Delhi District Court
Court Highlighted The Parameters Laid ... vs . State Of on 16 September, 2014
State v. Ratni Devi & Sandeep Tanwar
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 23/13
ID No. : 02401R0392632011
FIR No. : 121/11
Police Station : Patel Nagar
Under Section : 302/304B/498A/34 IPC
State
Versus
Ratni Devi
W/o Sh. Mahender Singh
R/o T-541, Mandir Marg,
Baljeet Nagar,
Delhi.
.........Accused No. 1.
Sandeep Tanwar
S/o Sh. Mahender Singh
R/o T-541, Mandir Marg,
Baljeet Nagar,
Delhi.
.........Accused No. 2.
Date of Institution : 26.08.2011
Date of committal to Sessions : 02.09.2011
Date of judgment reserved : 29.08.2014
Date of judgment : 16.09.2014
SC No. 23/13 Page 1 of 44
State v. Ratni Devi & Sandeep Tanwar
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. L.D. Mual, Advocate, counsel for the both the accused
persons.
JUDGMENT :-
1. Briefly stated facts of prosecution case are that on May 29, 2011 at about 6.45 AM, an intimation was received from Doctor Vivek Singh, RLKC Metro Hospital, near Metro Station Shadipur that one female named Ritu wife of Sandeep Tanwar aged about 28 years R/o T-541, Mandir Marg, Baljeet Nagar, Delhi had got been admitted in burn condition by her family members against MLC No. 19/2011. The said information was recorded vide DD No. 6A and assigned to SI Narender Samota, consequently, he left for the hospital.
(i). It was alleged that SI Narender Samota had recorded the statement of victim Ritu wherein she alleged that she was married with Sandeep about three years ago and she had a son aged about two years. It was alleged that after marriage, her husband Sandeep used to harass her on trivial matters. It was alleged that on May 28, 2011, she asked her husband Sandeep to take her to the house of her sister-in-law at Gurgaon on the occasion of birthday party of his nephew. But her husband refused to take her. It was alleged that on May 29, 2011, he asked her to pack her luggage and go to her parent's house, consequently, hot words were exchanged between them on the said point. It was further alleged that she was being harassed by her husband Sandeep and mother-in-law Ratni Devi for the last 6 months, consequently, at about 6 AM, she poured petrol upon SC No. 23/13 Page 2 of 44 State v. Ratni Devi & Sandeep Tanwar her, which was lying in a bottle and ignited herself. It was alleged that she did so due to harassment caused by her husband Sandeep and her mother-in-law Ratni Devi. Her said statement was recorded in front of Dr. Sandeep Goel and in the presence of her parents.
(ii). It was alleged that thereafter SI Narender Samota reached the place of occurrence where SDM, Patel Nagar and Crime Team were called. In the presence of SDM Parmod Kumar, Crime Team inspected the place of occurrence and spot was got photographed. Exhibits such as match box, door-mat, burn hairs, burn clothes were seized from the spot.
Exhibits were also lifted from the bathroom. One 7 up plastic bottle having some inflammable liquid probably kerosene oil was also seized.
(iii). It was alleged that since victim was shifted to RML hospital, SI Narender Samota reached RML hospital. SDM Parmod Kumar also reached hospital. But doctor declared the patient unfit to make the statement.
(iv). It was alleged that Om Prakash (father of victim) and Inderjeet (mother of victim) got recorded their statement to the SDM.
(v). It was alleged that Inderjeet in her statement alleged that her daughter was married with the accused Sandeep on April 28, 2008. After three months of marriage, victim told her that her mother-in-law Ratni Devi and husband Sandeep used to harass her and accused Sandeep used to beat her. She also made a complaint that accused Sandeep used to come home after taking liquor and thereafter used to beat her. Accused Sandeep used to beat her at the instance of her mother-in-law. It was further alleged SC No. 23/13 Page 3 of 44 State v. Ratni Devi & Sandeep Tanwar that yesterday i.e. May 28, 2011, there was a function at the house of sister-in-law of victim but Sandeep did not take her. At about 6 AM, she had received a call that victim had sustained burn injury, accordingly, she was being taken to Metro Hospital. Consequently, she along with her family members also reached the hospital. At that time, victim told her that Sandeep had given a suitcase to her and asked her to go from there i.e. her matrimonial house.
(vi). On the said statement, an FIR for the offence punishable under Section 498A/34 of Indian Penal Code (in short IPC) was got registered and investigation was assigned to SI Narender Samota.
(vii). After taking permission from the senior police officers, accused Sandeep Tanwar was arrested.
(viii). It was further alleged that victim was declared fit to make statement on June 01, 2011. Accordingly, SDM Parmod Kumar reached the hospital and recorded the statement of victim and same is Ex.PW1/C.
(ix). In her statement, victim alleged that she was married on February 28, 2008 and after 2-3 months of the marriage, her husband and mother-in-law started harassing her and her husband Sandeep used to beat her. He also used to take liquor and used to return home late in night and also used to pick up a quarrel with her. It was become his habit to beat her. But no family members used to intervene to save her. It was alleged that on May 28, 2011, there was a birthday party of the son of her sister-in- law at her house at Gurgaon but accused did not take her in the said function. It was alleged that on May 29, 2011 at about 5 AM when he SC No. 23/13 Page 4 of 44 State v. Ratni Devi & Sandeep Tanwar returned to home, he started quarrelling with her and asked her to pack her belongings/suitcase and asked her to go from his house but she refused and came in the courtyard. It was alleged that at that time, accused had picked up a green colour bottle and poured kerosene oil upon her and then brought a match box from the window of bathroom and threw an ignited match stick upon her. When she raised alarm, family members came down but by that time, she had already burnt. It was stated that she did not know that the said bottle was containing kerosene oil as the said bottle was lying for the last three months and she came to know that it was containing kerosene oil only when accused poured kerosene oil upon her. It was alleged since her husband used to smoke, he used to keep match box in the window of bathroom. It was stated that her husband Sandeep and Dever Manoj took her to the hospital and on the way, they asked her to state that she had been burnt accidentally.
(x). On her statement, Section 307 IPC was added.
(xi). It was alleged that on June 06, 2011, victim succumbed to her injuries, consequently, Section 302 IPC was added. Body was sent for post-mortem. Co-accused Ratni Devi was arrested on July 01, 2011. Section 304B IPC was also added.
(xii). Supplementary statement of parents of the victim and other witnesses were also recorded.
2. After completing investigation, challan was filed against both the accused persons for the offence punishable under Section 302/304B/498A/34 IPC.
SC No. 23/13 Page 5 of 44State v. Ratni Devi & Sandeep Tanwar
3. After complying with the provisions of Section 207 Code of Criminal Procedure (in short Cr. P.C.), case was committed to the Court of Sessions on August 29, 2011 and assigned to the Court of Ms. Kaveri Baweja, the then learned Additional Sessions Judge. Case was assigned to this Court vide order dated January 5, 2013. On receipt of the file, case was registered as Sessions Case No. 23/13.
