Delhi District Court
State vs . on 21 October, 2019
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 05
EAST DISTRICT KARKARDOOMA COURTS:DELHI
FIR No.: 462/2013
PS : Mandawali
U/s: 498A/304B/34 IPC
S.C. No. : 186/2016
State
Vs.
1. Pramod
S/o Sh. Chander Pal
R/o E26, Pandav Nagar, Ganesh Nagar Complex
Delhi92.
2. Chander Pal
S/o Sh. Chittar
R/o E26, Pandav Nagar, Ganesh Nagar Complex
Delhi92.
3. Duryodhan
S/o Sh. Chander Pal
R/o E26, Pandav Nagar, Ganesh Nagar Complex
Delhi92.
Date of Assignment : 20.01.2014
Date of Arguments : 10.10.2019
Date of Judgment : 21.10.2019
JUDGMENT
1. The present case was registered on the statement of Ms. Anita, who is the sister of the deceased Savita. SC No. 186/2016 Page 1 / 43 CASE OF THE PROSECUTION
2. As per the case of the prosecution, on 31.08.2013 on receipt of DD No. 51A, SI Prem Pal Singh along with Ct. Pawan reached at House Number E16, Pandav Nagar Complex, Ganesh Nagar Delhi, where they found one PCR Van and CAT Ambulance. Fire Brigade was extinguishing the fire. The door of first floor of the said house was lying broken. One lady namely Savita was shifted to GTB Hospital in burnt condition. One person namely Pramod was also shifted to the LBS Hospital in burnt condition. Crime Team was called. Spot was photographed. SI Prem Pal along with Ct. Pawan went to GTB Hospital. MLC of the victim was obtained. SDM Preet Vihar was informed. Sh. Ashwani Kumar, Executive Magistrate, Preet Vihar, came to the hospital and recorded the statement of Anita, who is the sister of the victim Savita. In her statement, Anita has stated that victim Savita was married to accused Pramod. Rs. 34 Lakhs were given to the accused in the said marriage. The accused Pramod married to Savita by fraud as he did not disclose the fact of his being SC No. 186/2016 Page 2 / 43 handicapped (Lame) at the time of marriage. The inlaws i.e. Duryodhan (Devar), Chander Pal (Fatherinlaw), Chachiya Sasur of the victim Savita used to harass her on account of demand of dowry and used to demand a car. She stated that the in laws of Savita had tried to kill her by burning.
3. After completion of the investigation, chargesheet was filed against accused persons for the offences punishable under sections 498A/304B/34 IPC.
4. After supply of the copies in compliance of Section 207 Cr.P.C., Ld. M.M committed the case to the court of Sessions as the case was exclusively sessions triable.
CHARGE
5. On 26.02.2014, the accused persons namely Duryodhan and Chander Pal were charged for the offences punishable under sections 498A/34 IPC and 304B/34 IPC. Accused Pramod was charged for the offences punishable under Sections 498A/34 IPC, 304B/34 IPC and in the alternative under Section 302 IPC. SC No. 186/2016 Page 3 / 43 Accused persons pleaded not guilty to the charges against them and claimed trial.
PROSECUTION EVIDENCE
6. In support of its case, the prosecution examined twenty one witnesses.
7. PW1 is HC Ramphool Singh. On 31.08.2013, he was working as Duty Officer at Police Station Mandawali. He received a ruqqa sent by SI Prem Pal. On the basis of the said ruqqa he got recorded the present FIR which is Ex.PW1/A. He made endorsement on the said ruqqa which is Ex.PW1/B. He handed over the copy of FIR and original ruqqa to Ct. Pawan Kumar for handing it over to SI Prem Pal.
8. PW2 is Ms. Anita. She is the complainant and sister of the deceased Savita. She stated that the deceased Savita was married to the accused Pramod on 23.01.2013. The accused Pramod was handicapped, but the said fact was not disclosed by his family before marriage. They spent Rs. 4,00,000/ in the said marriage. SC No. 186/2016 Page 4 / 43 The deceased Savita was three months pregnant at the time of incident. Savita used to tell her (PW2) that the accused Pramod, Duryodhan (devar) and Chanderpal (fatherinlaw), Lalta Prasad (Chachiya Sasur), Sunita (Chachiya Saas) and their three children used to harass and beat Savita for demand of dowry. The deceased Savita had told her (PW2) that the accused persons were planning to kill her (Savita). She stated that accused persons were demanding car and cash from her sister i.e. deceased Savita. On 28.08.2013, on the occasion of Janmastmi festival, Savita made a telephone call to her (PW2) and told that the accused persons were planning to kill her. On 30.08.2013, between 6.30 p.m./ 7.00 p.m. deceased Savita telephoned her (PW2) and told her that the accused persons were planning to kill her. On the next day at about 11.00/11.30 a.m. police officials came to her (PW2) house along with accused Duryodhan, who told her that their house was set on fire. She along with her husband, younger brother and some other persons went to the GTB Hospital, where she came to know that Savita had died. Her statement was recorded by the SC No. 186/2016 Page 5 / 43 Magistrate which is Ex.PW2/A. After the postmortem the dead body of Savita was handed over to them. On 15/16.09.2013, the accused Pramod made a call on her mobile phone and threatened her that he would kill her, her husband and brother in the manner he killed Savita.
