Delhi District Court
5.2004 That Dr.Mishra Had Inspected The ... vs ) Rakesh Sachdeva on 16 January, 2007
1
IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE FAST TRACK COURT:
ROHINI DELHI
SC No. 30/2 dated 09.12.2006
State V.
1) Rakesh Sachdeva
son of Sh. Bishambhar Lal
R/O WZ-7B, Hind Nagar,
Tilak Nagar, Delhi.
2) Usha Sachdeva
Wife of Sh. Bishambhar Lal
R/O WZ-7B, Hind Nagar,
Tilak Nagar, Delhi.
FIR No. 228/04
PS Tilak Nagar
U/s. 498A/304B/34 IPC
JUDGMENT
Rakesh Sachdeva (accused) and his mother Smt. Usha Sachdeva (accused), have been facing trial for offences U/s. 498A and 304B read with Section 34 IPC on the allegations that on 18.04.04 both of them in furtherance of their common 2 intention did commit dowry death by causing death of Smt. Ruchi ( wife of Rakesh Sachdeva accused) and that after her marriage on 29.06.2001 and also soon before death she was subjected to cruelty by both of them on account of non fulfillment of demand of dowry.
1. On 18.4.04, Smt. Ruchi Wife of Rakesh Sachdeva (accused) and daughter in law of accused Usha Sachdeva (accused) left this world. She was married to Rakesh Savchdeva (accused) on 29.6.2001. It was a love marriage. Parents of Smt. Ruchi Sachdeva were not in favour of marriage but even then the ceremony was performed at Gurudwara.
2. 3-4 months after the marriage, Smt. Ruchi told her parents that her mother-in-law was raising demand of dowry and her husband was affirming the same. Thereafter they started giving her beatings. In the year 2001, on the occasion of Karvachauth festival, Smt. Ruchi visited her parental house and told her parents that her in-laws were raising demand for gold and cash. Thereupon her parents gave gold, clothes and Rs. 2 lacs in cash.
3. In the year 2002, Smt. Ruchi was blessed with a male child and on that occasion, parents of Smt. Ruchi gave 3 cash and clothes. However, 15 days after Smt. Ruchi was blessed with male child, she was expelled from the matrimonial home on the ground that insufficient items were given on the occasion of birth the child. Smt. Ruchi stayed at her parental house for about 2 months. She filed a complaint against her in- laws with CAW Cell, Kirti Nagar but ultimately her husband Rakesh Sachdeva (accused) took her to matrimonial home from her parental house. At the time of arrival at her parental house on the occasion of "Kanjak", Smt. Ruchi told her parents that her mother-in-law and husband were maltreating her on account of dowry. She used to tell so even telephonically.
4. On 18.4.2004, Rakesh Sachdeva (accused) telephonically informed her in-laws that his wife(Smt. Ruchi) was suffering from low blood pressure and he did not know as to what had happened to her. Thereupon mother and sister of Smt. Ruchi reached at the matrimonial home and found Smt. Ruchi lying dead with sign of injuries at her face.
5. Police of P.S. Tilak Nagar received information where upon DD entry No. 11 A was recorded. S.I.Manoj Kumar reached WZ-7-B, Hind Nagar, Tilak Nagar i.e. matrimonial home. S.I. Pratap Singh also reached there. Dead body of Smt. 4 Ruchi was lying on the ground floor. Both accused persons were found present there with Pooja Sachdedva. Sister of Rakesh Sachdeva was also present there. Since it was case of death of a married lady within three years of her marriage, S.I. Manoj Sharma informed SDM, Patel Nagar. Photographer was also called at the spot, who took snaps of the scene of crime. Sh. Mohd. Ali Ashraf, SDM was also informed.. The SDM reached police station Tilak Nagar in the evening of 18.4.2004 and got recorded statements of parents of deceased-Ruchi. Inquest proceedings were carried out on the dead body of Smt. Ruchi. The SDM appended endorsement on the statement of Smt. Reena Bharija (mother of the deceased) and the present case was registered.
6. After registration of the case, S.I. Pratap Singh prepared rough site plan of the place of occurrence. Both the accused were arrested. On 19.4.2004 the dead body was subjected to autopsy. Photographs were taken at the time of autopsy as well. S.I. Pratap Singh recorded statement of Vinish, brother of the deceased. The S.I. also took into possession photo graphs of marriage of Smt. Ruchi Sachdeva. Autopsy report was collected from the hospital. During investigation 5 negatives were seized by the S.I. from the private photographer. S.I. also seized the file of complaint from CAW Cell.
7. Viscera was sent to CFSL for analysis. Report was recollected from CFSL. On completion of investigation, challan was filed.
8. After compliance with provisions of section 207 CrPC case came to be committed to Hon'ble Court of Session. Prima facie case having been made out, Charge for offences u/s. 498-A & 304 B r/w sec. 34 IPC was framed against both the accused on 28.8.2004 by learned predecessor. Since the accused persons pleased not guilty and claimed trial, prosecution examined following 16 witnesses:
PW-1 is Dr. B.N. Mishra who conducted postmortem examination on the dead body of Ruchi, PW-2 is Dr. B. B. Madan who reached the matrimonial home of Smt. Ruchi on being called by Pooja (sister of Rakesh accused). On reaching there, he found that Smt. Ruchi was lying unconscious, and he suggested for removal of Smt. Ruchi to hospital.
PW-3 is Vinish Bharija (brother of the deceased), PW-4 is Smt. Reena Bharija, (complainant-mother of the deceased), PW-5 is Sh. Harish Chander, (father of the 6 deceased), PW-6 Smt. Chanchal was dropped being unnecessary, PW-7 is Sh.Daman private photographer who reached the spot and took photographs on 18.4.2004 and 19.4.2004. PW-8 is HC Dharamveer who recorded FIR/DD No. 11A and 19 A which are Ex. PW8A, 8/B and 8/C respectively.
PW-9 S.I. Manoj Sharma, PW-10 HC Ram Swaroop, PW-11 S.I. Bhup Singh, PW-12 Ct.Subhash, PW13 Ct. Jag Mohan, PW5 S.I. Pratap Singh and PW16 Lady Ct. Sunita have deposed about the manner in which investigation was conducted.
9. In their examination u/s. 313 CrPC the accused persons admitted the factum of marriage of Smt. Ruchi Sachdeva and their interse relationship. However they denied all the incriminating circumstances against them.
Plea put forth by Rakesh Sachdeva accused is as under:
" it was a love marriage and we both loved each other. On the day of alleged incident, my wife Ruchi, while she was taking bath at first floor, slipped upon heater (water) and got injuries. On her screaming, I immediately 7 called the doctor. The doctor advised us to take Ruchi to hospital for treatment. We showed the site to police officials, gave heater to them but they did not take the same in possession."
Usha Sachdeva accused came forward with the following plea:
"It was a love marriage and I loved my daughter in law. But on the day of alleged incident, my daughter in law was taking bath at first floor. She slipped upon heater(water) and got injuries. On her screaming, my son Rakesh immediately rushed, taken out her from bathroom and Ruchi said " current lag gaya". We immediately called the doctor and doctor advised us to take Ruchi to hospital for treatment. We showed the site to police official and gave heater to them but they did not take the same in possession."