4. Vide order dated September 07, 2011, a charge for the offence punishable under Section 302 IPC was framed against accused Sandeep and another charge for the offence punishable under Section 498A/34 IPC was framed against both the accused persons to which accused persons pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined 24 witnesses. For the purpose of discussion, witnesses are being classified in following categories : -
Material witnesses :-
PW1 Pramod Kumar, the then SDM, proved the
dying declaration
PW2 Om Prakash, father of the deceased
PW3 Smt. Inderjeet, mother of the deceased
PW7 Jugal Kishore, brother of the deceased
PW11 Nitu Rawat, friend of deceased
PW13 Karjeet Singh, neighbour of the deceased, but
turned hostile
SC No. 23/13 Page 6 of 44
State v. Ratni Devi & Sandeep Tanwar
Medical Evidence : -
PW6 Dr. Vivek Singh, proved the MLC of deceased
PW8 Dr. Sandeep Goel, proved the MLC and 1st
dying declaration
PW16 Dr. Vivek Singh, turned hostile
PW21 Dr. Yogesh Tyagi, proved the autopsy report
PW23 Dr. Rajiv Singh Bhandari, proved the
endorsement Ex.PW23/A.
PW24 Dr. Mukesh, proved the death summary
Members of Crime Team : -
PW4 Const. Dinesh, proved the photographs
PW9 SI Dhan Singh, In-charge Crime Team
Formal witnesses : -
PW5 ASI Purushottam, proved the FIR
PW10 HC Jaipal, MHC (M)
PW12 Const. Tejpal, proved DD No. 50B
PW14 Const. Sumitra, proved the arrest of accused
Ratni Devi.
PW17 Const. Joginder, handed over the pullandas to
the IO.
PW18 Const. Yaad Ram, proved DD No. 50B.
PW19 Insp. Sunil Kumar, proved endorsement
Ex.PW19/A.
SC No. 23/13 Page 7 of 44
State v. Ratni Devi & Sandeep Tanwar
PW20 Insp. Mahesh Kumar, proved scaled site plan
Ex.PW20/A.
Members of investigating team :-
PW15 Const. Ranjan Sharma, joined the
investigation with SI Narender Samota.
PW22 Insp. Mahavir, IO of the case
6. It is pertinent to state that during trial, SI Narender Samota died.
7. On culmination of prosecution evidence, both the accused persons were examined under Section 313 Cr. P.C. wherein accused persons denied each and every incriminating evidence led by the prosecution. Accused No. 1 Sandeep submitted that he never harassed or tortured the victim in any manner. Neither her mother; nor any other family members ever made any demand of dowry including house, car, jewellery either from the victim or her family members. It was submitted that he returned to home from birthday party at 5 AM, consequently, he knocked the door and same was opened by her mother. Thereafter, he went to his bedroom, which was opened by his wife (deceased), thereafter, he laid on the bed. In the meantime, his son got up and he started weeping for milk, consequently, victim went upstairs to take milk. It was stated that at that time victim had bolted the door from outside. After about 15-20 minutes, he saw that victim was in flames, consequently, he came out from the window and poured water upon his wife to extinguish fire to save her and thereafter he and his brother took the victim to the Metro Hospital in the car. Similarly, SC No. 23/13 Page 8 of 44 State v. Ratni Devi & Sandeep Tanwar accused No. 2 Ratni Devi also claimed that she is innocent and submitted that she never harassed or tortured the victim in any manner and further stated that she was in her room at the time of incident and she did not know how she had caught fire and submitted that after hearing hue and cry, she came down from her room and tried to extinguish the fire. She submitted that she had been falsely implicated in this case by family members of the deceased. Though initially accused persons submitted that they would lead evidence in their defence, but they preferred not to lead any evidence.
8. Learned Additional Public Prosecutor for the state vigorously contended that though deceased had made two dying declarations firstly on May 29, 2011 wherein she alleged that she had committed suicide and secondly on June 1, 2011 wherein she categorically deposed that she was killed by the accused Sandeep Tanwar by pouring kerosene oil upon her, but it was astutely contended that no reliance can be placed on her first dying declaration as in her subsequent dying declaration, deceased clarified that she had made the first statement at the behest of accused Sandeep Tanwar. It was further contended that from the autopsy report and FSL report, it is clear that she was killed by pouring kerosene oil, thus there is no reason to disbelieve her second dying declaration.
(i) In alternately, learned Additional Public Prosecutor perspicaciously contended that if due to any reason, court reaches the conclusion that the said dying declaration is not admissible or that no reliance can be placed on the said dying declaration, it was submitted that accused Sandeep Tanwar is also liable for the offence punishable under Section 304B IPC as from the testimony of family members of the SC No. 23/13 Page 9 of 44 State v. Ratni Devi & Sandeep Tanwar deceased and her friend Nitu, prosecution has succeeded to establish that deceased was used to be harassed or tortured by the accused Sandeep Tanwar for not bringing sufficient dowry and he used to demand a car and house. It was further contended that from their testimony it is also clear that accused Sandeep Tanwar used to beat the deceased and at one occasion he had given beating to the deceased in the presence of her father (PW2).
Accordingly, it was contended that accused Sandeep Tanwar is also liable for the offence punishable under Section 304B IPC.
(ii) Learned Additional Public Prosecutor further sagaciously contended that from the testimony of family members of the deceased and her friend it is also proved that accused Ratni Devi is liable for the offence punishable under Section 498A IPC.
9. On the converse learned counsel appearing for the accused persons sagaciously contended that no reliance can be placed on either of the dying declarations as both are paradox to each other. It was astutely contended that there is no corroborative piece of evidence to corroborate the dying declaration. It was sagaciously contended that as per dying declaration she was killed by pouring kerosene oil upon her but surprisingly no residue of kerosene oil was found at the spot. It was further contended that finger prints on the container of kerosene oil could be a substantive piece of evidence but no effort was made to pick up chance prints from the said bottle. It was further contended that prosecution witnesses categorically deposed that no finger print was found on the bottle. This falsifies the prosecution case that accused had poured kerosene upon the deceased.
SC No. 23/13 Page 10 of 44State v. Ratni Devi & Sandeep Tanwar
(i) It was further contended that as per prosecution version deceased was killed by pouring kerosene oil but there is no cogent evidence in this regard. It was submitted that doctor who attended the deceased first categorically deposed that deceased was burnt by some chemical and in his cross-examination he clarified that deceased did not sustain burn injury by kerosene oil. It was further contended that his testimony is corroborated by the in-charge of crime team who deposed that no residue of kerosene oil was found at the spot. It was further submitted that since prosecution failed to prove the fact that deceased was burnt by kerosene oil, no reliance can be placed on the dying declaration and in support of his contention reliance is placed on Moti Singh v. State of U.P. AIR 1964 SC 900.