9. PW3 is Dr. Devender Kumar. On 30.08.2013, he was working as CMO at GTB Hospital. He deposed that on that day, one female was brought to the casualty of GTB Hospital with alleged history of burn injuries. He stated that Dr. Zeeshan Khan medically examined the injured. He identified the signatures of Dr. Zeeshan Khan on detailed report which is Ex.PW3/A. On local examination, it was found that there were 95% burn injuries on all over the body of the injured. The patient was referred to Burn and Plastic Ward.
10. PW4 is Dheeraj Kumar. He is the brother of the deceased Savita. On 31.08.2013, he identified the dead body of Savita at the mortuary of GTB Hospital. He received the dead body of Savita SC No. 186/2016 Page 6 / 43 after postmortem, vide handing over memo which is Ex.PW4/B. He deposed that his sister Savita was married to the accused Pramod on 23.01.2013. At the time of vidai ceremony of his sister Savita, Lalta Prasad, Duryodhan, Chander Pal and Pramod demanded one car and Rs. One lakh. Whenever he used to visit the matrimonial house of Savita, accused Duryodhan, Chander Pal and Pramod used to quarrel with him. He also stated that the accused persons used to threaten Savita to kill her by burning. After 23 days of the death of his sister Savita, the accused Pramod telephoned him and threatened to burn him (PW4) like Savita if he (PW4) initiated any proceedings against them. At the time of incident, Savita was three months pregnant. His statement was recorded by SDM which is Ex.PW4/C. He stated that Savita was harassed and tortured by her inlaws, but she never told him about the same.
11. PW5 is Ct. Satnarayan. On 30.08.2013, he was posted as Photographer in Mobile Crime Team (East District). On receiving information, he along with the Incharge Crime Team and SI SC No. 186/2016 Page 7 / 43 Kaushal Ganguly reached at the spot i.e. E26, First Floor, Pandav Nagar Complex, Ganesh Nagar, Delhi. He took the photographs of the scene of crime. The photographs are Ex.PW5/A1 to Ex.PW5/A17 and negatives thereof are Ex.PW5/B1 to Ex.PW5/B17.
12. PW6 is Ct. Narender Kumar. On 01.11.2013, he was posted at Police Station Mandawali. He received the exhibits from the MHC(M) for depositing the same at FSL, Rohini. He deposited the same at FSL, Rohini. He gave copy of Road Certificate and acknowledgment to the MHC(M). On 06.11.2013, he received viscera from the MHC(M) for depositing the same at FSL, Rohini. He deposited the same at FSL, Rohini. He handed over the copy of Road Certificate and acknowledgment to MHC(M). The exhibits remained intact till they remained in his possession.
13. PW7 is Ct. Pawan Kumar. On 30.08.2013, on receipt of DD No. 51A, he along with SI Prem Pal reached at the spot i.e. SC No. 186/2016 Page 8 / 43 E26, Pandav Nagar Complex, Delhi. They found CAT Ambulance, Fire Brigade and PCR van standing there. One lady was found in burnt condition, who was taken by PCR van to GTB Hospital. They reached at the GTB Hospital. SDM Preet Vihar was called. The statement of Anita, who is the sister of the deceased, was recorded by Sh. Ashwani Kumar, Executive Magistrate. Ruqqa was prepared by SI Prem Pal and same was handed over to him (PW7) for registration of the FIR. He got the FIR registered and returned to the spot along with ruqqa and copy of the FIR. SI Prem Pal seized the exhibits i.e. broken pieces of glass and soil from the spot, vide seizure memo which is Ex.PW7/A. One person namely Pramod was also found in injured condition at the LBS Hospital.
14. PW7 was put a leading question by the Ld. Addl. PP for the State to which he admitted that the name of the said lady was Savita. He identified the sandy soil, few small concrete stones and few pieces of broken glass bangles, which were seized from the spot during investigation. The same is Ex.P1. SC No. 186/2016 Page 9 / 43
15. PW8 is Dr. Ashish Kumar. He was posted as Senior Resident, Safdarjung Hospital, Delhi. He deposed that on 01.09.2013, he was posted at the Department of Forensic Medicine of UCMS and GTB Hospital. He conducted the postmortem on the dead body of the deceased Savita which is Ex.PW8/A. He opined the time since death was about 1½ day and the cause of death was shock as a result of antemortem flame burns involving 95% of the total body surface area.