10. In defence, accused persons have examined following three witnesses:-
DW-1 Sh. Shailender Oberoi, their neighbour DW-2 8 is Smt. Pooja Verma, sister of accused Rakesh; and DW -3 Sh. Ram Karan record clerk in DDU Hospital.
11. Arguments heard. File perused.
12. Learned Addl. Public Prosecutor has referred to the statements of parents and brother of the deceased and argued that since it stands established that the accused persons were subjecting Smt.Ruchi to cruelty on account of non-fulfillment of their demands for dowry, both the accused are liable for the offence under Section 498 A IPC.
13. It has also been argued on behalf of the State that since Smt.Ruchi was subjected to cruelty even soon before death, in view of the medical evidence her death being in abnormal circumstances within 7 years of her marriage, both the accused are liable for offence under Section 304 B IPC.
14. On the other hand, learned defence counsel has argued that in this case of love marriage between Rakesh Sachdeva and Ruchi, prosecution has miserably failed to establish that any demand of dowry was made by any of the accused, charge for the offence under Section 498 A IPC cannot be said to have been established. It has also been argued that PWs 3,4 and 5 have made various improvements in their 9 version while making statements in Court and there are material contradictions in their statements, no reliance can be placed on their testimony.
15. Expression "Dowry" has been defined in Section 2 of Dowry Prohibition Act in the manner as:
Definition of "Dowry". In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly-
(a)by one party to a marriage to the other party to a marriage; or
(b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person.
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to who the Muslim Personal Law (Shariat) applies.
Explanation I (Omitted) Explanation II-The expression "valuable security"
has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860).10
Whether there was any demand of dowry before or at the time of marriage?
16. There is nothing in the statements of relatives of Ruchi that either before or at the time of marriage any demand of dowry was raised by any of the accused. It is case of the prosecution from the very beginning that marriage between Rakesh Sachdeva accused and Ruchi (since deceased) was a love marriage. PWs 3 to 5 have admitted this fact while appearing in Court and also that at the time of marriage no dowry was given to Ruchi.
Whether there was any demand of dowry after the marriage and that too in connection with marriage?
17. At the outset, learned defence counsel referred to decision in Ram Ashrit and other v. State of Bihar, AIR 1981 SC 942 wherein it was held that when all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony is safely acted upon. In this respect, reference was also made to decision in Sharad v. 11 State of Maharashtra, AIR 1984 SC 1622. Learned counsel argued that since herein prosecution case is mainly based on statements of PW3,4 and 5, who are closely related to the deceased, their testimony be subjected to strict scrutiny. Learned defence counsel has also referred to decision in Suraj Mal v. The State (Delhi Administration) wherein it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
Accordingly, I have gone through the statements of the witnesses with more care and caution.
Three-Four months after the marriage Case of prosecution is that ¾ months after the marriage, Ruchi told her parents that her in-laws were demanding dowry. In this respect, PW4 Smt.Reena Bharija, mother of Ruchi, deposed that ¾ months after the marriage Rakesh Sachdeva and his mother started demanding dowry from her daughter and quarreling with her; that they started taunting his daughter and calling her by names; and that her 12 mother in law demanded cash, jewellery and clothes; that on two occasions they gave Rs.10,000/-and Rs.5,000/-in cash to mother in law of her daughter. She further deposed that Dolly and Puja, sisters in law of Ruchi, started taunting and harassing her daughter and that they gave her beatings.
This version narrated by PW3 is not in consonance with the version stated by her before the Sub Divisional Magistrate in her statement Ex.PW4/A. A perusal of Ex.PW4/A would reveal that therein she stated that ¾ months after the marriage Ruchi told them that her in laws were demanding dowry and that when she was further questioned, she replied that her mother in law used to raise demand while her husband Rakesh Sachdeva used to affirm the same. Therein, she did not state as to what demand was put forth by Usha Sachdeva accused or affirmed by her son. She also did not state therein as to what article or item was demanded by her or affirmed by her son and at what time. Therein, she also did not state that Pooja and Dolly, sisters in law of Ruchi used to taunt her or beat her. She also did not state therein that a sum of Rs.5,000/-or Rs.10,000/-was paid by them to Usha Sachdeva twice.
13
Had any demand of Rs.5,000/-or Rs.10,000/-or any other item been raised by Usha Sachdeva or affirmed by her son or had any such amount of cash or item been paid by them, she would not have omitted to state before the SDM in Ex.PW4/A. The witness was confronted with her statement Ex.PW4/A where it does not find so recorded. She admitted to have not stated before the SDM that Dolly or Puja used to abuse her daughter or that they used to give her beatings. Thus, PW4 has improved upon her version narrated to the SDM in Ex.PW4/A. Similarly, PW3 Vanish Bharija, brother of Ruchi, admitted in his cross-examination to have not specifically named Dolly in his statement before the police. Name of Puja also does not find mentioned in his previous statement Ex.PW3/A recorded on the following day of the occurrence. He admitted to have not stated before the police that Dolly started taunting his sister for bringing less dowry. It does not find mentioned in his statement Ex.PW3/D that Dolly used to threaten his sister that in case she did not bring more dowry from her parents, she would be expelled from her matrimonial home or that they would marry Rakesh Sachdeva with a girl of rich family, who could bring more dowry in the marriage.
14
Demand at the time of Karvachauth Case of prosecution is that at the time of Karvachauth festival, Ruchi visited her parental house and told her parents that her in laws were demanding gold and cash, whereupon her parents gave Rs.2 lac in cash, gold and clothes to her. This is the version of the complainant PW4, mother of the deceased, as narrated to the SDM on 18.4.2004.
In Court, PW4 simply deposed that on the occasion of first Karvachauth, they gave Rs.2 lac to the mother in law of her daughter and gold weighing 110 grams i.e. 11 Tolas. In her statement Ex.PW4/A made before SDM, PW4 did not state that 11 Tolas of gold was given and that too to mother in law of her daughter. While making statement in Court, she did not state that clothes were also given by them on that occasion.
While appearing in Court as PW4, Smt. Reena Bharija, nowhere deposed that at the time of Karvachauth festival, any such demand was raised by in laws of her daughter or that her daughter apprised them of this demand or that with a view to fulfill their demand as conveyed to them they gave her cash, gold and clothes on that occasion.
15
In her cross-examination, PW4 replied that amount of Rs.2 lacs was arranged from saving and some from bank;. that they had taken out money from bank in piecemeal for a sum of Rs.15,000/-; Rs.20,000/-; and Rs.25,000/-; that she had arranged money from State Bank of India and Punjab National Bank at Vikas Puri and Rajouri Garden. But no documentary proof was produced before the police or in Court to prove withdrawal of such amount. PW4 further stated to have got recorded in her statement made before SDM that a sum of Rs.2 lac was paid to mother in law. But this fact does not stand recorded in her statement Ex.PW4/A. She however admitted to have not stated before the SDM about giving of 11 Tolas of gold. Had it been so, she would not have omitted to specifically state in Ex.PW4/A that the amount was paid to mother in law of Ruchi and that gold weighing 11 Tolas was also given. Further, no receipt of purchase of gold has been produced on record. PW4 volunteered to have torn off receipts much prior.