(ii) Learned defence counsel further contended that as per the testimony of prosecution witnesses, deceased had bandage over her both the arms from tip of fingers to the shoulders, thus, in these circumstances, it was not possible for the deceased to put thumb impression on her dying declaration. This further creates a doubt over both the dying declarations. It was further sagaciously contended that there is no cogent evidence about the mental condition of the deceased at the time of making dying declaration particularly second dying declaration as PW2 in his cross- examination categorically deposed that deceased was on ventilator and she was not in a position to speak and was only able to answer by moving her head. It was contended that in these circumstances no reliance can be placed on the dying declaration particularly when the same was not recorded in question and answer form.
(iii) It was further contended that as per prosecution case, SC No. 23/13 Page 11 of 44 State v. Ratni Devi & Sandeep Tanwar deceased was taken to the hospital by accused Sandeep Tanwar and his brother and after reaching the hospital he also informed his in-laws. It was submitted that had the accused poured kerosene oil or set her on fire, he would not have tried to save the deceased. It was further contended that since accused had attempted to save the deceased, she did not utter even a single word against him in her first dying declaration. It was further argued that family members had sufficient opportunity to tutor the deceased before her second dying declaration, thus, no reliance can be placed upon her in the absence of any corroborative evidence. It was further contended that under the influence of her family members, deceased had converted the case of suicide in a murder case, thus, no reliance can be placed on the dying declaration. In support of his contention, reliance is placed on P Mani v. State of Tamil Nadu AIR 2006 SC 1319.
(iv) It was sagaciously contended that there is no iota of evidence against the accused Sandeep Tanwar for the offence of culpable homicide amounting to murder except the alleged dying declaration and this fact was known to the prosecution and due to that reason prosecution has taken a somersault at the end of trial by raising the plea that if prosecution fails to prove the guilt of accused for the offence of murder, he can be held guilty for the offence punishable under Section 304 B IPC. It was contended that though under law there is no bar to convict a person for the offence of 304B IPC in the absence of a charge, but to prove the guilt of accused under Section 304B IPC, prosecution is duty bound to prove the essential ingredients of the offence. It was contended that by submitting that accused may be held guilty for the offence punishable under Section 304B IPC, prosecution has admitted that it was a case of suicide and not culpable homicide amounting to murder. It was further contended that there is no SC No. 23/13 Page 12 of 44 State v. Ratni Devi & Sandeep Tanwar iota of evidence to establish that accused Sandeep Tanwar had ever made any demand of dowry or ever harassed the deceased for dowry. On the converse there is overwhelming evidence to prove that no dowry was even demanded at the time of marriage and investigating officer himself admitted that accused had purchased the car from his own fund. It was further contended that PW2, PW3 and PW7 had only made vague statement and their testimony is stereotyped and they failed to disclose any specific instance. Rather they admitted that no demand was ever made by the accused persons from them. It was contended that though investigating officer had seized the mobile phone of the deceased but no effort was made to analyse the calls detail of the deceased. Similarly, no effort was made to analyse the calls detail of the family members of the deceased. It was contended that had the accused harassed or tortured or made any demand of dowry from the deceased, deceased would have certainly contacted her family members on phone but there is no such evidence. This further proves the innocence of the accused.
(v) Learned counsel appearing for the accused sagaciously contended that no reliance can be placed on the testimony of PW11 who claimed herself as one of the best friends of the deceased and claimed that deceased used to tell her woes to her. But surprisingly, she neither attended her marriage nor funeral. Even mother of deceased categorically deposed that deceased had no such friend and he did not know about any such friend. Even conduct of PW11 is quite abnormal as she did not tell anyone about her woes and plight. It was contended that in fact PW11 is the sister of Ms. Malti councillor of the area who had close relations with the family of deceased and due to that reason investigating agency did not hesitate to plant her as a false witness to create a false evidence against SC No. 23/13 Page 13 of 44 State v. Ratni Devi & Sandeep Tanwar the accused persons.
(vi) Learned defence counsel astutely contended that there is no cogent evidence against the accused Ratni Devi also. Whatever evidence adduced by prosecution are quite vague and general in nature and no reliance can be placed on their deposition.
(vii) In support of his contentions, learned defence counsel relied upon the following judgments:-
(a) Asha and another v. State of Uttarakhand, (2014) ACR 151
(b) Mangat Ram v. State of Haryana, (2014) ACR 352
(c) Manohar Lal v. State of Haryana, Criminal Appeal No. 1188 of 2009 decided on July 1, 2014 by the Apex Court
10. I have heard rival submissions advanced by counsel for both the parties at length, perused the record carefully and gave my thoughtful consideration to their contentions.
11. Before dealing with the contentions relating to dying declaration raised by the counsel for both the parties, I deem it appropriate to have a look over the settled proposition of law in this regard.
12. Recently the Apex Court summarized the law relating to the admissibility of dying declaration in Krishan v. State of Haryana Criminal Appeal No. 766 of 2008 decided on December 13, 2012 wherein Apex Court highlighted the parameters laid down in Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22, in para 14 as under:
SC No. 23/13 Page 14 of 44State v. Ratni Devi & Sandeep Tanwar "......16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night;
whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful SC No. 23/13 Page 15 of 44 State v. Ratni Devi & Sandeep Tanwar version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
(emphasis supplied)
13. After considering the principle laid in Khushal Rao's case (supra) Apex Court held in para 15 to 18 as under:
15. A bare reading of the above paragraphs shows that the Court opined that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
The Bench further clarified that where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
16. In the case of Ram Sagar Yadav (supra), this Court had followed the same principle and, in turn, SC No. 23/13 Page 16 of 44 State v. Ratni Devi & Sandeep Tanwar specifically referred to the judgment of Khushal Rao (supra). Not only this, even in the case of Munnu Raja and Anr. v. State of Madhya Pradesh (1976) 3 SCC 104, this Court referred to the judgment in Khushal Rao's case (supra). In paragraph 6 of the judgment, the Court stated the same principle that where the dying declaration suffers from an infirmity, the Courts will have to adopt a different course to adjudicate the matter in accordance with law. In the case of Ramilaben Hasmukhbhai Khristi v. State of Gujarat (2002) 7 SCC 56, this Court held as under:
"28. Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration."
(emphasis supplied)
17. In this regard, reference can also be made to a recent judgment of this Court in the case of Bhajju @ Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327.
18. From the above judgments, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with the established practice and principles.
14. Same view was taken by the Apex Court in case Hiraman v.
SC No. 23/13 Page 17 of 44State v. Ratni Devi & Sandeep Tanwar State of Maharashtra Criminal Appeal No. 1288 of 2008 decided on January 31, 2013.
15. In the light of the above settled proposition of law, facts of the case in hand will be analysed to ascertain as to whether the dying declarations are trustworthy and whether conviction can be recorded without any corroboration or not? If not, whether prosecution has led sufficient evidence to corroborate the dying declaration?
16. Indisputably, to prove the guilt of accused Sandeep Tanwar for the offence punishable under Section 302 IPC prosecution case is solely based on the second dying declaration (Ex. PW1/C) of the deceased. Except that there is no ocular or circumstantial evidence to bring home the guilt of accused for the offence punishable under Section 302 IPC.