16. PW9 is Ct. Subodh Kumar. On 30.08.2013, he was posted at Police Station Mandawali. At about 8.00/8.15 p.m. he was patrolling in the area. While patrolling, he reached near House Number E26, Ganesh Nagar, Pandav Nagar Complex, Delhi, where he came to know about incident of fire. PCR Van, CAT Ambulance and Fire Brigade were found at the spot. Savita and Pramod were found there in injured condition. Savita was taken to GTB Hospital and Pramod was taken to LBS Hospital. On 01.09.2013, he joined the investigation of this case. He along SC No. 186/2016 Page 10 / 43 with SI Prem Pal reached at GTB Hospital, where he met Sh. V.S.Malik (SDM Preet Vihar). Postmortem was got conducted on the dead body of Savita. On 02.09.2013, he joined investigation along with IO and reached at House No. E26A, Ganesh Nagar, Pandav Nagar, Delhi. Accused Chander Pal and Duryodhan met them there. They were arrested, vide arrest memos which are Ex.PW9/A and Ex.PW9/B. The personal search of the accused persons was conducted, vide personal search memos which are Ex.PW9/C and Ex.PW9/D.
17. PW10 is Dr. Manoj Teotia. He is the Casualty Medical Officer at LBS Hospital. He stated that on 30.08.2013, at about 8.50 p.m., injured Pramod was brought in the hospital with the alleged history of burn. The injured was examined by Dr. Rajiv, Junior Resident, under his supervision. On examination, the total surface of burn was approximately 4%. The injured was referred to the Surgery Department for detailed examination and expert opinion. He identified the handwriting and signatures of Dr. Rajiv on the MLC of injured Pramod which is Ex.PW10/A. SC No. 186/2016 Page 11 / 43
18. PW11 is Sh. Naresh Kumar. On 30.08.2013, while he was returning to his house and reached in front of H. No. E53, he found some public persons gathered there, who were saying that one lady had burnt herself. He made call at 100 number from his mobile phone having number 9891766453 and thereafter, left the spot.
19. PW12 is Ms. Sunita. She is the sister of the deceased Savita. She stated that deceased Savita was married to the accused Pramod on 23.01.2013. Rs. 4 Lakhs were spent on the said marriage. Washing machine, Fridge, Double Bed, T.V., Sofa and jewellery etc. were given to the accused persons in the said marriage. After the marriage, accused persons Pramod, Chander Pal, Duryodhan, Lalta Prasad and Sunita (wife of Lalta Prasad) started demanding four wheeler from the deceased Savita. They used to harass Savita on account of dowry demand. She deposed that on 30.08.2013, she received a telephonic call from her sister Anita that Savita had been burnt by the accused persons. She SC No. 186/2016 Page 12 / 43 reached at GTB Hospital, where Savita was found dead. Her statement which is Ex.PW12/A was recorded by the Magistrate. She stated that deceased Savita used to inform her telephonically about the harassment, demand of dowry and car made by the accused persons. She (deceased Savita) also used to inform her (PW12) that if the said demand was not fulfilled, the accused persons would kill Savita by burning.
20. PW13 is Ct. Pritam. On 17.09.2013, he joined the investigation along with IO SI Prem Pal Singh. He along with SI Prem Pal Singh reached at House Number E26A, Ganesh Nagar, Pandav Nagar, Delhi. From there, accused Pramod was arrested, vide arrest memo which is Ex.PW13/A. His personal search was conducted, vide personal search memo which is Ex.PW13/B. Disclosure statement of the accused was recorded which is Ex.PW13/C. Accused was got medically examined at the LBS Hospital. Thereafter, accused was sent to JC.
21. PW14 is Sh. Ashwani Kumar. He was posted as SC No. 186/2016 Page 13 / 43 Tehsildar at Preet Vihar. On 30.08.2013, he went to the LBS Hospital, where he found Savita in burnt condition. He recorded the statements of the sisters (namely Anita and Sunita, who were present there) of the deceased Savita which are Ex.PW12/A and Ex.PW2/A.
22. PW15 is ASI Rakesh Kumar. On 31.08.2013, he was working as MHC(M) at Police Station Mandawali. He deposited the sealed pullanda produced by SI Prem Pal Singh in the Malkhana. He made relevant entry in this regard in Register Number 19 which is Ex.PW15/A. On 01.11.2013, he handed over two sealed parcels pertaining to this case to Ct. Narender for depositing the same at FSL, Rohini. Copy of Road Certificate is Ex.PW15/B and Copy of receipt is Ex.PW15/C. On 08.10.2013, SI Kiran Pal Singh handed over to him one viscera box, two envelopes and sample seal to deposit the same in the Malkhana. He made relevant entry in this regard in Register Number 19 which is Ex.PW15/D. On 06.11.2013, he handed over the wooden box, two sealed envelopes and sample seal to Ct. Narender for SC No. 186/2016 Page 14 / 43 depositing the same at FSL, Rohini. The copy of Road Certificate in this regard is Ex.PW15/E and copy of receipt is Ex.PW15/F.
