortem burns of about 98%. He prepared postmortem report which is proved as Ex PW 12/B.

16. PW­13 is Inspector Satya Prakash Vashisht. He deposed that on 05.05.2003, he was posted as Crime Team Incharge, North West. On that date, he received a message and reached B­927, Avantika, Rohini and inspected the spot. Photographs of the spot were taken. No chance print could be detected or developed from the scene of crime. He prepared his report which is proved as Ex PW 13/A.

17. PW­14 is Pawan. He deposed that Manisha was wife of his cousin brother Harish (accused). He was running a video shop. On 05.05.2003, at about 3.30 a.m, Soni, younger brother of accused Harish came to his house and rang the door bell. He came down. Soni told him that his younger sister in law (bhabhi) had set herself on fire. On this, he State Vs. Harish etc 22 accompanied by his mother, reached the house of accused Harish situated near their house. On reaching there, they came to know that the younger sister in law of Soni had already been removed to the hospital. He met Lata, elder younger sister in law of Soni. He inquired from Lata as to whether parents of Manisha had been telephonically informed or not. Thereupon, she replied that they were yet to be informed and that they were going to be informed. He collected telephone number of the parents of Manisha from Lata. Thereafter he accompanied by his mother, Soni and another person from the neighbourhood of accused reached B.R. Ambedkar Hospital, Rohini, but they found that Manisha had not been brought there. After that they reached Sanjay Gandhi Hospital, Mangolpuri. At the canteen of the hospital, accused Jamuna Devi mother of Harish met them, who told that Manisha had been taken inside the hospital, the doctors were medically treating Manisha in ICU and she was not permitted to enter the room. He saw Manisha from outside lying on a bed with a blanket over herself. He tried to telephonically inform the parents of Manisha but could not succeed as none was picking up the phone from the receiving end. It was only an hour thereafter he learnt from the receiving end that it was the telephone number of neighbours of Manisha's parents. He informed the neighbours on telephone about admission of Manisha in the hospital in burnt condition and to convey the information to her parents but the neighbours replied that they had State Vs. Harish etc 23 already been informed in this respect. Neighbours also replied that parents of Manisha were not available at the house which was lying locked and that they would inform them as and when they reach their house.

18. PW­15 is Sh. Kartar Singh. He deposed that on 05.05.2003 he was posted as SDM, Saraswati Vihar. On that day, he received information from investigating officer that a lady in burnt condition had been got admitted in Sanjay Gandhi Hospital. He was also informed that the condition of the lady was serious and perhaps she was going to be referred to some other hospital. Thereafter the investigating officer informed him that the aforesaid lady had left this world. He issued direction to the investigating officer for preservation of the dead body. On the same day, he recorded statements of Sh. Tula Ram, Ranjha Mal and Smt. Raj Kumari which are proved as Ex PW 7/A, Ex PW 9/A and Ex PW 15/A. After recording statements, he instructed the SHO to take action as per law.

It is further stated by this witness that he also visited the hospital for conducting the inquest proceedings. He made a request to the hospital authorities to perform an autopsy on the dead body of deceased Manisha. The brief facts attached with inquest proceedings is proved by this witness as Ex PW 15/B. He also filled up form No. 2535 which is State Vs. Harish etc 24 proved as Ex PW 15/C. Statements Ex PW 9/B and Ex PW 15/D regarding identification of dead body were recorded by him.

19. PW­16 is Dr. Ranjan Atreja. He deposed that on 05.05.2003 he was posted as CMO, Sanjay Gandhi Memorial Hospital, Delhi. On that day, one patient Manisha wife of Harish Kumar was brought to the hospital with the alleged history of burns by herself as she was upset from her in­laws and husband. She (PW­6) medico legally examined her (Manisha) who was having 95/100% superficial, deep burns all over the body. The patient was referred to LNJP hospital. He prepared the MLC which is proved as Ex PW 16/A. The patient expired at 6.00 a.m in the hospital. The patient was fit for statement at 3.15 a.m. This witness also deposed that statement of Manisha "Mark A" was recorded by the police.

20. PW­17 is SI Krishan Lal. He deposed that on 05.05.2003, on receipt of DD No. 7B which is proved as Ex PW 2/A, he along with constable Lal Chand reached Sanjay Gandhi Memorial Hospital, Mangolpuri where Smt. Manisha wife of Harish, R/o B­927, Avantika, Sector­1, Rohini was found admitted. Husband of the injured Manisha namely Harish was also present there. Doctor declared Manisha fit for statement that she was conscious. The doctor also told him that her condition was serious and further that she was being referred to LNJP State Vs. Harish etc 25 hospital. He contacted SDM. Constable Lal Chand also tried to contact the SDM as directed by him but SDM could not be contacted. The doctor then told him that Manisha could leave this world any moment and that he should make arrangement to record her statement. He then recorded the statement of Manisha in the presence of doctor which is proved by him as Ex PW 17/A. He sent constable Lal Chand from the hospital to the spot to guard. Thereafter he went to police station Rohini and apprised the SHO of the facts. Even on reaching police station, he tried to contact the SDM but could not be contacted. He reached the residence of SDM in Sector­8, Rohini but his (SDM) wife told him that SDM was not available. While he was present in the police station, he sent message to the crime team.