PW5 Sh.Harish Chander Bharija-father of Ruchi-deposed in his cross-examination to have stated to the police that they had given Rs. 2 lacs to mother in law. But it does not find mentioned in his statement Ex.PW5/A that this amount was 16 paid to mother in law.
The witness also improved upon his previous statement by stating that Puja and Dolly had demanded dowry, as this fact does not find mentioned in his statement Ex.PW5/A. Even PW3-brother of Ruchi- admitted to have not stated to the police that Dolly had threatened her that if Ruchi did not bring enough dowry on the occasion of Karvachauth, she would not be spared. It does not stand recorded in Ex.PW3/DA that on the day of Karvachauth he alongwith his mother, father and grand mother and Gaurav, his cousin, reached matrimonial home of his sister and handed over articles to Rakesh Sachdeva and Usha Sachdeva.
It also does not stand recorded in his statement Ex.PW3/DA that Usha Sachdeva and Dolly told his sister that if she would continue bringing articles demanded by them, she would be kept properly. PW3 admitted to have not told the police that sister in law of Ruchi used to tell her that whenever she visited her parents house, she used to be given sufficient money by her parents.
Demand at the time of birth of child 17 It is case of prosecution that at the time Ruchi was blessed with a son, her parents gave her cash and clothes. This version is available in Ex.PW4/A i.e. the statement made by mother of Ruchi before the SDM. While appearing in Court as PW4, she deposed that on 5.8.2002, Ruchi gave birth to a male child and at the time of delivery, they gave Rs.10,000/-in cash to the in laws of Ruchi in addition to clothes etc. She further deposed that immediately after these articles and cash were given, mother in law of Ruchi started saying that clothes were not as per their choice. However, in Ex.PW4/A it does not stand recorded that they gave Rs.10,000/-in cash to the in laws of Ruchi. It also does not find recorded in Ex.PW4/A that clothes given by them were not liked by mother in law. Thus, PW4 has made improvement in her previous version while making statement in Court. There is nothing in the statement Ex.PW4/A or the statement made by PW4 in Court that any cash or clothes were demanded by any family members of in laws of Ruchi at the time of delivery of the child. Furthermore, it is well settled that suchlike ceremonial gifts are not covered by the definition of dowry.
PW5 Sh.Harish Chander Bharija, father of Ruchi, 18 deposed that at the time of delivery of child, they gave clothes and jewellery. But nowhere he deposed that how much jewellery was given and to whom. He also nowhere deposed that these items were given on demand by any of the accused. A perusal of his statement Ex.PW5/A made before the police would reveal that therein this fact does not find mentioned at all. Thus, PW5 has also improved his previous statement while making statement in Court.
In view of the above noted improvements in the statements of these witnesses, this court comes to the conclusion that it is not safe to place reliance on the statements of PWs 3 to 5 regarding supply of cash and goods by them to any of the accused at the time Ruchi was blessed with a son.
Demand of share from VRS It is also case of prosecution that 15 days prior to the death of Ruchi, her father received amount under VRS, but her mother in law and husband demanded a share in it and also in the house. This version is available in Ex.PW4/A i.e. the statement made by mother of Ruchi before the SDM.
In this respect, first of all, when we refer to the statement of PW5 Sh.Harish Chander Bharija-father of Ruchi-it would 19 transpire that according to him, he took benefit under VRS and got money; that his daughter telephonically told him that her in laws and sisters in law were demanding share in the money so got by him, in addition to share in the house. It may be mentioned here that neither during investigation nor during trial, PW5 produced any document in support of this version of availing of benefit and money under VRS. In absence thereof, it cannot be said that PW5 actually availed of any such benefit or got any money under any such scheme. Furthermore, mother of Ruchi, while appearing in Court as PW4 nowhere stated that their daughter told them telephonically that her husband, mother in law or sisters in law were demanding share in money obtained under VRS scheme. Thus PW4 has made improvement in her previous version even on this aspect of the prosecution case. A perusal of Ex.PW4/A made by PW4 before the SDM would reveal that therein she did not state that her daughter Ruchi ever telephonically so informed her about any such demand. Furthermore, in Ex.PW4/A it does not stand recorded that the accused wanted a share in the house. There is nothing on record to suggest as to in which house, the accused had demanded a share.
20
A perusal of statement Ex.PW4/A made by Smt.Reena Bharija, mother of Ruchi and the statement Ex.PW5/A made by Sh.Harish Chander Bharija, father of Ruchi, before the SDM would reveal that statement Ex.PW5/A is word by word reproduction of statement Ex.PW4/A. Ordinarily, two statements made by different witnesses do not tally word by word or in toto. It is available from the statement of PW14 Mod. Ali Ashraf, concerned Sub Divisional Magistrate that he got these statements recorded, meaning thereby that he himself did not record these statements. In his cross-examination, he could not tell names of the persons who scribed these statements Ex.PW4/A and Ex.PW5/A. He admitted to have not made any endorsement underneath these statements that these were read over to their makers. At this stage, when we advert to the chief examination of PW9 SI Manoj Sharma it transpires that therein he stated to have recorded statements of Reena Bharija and Harish Chander Bharija, parents of the deceased, on the directions of the SDM but in his cross-examination he stated that he recorded statements of parents of Ruchi at the dictation of SDM. PW14 gave a note underneath Ex.PW4/A and Ex.PW5/A that these were given before him. But he did not 21 record that under such and such circumstances he was himself unable to record these statements of material witnesses in this case of serious nature. All this further adversely affects the case of prosecution regarding the version available in these statements in respect of demand of dowry and cruelty, as rightly argued by learned defence counsel.
According to PW3, his parents used to be taunted by the accused persons and that Dolly, sister in law of Ruchi, used to tell her that whenever she used to visit her parental house she used to be given sufficient money by her parents. PW3 further deposed that on account of this type of torture to his sister, his father sustained brain haemorrhage. But it may be mentioned here that this fact does not stand recorded in his statement Ex.PW3/DA that his father sustained brain haemorrhage on account of torture of his sister. Therefore, PW3 has improved upon his previous statement.
PW3 further deposed that when his father was admitted in hospital in December 2001, both the accused and Ruchi had visited the hospital and that at that time both the accused 22 taunted his father for giving less dowry and further remarked that such things would continue happening if their demands were not fulfilled. But it may be mentioned here that it does not stand recorded in his statement Ex.PW3/DA that when his father was admitted in the hospital in December, 2001, Usha Sachdeva and Rakesh Sachdeva accused alongwith Ruchi visited the hospital and that both the accused taunted his father for giving less dowry or threatened Ruchi at their house that if their demand was not fulfilled, such incidents would continue to take place. So PW3 has made improvement even on this aspect of the case.