17. It is also admitted case of prosecution that initially deceased had also made a statement before erstwhile investigating officer SI Narender Samota (since deceased) on May 29, 2011 but prosecution intends to exclude the same on the ground that the same was made under the influence of accused Sandeep Tanwar. It is also undisputed fact there is a material contradiction between both the dying declarations as in her first dying declaration deceased claimed that she had committed suicide by pouring petrol upon her after altercation with Sandeep Tanwar as she was being harassed by both the accused persons for the last six months whereas in her second statement she alleged that accused had poured oil (kerosene oil) upon her; then fetched match box from bathroom and threw a ignited stick upon her, thereafter she raised an alarm and after hearing the alarm rest of family members came there. In these circumstances, first SC No. 23/13 Page 18 of 44 State v. Ratni Devi & Sandeep Tanwar question emerges as to whether there is any cogent evidence to show that deceased had made first statement under the influence of accused?
18. In this regard the testimony of the testimony of PW2, PW3, PW7, PW8 and PW15 are relevant.
19. PW15 constable Ranjan Sharma who accompanied with SI Narender Samota in his examination-in-chief deposed that investigating officer had recorded the statement of victim in the presence of her father and doctor and the same was read over to her father, who accepted it true and correct. PW8 Dr. Sandeep Goel is the person who examined the victim when she was brought to the hospital by her husband i.e. accused Sandeep Tanwar. PW8 in his examination-in-chief deposed that police had recorded the statement of victim in his presence. However, he swiftly added that he had not overheard the statement as he was sitting at some distance. But PW8 corroborates the testimony of PW15 that police had recorded the statement of deceased. PW8 further testified that deceased was fit to make a statement at that time.
20. PW2 is the father of deceased and in his examination-in-chief deposed that on May 29, 2011 at about 6 AM he had received a call from accused Sandeep that his daughter had sustained burn injuries and she was admitted in Metro Hospital at Shadi Pur, Patel Nagar. Accordingly, he along with his wife PW3 reached there. He further deposed that in Metro Hospital he talked with his daughter and she informed him that "Yeh sab dono maa bate kaa kara dhara hai". He further deposed that his daughter was scared and was enquiring about her child. PW2 further testified in his examination-in-chief that deceased also told him in Metro Hospital that one SC No. 23/13 Page 19 of 44 State v. Ratni Devi & Sandeep Tanwar day prior to the incident she was not taken to attend a function at the house of sister of accused Sandeep at Gurgaon and also told him that she was not taken to Gurgaon by the accused by stating that if her parents had given a car to them, they would have taken her to attend the function in that car. The statement of PW2 to the extent that victim informed him that "Yeh sab dono maa bate kaa kara dhara hai" was got confronted during his cross-examination with his statement Ex. PW1/A made before the SDM. Admittedly, in his statement Ex. PW1/A, PW2 raised his suspicion over both the accused. On the contrary, in his statement Ex. PW1/A, PW2 alleged that his daughter told him in his Metro Hospital that accused Sandeep had given a suitcase to her and asked her to go to her parent's house and he also pushed his daughter and in indignation she had taken this extreme step. This shows that PW2 had made a substantial improvement in his deposition affecting the core of prosecution case.
21. PW3 mother of deceased made deposition in the chorus of her husband (PW2). PW7 brother of deceased made a contradictory statement by deposing that when they talked with the deceased in RML Hospital, she told them that on May 28, 2011 they (deceased and accused) had to go to celebrate birthday of nephew of accused Sandeep at his sister's house. My sister (deceased) was also willing to attend that function but she was not taken by accused persons. She also told them that she was not taken by the accused as they (family of deceased) had not given a car at the time of marriage and accused Sandeep told his sister 'tere baap ne koi hume gadi nahien di hai jusme hum tujh ko bita kar le jayenge.' He further deposed that at about 4:00 AM accused Sandeep returned home. Since, his sister (deceased) was sleeping at that time, she took some time to open the door. Upon this accused got annoyed and started quarrelling SC No. 23/13 Page 20 of 44 State v. Ratni Devi & Sandeep Tanwar with the deceased and set her on fire by pouring kerosene oil. In his cross- examination PW7 admitted that he had not stated to the police that Sandeep told his sister ''tere baap ne koi humen gadi nahien di hai jusme hum tujh ko bita kar le jayenge.' This shows that PW7 had made a substantial improvement in his deposition by adding these words in his examination-in-chief first time in the Court. From the testimony of PW2, PW3 and PW7 it is clear that there is a material contradiction among their deposition as PW7 deposed that deceased told him since time was taken by his sister in opening the door, accused got annoyed and started quarrelling with his sister and thereafter he set her on fire by pouring kerosene oil whereas this important fact was not disclosed by PW2 and PW3. Rather they deposed that they had suspicion that their daughter had taken this extreme step in indignation and they had suspicion that both the accused were behind the said incident. In these circumstances, it is difficult to place any reliance on the latter part of statement of PW7.
22. From the deposition of PW2, PW3 and PW7 it is pellucid that deceased was in a position to talk but none of them deposed that victim told them that any threat was given to her either by the accused Sandeep or his brother who brought her to the hospital. No doubt PW2 in his deposition deposed that victim was scared and she was worried about her son. Certainly, a person who had sustained serious burn injuries could be sacred due to numerous factors such as by thinking the outcome of the act; due to pain or due to his/her kids. PW2 also deposed that victim was worried about her son. Thus, it can not be ruled out that victim was scared either by pain or due to her son. Mere fact that victim was scared is ipso-facto not sufficient to draw an inference that she was under any kind of threat from the accused or that she was under the influence of accused. In other words, SC No. 23/13 Page 21 of 44 State v. Ratni Devi & Sandeep Tanwar there is no cogent evidence to prove that victim was under the influence of accused when she made her first statement to SI Narender Samota in the presence of PW8, PW15 and PW2.
23. Now coming to the second dying declaration (PW1/C). Before placing any reliance on Ex. PW1/C, question arises what was the condition of victim whether there was any chance to tutor the deceased or not?
24. In this regard, the testimony of PW1, PW2, PW3 and PW23 are relevant.
25. PW1 in his cross-examination deposed that on June 1, 2011 he had received a call from investigating officer at about 11 AM that victim was fit to make a statement. It means that victim was declared fit to make statement either prior to 11 AM or that she was declared fit to make statement at 11 AM and as soon as she was declared fit to make statement, investigating officer made a call to PW1. PW1 also deposed that he reached the hospital at 1:45 PM. It means that he reached hospital after about 2 hours 45 minutes of her declaring fit to make statement. But the testimony of PW1 to the extent that victim was declared fit to make statement at 11 AM does not get any support from the endorsement (PW23/A) made on MLC. As per the said endorsement, patient was declared fit to make statement at 1:20 PM. If patient was declared fit to make statement at 1:20 PM, how PW1 could receive a call at 11 AM? Further, it is admitted case of prosecution that patient was declared fit to make statement by PW23 Dr. Rajiv Singh Bhandari but in his cross- examination he deposed that he could not say how many times he had attended the patient on June 1, 2011 and he even did not remember SC No. 23/13 Page 22 of 44 State v. Ratni Devi & Sandeep Tanwar whether patient was unconscious at any point of time since patient was admitted in the hospital. Though PW23 deposed that he declared the patient fit to make statement but he did not depose about her condition. PW2 in his cross-examination deposed voluntarily that patient was on ventilator and she was semi-conscious and was able to speak a little and clarified that she was only able to say 'yes' or 'no' and that she used to respond by nodding her head. If it was so, it was not possible for the deceased to make a dying declaration (PW1/C) in narrative form as recorded by PW1. Further, since her statement Ex. PW1/C was recorded after a substantial gap of about 2 hours 45 minutes of her declaring fit to make statement, the possibility that she was not tutored by her family members can not be ruled out.