It is further stated by this witness that from the spot, he reached B­927, Avantika Phase­1, Rohini and found constable Lal Chand present there. Crime team headed by Sh. Satya Prakash Vashisht reached the spot. Head constable Sajjan Singh, photographer was one of the members of crime team. Crime team inspected the spot. Photographs of the scene of crime were taken by the photographer. Crime team submitted its report to him. At the time of spot inspection, he found lying there one plastic can containing kerosene oil, one lid lying by the side of the plastic can, some burnt matchsticks, matchbox and some burnt clothes. He picked up the lid and closed the mouth of plastic can with it.

State Vs. Harish etc 26 Three parcels were prepared and sealed with his seal bearing impression "KL" Recovery memo was prepared which is proved as Ex PW 10/A. From the spot, he reached hospital and learnt that Manisha had left this world. Parents, brother and other relatives of Manisha were found present in the hospital. They met him there. The dead body was got preserved vide his application which he submitted to the doctor. He then took parents, brother and relatives of Manisha from the hospital to the residence of SDM. SDM directed him to bring parents, brother and relatives of Manisha to his office at about 10.30 am. Accordingly, he took all of them to the office of SDM situated in Kanjhawala where SDM recorded statements of Tula Ram, Ranjha Mal and Smt. Raj Kumari. He accompanied by the SDM reached Sanjay Gandhi Memorial Hospital, where SDM carried out inquest proceedings in respect of the dead body. Father and brother of Manisha identified the dead body in the mortuary. Thereafter, the dead body was subjected to autopsy. As per directions of SDM, the dead body was delivered to the relatives of Manisha. After autopsy, Constable Lal Chand collected from the doctor a pair of ear tops and one payal and produced the same before him. He seized the same vide memo Ex PW 10/B. PW­17 further deposed that SDM handed over him statement of Tula Ram which he took to the police station and handed over the same to the SHO. All the documents pertaining to this case were State Vs. Harish etc 27 handed over by him to the SHO. On the next day, he accompanied the SHO in connection with investigation of this case. At his pointing out, SHO prepared rough site plan of the place of occurrence and the accused Harish was arrested on 06.05.2003 from the area of Avantika. In this regard arrest memo of accused Harish is proved as Ex PW 17/B and personal search memo which is proved as Ex PW 17/C. His statement was recorded by the SHO. On 12.05.2003, brother of Manisha produced before the SHO a copy of wedding card of Manisha and ration card bearing the name of Manisha. Both these items were seized by the SHO vide recovery memo Ex PW 7/C. On 24.05.2003, Tula Ram produced before the SHO on reaching the police station, one document concerning bank account of Manisha and the same was seized vide memo Ex PW 7/D. SI Manohar Lal accompanied him to the place of occurrence in the month of August 2003 and prepared scaled site plan at his pointing out. This witness has also identified white colour plastic can as Ex P­1, pair of ear rings as Ex PW 17/1, pajeb as Ex PW 17/2, wrapper and matchsticks collectively as Ex P2 and clothes belonging to deceased as Ex P­3.

21. PW­18 is Inspector Krishan Kumar. He deposed that on 05.05.2003, he was posted as SHO P.S: Rohini. On that day, at about 5.30 a.m he received information regarding admission of a girl namely State Vs. Harish etc 28 Manisha wife of Harish with burns at Sanjay Gandhi Memorial Hospital. He contacted ASI Kishan Lal to whom the information was passed on by the duty officer. He reached the spot along with ASI at B­927, Sector­1, Rohini. He inspected the scene of crime and informed the crime team. SI Sat Prakash, Incharge of crime team reached the spot and got the spot photographed. One plastic can containing some quantity of kerosene oil was picked up from the staircase leading from the ground floor to the first floor. Crime team took steps to locate finger prints. Some burnt clothes were lying at the spot. ASI Kishan Lal seized the can containing kerosene oil, a match box, two burnt matchsticks and the clothes. He enquired from ASI Kishan Lal as to whether he had informed the SDM. ASI informed him that SDM was not available at his house. ASI apprised him that parents of Manisha had been informed. ASI then contacted the SDM and took along father Raja Mal, brother Tula Ram and mother of deceased to the office of SDM, Kanjhawala. ASI Kishan Lal produced before him statement of Tula Ram recorded by SDM. He got registered present case on the statement of Tula Ram. The statement of Tula Ram is proved as Ex PW 7/B. He took over the investigation and searched for the accused persons. Accused Harish was arrested by him. His personal search which is proved as Ex PW 17/C and arrest memo which is proved as Ex PW 17/B were prepared. Harish was produced in the court and got remanded to judicial custody. In the meanwhile, ASI Kishan Lal State Vs. Harish etc 29 produced before him all the memos, statements recorded by the SDM as well as the case property. He deposited the case property in Malakhana and recorded statements of all the witnesses under Section 161 Cr.P.C. He prepared the rough site plan which is proved by him as Ex PW 18/A. It is further stated by PW­18 that during investigation, he recorded statement of persons from the neighbourhood of accused and also the persons from the neighbourhood of Manisha. He got dispatched to CFSL Hyderabad sealed parcels for analysis. SI Manohar Lal was called who prepared scaled site plan in respect of place of occurrence. He again recorded statement of Tula Ram, brother of Manisha. Tula Ram produced before him one wedding photograph which is proved by him as Ex PW 18/A1 and copies of statement of account of Raj Kumari collected by him (Tula Ram) from the Bank. In this regard, memos Ex PW 7/C and Ex PW 7/D were prepared. Accused Sanjay and his mother were formally arrested by him as they were under orders of anticipatory bail. Their arrest memos were prepared which are proved as Ex PW 18/B and Ex PW 18/C respectively. During investigation, Tula Ram submitted to him written complaint which is proved as Ex PW 7/A and on completion of investigation, challan was put in the court.