It is in the statement of PW3 that on 5.8.2002 his sister was blessed with a child and even after sufficient cash and goods were given, 15 days thereafter his sister was thrown out of her matrimonial home after beatings, on the ground that they were not given sufficient gift items and cash at the time of delivery of child. But PW3 nowhere deposed that at the time of delivery of child, they had given sufficient cash and goods on any demand raised by any of the accused. Furthermore, it is well settled that suchlike gifts if given at the time of delivery of child do not fall within the definition of dowry. 23
After going through the statements of PW3,4 and 5 this court comes to the conclusion that these PWs have made improvements on material aspect i.e. the aspect of demand of dowry, by making statements in Court in respect of facts which were not stated by them during investigation. There are material contradictions and discrepancies in their statements. Therefore, decision in Inder Singh and another v. State (Delhi Administration), AIR 1978 SC 1091 and Harjeet Singh v. State, 2003(1) JCC 308 referred to on behalf of the State do not come to the aid of prosecution.
Learned Addl.Public Prosecutor has referred to the statement of PW11 SI Bhoop Singh and the proceedings conducted by him on the complaint of Ruchi moved before Crime Against Women Cell, and argued that in view of the allegations leveled in this complaint, it can safely be concluded that she was being subjected to cruelty by the accused persons.
PW11 SI Bhoop Singh deposed that on 26.8.2002 he received complaint Ex.PW11/A from Ruchi and conducted proceedings Ex.PW11/B. But according to him, these proceedings were closed as matter was compromised between the parties. File pertaining to proceedings before CAW Cell is 24 Ex.PW4/B. A perusal of complaint Ex.PW11/A would reveal that in this complaint dated 26.8.2002 Ruchi admitted that her marriage with Rakesh Sachdeva was a love marriage, but ultimately performed in a Gurudwara. In this complaint, no doubt, Ruchi leveled allegations against the accused persons that they were raising demands and also maltreating her, but so far as the offence under Section 304 B IPC is concerned, no reliance can be placed on the allegations leveled in this complaint as this complaint is dated 26.8.2002 and Ruchi left this world on 18.4.2004, and these are not covered by the provisions of Section 32 of Indian Evidence Act.
A perusal of file Ex.PW4/A pertaining to proceedings before CAW Cell would reveal that on 14.10.2002, Ruchi filed an application before the SHO of CAW Cell withdrawing her complaint alleging therein all the allegations she had leveled in the complaint against her husband and mother in law were false; that matter had been amicably settled between her and her husband; that she was living with her husband; that there was no tension between them. She also prayed therein for closure of 25 the case at the earliest.
Withdrawing a case depicting true facts is one thing. But when the complaint states that the allegations leveled in her complaint are false, it is totally a different situation. Therefore, should the complaint have simply prayed for withdrawal of her complaint, it would have been a different matter. But herein, the complainant prayed for closure of the case and withdrawal of complaint stating therein that the allegations leveled therein were false. For withdrawal of complaint pending before CAW Cell, it was not at all required from the complainant to state therein that the allegations leveled therein were false. There is no provision under the law that once a complaint is filed before CAW Cell, the complainant cannot withdraw the complaint unless she states therein that allegations leveled therein are false. If a complainant intends to withdraw her complaint at any point of time, it is not necessary that she has to proceed with it and she cannot withdraw unless she states that the allegations leveled therein are false.
As discussed above, statements of parents and brother of Ruchi complainant regarding demands put forth by the accused suffer from serious improvements and 26 contradictions. Furthermore, on 18.4.2004 Ruchi was at her matrimonial home when she was removed to hospital, but this is not a case where the deceased left behind a suicide note as a proof of cruelty on account of non fulfillment of any demand of dowry by any of the accused. During investigation, the Investigating Officer did not record statement of anyone from the neighbourhood to prove that anyone of them heard any hue and cry emanating from the house of the accused on or before 18.4.2004 or that anyone of them saw or heard Ruchi being subjected to cruelty or harassment by any of the accused. So, there is no evidence to suggest that on 18.4.2004, any of the accused subjected Ruchi to cruelty or harassment in connection with dowry. It is not case of prosecution that on 18.4.2004 or soon before that date Ruchi met her parents or other relative or disclosed that she was being subjected to cruelty or harassment at her matrimonial home by any of the accused. In her statement Ex.PW4/A before SDM, Smt.Reena Bharija, mother of Ruchi, stated that their daughter did not tell them any fact since the time her husband took her along from the parental house. Therefore, there is merit in the contention of learned defence counsel that prosecution has not led any evidence that Ruchi 27 disclosed to her parents or brother or any other relative any factum of cruelty or harassment at the hands of the accused after her husband took her from the parental house to the matrimonial home.
At this stage, it is pertinent to advert to writings Ex.PW4/DB, Ex.PW4/DC, Ex.PW4/DD, Ex.PW4/DE and Ex.PW4/DF. In her cross-examination, PW4 Smt.Reena Bharija complainant-mother of Ruchi-admitted that all these statements are in the handwriting of her daughter and bear her signatures. In Ex.PW4/DB, Ruchi stated before CAW Cell authority that she had filed case as suggested by her parents. Therein, she admitted that she had committed a serious mistake and at the same time stated that she was withdrawing her case. Not only this, Ruchi further begged her mother in law and sister in law that she be forgiven. She further stated therein that she loved her husband much and that she was living with her husband of her own.
In Ex.PW4/DD dated 8.10.2002 Ruchi wrote that that she was ashamed of her mistake and the tension created because of her of having gone to Court, and that she begged pardon as her mother in law felt much inconvenience and 28 trouble. She also wrote therein that her sister in law and Nandoi were not creating any obstacle.
Still in another document Ex.PW4/DE dated 13.10.2002, Ruchi reduced into writing that her parents had not given any dowry and that the allegations leveled by her were false. Once again she begged pardon from her mother in law and sister in law.
In Ex.PW4/DF dated 13.10.2002, Ruchi wrote that her mother in law and sister in law were not at fault and that she begged pardon from them. She further wrote therein that she loved her husband too much. As regard complaint, she wrote that it was filed by her as suggested by her Mausi Smt. Sushma and her husband Sh. Chander Khanna. It stands recorded therein that no dowry was given by her parents and that the allegations leveled by her were false.
In her statement as PW4, mother of Ruchi, deposed that around 15 days prior to this incident, she had gone to the matrimonial home of Ruchi and at that time in her presence her mother in law had slapped her daughter twice or thrice. But this fact does not stand recorded in her statement Ex.PW4/A made before the SDM. Therefore, on this aspect, PW4 has made 29 improvement while making statement in Court. Had she so visited the house of the accused and witnessed Usha Sachdeva accused slapping her daughter Ruchi, she would not have omitted to state so before the SDM.
Keeping in view all this, there is no merit in the contention raised on behalf of the State that although Ruchi withdrew the complaint filed before CAW Cell, all the allegations leveled therein were true.
Conclusion
18. In view of the above discussion, this Court comes to the conclusion that prosecution has failed to establish beyond doubt that any demand of dowry was made by any of the accused after the marriage of Ruchi with Rakesh Sachdeva accused or that any demand was put forth by Rakesh Sachdeva before Ruchi or her parents in connection with marriage or that she was ever subjected to harassment by any of the accused on account of non-fulfillment of any such demand. Therefore, learned defence counsel has rightly referred to the law laid down in Tirath Kumar alias Raj Rani and another v. State of Haryana, 2005(3) JCC 1740; Baljeet Singh and another v. State of Haryana, AIR 2004 SC 1714; Sunil Bajaj v. State of 30 M.P, 2001 (2) JCC (SC) 262; Smt.Shamo and another v. State of Haryana, 2004(2) C.C.Cases (HC) 283 and this Court comes to the conclusion that charge for offences under Section 498 A and 304 B IPC fails so far as both the accused are concerned. What led to death of Ruchi ?