26. From the testimony of PW1, PW2 and PW23 it becomes clear that there is not only inconsistency about the time when the deceased was declared fit to make statement but there is also doubt about her mental condition as PW2 categorically deposed that deceased was only to say 'Yes' or 'No' and was able to respond by nodding her head. If it was so, it was not possible for the deceased to make her statement in narrative form. Further, there was sufficient time for her family members to influence the victim.
27. Applying the law laid down by the Apex Court Khushal Rao (supra) and reiterated in Krishan v. State of Haryana (supra), I am of the considered opinion that in view of the above infirmities in the dying declaration, it will not be safe to place any reliance without any corroboration on material aspects. Now question arises as to whether there is any cogent piece of evidence to corroborate the averments made in the SC No. 23/13 Page 23 of 44 State v. Ratni Devi & Sandeep Tanwar dying declaration.
28. As per dying declaration Ex. PW1/C, accused had poured kerosene oil from a plastic bottle. As per seizure memo Ex. PW15/B, investigating officer had seized a 7-UP 600 ml bottle having 2/3 liquid like kerosene oil. If accused had poured kerosene oil upon the deceased as alleged in the dying declaration Ex. PW1/C, then there must be finger prints expression on the said bottle. It is also admitted case of prosecution that crime team had inspected the place of occurrence and the in-charge of crime team had submitted his report vide Ex. PW9/A. Column no. 15 of the said report pertains to the detail of chance prints developed at the spot but the said column remained blank. This shows that no attempt was made to develop any chance prints from the said bottle. PW9 SI Dhan Singh in- charge crime team in his cross-examination admitted that if someone would touch plastic bottle, finger prints would appear on the bottle and clarified that they did not find any finger prints on the said bottle. He also admitted that he did not mention this fact in his report but swiftly added that he had not mentioned this fact because he did not notice any finger prints on the bottle. In other words, PW9 intends to say that he did not mention about the absence of finger prints on the bottle as he did not notice the same. But his testimony to that extent does not inspire any confidence because it was his duty to mention in the report Ex. PW9/A that from which article effort was made to develop chance prints but no such fact is mentioned in the report. Due to the carelessness on the part of PW9 as well as the investigating officer, an important piece of evidence could not be collected. In the absence of said important piece of evidence, it is seldom to draw an inference that accused had poured kerosene oil upon the victim.
SC No. 23/13 Page 24 of 44State v. Ratni Devi & Sandeep Tanwar
29. It is also admitted case of prosecution that the alleged incident had taken place at about 6:00 AM and deceased in her first dying declaration also deposed that the incident had taken place at 6:00 AM. As per the MLC Ex.PW6/B, victim reached the hospital at 6:13 AM. In other words, victim was taken to the hospital within 13 minutes of the incident. It means that there was no delay on the part of accused Sandeep Tanwar in taking the victim to the hospital. Had accused any intention to kill his wife, he would not have shown such promptness to take the victim to the hospital. Similarly, PW2 and PW3 in their examination-in-chief deposed that they had received call at about 6:00 AM from accused Sandeep Tanwar. It means that accused had informed the family members of deceased just immediately after the incident. Not only he informed the family members of deceased but also took the victim to the hospital without wasting any time. This shows that he had made sincere effort to save the life of his wife. Further, it shows that the period of 13 minutes is not sufficient to influence a person. If prosecution claims that 13 minutes time was sufficient for the accused to influence the victim, then it is difficult to brush aside the submission of defence counsel that victim made the second dying declaration under the influence of her family members as they had more than 2 ½ hours to tutor or influence the deceased.
30. Deceased in his dying declaration Ex. PW1/C alleged that accused had picked up a green colour bottle and poured oil upon her from the said bottle. Thereafter, he went to bathroom to fetch match stick and threw an ignited stick upon her. If a person wants to kill another, he would try to pour as much as kerosene oil as he could. But in the instant case it is not so. As per seizure memo Ex. PW15/B the bottle was of 600 ml and it was found containing 2/3 kerosene like liquid. It means that when police SC No. 23/13 Page 25 of 44 State v. Ratni Devi & Sandeep Tanwar reached the spot, it found that bottle was having approximately 400 ml liquid. It is also admitted case of prosecution that the said bottle was sent to FSL Gandhi Nagar and the plastic bottle was given Ex.6. As per report, the bottle was found containing 500 ml blue coloured liquid. The report is per se admissible in evidence as the same is signed by Director of the FSL Gandhi Nagar. As per FSL report, the said liquid was kerosene oil. Thus, as per FSL report, only 100ml kerosene oil was used. It is also admitted case of prosecution that the lid of said bottle was found at the washbasin. It means that the bottle was in such a position that the kerosene oil had not fallen on the floor. It is pertinent to state that if a person would pour kerosene oil upon another and would go to bathroom to fetch match box, there is very high probability that not only he would try to pour as many as kerosene as he could but he would also be in anger or in so hurry that he would not bother to keep the bottle in standing position. Rather, there would be every possibility that he would throw kerosene bottle. But it is not so in the instant case. On the contrary, the presence of 500 ml kerosene oil in the bottle corroborates the first statement of deceased that she had poured some liquid upon her and aflamed herself.
31. Further deceased in her dying declaration Ex. PW1/C alleged that accused returned to home at 5:00 AM and after returning home, he started quarrelling with her and asked her to pack her suitcase and asked her to go to her parents house. But she refused and came outside in the courtyard. She further deposed that accused picked up a green colour bottle and poured oil upon. Then fetched a match stick from bathroom and ignited the match stick and threw upon her. Then, she raised alarm and after hearing din all came from upstairs. It is admitted case of prosecution that other family members of the accused Sandeep Tanwar reside at SC No. 23/13 Page 26 of 44 State v. Ratni Devi & Sandeep Tanwar upstairs. If there is any substance in the dying declaration, then the conduct of deceased was quite unnatural when accused was pouring kerosene oil upon. Because natural conduct in such a situation would be to lodge protest; to raise hue and cry in full pitch but deceased raised hue and cry only when an ignited stick was thrown upon her. On the converse, this conduct of deceased is quite probable in a suicide case because when a person decides to commit suicide by pouring kerosene oil etc, then there is high probability that such person would raise alarm when he/she starts feeling heat of flames or pain. In other words, the conduct of deceased again corroborates her first version that she had committed the suicide.