22. PW­19 is Smt. Raj Kumari. She stated that deceased Ratna was her daughter who was married with accused Harish in the year State Vs. Harish etc 30 2003. She corroborated with the statement of PW­7 Tula Ram with regard to demand of money as well as ill treatment of her daughter by the accused persons.

PLEA AND DEFENCE OF ACCUSED.

23. In the statement U/s 313 Cr.P.C the accused Jamuna Devi, Harish and Sanjay have either denied the prosecution case or have expressed their ignorance about the incriminating evidence emerging from prosecution case put to them by way of different questions. They have stated that they were sleeping in their bed room which was bolted from outside at the time when fire was in the staircase of Harish. They have also stated that they have been falsely implicated in this case. The accused persons did not lead any evidence in defence. ARGUMENTS AND FINDINGS

24. Accused persons and complainant have filed written arguments. Ld Additional Public Prosecutor has orally argued the case.

25. I have heard Ld Additional Public Prosecutor for the State and have gone through the written arguments filed on behalf of the accused persons and the complainant as well as the authorities cited by both the sides besides the record of the case and relevant provisions of State Vs. Harish etc 31 the law.

26. The accused persons have relied heavily on the alleged dying declaration of the victim allegedly made to the initial investigating officer ASI Kishan Lal in presence of Dr. Rajan Atreja. In the alleged dying declaration Ex PW 17/A which is proved by PW­17 SI Kishan Lal, who at the relevant time was ASI, it is alleged that the victim has stated that she got married with accused Harish about 2 years before and out of the wedlock, she delivered a child named Mahesh @ Akash then aged 1 ½ years. Her husband Harish was selling the covers of T.V and Fridge on the patri in Gaffar market. He has never gone to her parents house after the marriage. Her mother­in­law Jamna Devi used to love her Jethani (wife of elder brother of her husband) more than her so she used to remain annoyed and at 2.15 a.m in the night, she bolted the room in which her husband Harish was sleeping and other family members were under that floor. Then, she poured kerosene on her and put herself on fire. The neighbourers came there and threw water on her and put off the fire. She also stated that she does not want anybody to go to the jail and her husband used to love her very much.

27. True, if the above dying declaration Ex PW 17/A of the victim woman Manisha is proved to be her voluntary statement made State Vs. Harish etc 32 before death, it would exonerate the accused persons. Therefore, the facts and circumstances of the case and evidence on record is to be analysed properly to judge whether this dying declaration is a voluntary statement of the deceased victim or is a manipulation of doctor and ASI Kishan Lal as alleged by the complainant.

28. The dying declaration is a statement made by a person as to cause of his death or as to any of the circumstances of transaction which resulted in his death. Such a statement of a person is relevant as per Section 32(1) of the Evidence Act and can be proved in cases where cause of the person's death comes in question. Generally, the dying declaration of a victim is used by the prosecution as a strong piece of evidence appearing against the accused since the statement of a person as to cause of his death or circumstances of transaction leading to his death is generally made by a person at death bed, so is considered as true. An accused person if exonerated by the deceased in his dying statement can be proved as not guilty of the murder of said dying person. Keeping in view the importance of dying declaration it is to be seen as to whether document Ex PW 17/A is a true and correct account of the voluntary statement made by victim Manisha and recorded by the then ASI Kishan Lal.

State Vs. Harish etc 33

29. PW­17 has stated that he could not contact the SDM as the doctor told him that Manisha would leave this world any moment and he should make arrangement to record her statement. Then he contacted the doctor and told that SDM could not be contacted. Then he recorded statement of Manisha in presence of doctor and doctor attested the same by putting his signatures. Manisha put her thumb impression under her statement. This witness identified his signatures at point B and attestation of Manisha at point C and attestation of doctor at point A on the alleged dying declaration Ex PW 17/A.

30. There are several important inferences emerging from the prosecution evidence which throw doubt that the alleged dying declaration Ex PW 17/A is the true and correct account of statement made by victim Manisha to ASI Kishan Lal. This first and foremost thing is the alleged thumb impression of Manisha at point C is there and the doctor CMO Rajan Atreja has put his name under his signature but his name also appears on the thumb impression so also his designation and a part of the stamp, which should not have been done.

31. Secondly, the Dr. Rajan Atreja was examined in the court as PW­16. In his cross­examination, he has stated that he was not sure if the statement mark A of Manisha was recorded by the police in his presence.

State Vs. Harish etc 34 It was possible that police recorded this statement of Manisha and then brought it to him and he attested the same. However, to the court question, was it correct that he put his attestation only when a statement has been recorded in his presence, this doctor answered in affirmative. However, keeping in view his categorical statement in the cross­ examination that he was not sure if the statement of Manisha was recorded by police in his presence and it was possible that police recorded this statement of Manisha and then brought to him and he attested the same, the attestation of statement of deceased Manisha by doctor had become doubtful, though in response to court question, he has affirmed that he used to put his attestation only when statement has been recorded in his presence. In that sense the statement made by PW­16 Dr. Rajan Atreja is contradictory, more so when in the examination­in­chief itself, he has also stated that this statement mark A was recorded by police but he was not sure if it was recorded in his presence.