23. PW16 is Sh. Vijay Singh Malik. He is the Assistant Commissioner, Sales Tax, Trade & Taxes, Delhi. On 31.08.2013, he was posted as SDM, Preet Vihar, Delhi. On 01.09.2013, on receipt of information regarding the death of Savita, he reached at mortuary of GTB Hospital. He made written request to the doctor for conducting the postmortem which is Ex.PW16/A. There, he recorded the statements of the father and brother of the deceased, which are Ex.PW16/B and Ex.PW4/C. After the postmortem the dead body was handed over to the family members of the deceased Savita.
24. PW16 Sh. Vijay Singh Malik was put a leading question by the Ld. Addl. PP for the State to which he admitted that prior to postmortem, the body was identified by one Dev Karan and Dheeraj and their statement in this regard were recorded which are Ex.PW16/C and Ex.PW4/A. SC No. 186/2016 Page 15 / 43
25. PW17 is W/Ct. Sunita. On 30.08.2013, she was working as Operator at PCR, Central Zone at Extn. No. 154. On receiving a call from phone number 9891766453 at about 7.58 p.m. regarding fire due to blast of gas cylinder at House Number E53, Pandav Nagar Complex, Ganesh Nagar, Delhi, she recorded the said information, vide PCR Form No. 1540371 which is Ex.PW17/A.
26. PW18 is (Retired) ASI Yashpal Singh. On 30.08.2013, he was working as Duty Officer at Police Station Mandawali. At about 8.10 p.m. on receipt of information regarding explosion of a gas cylinder, he recorded DD No. 51A which is Ex.PW18/A. He produced the DD No. 6A, which is Ex.PW18/B.
27. PW19 is Dr. Adesh Kumar. He is the Senior Scientific Officer (Chemistry), FSL, Rohini, Delhi. On 06.11.2013, he received two sealed parcels containing viscera and scalp human hair in his office. He examined it. His detailed report in this SC No. 186/2016 Page 16 / 43 regard is Ex.PW19/A, which he sent to the SHO Police Station Mandawali with forwarding letter, which is Ex.PW19/B.
28. PW20 is Sh. Amit Rawat. He is the Assistant Director (Chemistry), FSL, Rohini, Delhi. On 01.11.2013, he received two cloth parcels containing clothes of deceased along with some other clothes and some exhibits. On examination, he did not find any residue of Kerosene/Diesel or Petrol on the same. His detailed report in this regard is Ex.PW20/A.
29. PW21 is (Retired) SI Prem Pal. He is the Investigating Officer of the case. On 30.08.2013 on receipt of DD No. 51A which is Ex.PW18/A, he along with Ct. Pawan reached at the spot i.e. E26, Ganesh Nagar Complex, Pandav Nagar, Delhi. There, he found PCR and CAT officials. Fire Brigade officials were trying to extinguish the fire. One Savita and Pramod were sent to hospital by the PCR officials. Crime Team was called at the spot. The spot was got photographed. Thereafter, he along with Ct. Pawan reached at the GTB Hospital. He collected the MLC of SC No. 186/2016 Page 17 / 43 Savita. He informed the SDM. Sh. Ashwini Kumar (Tehsildar) reached at the hospital and recorded the statements of the sisters of Savita. He prepared the ruqqa (Ex.PW21/A) and got the FIR registered. He took the possession of the pullanda containing burnt clothes and bed sheet given by the concerned doctor and seized the same, vide seizure memo which is Ex.PW21/B. Thereafter, he reached at the spot. He inspected the room of the first floor and lifted some soil, pieces of stones and glass and seized the same, vide seizure memo which is Ex.PW7/A. He prepared the Site Plan which is Ex.PW21/C. He informed the concerned SDM regarding death of Savita. On 01.09.2013, postmortem on the dead body of Savita was got conducted. The postmortem report is Ex.PW8/A. He recorded the statements of Sh. Dev Karan and Sh. Dheeraj regarding identification of the dead body. He collected the death summary which is Ex.PW21/D. He prepared handing over memo of the dead body which is Ex.PW4/B. On 02.09.2013, he arrested the accused Chander Pal and Duryodhan, vide arrest memos which are Ex.PW9/A and SC No. 186/2016 Page 18 / 43 Ex.PW9/B. Their personal search was also conducted, vide personal search memos, which are Ex.PW9/C and Ex.PW9/D. Both the accused persons were medically examined and sent to Lock Up. On 17.09.2013, he arrested the accused Pramod. He conducted the personal search of the accused Pramod. He recorded disclosure statement of the accused Pramod. On 08.10.2013, he collected the Postmortem Report and Viscera. He seized the Viscera, vide seizure memo which is Ex.PW21/E. On 06.11.2013, he sent the exhibits of this case to FSL, Rohini. He collected the FSL Result, which is Ex.PW20/A. After completion of the investigation, he filed the charge sheet in the Court. He identified sandy soil, small concrete stones and pieces of broken glass bangles which he seized from the spot and the same are Ex.P1.