32. Further, if a person throws kerosene upon another with an intention to kill then there is very high probability that a substantial portion of kerosene oil would also spill over the floor. But if a person intends to commit suicide by pouring very less quantity of kerosene upon himself then very less quantity of kerosene oil would spill over the floor. PW9 in-charge of crime team in his cross-examination deposed that he had not found any article at the spot which was giving the smell of kerosene; nor he found kerosene oil on the floor of the house and due to that reason he did not recite the same in his report. Similarly, PW22 inspector Mahavir Prashad in his cross-examination admitted that kerosene was neither found on the floor of the room nor in courtyard. This fact again tilts in favour of the first version of deceased that she had committed suicide.
33. It is evident from the above discussion that there is no scintilla of evidence that may corroborate the dying declaration that deceased was killed by the accused Sandeep Tanwar as alleged in the second dying declaration Ex.PW1/C. In the absence of any corroborative evidence, I am SC No. 23/13 Page 27 of 44 State v. Ratni Devi & Sandeep Tanwar of the considered opinion that it will not be safe to place any reliance on the said dying declaration.
34. During the course of arguments, learned counsel appearing for the accused raised two contentions vigorously, firstly that there is no evidence to show that kerosene oil was used in the alleged offence and secondly that since deceased had bandage over her arms from tips of fingers to shoulder, it was not possible for her to put thumb impression. But to my mind, both the contentions have no merit. As already discussed from the FSL report Gandhi Nagar, it becomes clear that residue of kerosene oil were found from the exhibits lifted from the spot; from the clothes of deceased and from her hair which proves that kerosene oil was used in the incident. No doubt PW8 in his cross-examination deposed that when he endorsed on the MLC that it was chemical burn, it meant that it was not a kerosene oil or petroleum burn case. PW21 Dr. Yogesh Tyagi autopsy surgeon in his deposition categorically deposed that he did not find any sign of chemical burn injury on the dead body. This further proves that it was not a case of chemical burn as deposed by PW8. Further, from the FSL report it is established beyond doubt that it was case of kerosene oil and not of chemical burns. In these circumstances, I am of the view that judgment Moti Singh v. State of Uttar Pradesh (supra) has no applicability in the instant case.
35. PW8 Dr. Sandeep Goel in his cross-examination categorically deposed that as per MLC there was no injury on the palm of the deceased, however there were injuries on her both the arms. But his testimony is contrary to the deposition of PW21 who deposed that there was bandage covering completely both the palms including fingers and thumbs and he SC No. 23/13 Page 28 of 44 State v. Ratni Devi & Sandeep Tanwar removed the bandage and there were burn injuries on fingers as well as thumb of both the palms. Though PW21 deposed that when epidermis and dermis both are involved then after healing of injuries the permanent scars will be formed, thus, in that situation originality of skin will be disappeared, yet he clarified that since he had not recorded the degree of burns i.e. superficial or deep burns involved in the palm/fingers/thumbs of both the hands, he was unable to make any comment about the same. No doubt, from the testimony of PW21 it is established that deceased had also sustained injuries on her fingers/thumbs/palm but there is nothing on record to show that the said burn injuries were so deep or serious that deceased could not put thumb impression.
36. In the light of foregoing discussion, I am of the considered opinion that dying declaration is insufficient to prove the guilt of accused Sandeep Tanwar for the offence punishable under Section 302 IPC. Since, prosecution has failed to produce any other cogent evidence to bring home the guilt of accused Sandeep Tanwar for the offence punishable under Section 302 IPC, thus, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Sandeep Tanwar for the offence punishable under Section 302 IPC, thus accused deserves acquittal from the charge of murder. Accordingly, I hereby acquit him thereunder.
37. Now coming to the next question as to whether the evidence led by prosecution is sufficient to prove the guilt of accused for the offence punishable under Section 304B IPC?
38. Before analysing the evidence on record on the point of Section 304B IPC, I prefer to refer the judgment Manohar Lal v. State of SC No. 23/13 Page 29 of 44 State v. Ratni Devi & Sandeep Tanwar Haryana criminal appeal no. 1188 of 2009 decided by the Apex Court on July 1, 2014 wherein the Apex Court had summarized the law on the point of dowry death. Relevant para are 16 to 19 and same are reproduced as under:
16. Section 304B IPC relates to dowry death and reads as follows:
"304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.-For the purpose of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
17. For the purpose of the said Section, a presumption can be raised only on proof of the following essentials:
(a) Death of the woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances.
(b) Such death took place within seven years of her marriage.
(c) The woman was subjected to cruelty or harassment by her husband or his relatives.
(d) Such cruelty or harassment was for, or in connection with, any demand for dowry and SC No. 23/13 Page 30 of 44 State v. Ratni Devi & Sandeep Tanwar
(e) Such cruelty or harassment was soon before her death.
In this connection, we may refer decision of this Court in Kaliaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.
18. In Sunil Bajaj v. State of M.P, (2001) 9 SCC 417, this Court held:
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6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called "dowry death" and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, maybe direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence.
Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the abovementioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned counsel for the appellant could not dispute that the first two ingredients mentioned above are satisfied."
SC No. 23/13 Page 31 of 44State v. Ratni Devi & Sandeep Tanwar
19. The expression "soon before her death" used in the Section 304B IPC and Section 113B of the Evidence Act was considered by this Court in Hira Lal v. State (Govt. of NCT), Delhi, (2003) 8 SCC 80, which reads as under:
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---------------------------------------------------------------------------- Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
"113-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.-For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre- existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death"
subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of SC No. 23/13 Page 32 of 44 State v. Ratni Devi & Sandeep Tanwar the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of the woman.
(This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death."
Similar observation was made by this Court in Balwant Singh v. State of Punjab (2004) 7 SCC 724. In the said case this Court held:
"10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that "soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim"
(emphasis supplied)
39. In the light of above settled proposition of law, facts of the case in hand will be analysed to ascertain as to whether prosecution has led sufficient evidence to bring home the guilt of accused persons for the offence punishable under Section 304B IPC or not.
40. It is admitted fact that deceased was married with accused Sandeep Tanwar on April 28, 2008 and she died on June 6, 2011. Thus, SC No. 23/13 Page 33 of 44 State v. Ratni Devi & Sandeep Tanwar deceased had died within seven years of her marriage. It is also undisputed fact that deceased had died due of burn injuries i.e. other than normal circumstances. Thus, first two ingredients of Section 304B IPC have been fully satisfied.
41. Now coming to the other three ingredients that require to be proved to bring home the guilt of accused for the offence punishable under Section 304B IPC.
42. In this regard the testimony of PW2, PW3, PW7, PW11, PW13 and PW22 are relevant. Firstly, it will be examined as to whether there was any demand. If yes, whether accused harassed or subjected the deceased with cruelty for such demand or dowry.
43. PW2, PW3 and PW7 being the father, mother and brother of deceased deposed in the same chorus. The salient points of their deposition are as under:-
(i) That deceased was married with accused Sandeep on 28.04.2008
(ii) That at the time of marriage, house hold articles, jewellery and other gifts were given to the deceased and relatives of her in-
laws.