32. Thirdly, PW­15 is Sh. Kartar Singh, ADM who was posted as SDM Saraswati Vihar on 05.05.2003. In his cross­examination, he stated that he did not remember if the ASI told him, since he could not reach the hospital, he had recorded statement of the injured. He could not recollect if the ASI told him that he recorded the statement of injured after she was declared fit by the doctor to make statement. He could not State Vs. Harish etc 35 recollect if the ASI showed him any such statement of Manisha recorded by him and attested by the doctor. At that stage, in the cross­examination the attention of the witness PW­15 Sh. Kartar Singh, ADM was drawn to the statement of Manisha dated 05.05.2003 (dying declaration) present in the file but he denied to have seen any such statement on its production by ASI Krishan. Therefore, these statements made by the then SDM PW­15 in the cross­examination also do not augur well for the genuineness of the alleged dying declaration of the victim Ex PW 17/A.

33. Fourthly, the main investigating officer Inspector Kishan Kumar was posted as SHO P.S: Rohini on 05.05.2003 and was investigating the case. He though stated in the cross­examination that ASI Kishan Lal told him to have recorded statement of Manisha. But, at the same time, he has also stated that ASI Kishan Lal did not put up before him that statement of injured recorded by him.

The fact that ASI Kishan Lal did not put up the statement of Manisha recorded by him before SHO/Investigation officer Inspector Kishan Kumar nor before SDM Kartar Singh throws doubt as to genuineness of the dying declaration Ex PW 17/A. Such a vital piece of evidence if collected during investigation must have been brought by ASI Kishan Lal to the knowledge of SDM and the SHO concerned.

State Vs. Harish etc 36

34. Fifthly, the DD no. 7B dated 05.05.2003 pertaining to the information received in the police station Rohini from the Constable posted at SDM Hospital, Mangolpuri shows that this information was received at 3.45 a.m regarding admission of the victim Manisha in the hospital while as per the MLC the victim was brought to the hospital at 3.10 a.m and was declared fit to give statement at 3.15 a.m by Dr. Rajan Atreja. Although, I do not find any substance in the argument raised on behalf of complainant that there being distance of 4 km between the Police Station Rohini and the hospital concerned, it was not possible for ASI Kishan Lal to reach the hospital at 4.00 a.m and record statement of the victim, as at such odd time the roads are free from traffic and a police official can cover a distance of 4 km from police station to hospital quickly without any traffic hazard at that time in the night. However, declaring the victim Manisha fit for statement at 3.15 a.m by the doctor, in itself is an odd thing as neither SDM concerned nor any police official was present from the Police Station concerned for recording statement of victim Manisha at that time and information regarding admission of deceased Manisha in the hospital reached Police Station at 3.45 a.m. Declaring victim Manisha fit for statement at 3.15 a.m, therefore, is an odd thing which does not fit into the normal course of circumstances. Had the statement of victim been recorded then and there by the doctor or any of his colleagues or any other person present State Vs. Harish etc 37 in the hospital at 3.15 a.m, then declaring the victim fit for making statement at 3.15 a.m could be considered justified, but it did not happened and the statement of victim was allegedly recorded by ASI Kishan Lal at 4.00 a.m. The experience shows that the normal procedure which is followed in declaring a victim/injured fit for statement by doctor is that an application to the effect is moved by the investigating officer to the doctor concerned for declaring whether the patient was fit for statement or not and on this application the patient is declared fit. But, in the present case, even before ASI Kishan Lal could reach hospital, the doctor has declared her fit at 3.15 a.m, so a strong suspicion emerges against ASI Kishan Lal in the recording of alleged dying declaration Ex PW 17/A of victim Manisha, making it doubtful. The victim Manisha died at 6.00 a.m as per statement of PW Dr Rajan Atreja. She was declared fit for statement by him at 3.15 a.m. Whether she was fit for statement at 4.00 a.m also is not certified by the doctor. This also creates doubt in alleged dying declaration.

36. Sixthly, the reason for committing suicide given i.e the mother­in­law of deceased Manisha used to love more the wife of the elder brother of her (Manisha) husband is hardly any reason much less a strong reason for committing suicide. More so, when the victim woman State Vs. Harish etc 38 Manisha had a child Akash 1½ years old and his love and affection should have prevented her from committing suicide as a mother had great love and affection with her child.

37. PW­4 Vipin, the neighbour of accused persons in the examination­in­chief has stated that the staircase was locked from inside and the family members of accused Harish came in the gallery and claimed that all doors of their house were bolted. They threw the key from upstairs and requested him (PW­4 Vipin) to open the lock. He accordingly opened the lock and came to a side. In the cross­examination conducted on behalf of accused persons, this witness has stated that the room was bolted from outside. These were rooms where family members of Harish were sleeping. After the lock had been opened, somebody had gone and opened the kundies of the rooms.

38. PW­5 Sh. Anil Rawal, another neighbour of the accused persons, has also stated that family members of Harish threw the keys from the gallery of first floor as the staircase was locked. Someone from the crowed opened the lock and then someone opened the kundies of the room. Family members of Harish thereafter came down. In the cross­ examination conducted on behalf of State, he stated that it was correct State Vs. Harish etc 39 that grill on staircase was locked from inside. In the cross­examination conducted on behalf of accused persons, the witness stated that it was correct that room of Harish was bolted from outside. He also stated that it was correct that staircase where the burning had taken place was in between the bolted door of room and locked iron grill at the base of staircase.