19. Ruchi died on 18.4.2004. There is no direct evidence to tell us as to what happened at her matrimonial home on 18.4.2004. It is not case of prosecution that Ruchi committed suicide. Similarly, it is not case of the accused that she did commit suicide.
As held above, there is not even an iota of evidence to suggest that Ruchi was subjected to cruelty by any of the accused soon before her death so as to attract provisions of Section 304 B IPC.
PW4 mother of Ruchi deposed that on 18.4.2004 they received telephone call from Rakesh Sachdeva accused that blood pressure of Ruchi was law, but on reaching the house of the accused she and her mother they found Ruchi lying dead on floor with injuries on her neck, head, eyes. She further deposed 31 that one tooth of Ruchi was found broken and her mouth was full of blood. There were mark of injuries on her elbows and legs. But when we advert to her statement Ex.PW4/A made before SDM it would transpire that she did not state so therein and what is recorded therein is that on reaching the house of the accused she found Ruchi lying dead with mark of injury on her mouth. Thus, on this aspect, PW4 has made improvement while making statement in Court.
Evidence of PW3 Vaneesh Bharija in this respect is hearsay evidence. It is in the statement of PW3 that last time, her mother received telephone call from Puja, sister of Rakesh Sachdeva accused, that Ruchi was being beaten. Even in this respect, his statement is hearsay evidence. Mother of Ruchi, while appearing as PW4, did not state that she ever received such a telephone call from Puja.
PW5-father of Ruchi-deposed to have gone to the house of accused and found mark of injuries on different parts of body of his daughter Ruchi. But a perusal of his statement Ex.PW5/A made before SDM would reveal that therein this fact does not stand recorded. Therein, PW5 stated that on that day i.e.18.4.2004, at 10.30 a.m. his wife received telephone call from 32 Rakesh (accused) and thereupon she and her mother left for the matrimonial home of Ruchi, but at 11.30 a.m. her mother informed him that Ruchi had died. In Ex.PW5/A, PW5 did not state that he also went to the matrimonial home of Ruchi or saw mark of injuries on various part of body of his daughter. So, PW5 has also made improvement on this aspect of the matter.
PW2 Dr.B.B.Madan was the first witness from the public to visit the house of the accused on 18.4.2004. During the days of occurrence, PW2 was running a private clinic at WZ 33/4, Mukherjee Park Extension,Tilak Nagar, Delhi. According to him, on 18.4.2004 he was called by Puja, sister of Rakesh Sachdeva, accused representing that her sister in law Ruchi Sachdeva was not feeling well, and that on reaching there he examined Ruchi Sachdeva and found her unconscious, and as such suggested them to remove her immediately to hospital. The doctor witness did not depose anything else. Statement of PW2 has gone unchallenged. So, it is available from the statement of Dr.B.B.Madan that Ruchi Sachdeva was found unconscious. There is nothing in the statement of PW2 Dr.Madan that he observed any injury on the person of Ruchi at the time he visited the house of the accused.
33Defence plea
20. In the given circumstance when it stands established that Ruchi was found lying unconscious at her matrimonial home and ultimately she died on reaching the hospital, it was for the accused to explain as to under what circumstances Ruchi became unconscious and had the injuries as depicted by PW1 Dr.B.N.Mishra in the autopsy report. Now it is to be seen as to whether the accused have been able to explain these aspects.
Accused have come forward with the plea that electrocution of Ruchi was accidental and not homicidal; that only Rakesh Sachdeva was present on the first floor whereas his co-accused Usha Sachdeva, his mother, was on the ground floor alongwith his sister. Learned defence counsel has argued that natural conduct of the accused shows innocence of Rakesh Sachdeva accused and in the given facts and circumstances, it stands established that it is a case of accidental electrocution. Conduct of the accused
21. DW2 Puja is sister of Rakesh accused. It is the statement of DW2 that she and her brother telephonically informed parents of Ruchi in the morning. It has not been disputed by the prosecution that information about the health of 34 Ruchi was received by her mother from Rakesh accused. There is nothing on record to suggest that the accused persons tried to conceal from the parents of Ruchi when she became unconscious. Puja DW2, sister of Rakesh, immediately rushed to PW1 Dr.Madan and brought him to their house for medical help of Ruchi. Furthermore, from the statement of DW1, a witness from the neighbourhood, it stands established that both the accused were present at the house at the time of occurrence and that both of them also accompanied Ruchi to hospital. All this may appear to be natural conduct and show bona fides of the Rakesh Sachdeva accused and his other family members soon after Ruchi suffered electrocution, but it was for Rakesh Sachdeva accused to explain as to under what circumstances Ruchi suffered injuries No.1 to 9 at his house.
As per suggestion put by learned defence counsel to Dr.B.N.Mishra, PW1, the deceased suffered injuries while she was taking bath or that she suffered the injuries accidentally when heater had fallen down suddenly on her back while she was getting water from the bucket. The witness categorically denied this suggestion.
35
In support of this defence plea, the accused have examined DW2 Smt.Puja. DW2 is sister of Rakesh Sachdeva accused and daughter of Usha Sachdeva accused. According to her, on the day of occurrence she was present at the house of her brother as she was going through some problem in her matrimonial life. In the morning when she got up and was present on the ground floor with her mother, she heard noises of his brother and sister in law (Bhabhi) from first floor. She went to the first floor and saw that his Bhabhi was lying on the floor of the bathroom and shivering because of electrocution. With the help of a wooden stick, she switched off the heater installed in the bathroom, thereafter she and her mother wrapped Ruchi in clothes ands took her to the bed room and helped her wear clothes.
It is pertinent to note that DW2 Puja nowhere deposed that heater installed in the bathroom had fallen down on the back of Ruchi suddenly while she was taking bath or that she suffered the injuries accidentally while she was getting water from the bucket, as per the plea suggested to PW1 Dr.B.N.Sharma in his cross-examination.
In the given facts and circumstances, in case of 36 accidental electrocution, Rakesh Sachdeva accused would have taken steps to save the life of his wife or told his sister that Ruchi had accidentally got electrocuted. But DW2 Puja nowhere stated as to what was her brother doing at the time she reached the first floor. There is nothing in her statement that her brother was taking such and such step to save the life of Ruchi while she was lying on the floor of the bathroom. She also did not state as to what words were used by his brother at the time she reached the first floor in the company of her mother. All this speaks volumes against Rakesh Sachdeva accused and he cannot take any advantage simply because, as per statement of PW3 Sh. Ram Karan, record Clerk of DDU hospital, on 16.11.03 Rakesh (accused) donated blood at the blood bank of DDU hospital, after his wife Ruchi was surgically operated upon on 16.11.03 .
Had any heater fallen down on the back of Ruchi all of a sudden while she was taking bath, accused could show any such heater lying in the bathroom. But there is nothing on record to suggest that at any point of time the accused told or showed to the police or the SDM or any other person that heater had fallen down and the same was lying in the bathroom. During 37 investigation, no heater was seized by the police from the bathroom of the first floor.