STATEMENTS OF ACCUSED PERSONS UNDER
SECTION 313 Cr.P.C.
30. Statements of the accused persons were recorded under section 313 Cr.P.C., wherein they denied the allegations against SC No. 186/2016 Page 19 / 43 them and stated that they are innocent and have been falsely implicated in this case.
31. Accused Chander Pal has stated in his statement under Section 313 Cr.P.C. that this is a false case which was registered in connivance with the complainant. The witnesses are interested witnesses. He stated that the police had registered a false case against him and he is innocent. He was not present at his house at the time of incident. He stated that he has never harassed or beaten the deceased Savita and he never demanded any dowry from Savita.
32. Accused Duryodhan has stated in his statement under Section 313 Cr.P.C. that this is a false case which was registered in connivance with the complainant. The witnesses are interested witnesses. He stated that the police had registered a false case against him and he is innocent. He was not present at his house at the time of the incident. He stated that he has never harassed or beaten the deceased Savita and he never demanded any dowry SC No. 186/2016 Page 20 / 43 from Savita.
33. Accused Pramod has stated in his statement under Section 313 Cr.P.C. that his marriage was solemnized with the deceased Savita on 23.01.2013. He stated that police has registered a false case against him and he is innocent. He was not present at his house when the incident occurred. When he reached his house, he saw Savita in burnt condition. He tried to save Savita and during that process, he also sustained burn injuries. He stated that he did not know how the said incident occurred. He stated that he never demanded any dowry from his wife i.e. deceased Savita or from her family members and never threatened her to kill. DEFENCE EVIDENCE
34. Accused persons led evidence in their defence and examined three witnesses in their defence.
35. DW1 is Sh. Yashpal Singh. He stated that he knew all the accused persons for the last about 15 years as he is their neighbour. He stated that he attended the marriage of the accused SC No. 186/2016 Page 21 / 43 Pramod. On 30.08.2013, at about 7.45 p.m., he heard some noise. He went to the house of the accused persons. He saw that the accused Pramod was burning and deceased Savita was lying in burnt condition inside the house. Accused Pramod tried to save Savita. During that process, Pramod also sustained burn injuries. He stated that the accused persons have never beaten the deceased Savita and they never demanded any dowry from her (Savita).
36. DW2 is Sh. Bhure Singh Yadav. He is also the neighbour of the accused persons. He stated that in the month of August, 2013 at about 7.00/7.15 p.m. he came out of his house on hearing some noise. He saw that the accused Chander Pal and Pramod were running towards their house. He entered the house of the accused persons. Accused Pramod and Chander Pal also entered the house after his arrival there. He stated that door was bolted from inside. He along with neighbours broke the door. He saw that Savita was burning in the room. They tried to save her. Accused Pramod also tried to save Savita and during this process, he (Pramod) also sustained burn injuries. Accused Duryodhan was SC No. 186/2016 Page 22 / 43 not present at the spot at the time of incident. He made a call to the accused Duryodhan on his mobile phone and inform him about the incident.
37. DW3 is Sh. Arun Kumar Gupta. He stated that on 30.08.2013 at about 7.45 p.m. he heard sound of blast. He ran in the direction from where that noise had come. He saw crowd outside the house of the accused persons. Accused Pramod was running towards his house. The door of room of the first floor from where smoke was coming was bolted from inside. Accused Pramod broke the door by using force. There was fire inside the room in which deceased Savita was burning. Accused Pramod tried to save her wife Savita and during that process, Pramod also sustained burn injuries. Police came at the spot and thereafter, he returned to his shop.
38. I have heard Sh. Gaurav Pandey Addl.P.P for the State and Sh. Sanjeev Kumar, Ld. Counsel for all the accused persons. I have also gone through the case file.
SC No. 186/2016 Page 23 / 43 ARGUMENTS ON BEHALF OF THE PROSECUTION
39. It was submitted by the Ld. Addl. P.P. for the State that the prosecution case stands proved from the statements of the witnesses. It was submitted by the Ld. Addl. P.P. that all the witnesses are consistent and corroborative and hence, there is no reason to disbelieve their version.