39. These witnesses PW­4 and PW­5 are hostile witnesses and were cross­examined on behalf of State. They being neighbourers of the accused persons have only given statements which suit the accused persons. They have specifically denied that the relations between accused persons and the victim were not upto the mark. But, the basic question is when the staircase was locked from inside as stated by these two neighbours, how can these witnesses and other persons extinguish fire by throwing water from the bucket upon the burning victim? When the staircase was locked from inside, how it can be opened from outside, even if the key of the staircase is thrown from upstairs by accused persons? This fact is not explained by these two witnesses. Therefore, I am unable to place any reliance upon the testimonies of PW­4 and PW­5, the neighbours of accused persons who even otherwise are hostile witnesses and have stepped into witness box to support accused persons, though they were prosecution witnesses.

State Vs. Harish etc 40

40. Ld counsel for accused persons has relied upon Raman Kumar Vs State of Punjab 2009 Cr.L.J SC 3034, in that case the evidence of doctor was discarded by trial court for pointed short comings and infirmities in the history sheet and the Hon'ble High Court also did not refer to this aspect and upheld the conclusion of trial court but the Hon'ble Supreme Court observed that there was nothing to disbelieve the doctors. In that case the bride was burnt in connection with dowry demands and she was four months pregnant at that time and was put on fire after pouring kerosene. The essential ingredients of offence under Section 304­B IPC were also explained as follows:­

(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 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."

State Vs. Harish etc 41

41. It was explained that "expression soon before" is very relevant for the purpose of Section 113­B of Indian Evidence Act and Section 304­B IPC but it was also explained that "soon before" is a related term and it would depend the circumstances of each case and no straight jacket formula can be laid down as to what would constitute a period of soon before the occurrence.

42. Ld counsel for accused persons has also relied upon State of H.P M.L. Chadha Vs Raj Kumar Chopra 1994 (Supp.2) SCC 318 wherein the deceased housewife had died by burning and according to dying declaration recorded by highly qualified doctor in presence of the police officer the deceased got fire because of burst of the stove, the accused persons were given benefit of doubt due to this dying declaration. But, in the present case, dying declaration is not recorded by the doctor. It is recorded by ASI Kishan Lal. The doctor concerned through has declared the victim woman fit for statement at 3.15 p.m has chosen not to record her dying declaration himself and instead it is alleged to be recorded by ASI Kishan Lal at 4.00 p.m which even otherwise is liable to be discarded in view of the reasons mentioned before. Therefore, Raj Kumar Chopra's case (Supra) does not help the accused persons being distinguishable on facts.

State Vs. Harish etc 42

43. With all regards, Raman Kumar's case (Supra) is not applicable so far as the analysis of dying declaration of victim is concerned. The dying declaration is useful only when it is reliable being proved by convincing evidence. When the evidence of dying declaration of the victim is shaky and not believable as discussed in the six points referred before the dying declaration of the victim is liable to be discarded as a whole, being a unreliable document manipulated by ASI Kishan Lal.

44. The next question is of demand of dowry, it would be appropriate to have a glance at the evidence of the brothers and parents of the deceased Manisha @ Ratna for this purpose. PW­6 is Sh. Lekh Raj, the brother of victim woman. He in his statement has stated that accused Harish at the instance of his mother and brother used to beat his sister on account of dowry. Lata Jethani of his sister used to taunt her that she could not live in the house till she bring 10 tola gold and cash of Rs 50,000/­. On asking of his sister, the said demand was fulfilled by his parents. Even then the accused persons were not satisfied and kept troubling and harassing his sister. Whenever he used to go to her house, his sister used to tell him that she was "pershaan" and was not being given enough food and was made to do the entire household work.

State Vs. Harish etc 43

45. In 2002, his sister told him that the accused persons were disturbed as they were not in position to set up their pattri shop. She also told him that accused asked her to get Rs 1 lakh from him or else they would kill her. On 18th March 2003, on Holi, he went to his sister's house and she told him that on the previous night, she had been beaten in a closed room by the accused persons along with Lata and Dever Sonu. She also told him that accused had claimed that they would show her death to be an accident before the police and thereafter would get Harish married again somewhere else. She also told him that accused Jamuna Devi had claimed that as she was a widow, no harm would come to her. His sister also showed her injuries to him. He pacified his sister and told her that he would arrange Rs 1 lakh but he could not arrange the same. Thereafter he applied for loan from LIC. On 22.04.2003, he went to house of accused persons along with Rs 10,000/­. He handed over said money to his sister. She handed over the same to her mother­in­law Jamuna Devi and Lata. Lata ridiculed him. Accused Harish gave 2­3 slaps to his sister and caught hold of her hairs and threw her down. He further claimed that till the money was not obtained, she would be beaten. Jamuna Devi and Sanjay told him to get another sum of Rs 90,000/­ or else he should be prepared for the funeral of his sister.