From the evidence available on record other defence plea appears to be that Ruchi suffered injuries accidentally while she was getting water from the bucket. There is nothing on record to suggest that any immersion rod was being used for heating the water in the bathroom. Even if any immersion rod was being used, same could be produced before the police or the SDM or the doctor during investigation. But evidence does not suggest production of any such rod by the accused or its seizure by the police from the bathroom on the first floor. Had any electric current been running in the bucket, Ruchi must have suffered injuries on her hands. But there is nothing on record to suggest that there was any injury on her hands.
PW1 Dr.B.N.Mishra observed following nine injuries on the dead body of Ruchi:
1) One bruise ( 4cmx3cm) was present over left cheek bone.
2) One scratch (0.7 cmx0.1 cm) over lateral aspect of left eyebrow.
3) One scratch Mark ( 1cmx0.2cm) over left lateral area of forehead.38
4) 3-4 minor abrasion were present over base of nose, upper lip and pinna of right ear.
5) One bruise (3cmx2cm) over dorsum of upper 1/3 part of right forearm.
6) One bruise (2cmx1.5cm) over dorsum of right wrist.
7) Four apparently placed abrasion cum bruises over dorsum of right elbow.
8) One alongatedly bruise ( 7cmx3cm) was present over lateral aspect of lower 1/3 part of right thigh.
9) One "J" shaped (alphabet J) burn mark was present over mid part of back on left side.
- It was vertically placed resembled the pattern of - Burn Mark
-the total length of burn Mark was 16 cm and 0.6 cm.
-The colour of burn Mark was greyish brown and presented superficial in nature. No exit wound (electrocution exit wound) detected anywhere on the body suggestive of low voltage through electric heater (coil like material).
In the opinion of the doctor Injuries No.1,5 and 6 could be inflicted by some hard and blunt object. Injuries No.2,3 and 4 could be produced by nails. Injury No.8 could be inflicted by some hard blunt club(lathi) weapon. Injury No.9 could be due 39 to voluntarily placement of electric heater coil like material for the purpose of electrocution (homicidal intention). The doctor ruled out possibility of accidental electrocution due to intactness of unburnt clothes and abnormal site on the body. There is nothing in medical evidence that any piece of burnt cloth was found sticking to the dead body. In view of specific opinion given by the doctor witness, accused cannot take any advantage of decision in Babu Ram v. State of Madhya Pradesh, 2002 AIR SCW 399, wherein doctor was not sure about the effect of so called ligature mark.
It appears that the deceased was not wearing any upper garment at the time she suffered electrocution and that she was made to wear clothes after she was brought to bedroom on the first floor.
PW14-the concerned SDM- nowhere deposed to have visited the spot. In the given facts and circumstances, the SDM should have visited the spot to find out as to what was the situation at the scene of crime or say, the place from where Ruchi had been brought to the hospital. But there is nothing on record to suggest as to what prevented the SDM from visiting the house of the accused. In the given circumstances, decision 40 in Nathu Singh v. State, AIR 1973 SC 2783 referred to on behalf of the State does not help the prosecution.
It was at about 2 p.m. that police of P.S.Tilak Nagar received telephonic call about death of a lady at WZ 7B Hind Nagar in suspicious circumstances, that PW9 SI Manoj Kumar accompanied by Constable Jaswant left for the house of the accused. According to PW9, when he reached there in the company of the constable, dead body of a female was found lying on the ground floor while both the accused and Puja were also present there. He further deposed that Rakesh represented that it was dead body of his wife Ruchi. But in this respect statement of PW9 cannot be accepted in view of cogent and convincing evidence that Ruchi was alive at that time, but unconscious, and that she died at DDU Hospital ten minutes after her removal to that hospital from Swastik Nursing Home.
PW9 further stated in his chief examination that he had noticed injury marks on the face of the lady. Had he noticed any mark of injury on the face of Ruchi, he must have brought this fact to the notice of SHO or Addl.SHO of the police station. But in his cross-examination, he admitted to have not told the Inspector that he had seen injury marks on the face of Ruchi. 41 There is also nothing in his statement to suggest that at that time he visited the first floor portion of the house or bathroom of that floor or that he found any fallen heater or coil or immersion rod lying there. But it is pertinent to note that it was not suggested to this witness during cross-examination that any coil or heater or immersion rod was shown to him by the accused in support of the defence plea that Ruchi died because of accidental electrocution.
PW 15 SI Partap Singh reached the spot in between 12 to 2 p.m and met parents of the deceased there after he took over investigation. He prepared rough site plan Ex.PW15/B. This site plan is not of any help to the prosecution firstly because evidence does not suggest as to at whose instance the SI prepared this document; secondly, because it shows point A as the point where dead body of Ruchi was found, but actually Ruchi was alive at the time SI Manoj Kumar visited the site and she died lateron in the hospital; and thirdly, that this site plan does not depict as to whether it was a single storey or double storey building.
PW15 SI Partap Singh denied in his cross examination that at the very initial stage he was told that Ruchi had expired 42 due to electrocution having slipped during bath and fallen on heater coil or that said coil was picked upon from the spot but not seized or that he did not seize the heater or that he had returned the same. As noticed above, it was not suggested to this witness by learned defence counsel during cross- examination that any coil or heater or immersion rod was shown to him by the accused while apprising him of the plea that Ruchi had died because of accidental electrocution.
According to DW1 many persons were present there when he was told that Ruchi had suffered electrocution. Had Ruchi suffered injuries because of accidental electrocution in the bathroom, any of the accused or Puja DW would have shown the bathroom to the persons, who had gathered there. There is nothing in the statement of DW1 Shalender Oberoi, witness from the public, that he or anyone else entered the house of the accused or that the accused told him or anyone present in the crowd there that Ruchi had died of accidental electrocution having come into contract of a heater or coil or immersion rod or that he took him or anyone else to the bathroom on the first floor of the house to show that she had actually suffered accidental electrocution. There is nothing in the statement of PW1 43 Dr.Madan that he was told at the house of the accused that Ruchi had suffered accidental electrocution in the bathroom or that he was shown the bathroom. He was brought there after having been told that Ruchi was not feeling well, and not on the ground that she had suffered accidental electrocution. Even if both the accused had immediately accompanied DW1 from their house to the nursing home and then to the hospital, Puja remained behind and atleast she could show to the persons, who had gathered there, the bathroom where she had found her sister in law lying shivering. But there is nothing on record to suggest that she took any such step while she was present there. It is pertinent to note that DW2 Puja nowhere deposed that heater, coil or immersion rod had fallen in the bathroom leading to electrocution. Had the police intentionally not seized any such electrical appliance -heater, coil or immersion rod or bucket, matter could be reported to senior police officers, but there is no material on record to suggest that any such step was taken. From all this and non recovery of any heater coil or immersion rod from the bathroom, this Court comes to the conclusion that defence plea that Ruchi died because of accidental electrocution does not stand established on record. 44
Learned Addl.Public Prosecutor referred to the decision in State( through CBI) v. Santokh Kumar Singh, 2006 IV AD (Cril)(DHC) 257, and argued that since false has been put by the accused, this is an additional link in the chain of circumstances. But I do not find any merit in this contention. To put forth a false plea is entirely different from a case where a party is unable to establish a plea put forth by him. Court has held that defence plea does not stand established on record. Therefore, prosecution cannot take any advantage of the decision in Santokh Kumar Singh's case (supra).