40. It was submitted by the Ld. Addl. P.P. for the State that the prosecution case stands proved from the statements of witnesses i.e. PW2 Anita (sister of the deceased Savita), PW4 Dheeraj Kumar (Brother of the deceased Savita) and PW12 Smt. Sunita (sister of the deceased Savita). It was submitted by the Ld. Addl. P.P. that all the said witnesses have corroborated the prosecution case regarding harassment of the deceased Savita for dowry demand. It was contended that the said witnesses are consistent and corroborative and hence, there is no reason to disbelieve their version. It was argued that the deceased Savita died unnatural death within seven years of her marriage and therefore, SC No. 186/2016 Page 24 / 43 presumption under Section 113B of Indian Evidence Act is attracted in this case. The Postmortem Report also supports the prosecution case. The accused persons have failed to rebut the presumption under Section 113B of the Indian Evidence Act. It was also argued that the other witnesses, who were associated with the investigation or joined the investigation, have also supported the prosecution case. It was argued that all the prosecution witnesses could not be shaken from their stand in their crossexamination. Hence, their statements have to be relied upon. It was contended that from the statements of witnesses and other material placed on record the prosecution has been able to prove its case beyond doubt.
ARGUMENTS ON BEHALF OF THE ACCUSED PERSONS
41. It was submitted by the Ld. Counsel for the accused persons that the accused persons are innocent and they have been falsely implicated in this case.
42. It was argued that PW2 Ms. Anita, PW4 Sh. Dheeraj Kumar and PW12 Ms. Sunita have made major and material SC No. 186/2016 Page 25 / 43 improvements while deposing in the Court and such evidence cannot be relied upon. It was contended that the improvements made by the Prosecution Witnesses shake their credibility and prosecution case becomes doubtful. It was further contended that it is a settled principle of law that when the witnesses make improvements in their statements during their deposition in the Court, the testimony of the said witnesses becomes unworthy of credence.
43. It was argued that the allegations of harassment of the deceased Savita by the accused persons and the allegations regarding demand of dowry, as narrated by the Prosecution Witnesses, are vague in nature.
44. It was argued that none of the Prosecution Witness has mentioned any specific instance or dates to show that the deceased Savita was harassed by the accused persons and therefore, the statements of the Prosecution Witnesses cannot be relied upon.
SC No. 186/2016 Page 26 / 43
45. It was argued that in the absence of any evidence to prove the fact of demand of dowry or harassment by the accused persons 'soon before death' or that she was subjected to cruelty, mental or physical torture, the entire case of prosecution fails. It was argued that the evidence led by the prosecution is hearsay in nature and thus, inadmissible.
46. It was argued that the allegations against the accused Pramod in respect of the Charge under Section 302 IPC are also baseless and unbelievable. It was argued that at the time of the alleged incident accused Pramod was not present in the house, which is proved from the statements of Prosecution Witnesses as well as the statements of the Defence Witnesses. Therefore, the charge against accused Pramod under Section 302 IPC cannot be sustained.
47. It was contended that the prosecution has failed to prove its case against the accused persons and accordingly, the accused SC No. 186/2016 Page 27 / 43 persons deserve acquittal.
DISCUSSION AND CONCLUSION
48. In this case the accused persons Duryodhan and Chander Pal have been charged for the offences punishable under Section 498A/34 IPC and Section 304B/34 IPC. Accused Pramod has been charged for the offences punishable under Sections 498 A/34 IPC and Section 304B/34 IPC and in the alternative Section 302 IPC.
49. The first charge against the accused persons is under Section 498A/34 IPC. To prove this charge, prosecution has examined PW2 Ms. Anita (complainant as well as sister of the deceased), PW4 Sh. Dheeraj Kumar (brother of the deceased) and PW12 Smt. Sunita (sister of the deceased). From the scrutiny of the statements of these witnesses, it is revealed that the evidence which has come on record against the accused persons in respect of charge under Section 498A/34 IPC is as under:
• Accused persons used to harass deceased Savita for SC No. 186/2016 Page 28 / 43 bringing car and cash.
• Accused persons used to beat the deceased Savita.
• Accused persons used to threaten deceased Savita to kill her by burning.
50. Section 2 of Dowry Prohibition Act defines "dowry" as under: "2. Definition of 'dowry' In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage, or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other persons, 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 or persons to whom the Muslim Personal Law (Shariat) applies."
51. The Hon'ble Supreme Court of India in a case reported as Satvir Singh and Ors. Vs. State of Punjab and Anr. 2001 (4) Crimes, 45 has held that: "There are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is 'at any time' after the SC No. 186/2016 Page 29 / 43 marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence, the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."
52. The Hon'ble High Court of Delhi in a case reported as Mahavir Kumar & Ors. Vs. State MANU/DE/1321/2014 has held as under:
"A bare reading of Section 498A goes to show that the term cruelty which has been made punishable under the Section, has been defined in the explanation appended to the said section. Therefore, the consequences of cruelty, which are either likely to drive the woman to commit suicide or to cause grave injury/ or danger to life, limb or health, whether mental or physical, of the woman or harassment of the woman where such harassment is with a view to coerce her or any person related SC No. 186/2016 Page 30 / 43 to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, are required to be established in order to prove an offence under Section 498 IPC."