46. The witness further stated that on 2nd May 2003, he had State Vs. Harish etc 44 withdrawn a sum of Rs 4,800/­ from the bank and on 3 rd May 2003, he went to the house of his sister with Rs 5,000/­ with cash. All the accused persons ridiculed his sister and himself and gave them time of only two days to meet their demand. He also stated that on 04.05.2003 at about 8.00 a.m he went to the house of accused persons along with his brother Om Parkash, who tried to reason out with Harish not to harass their sister. However, accused Harish started calling them foul name. Accused Jamuna Devi demanded Rs 85,000/­ from his brother. His brother folded his hands and told them that they were not in a position to pay them. At this stage, Lata asked them if their sister was valued at less than Rs 85,000/­ by them. She also told them that if their sister was to die, they would keep their money with themselves and enjoy it. Accused Sanjay and Soni claimed that if anyone was killed and money was paid to police, no harm shall be caused to them. Harish told them to see their sister for the last time. His (PW­6) father had also told him even earlier Harish had demanded Rs 5 lakhs from him. Harish never visited their house after making said demand.

47. What is important to note that the above statements of PW­6 Sh. Lekh Raj remained credit worthy even in the cross­examination conducted on behalf of accused persons. None of the above statements regarding demand of money from deceased Mansiha and her brothers State Vs. Harish etc 45 and parents is confronted from his previous statements making the statements made by witness Lekh Raj in the examination in chief credit worthy. In the cross­examination, PW­6 Lekh Raj has also stated that his sister had been beaten in his presence on 03.05.2003.

48. PW­7 is Sh. Tula Ram. As to the alleged demand of dowry, money and subjecting his sister Manisha @ Ratna to cruelty by the accused persons, he has stated that two months after the marriage, accused Harish made a demand of Rs 5 lakhs from his parents. They refused to fulfill that demand. On 05.05.2001, Harish gave a telephone call at his house. He told him to take his sister back or else he would break her legs and throw her down. He immediately went to the house of his sister and saw that she was bleeding from her slips which were swollen. There were blood stains on her chunni. During examination in chief on 17.05.2004 witness became emotional and started weeping, so further examination in chief was deferred.

In the further examination in chief recorded on 12.07.2004 the witness has stated that he asked his sister to come back with him, on this, accused Jamuna Devi slept him and stated, if he took back his sister in that condition, their family would be degraded. Accused Sanjay pushed him. accused Harish and Sanjay were both smelling liquor at that time. However, he brought back his sister in that condition. On the way, State Vs. Harish etc 46 his sister told him that Jamuna Devi was asking her that she had four brothers and even then why they were not in a position to pay money. His sister also told him that she had been beaten by Sanjay, Harish and Jamuna Devi. After 3/4 days accused Harish went to the house of his mother to bring back the deceased Manisha but his mother refused to send her and stated that she would be sent only if elders of the family came to take her back. On this, Harish caught hold of arm of his sister and dragged her. He dragged her from second floor to ground floor. But, when neighbours Murli and Sujata were coming up, Harish left his sister and went away. About one hour thereafter Harish gave a telephone call to his mother and abused her.

49. At the time of statement on 12.07.2004, the witness again started weeping and his further examination in chief was deferred and on the next date i.e 16.08.2004 in the further examination in chief, the witness stated that when his Bhanja was 3 to 4 months old, Jamuna Devi gave a telephone call at his house. She told that his father had only given Rs 5,000/­ on the birth of his Bhanja Akash. Whereas they had demanded Rs 1 lakh. He asked her as to from where he could arrange so much money. Jamuna Devi replied that he should sell off their houses for their sister. He told her that as he could not give Rs 1 lakh, he would make arrangement and give her something for the happiness of his sister.

State Vs. Harish etc 47 After some days, he went to the bank with his wife. His wife withdrew Rs 20,000/­ from her account. He handed over Rs 20,000/­ to Jamuna Devi. Thereafter, all remained well for some days. Subsequently, one day he received a telephonic call from Harish at about 9.00 p.m. He told him that either he should make arrangement for the money or else he would break the legs of his sister and throw her down. He immediately went to their house. He saw his sister weeping. She started weeping more on seeing him and she told him that her in­laws only wanted money. He picked up his Bhanja Akash lying on the floor and took his sister with him. After some days, his sister went back to the matrimonial home.

50. 2­2 ½ months thereafter Jamuna Devi gave a telephone call at his house and stated that all her three sons are stating that they had received only Rs 25,000/­ and wanted Rs 75,000/­ more. The witness stated that he told her that he did not have money and that his mother was also not keeping well. His mother got encashed two FDRs worth Rs 70,000/­. She told him to give the said money to the in­laws of his sister. He reached the matrimonial house of his sister at night and saw all the three brothers were consuming beer and liquor. He handed over Rs 70,000/­ to Jamuna Devi. He also informed her in case they demanded more money from them, he will make a complaint to the police. Thereafter there was no demand of money from him. but, the in­ State Vs. Harish etc 48 laws of his sister demanded Rs 1 lakh from his elder brother Lekh Raj. His brother did not have money with him so he took loan from LIC and gave Rs 10,000/­ to Jamuna Devi. On 3.05.2003, he further gave a sum of Rs 5,000/­ to Soni, Devar of his sister. In­laws of his sister raised demand of Rs 85,000/­ as they have already received Rs 15,000/­. They gave two days time for making the said payment. His brother could not make the arrangement of the money and informed the accused persons accordingly. Accused Harish had told them that they should see their sister for the last time. On the next day, the accused persons burnt his sister to death. They have burnt his sister due to money.

51. In the cross­examination the witness was confronted with his previous statement recorded by SDM regarding demand of Rs 5 lakhs by accused Harish after two months of the marriage, also the statement that his sister told him that she had been beaten by Sanjay, Harish and Jamuna Devi. However, he denied the suggestion that a sum of Rs. 20,000/­ has neither been withdrawn by his wife from his account or the same was handed over by him to Jamuna Devi.