(iii) That deceased was kept well for 3-4 months after her SC No. 23/13 Page 34 of 44 State v. Ratni Devi & Sandeep Tanwar marriage but thereafter her mother-in-law started harassing her on one pretext or another on petty issues.
(iv) That her mother-in-law instigated her son Sandeep Tanwar to beat the deceased and he used to come home after consuming liquor and give beatings to the deceased. It was the habit of accused to come home late after consuming liquor and give beatings to the deceased.
(v) That deceased used to tell all such incidents.
Accordingly, family of deceased talked with the father of the accused who assured them that accused Sandeep would mend his behaviour and he would not repeat such incidents, but despite assurance, behaviour of accused Sandeep was not changed.
(vi) That after eleven months of marriage i.e. on February 24, 2010 deceased gave birth to a male child. At that time, gifts were given as per their capacity but things were not changed.
(vii) That deceased used to tell that accused used to taunt her for bringing insufficient dowry articles and used to tell that she was being harassed as car was not given at the time of marriage.
(viii) That deceased told in Metro Hospital that one day prior to incident, deceased was not taken to a birthday function of the son of sister of accused Sandeep at Gurgaon stating that if car had been given, they would have gone in that car.
(ix) That deceased used to tell that both the accused persons used to compare the deceased with other girls in the neighbourhood and used to taunt her by saying that she had not brought enough dowry as compared to them.
(x) That deceased used to visit her parents house once in a SC No. 23/13 Page 35 of 44 State v. Ratni Devi & Sandeep Tanwar 1 ½ to 2 months and during such visits she used to tell them.
(xi) That after one year of the birth of child, deceased visited her parents house with her husband. Accused Sandeep left from her in- laws house with his son but did not take the deceased, thereafter PW2 took the deceased to her matrimonial house. At that time, accused had given beating to the deceased in the presence of PW2 under the influence of liquor.
(xii) That both the accused wanted to throw the deceased from her matrimonial house and used to say to leave the house and they would take the child.
44. PW2 in his cross-examination candidly admitted that no demand was raised by the accused persons or their family members either at the time of Roka Ceremony or marriage or even at the time of birth of child. But swiftly added that accused had only asked to ensure that the food of good quality should be served on functions. He also admitted that accused had brought 100-150 guests/baraties whereas guest from bride's family was approximately was 200 and he had spent about ` 1.5 lac to ` 2 lac on the catering. He also admitted that clothes, utensils etc that were given at the time of marriage were given as per customs and voluntarily and not at the asking of the accused. PW3 also corroborates the testimony of PW2 by admitting that accused did not raise any demand at the time of marriage. She further deposed that prior to marriage, deceased was doing a job and at the asking of the accused, deceased had quit the said job. This further shows that accused were not greedy. Thus, it becomes clear that accused persons did not raise any demand of dowry either at the time of engagement or marriage or even at the time of birth of the child.
SC No. 23/13 Page 36 of 44State v. Ratni Devi & Sandeep Tanwar
45. During their deposition, above witnesses failed to tell any specific demand raised by accused persons. No doubt said witnesses deposed about car but their testimony relating to car does not inspire any confidence because the same was not asked from them at any point of time. Further, it is admitted case of prosecution that the car was purchased by the family of accused from their own funds. During investigation, investigating officer had seized the copy of registration certificate and copy of invoice of the said car vide memo Ex. PW22/D. From the said documents, it becomes clear that the car was purchased on March 24, 2010 after getting financed from HDFC Bank. If the accused had already purchased the car, why they would harass the deceased by raising the demand for car particularly when accused persons did not raise any demand of dowry at the time of marriage.
46. PW7 in his deposition deposed that accused persons also demanded a house from the deceased. To my mind the testimony of PW7 to that extent does not inspire any confidence because no such demand was deposed by the parents of the deceased.
47. The deposition of PW2 and PW7 about the beating given by accused Sandeep to deceased in the presence of PW2 also does not inspire any confidence because firstly it is seldom to believe that husband can dare to beat his wife in the presence of his father-in-law. Secondly, if any husband dares to do so, then it is seldom to believe that father of the bride particularly young brother of the bride would not retaliate. Thus, the conduct of PW2 and PW7 at that time was not of an ordinary prudent person and during their deposition they failed to give any reasonable SC No. 23/13 Page 37 of 44 State v. Ratni Devi & Sandeep Tanwar explanation for their such abnormal conduct.
48. Now coming to the testimony of PW11, who claimed that deceased used to share her woes and plight with her.
(i) PW11 in fact is the sister of Ms. Malti Verma, who was the councillor of the area of the complainant's party. PW7 brother of the deceased in his cross-examination admitted that Ms. Malti Verma is their neighbour and they knew her for the last fifteen years and also admitted that Ms. Malti Verma also visited the hospital to meet with his sister. Similarly, PW2 also admitted the above facts. It is pertinent to state that both the witnesses i.e. PW2 and PW7 denied the suggestions that Ms. Malti Verma had pressurized the police to register a case against the accused persons. Now reverting back to the testimony of PW11.
(ii) PW11 in her examination-in-chief deposed that deceased had made a complaint to her that her husband used to give beating to her after consuming liquor and also deposed that her mother-in-law also used to torture her and told her that her husband and mother-in-law used to torture her for the purpose of dowry. She further deposed that her husband and mother-in-law were demanding jewellery, gold and house in dowry. But her above testimony does not inspire any confidence as in her cross- examination she admitted that she did not state to the police that her husband and mother-in-law used to torture her for the purpose of dowry; nor she told the police that her husband and mother-in-law used to demand jewellery, gold and house. This shows that PW11 had made substantial improvements in her deposition by inserting these facts first time before the SC No. 23/13 Page 38 of 44 State v. Ratni Devi & Sandeep Tanwar court. She failed to give any reasonable explanation why she had not disclosed these facts before the police.
(iii) Further, PW11 deposed in her cross-examination that deceased had told these facts in the month of March/April 2008 and she also admitted that she did not share the problem of her friend (deceased) with her sister Malti and her husband; nor she sought any help from them to redress her problem. She also admitted that she did not inform the family members of the deceased; nor she made any complaint with the police. She swiftly added that she had not disclosed to anyone because deceased had requested her not to disclose the same to anyone. Thus, the conduct of PW11 is quite mysterious. If she had come to know about the torture of accused persons, being her friend, it was her duty at least to inform her family members. Further, the reason furnished by PW11 that she did not inform to anyone as deceased made a request her not to disclose to anyone is contrary to the deposition of PW2, PW3 and PW7 as they categorically deposed that deceased used to make complaints against her in-laws as and when she used to visit her parents house.
(iv) Further, PW11 also made substantial improvements in her deposition by deposing that deceased told her that if she would make a complaint to anyone, her husband would kill her son; and she (deceased) had made a request not to disclose the said facts to her family members as she did not want to disturb her parents. The said portion of her testimony was got duly confronted. This shows that PW11 did not hesitate to make improvements in her deposition.