Evidence reveals that Ruchi was alive at the time she was lying in the bedroom. In this respect, there is statement of PW2 Dr.D.D.Madan, who reached the house of the accused on 18.4.2004 and found that Ruchi was unconscious. Then there is statement of DW1 Sh.Shalender Oberoi, person living in the neighbourhood of the accused. According to him, on the day of occurrence at about 7.30 a.m. he heard noise and came out in the street. He saw crowd gathered there. He was told that wife of Rakesh accused had suffered electrocution. Further according to him Dr.Madan present there advised the patient to be taken to the nearest hospital and as such he helped in 45 removal of Ruchi to Swastik Nursing Home in the car of Rakesh. From that nursing home, she was taken to emergency wing of DDU Hospital. DW1 specifically stated that at that time he found Ruchi alive, shivering and that the doctor declared her dead ten minutes thereafter. In his cross-examination, the witness denied to have seen bruises, scratches and abrasions on the face, cheek, eyebrow, nose, forehead, upper lip or pinna of right ear, right upper arm, right wrist or right elbow. He explained that he could not see Ruchi closely because he was in a hurry to take her to hospital. It is in the also in the statement this witness that both the accused were present at the house at the time of occurrence and that both of them also accompanied Ruchi to hospital.
According to DW2 Puja, sister of Rakesh accused, she brought Dr.Madan who checked up her sister in law and advised them to take her to nearby hospital, whereupon she was taken to Swastik Nursing Home and from there she was referred to DDU Hospital. At DDU Hospital, the doctor examined her sister in law but ten minutes thereafter she died. PW2 and DW1 have supported the version of DW2 Puja only to this limited extent.
In view of the above discussion, when the evidence 46 of parents and brother of Ruchi regarding demand of dowry and cruelty, is excluded from consideration, there remains only the medical evidence to suggest as to the cause of death of Ruchi. It has been argued on behalf of the State that in view of the medical evidence, it stands established that Ruchi died because she was intentionally electrocuted. On the other hand, it has been argued on behalf of the accused that Ruchi suffered injuries and then died because of accidental electrocution.
Medical evidence is available in the statement of PW1 Dr.B.N.Mishra. So far as post mortem examination of Ruchi is concerned, as per autopsy report Ex.PW1/A, PW1 Dr.B.N.Mishra observed therein in the manner as:
Cause of death was electrocution; however, superseded (additional effect) by unknown poisoning could not be ruled out.
All the injuries appeared to be ante mortem in nature suggestive of physical assault before death. Injuries No.1,5 and 6 could be inflicted by some hard and blunt object.
Injuries No.2,3 and 4 could be produced by nails. Injury No.8 could be inflicted by some hard blunt 47 club(lathi) weapon.
Injury No.9 could be due to voluntarily placement of electric heater coil like material for the purpose of electrocution (homicidal intention), accidental electrocution being ruled out due to intactness of clothes (unburnt) and abnormal site on the body. Unknown poisoning (ingestion of unknown poison) could not be ruled out.
Time that elapsed between death and autopsy was about 28 to 30 hours.
Learned defence counsel has submitted that ordinarily no medical officer visits the place of occurrence or meets the accused in the police station, but in this case PW1 not only visited the house of accused but also met the accused in the police station and got prepared photographs of the dead body, and as such argued that this extraordinary conduct of the doctor witness creates serious doubts, making his testimony unbelievable.
In his cross-examination, PW1 admitted that he visited the place of occurrence after conducting autopsy on the dead body of Ruchi. Although initially PW1 denied to have 48 visited there before preparation of autopsy report, but then admitted to have visited the site before preparation of autopsy report. At that time, he was accompanied by police. On visiting the house of accused, he inspected one room on the first floor and remained there for about 15/20 minutes. The doctor admitted to have not mentioned in autopsy report about his visit to the house of the accused. In his cross-examination, PW1 tried to explain that he visited the spot in order to ascertain correct position and the scene of crime. He also admitted to have met Rakesh Sachdeva accused at P.S.Tilak Nagar after having visited the spot. PW15 SI Partap Singh, the investigating Officer admitted in his cross-examination that he had offered Dr.Mishra to inspect the site if he thought it necessary and that the doctor inspected the site after conducting autopsy. In his cross- examination PW15 stated to have recorded in the case diary of 1.5.2004 that Dr.Mishra had inspected the spot to look for object of electrocution. Autopsy was conducted on the dead body on 19.4.2004. Therefore, when PW15 stated to have so recorded in the case diary of 1.5.2004, it appears that his memory did not help him. It is true that in the ordinary course of his duties, the doctor witness should have concentrated on autopsy but he 49 visited the spot and also met husband of the deceased, so far as his findings given after autopsy on the dead body are concerned, no adverse inference can be drawn against the doctor witness from his extraordinary conduct in having visited the spot and met the accused, particularly when according to him autopsy had already been conducted, and evidence does not suggest that on reaching the spot he noticed any fact which affected his findings available in the autopsy report.
In his cross-examination PW1 admitted that all the injuries observed on the dead body were simple in nature and not fatal in nature. He tried to explain dispatch of viscera to rule out case of unknown poisoning as according to him there were some signs of unknown poisoning. Analysis of the contents of viscera by FSL did not lead to detection of any kind of poison. Admittedly, the doctor witness had no doubt about the cause of death i.e. electrocution. In is cross-examination, PW1 admitted that it is difficult to distinguish homicidal electrocution from accidental electrocution. In respect of injury No.9, the doctor opined in his cross-examination that such an injury is possible with a spring type heating coil. He further admitted that such type of injury can be caused if coil like material of heater falls on 50 the body or body falls on the heater.
In view of seat of injury No.9, it is not believable that Ruchi would have thought to electrocute herself by placing electric appliance like heating coil or immersion rod on the left back of her person.
According to DW2 Puja, only her brother and sister in law Ruchhi were on the first floor of the house. From the statement of DW2 Puja, it stands established that she and her mother Usha Sachdeva (accused) were present on the ground floor whereas only Rakesh Sachdeva and his wife were present on the first floor.
Ruchi suffered electrocution on the first floor of the matrimonial home. In view of provisions of Section 106 of Evidence Act, it was for Rakesh Sachdeva, who was on the first floor of the house, to prove the fact of accidental electrocution especially within his knowledge. Not only this injury No.9, but eight other injuries were also observed on the dead body of Ruchi. It was for Rakesh Sachdeva accused to explain the manner in which Ruchi suffered all these injuries while she was with him in the morning of 18.4.2004. But in view of the given facts and circumstances and the evidence available on record 51 and discussed as above, the only conclusion this Court can draw is that Ruchi did not suffer accidental electrocution, and rather it can safely be said that firstly she was inflicted injuries No.1 to 8 and and then electrocuted and that too by her husband, for one reason or the other better known to him.