52. PW­9 is Ranjha Ram, the father of deceased Manisha @ Ratna. He stated in the examination in chief that after two months of the marriage, accused Harish demanded Rs.5.00 lacs from him by saying State Vs. Harish etc 49 that in case this demand is not fulfilled, he would stop visiting their house. He stated that a sum of Rs.70,000/­ was given by Tula Ram to the victim, deceased Manisha after visiting the matrimonial home of his daughter, 2/3 days prior to Holi festival, his son Lekh Raj visited matrimonial home of his daughter at that time he demands Rs.1.00 lacs as raised by his in laws.

PW­19 is Smt. Raj Kumari, the mother of deceased Manisha, who also made the statement similar to PW­9 Ranjha Ram.

53. In the backdrop of the above statements made by the two brothers and the parents of the deceased Manisha, it would be pertinent to note the case law relied upon on behalf of complainant, as on behalf of accused persons, one of the main argument is that alleged demand of money and dowry was not proved to be soon before the death of Manisha, hence do not attract Section 304­B IPC. Reliance is placed on behalf of complainant upon Uday Chakraborty and Ors Vs State of West Bengal in the Criminal Appeal No. 1733 of 2008 decided by Hon'ble Supreme Court on 08.07.2010 wherein following observations were made:­ "The offence under Sections 304B read with 498A of IPC is made out in this case and has been proved by the prosecution beyond any reasonable doubt.

State Vs. Harish etc 50 The period of two years in a marriage itself is a very short period. In fact, the deceased had died in less than two years of marriage. The expression 'soon before her death' has to be given its due meaning as the legislature has not specified any time which would be the period prior to death, that would attract the provisions of Section 304B of IPC. The concept of reasonable time would be applicable, which would primarily depend upon the facts of a given case, the conduct of the parties and the impact of cruelty and harassment inflicted upon the deceased in relation to demand of dowry to the cause of unnatural death of the deceased. In our considered view, the marriage itself has not survived even for a period of two years, the entire period would be a relevant factor in determining such an issue."

Reliance is also placed upon Ashok Kumar Vs State of Haryana Criminal appeal no. 1489 of 2004 decided by Hon'ble Supreme Court on 08.07.2010 wherein following observations were made:­ "14. ................ 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, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of State Vs. Harish etc 51 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.

15. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases......" It was further observed as follows:­ "As already noticed, the expression 'soon before her death' has to be accorded his appropriate meaning in the facts and circumstances of a given case. In the present case, there is definite evidence to show that nearly 20­22 days prior to her death the deceased had come to her parental home and informed her father about the demand of Rs 5,000/­ and harassment and torture to which she was subjected to by the accused and her in­laws. Her father had consoled her ensuring that he would try to arrange for the same and thereafter took her at her matrimonial home 7­8 days prior to the incident."

Reliance is further placed upon Deen Dayal and ors Vs State of U.P State Vs. Harish etc 52 2009 (1) RCR (criminal) 67 SC wherein the unnatural death of bride occurred two months after the demand of dowry and it was held that the deceased wife was subjected to cruelty soon before her death.

54. In the light of the evidence of PW­6 Lekh Raj and PW­7 Tula Ram the brothers of deceased, it is clear that it is a case in which the unnatural death of the victim occurred in her matrimonial home on account of demand of dowry and subjecting her to cruelty by the accused persons soon before her death. Although, the statement of father of victim Ranjha Ram and mother Ram Pyari of deceased victim do not give convincing account of alleged demand of dowry and money from the victim soon before her death but their evidence can be taken up as supportive to that of the two brothers of the deceased Manisha. Therefore, in the light of Uday Chakraborty's case (supra), Ashok Kumar's case (supra) as well as Deen Dayal's case (Supra) relied on behalf of complainant, the present case certainly falls within the ambit of Section 304 B IPC, the ingredients of which are explained in Raman Kumar's case (supra) as referred above.

55. In State of Karnataka Vs Pundalik and ors 1999 Cr.L.J 4751 Karnataka (DB), on account of high rate of acquittal in the cases pertaining to Section 304B IPC certain guidelines were given by State Vs. Harish etc 53 Kartanaka High Court including one of the guideline pertaining to recording of dying declaration by Magistrate or quasi judicial authority after obtaining certificate that victim was fit for statement. Therefore Pundalik's case (supra) is not of help to the accused persons. Reliance is also placed upon Neera Singh Vs The State (GNCT of Delhi) and ors decided by our Hon'ble High Court on 23.02.2007 in criminal M.C 7262/2006. But, Neera Singh's case (Supra) pertains to petition under Section 482 Cr.P.C for quashing/setting aside the order of Ld Additional Sessions Judge discharging the accused persons. Therefore, it has got no applicability to the present case which is being decided on merit after evidence post framing of charges under Sections 498A/304B IPC.

56. It is a case in which not only the unnatural death of the victim occurred within seven years of her marriage and more precisely a little more than two years of her marriage, there was demand of dowry and money and she was subjected to inhuman treatment by her in laws continuously after her marriage including the dowry demands soon before her death. Therefore, provisions of Section 304­B IPC are certainly attracted against the accused persons.