53. The Hon'ble Delhi High Court in a case titled as Hansraj Sharma and Ors. Vs. State reported as MANU/DE/0476/2010 has held as under:
"10........It is not every cruelty which is punishable under Section 498A of IPC. The cruelty, as defined in the explanation to 498 A of IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so as to attract penal provisions, contained in Section 498 A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of expression 'willful' in the explanation to Section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, SC No. 186/2016 Page 31 / 43 limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequence of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behaviour. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A of IPC. Of course, the expression "cruelty" would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498A of IPC."
54. In this case statement of PW2 Ms. Anita which is SC No. 186/2016 Page 32 / 43 Ex.PW2/A was recorded by the SDM on 30.08.2013. The case was registered on this statement Ex.PW2/A. The perusal of this statement shows that the allegations levelled by the complainant in this complaint are general and vague. No specific instances or dates of demand of dowry or harassment meted out to the deceased Savita have been mentioned by PW2 Ms. Anita in her statement Ex.PW2/A.
55. PW2 Ms. Anita, PW4 Sh. Dheeraj and PW12 Ms. Sunita have made statements to the SDM/Executive Magistrate which are Ex.PW2/A, Ex.PW4/C and Ex.PW12/A. Supplementary Statement of PW4 Dheeraj was also recorded under Section 161 Cr.P.C. All the said statements are vague and general in nature. However, these witnesses have made material improvements during their deposition in the Court. Hence, it is not safe to rely upon the evidence of the said witnesses. This was so held by the Hon'ble Supreme Court of India in a judgment Khalil Khan Vs. State of M.P. (2003) 11 SCC 19.
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56. PW2 (Ms. Anita), PW4 (Dheeraj Kumar) and PW12 (Ms. Sunita) have stated in their examination that the deceased Savita was harassed by the accused persons for dowry demand. In their crossexamination, they have stated that they had not made any police complaint regarding the harassment or cruelty meted out to the deceased Savita by the accused persons. This creates doubt in the prosecution story.
57. So far as the allegations against the accused persons regarding the beatings given by them to the deceased Savita are concerned, no medical examination of Savita was ever got conducted. No dates regarding beatings given to the deceased Savita by the accused persons have been mentioned in the statements given by the witnesses. Nor any complaint was ever made by PW2 Ms. Anita, PW4 Sh. Dheeraj Kumar and PW12 Ms. Sunita before any authority before the death of Savita regarding the threats or beatings given to their sister i.e. deceased SC No. 186/2016 Page 34 / 43 Savita by the accused persons.
58. Therefore, in view of the above discussion and the case law discussed above, I am of the considered opinion that the prosecution has failed to lead cogent evidence to prove the charge under Section 498A/34 IPC. The evidence led by the prosecution do not meet the requirement of the offence under Section 498A IPC as mentioned in the judgments Mahavir Kumar & Ors. Vs. State (supra) and Hansraj Sharma and Ors. Vs. State (supra). Hence, Charge under Section 498A/34 IPC cannot be sustained.
59. The next charge against the accused persons is for the offence punishable under Section 304B/34 IPC. The Hon'ble High Court of Delhi in the case of Hansraj Sharma and Ors. Vs. State (supra) has held that before a person can be convicted under this Section which deals with what is described as "dowry death", the prosecution must necessarily prove the following ingredients: i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal SC No. 186/2016 Page 35 / 43 circumstance;
ii. Such death must have occurred within seven years of her marriage;
iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
iv. Such cruelty or harassment must be for or in connection with demand for dowry;
v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.
60. Admittedly, the death of Savita took place otherwise than under normal circumstances and she died within seven years of her marriage.
61. The third ingredient of Section 304B IPC is that 'soon before her death' the woman must have been subjected to cruelty or harassment by her husband or by the relatives of her husband.
62. As discussed above, PW2 Ms. Anita, PW4 Sh. Dheeraj and PW12 Ms. Sunita have made statements to the SDM/Executive Magistrate which are Ex.PW2/A, Ex.PW4/C and Ex.PW12/A. Supplementary Statement of PW4 Dheeraj was also recorded under Section 161 Cr.P.C. The perusal of the said SC No. 186/2016 Page 36 / 43 statements shows that there are no allegations that 'soon before her death' deceased Savita was subjected to cruelty or harassment by the accused persons. Their said statements are vague and general in nature. As discussed above, all the said witnesses have made material improvements while deposing in the Court. I am of the considered view that it is not safe to rely upon the evidence of the said witnesses. Reliance in this regard can be placed upon the judgment of the Hon'ble Supreme Court of India Khalil Khan Vs. State of M.P. (2003) 11 SCC 19 (supra).
63. The case of the prosecution is that before her death deceased Savita made phone calls to her brother/ sisters. As per the statements of witnesses, deceased Savita used to inform his brother/ sisters on telephone regarding her harassment by the accused persons. Thus, the vital evidence available to the Prosecution in this regard was the Call Detail Records. But no Call Detail Records have been produced by the prosecution in this regard nor any explanation has come on record as to why the Call SC No. 186/2016 Page 37 / 43 Detail Records have not been produced.