From the medical evidence proved on record it stands established that Rakesh Sachdeva accused voluntarily placed electric heater coil like material on the person of his wife for the purpose of electrocution with the sole intention to cause her death. Therefore, Rakesh Sachdeva made himself liable for an offence under Section 302 IPC. However, there is no evidence to suggest that his co accused- mother was also present on the first floor at the time Ruchi was given injuries and then electrocuted or that Rakesh Sachdeva accused did commit this crime in furtherance of common intention of his mother.
As noticed above, accused Rakesh Sachdeva has been facing trial, alongwith his mother, for offences under Section 498 A and 304 B IPC. No charge for an offence under Section 302 IPC was framed even in the alternative. But in view of the facts duly established on record, as discussed above, simply because charge for an offence Under Section 302 IPC 52 was not framed, this Court is not disabled from convicting Rakesh Sachdeva for the offence under Section 302 IPC with which he has not been charged, as on the facts available on record from the very beginning, he could have been charged for this offence as well. In support of this finding, this Court finds support from the provisions of Section 221 Cr.PC and decision in Chainsukhlal v. State of Maharashtra, 1969 Bom LR 390 wherein provisions of Section 221(1) Cr.PC were thoroughly discussed and applied, and also in view of the law laid down in G.D.Sharma v. State of U.P, AIR 1960 SC 400, particularly when this is not a case where any prejudice can be said to be caused to Rakesh Sachdeva with his conviction for the offence under Section 302 IPC i.e. the one of greater gravity than the one under Section 304 B IPC with which he was charged.
In Chainsukhlal's case (supra) it was held as under:
" An accused person can be convicted of an offence with which he has not been charged under this section, in a case within the ambit of this section, provided that the overriding rule about prejudice is borne in mind and taken into account, or in other words, no prejudice is thereby caused to the accused. That is the only limitation which can be read 53 into this section, having regard to its plain language. The fact that the offence of which an accused person is convicted under this section is one of greater gravity than the one with which he was charged does not necessarily lead to the inference that the accused is prejudiced. The question of prejudice is a question of fact and must be decided on the evidence and in the circumstances of each case. It follows,therefore, that in a case falling within the scope of this section, it is permissible to alter the conviction from an offence of lesser gravity to an offence of greater gravity, provided that prejudice is not caused to the accused thereby."
In K.Prema S. Rao v. Yadla Srinivasa rao, 2003 Crl.L.J.69 the learned counsel for the accused argued that in the absence of a charge framed against the accused under Section 306, IPC the accused could not be convicted under the said Section. Hon'ble Supreme Court, while dealing with this argument, observed that from the record it was evident that although a charge specifically under Section 306, IPC was not framed but all facts and ingredients constituting that offence 54 were mentioned in the Statement of Charges framed under Section 494-A and Section 304-B of IPC.
Hon'ble Apex Court further observed:
"Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us.......The provisions of Section 221 of Cr. P.C. take care of such a situation and safeguard the powers of the criminal Court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. .."
Hon'ble Apex Court held in the manner as:
"As provided in Section 215 of Cr. P.C. omission to frame charge under Section 306, IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial Court for framing charge under Section 306, IPC and direct a retrial for that charge. The accused cannot legitimately complain of 55 any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306, IPC of having abetted commission of suicide by the wife. ..."
Even in the case in hand, from the very beginning prosecution came forward with specific allegation of commission of death of Ruchi at her matrimonial home within 3 years of her marriage with Rakesh Sachdeva, on specific allegation by parents of Ruchi that she was done to death, and on the basis of medical evidence that Ruchi was electrocuted by placing heater coil like material on her person with homicidal intention. These facts stand duly established on record. From the very beginning accused knew about these allegations and material collected by the prosecution, and the accused availed of sufficient and reasonable opportunity to cross-examine the doctor witness, who conducted autopsy on the dead body of Ruchi), not only once but twice, and all other material witnesses. 56
In case of charge for the offence under Section 304 B IPC, presumption under Section 113 B IPC can safely be drawn against an accused, but in case of commission of an offence under Section 302 IPC it is for the prosecution to establish its case against the accused beyond shadow of reasonable doubt and even in case of circumstantial evidence, it is for the prosecution firstly to establish each circumstance and then to prove that the chain of circumstances so proved is so complete that there is every hypothesis compatible with the guilt of the accused. Accordingly in this case,even no presumption as available under Section 113 B IPC is being drawn against the accused.
It is well settled that if an accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the 57 accused does not throw any light upon facts which are specifically within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. This principle has been succinctly stated in Re.Naina Mohd, AIR 1960 Madras 218, as referred to in State of Rajasthan v. Kashi Ram, 2006 IX AD (S.C.)561.
Herein, prosecution has successfully stood this standard of proof laid down for cases based on circumstantial evidence. Despite opportunity, Rakesh Sachdeva accused has failed to establish the defence plea of accidental electrocution of his wife at the matrimonial home. No further opportunity of defence is required to be granted to the accused when he has availed of ample opportunity to meet the allegations levelled against him.
For the aforesaid reasons, this court comes to the conclusion that this is not a case of any kind of prejudice or failure of justice to Rakesh Sachdeva accused. Rather, in the interest of justice, this is a fit case to pass a judgment of conviction for an offence under Section 302 IPC. 58
In view of the above discussion, Rakesh Sachdeva accused is held liable for an offence punishable under Section 302 IPC for committing murder of his wife by electrocution on 18.4.2004 at his house. However, he is acquitted of the charge under Section 498 A and 304 B IPC. Similarly, his mother Usha Sachdeva is acquitted of the charge for both the offences.
As a result, Rakesh Sachdeva accused is held guilty of the offence under Section 302 IPC and convicted thereunder. Let he be heard on the point of sentence.
Announced in open court ( NARINDER KUMAR)
On: 15.01.2007 ADDL SESSIONS JUDGE
FAST TRACK COURT
ROHINI: DELHI
59
IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE FAST TRACK COURT:
ROHINI DELHI
SC No. 30/2 dated 09.12.2006
State V.
1) Rakesh Sachdeva
FIR No. 228/04
PS Tilak Nagar
U/s. 302 IPC
ORDER ON SENTENCE
16.01.2007
Present. Convict Rakesh Sachdeva in J.C. with Sh. Tarun Gumber, learned proxy counsel for Sh. K.K. Manan, counsel for convict.
Addl. PP for State.
I have learned proxy counsel for the convict and Ld. Addl. PP for State on the point of sentence.
Ld. Proxy Counsel submits that in view of the conduct of the convict, a lenient view may be taken while awarding sentence to the convict.
Keeping in view all the facts and circumstances and 60 the manner in which the convict murdered his wife by electrocution, I hereby sentence the convict to imprisonment for life and to pay a fine of Rs. 10,000/- or in default of payment of fine he shall further undergo rigorous imprisonment for a period of six months for the offence U/s. 302 IPC.
A copy of this order as well of judgment be given to convict free of cost. File be consigned to record room.
Announced in open court ( NARINDER KUMAR)
On: 16.01.2007 ADDL SESSIONS JUDGE
FAST TRACK COURT
ROHINI: DELHI