57. The combined effect of statements of two brothers Tula Ram State Vs. Harish etc 54 and Lekh Raj of victim Manisha and statement of her father and mother establish the guilt of accused persons for the offence under Section 498­ A IPC with regard to subjecting the deceased Manisha with cruelty continuously from the date of her marriage on account of demand of money and her physical as well as mental torture by the accused persons, as is reflected in the statements of two brothers and parents of the deceased, referred before. The prosecution, therefore, has proved its case against accused persons for the offence under Section 498A IPC. RESULT OF THE CASE

58. In view of the above, the prosecution has been able to prove its case against the accused persons beyond the shadow of reasonable doubt. The accused persons are convicted under Section 498­A/34 read with Section 304­B/34 IPC. Let they be heard on the point of sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in).

Announced in the open court on this 28th day of March 2011 (S. K. SARVARIA) DISTRICT JUDGE­VIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Harish etc 55 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE­VIII & INCHARGE ADDITIONAL SESSIONS JUDGE:

ROHINI COURTS DELHI SESSIONS CASE No. 123/2010/2003 State Vs 1. Harish Kumar S/o Late Sh. Kundan Lal R/o B­927, Sector­1, Avantika, Rohini, Delhi.

2. Sanjay @ Puran @ Kaalu S/o Late Sh. Kundan Lal R/o B­927, Sector­1, Avantika, Rohini, Delhi.

3. Smt. Jamuna Devi W/o Late Sh. Kundan Lal R/o B­927, Sector­1, Avantika, Rohini, Delhi.

FIR No. 240/2003

Police Station                   Rohini
Under Sections                   498­A/304­B/34 IPC. 


ORDER ON SENTENCE

Vide my separate judgment dated 28.03.2011 all the three convicts ie Harish Kumar, Sanjay @ Puran @ Kaalu and Smt contd.

State Vs. Harish etc 56 //2// Jamuna Devi were convicted for the offences under Sections 498A/34 IPC and 304B/34 IPC.

Learned Additional Public Prosecutor for the State assisted by learned counsel for the complainant has argued for deterrent punishment keeping in view the serious nature of the crimes committed by them. It is further argued that for the offence punishable under Section 304B IPC life imprisonment should be awarded to the convict persons and sentence on higher side for offence under Section 498A IPC.

On the other hand, learned counsel Sh B.S. Rana, Advocate for the convicts has argued that convicts have clean antecedents and they belong to poor strata of the society so they deserve leniency. It is further argued that one of the convicts is an old lady. Convict Sanjay has small children and other convict Harish is also to lookafter his child. It is further argued that Harish remained in custody for about eleven months.

I have heard the learned Additional Public Prosecutor assisted by learned counsel for the complainant and learned defence counsel for the convicts and have gone through the case file and relevant provisions of law .

Contd.

State Vs. Harish etc 57 //3// No formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstance that may affect the gravity of the crime of murder. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly access various circumstance germane to the consideration of gravity of crime of murder, the discretionary judgment in the facts of each case, is the only way in which such judgment may equitably be distinguished( See Dennis Councle McGautha Vs State of California( 1971) 402 US 183, 38 Led 2d 711).

The law courts as a matter of fact have been rather consistent in the approach that reasonable proportion has to be maintained between the seriousness of t he crime and the punishment. While it is true that a sentence disproportionately severe ought not to be passed, but that also does not clothe the law courts with the option to award the sentence which would be manifestly inadequate having due regard to the nature of the offence since an inadequate sentence would fail to produce a deterrent effect on society at large . Punishments are awarded not because of the fact that it is an eye for contd.

State Vs. Harish etc 58 //4// an eye or a tooth for tooth rather than having its due impact on the society, while undue harshness is not required yet inadequate punishment may lead to sufferance of the community at large( See. Jai Kumar V State of Madhya Pradesh (1999) Cr.L.J. 2569 (SC).

The principle of proportion between crime and punishment is a principle of just desserts that serves as foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed the requirement that punishment not be disproportionately great,which is a corollary of just desserts, is dictated by the same principle that does not allow punishment of the innocent ,for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt( see Shivu and Anr Vs R G, High Court of Karnataka (2007) Cr.L.J. 1806 (SC).

Keeping in view the demand of money and dowry by convicts and cruelty to which victim women was continuously subjected by convicts continuously after her marriage which lasted for about two years and also keeping in view above submission of learned counsel for the convicts . I sentence each of the convicts to undergo rigorous imprisonment for two years for the offence under Section 498A/34 contd.

State Vs. Harish etc 59 //5// IPC and also to pay fine of Rs. 2000/­ each. In default of payment of fine, the defaulting convicts shall undergo simple imprisonment for six months. I further sentence convict to undergo rigorous imprisonment for ten years and also to pay fine of Rs.2000/­ each under Section 304B/34 IPC . In default of payment of fine, the defaulting convicts shall undergo simple imprisonment for six months The substantive sentences of imprisonment for the above offences shall run concurrently. The period of detention already undergone by convicts during investigation and trial of this case shall be set off against the term of imprisonment imposed against them by this order, as provided under Sections 428 CrPC. The judgment and order on sentence be sent to server.(www.delhidistrictcourts.nic.in). Copy of judgment and order on sentence be supplied to the convicts free of cost. File be consigned to record room.

Announced in the open Court on 30 day of March,2011 th (S. K. Sarvaria ) District Judge­VIII & Incharge Additional Sessions Judge Rohini Courts, Delhi State Vs. Harish etc