(v) Further, PW11 in her cross-examination also admitted that she did not remember when Ritu had died and she did not visit the hospital to meet her friend (deceased) but swiftly added that she did not go to SC No. 23/13 Page 39 of 44 State v. Ratni Devi & Sandeep Tanwar hospital as she was not in Delhi as she had gone to Rajasthan. But she admitted that she did not visit either hospital or her house after returning from Rajasthan. What kind of a friend was she?
(vi) According, to the testimony of PW11, deceased did not use to share her woes and plight with her parents as she did not want to disturb them and due to that reason she asked PW11 not to say anything to anyone as her husband had given a threat that her husband would kill her child. Thus, PW11 intends to claim that she was the only person with whom deceased use to share her woes. But surprisingly, mother of the deceased did not know anything about her such best friend. PW3 in her cross- examination candidly admitted that she did not know any Neetu Rawat (PW11). She further deposed that Neetu Rawat had never visited her house. Nor she saw her daughter with her. She further deposed that her daughter had only one friend named Anita. This again casts a reasonable doubt over the claim of PW11 that she was the only well-wisher of the deceased.
(vii) Further, there is material contradiction between the testimony of family members of deceased and PW11 as her family members did not depose that accused ever demanded for jewellery and gold as deposed by PW11. Her family members deposed that accused made a demand for car but PW11 did not state so.
(viii) At last but not least, PW11 deposed that deceased told her about all the incidents in the month of March/April 2008. Indisputably, deceased had died on June 6, 2011. In other words, whatever deceased had told her, it was told much prior to her death. It means that PW11 was not aware about the condition of deceased or conduct of accused persons soon before her death.
SC No. 23/13 Page 40 of 44State v. Ratni Devi & Sandeep Tanwar
(ix) In view of the ongoing discussion, Court has no hesitation to hold that PW11 is not a trustworthy witness and the possibility that she had been planted being the sister of Ms. Malti Verma with whom complainant's family have long relations can not be ruled out. Thus, no reliance can be placed on her testimony.
49. PW2 and PW3 in their deposition candidly admitted that the marriage was solemnized through a mediator Mr. Pawan Chawla. PW3 deposed that when deceased used to make complaints against the accused persons, they requested Mr. Chawla to intervene and he also visited the house of accused to sort out the matter. She further deposed that her husband (PW2) had gone to the house of accused with Mr. Chawla and they used to visit the house of accused frequently and they had visited lastly about 7-8 months prior to the incident. Thus, PW3 intends to prove that several attempts were also made through mediator to sort out the matter but they could not succeed. But her version is not supported by her husband (PW2) who deposed that he tried to approach Mr. Pawan Chawla in order to apprise him about the ill-treatment of his daughter at the hands of accused persons but he could not do so because Mr. Chawla had suffered a paralytic attack and due to that reason he was unable to speak. In other words, as per PW2, mediator Mr. Pawan Chawla never visited the house of the accused persons in connection with the alleged complaints. This shows that witnesses did not hesitate to conceal material facts from the court.
50. Mulling over the ongoing discussion, it becomes lucid that the testimony of witnesses examined by prosecution are insufficient to prove SC No. 23/13 Page 41 of 44 State v. Ratni Devi & Sandeep Tanwar the remaining three ingredients of Section 304B IPC. Thus, prosecution has miserably failed to bring home the incident within the purview of Section 304B IPC.
51. In view of the discussion that has taken place in para 43 to 49, I am also of the opinion that prosecution has also failed to bring home the guilt of accused persons beyond the shadow of all reasonable doubts for the offence punishable under Section 498A/34 IPC.
52. Next question arises why the victim had committed the suicide?
53. Indisputably, on the previous day of incident, accused Sandeep Tanwar had gone to the house of his sister at Gurgaon to attend the birthday function of his nephew and returned to his house between 5:00 AM to 6:00 AM. Accordingly, some quarrel had taken place between husband and wife. As per prosecution version, deceased was ready to go to the function but accused did not take her stating that her parents had not given any car in marriage. Had they given the car, they would have gone in the said car. Though prosecution failed to prove the said allegations, yet assuming for the sake of arguments that accused refused to take the deceased in the function on one pretext or another. But prosecution failed to convince the court how the said act of the accused Sandeep Tanwar drove the victim to commit the suicide. There may be several reasons for not taking the spouse to a function. Mere fact that husband did not take the wife to a function is ipso-facto totally insufficient to drive a wife to take such SC No. 23/13 Page 42 of 44 State v. Ratni Devi & Sandeep Tanwar a drastic step. Further, during investigation, no effort was made to know how many persons from the family had gone to attend the function. Moreover, it is not the allegation that all family members of the accused Sandeep Tanwar had gone to attend the function leaving behind the deceased alone in the house. Since, in the dying declaration (Ex.PW1/C) it is alleged that accused Sandeep returned to home at 5:00 AM, it indicates that accused had gone to function alone. It means that other family members including younger brother of Sandeep Tanwar also did not go to attend the said function. Mere fact that deceased wanted to attend the function and accused did not take her was not sufficient in any manner to drive the victim to take such a drastic step. It is also pertinent to state that in a traditional Hindu family, elders do not permit their children to go together in the matrimonial house of their daughter.
(i) Further, as per Ex. PW1/C accused returned at 5:00 AM. Since he returned from Gurgoan, it means that he must have taken at least 45-60 minutes to reach his house. In other words, accused must have left from Gurgaon between 4:00 AM to 4:15 AM. It means that he had hardly any sufficient time to sleep. Thus, when accused in his statement under Section 313 Cr. P.C stated that after returning to home, he laid on his bed to take rest appears more plausible. Further, it is also undisputed fact that the accused Sandeep Tanwar and his younger brother doused the fire and took the victim to the hospital. Had accused any intention to kill the deceased, he would not have doused the fire and shown urgency to take the victim to the hospital. Thus, conduct of the accused also rules out the theory of culpable homicide amounting to murder or dowry death as projected by prosecution. As already stated that from the circumstances there is every possibility that victim was in anger when she was not taken to the function and she burst into anger after seeing the accused Sandeep in the morning SC No. 23/13 Page 43 of 44 State v. Ratni Devi & Sandeep Tanwar and in order to show her indignation she sprinkled a little kerosene about 100 ml upon her from the bottle which was containing 600 ml kerosene and set herself on fire. This possibility also gets strength from her first statement. Mere fact that victim set herself on fire in anger or due to some quarrel between husband and wife is not sufficient to make the accused liable being the husband either for the offence punishable under Section 302 IPC or 304B IPC.
54. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Sandeep Tanwar beyond the shadow of all reasonable doubts for the offence punishable under Section 302 IPC as well as 304B IPC. Prosecution has also failed to bring home the guilt of both the accused persons for the offence punishable under Section 498A/34 IPC. Thus, I hereby acquit both the accused persons from all the charges.
Announced in the open Court on this 16th day of September, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01/Central Tis Hazari Courts/Delhi SC No. 23/13 Page 44 of 44