64. It was argued on behalf of the State that the presumption under Section 113B of the Indian Evidence Act goes against the accused persons. I am not in agreement with this contention of the Ld. Addl. P.P. as this presumption is firstly, rebuttable and secondly, it comes into play only when it has been proved that the deceased was subjected to cruelty or harassment on account of demand of dowry 'soon before her death'. When the prosecution fails to prove the basic ingredients of this Section, the application of this presumption does not arise at all. Reliance in this regard can be placed upon the Judgment of the Hon'ble Supreme Court of India in the case of Sher Singh Vs. State of Haryana which is reported as AIR 2015 SC 980. In the present case, the prosecution has failed to prove the ingredients of the offence under Section 304B IPC and therefore, the presumption under Section 113B of Indian Evidence Act is of no help to the prosecution.
65. Therefore, in view of the above discussion, I am of the SC No. 186/2016 Page 38 / 43 considered opinion that prosecution has failed to lead any cogent evidence that soon before her death, deceased Savita was subjected to cruelty or harassment by the accused persons. Hence, Charge under Section 304B/34 IPC cannot be sustained.
66. The accused Pramod has been charged in the alternative for the offence punishable under Section 302 IPC. The case of the prosecution is that accused Pramod had set the room on fire in which deceased Savita was there. However, no cogent evidence has come on record in this regard.
67. The accused persons have examined three witnesses in their defence. DW1 Sh. Yashpal Singh has stated in his examination that when he reached at the house of the accused persons, he saw that the accused Pramod was burning and inside the house wife of accused Pramod was lying burnt. He also stated that the accused Pramod along with public persons tried to save his wife i.e. deceased Savita. While saving Savita, accused Pramod also sustained burn injuries. DW2 Sh. Bhure Singh Yadav has stated SC No. 186/2016 Page 39 / 43 in his examination that when he entered the house of the accused persons, the accused Pramod was behind him and he (accused) entered his house after him. He also stated that the accused Pramod tried to save Savita, who was burning. While saving his wife, accused Pramod also sustained burn injuries. DW3 Sh. Arun Kumar Gupta has stated in his examination that when he entered the house of the accused persons, accused Pramod was ahead of him. Accused Pramod broke the door which was bolted from inside and he tried to save Savita. During that process, accused Pramod also sustained burn injuries.
68. The perusal of the statements of the Defence Witnesses shows that the accused Pramod also sustained burn injuries, while trying to save his wife i.e. deceased Savita. As per the version of Defence Witnesses, when the room was under fire, accused Pramod was outside. In the statement of DW3 Arun Kumar Gupta, it has come on record that door of the room was broken by accused Pramod by using force, which means that door was bolted SC No. 186/2016 Page 40 / 43 from inside. All the Defence Witnesses produced by the accused persons could not be shaken from their stand in their cross examination by the Ld. Addl. PP for the State.
69. Moreover, one of the prosecution witnesses i.e. PW11 Sh.
Naresh Kumar has stated in his deposition that on the date of incident when he was returning to his house and reached near the house of the accused persons, he saw several public persons gathered there, who were saying that some lady had burnt herself. He made a call at 100 number and thereafter, left the spot. In his crossexamination, PW11 Sh. Naresh Kumar has stated that he saw Pramod coming out of the gali and the hands and feet of Pramod were not in burnt condition at that time. He stated that Pramod went inside the house in his presence. The perusal of the testimony of PW11 Sh. Naresh Kumar shows that the accused Pramod entered his house in the presence of PW11 Sh. Naresh Kumar.
70. No evidence has come on record or produced by the SC No. 186/2016 Page 41 / 43 prosecution which could connect the accused Pramod with the commission of the murder of his wife i.e. deceased Savita. On the other hand, evidence has come on record in the defence of accused Pramod that he was outside the house at the time of incident, he broke the door of the room under fire and the accused Pramod sustained burn injuries while trying to save his wife. It is settled law that the testimony of the defence witnesses is at par with that of the prosecution witnesses.
71. Therefore, in view of the above discussion, I am of the considered opinion that prosecution has failed to prove the charge under Section 302 IPC against accused Pramod.
72. In view of the above discussion, it is held that the prosecution has failed to prove the charges against the accused persons. All the accused persons are acquitted of the charges against them.
73. The bail bonds of the accused persons are cancelled and SC No. 186/2016 Page 42 / 43 their sureties are discharged.
74. File be consigned to Record Room.
(This judgment has been typed directly by P.A. on my dictation).
Announced in the open Court on SURINDER Digitally signed by SURINDER KUMAR SHARMA KUMAR SHARMA Date: 2019.10.21 15:32:46 21.10.2019 +0530 (SURINDER KUMAR SHARMA) Additional Sessions Judge-05 East District, Karkardooma Courts, Delhi SC No. 186/2016 Page 43 / 43