Delhi District Court
State vs Surender Saini on 10 May, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 196/11
State Vs Surender Saini
S/o Shri Mangat Ram Saini
R/o House No. 106,
Khirki Village, Malviya Nagar,
New Delhi.
FIR No : 239/08
P.S. : Malviya Nagar
U/s. : 302/498A IPC
DATE OF INSTITUTION : 13.01.2011 (Initial date of
Institution: 07.07.2008)
JUDGMENT RESERVED ON : 30.04.2012
DATE OF DECISION : 10.05.2012
JUDGMENT:
1. Prosecution case in brief is that on receiving DD no. 41A dated 07.03.2008, ASI Hazari Lal alongwith Ct. Manish reached AIIMS hospital and collected MLC of injured Ritu Saini who was declared unfit for statement, then said DD was kept pending. However, on 09.03.2008 Sh. Fateh Singh father of the injured Ritu Saini came to PS and his statement was recorded and injured Ritu Saini was found unfit for statement on subsequent dates also.
2. Sh. Fateh Singh father of deceased Ritu Saini alleged in his statement State vs. Surender Saini, SC No. 196/11 (pg-1 of 43) that he married his daughter Ritu Saini alongwith accused surender Saini in 199697 and at the time of marriage he spent 5/6 lacs in the marriage and for about 6 years her family life was alright and during this period she gave birth to girl child Tannu aged 8 years and one son Dipanshu aged around 6 years. He further alleged that two and half years back one more girl child was born out of said wedlock and since then accused Surender Saini started beating his daughter and also started raising demand for money etc. He further alleged that his daughter mostly used to came to meet her sister Bimla at Bhogal and visited him sparingly and 4 months back he received a call from his daughter that accused Surender had beaten her and thrown her out of the house, thereafter, he sent his son Jitender Saini @ Sonu to village Khirki where he had talks with inlaws but they all alongwith accused Surender abused him and all asked to take his sister and they will not keep her and if she will come back they would kill her and thereafter he took his sister Ritu and left her at Bimla's house at Bhogal and all children were kept by accused Surender himself. He further alleged that during this period he received a call from Surender who asked him Rs. two lakhs for opening some shop and also threatened if he will not give him the money then will send divorce papers of his daughter, thus, he had given Rs. 2 lakhs to the accused and about two months back accused Surender Saini, Govind and Ved Prakash had took his daughter from the house of Bimla. He further alleged that thereafter accused started calling him and threatened to give money otherwise he State vs. Surender Saini, SC No. 196/11 (pg-2 of 43) will make the life of deceased Ritu hell. On 07.03.2008 a call was received from accused Surender that Ritu died because of falling from bed and was admitted in AIIMS hospital and thereafter he reached alongwith her sister Bimla to AIIMS hospital and found the condition of his daughter serious. He further levelled the allegations on fatherin law Mangat Ram, Jeth Mohar Pal, Jethani Neelam etc. and stated that they all had beaten her and requested for legal action against all of them and pursuant to his statement an FIR u/s 307 IPC was registered on 09.03.2008.
3. During investigation, IO prepared site plan and photographed the place of occurrence and further arrested accused Surender Saini on 12.03.2008 and accused Surender Saini in his disclosure statement stated that he stood surety for some loan of his fatherinlaw and brotherinlaw and they have not paid the said loans due to which his relations with his wife became strained and she went to her bua's house at Bhogal and matter was compromised 2025 days back but relations remained strained and on 06.03.2008 that at around 12/12.15 night when his daughter asked milk from her she had not given the same on which heated arguments took place between two and threw her from the bed to the floor and thus she got injured and admitted to AIIMS hospital.
4. Vide DD no. 40A it is reported that deceased Ritu died on 13.03.2008 and the cause of death was found to be asphyxia due to pressure over neck and offence is changed from section 307 to 302 IPC. Further State vs. Surender Saini, SC No. 196/11 (pg-3 of 43) investigation of the case was handed over to one Inspector Pratap Singh.
5. During further investigation Inspector Pratap Singh seized the marriage proofs, CD's etc. and obtained the subsequent opinion on postmortem report and it was opined by doctor that injury mentioned in postmortem report is highly unlikely to be caused by fall and injury on the neck of deceased is strangulation and strangulation is homicidal in nature. IO during investigation did not found sufficient evidence against accused Mangat Ram, Mohar Pal, Neelam therefore they were kept in column no.2 and filed the chargesheet against present accused Surender Singh u/s 302 /498A IPC.
6. On committal charges u/s 302/498A IPC were framed against the accused Surender Saini.
7. Prosecution for substantiating charge examined 20 prosecution witnesses. Summary details of their depositions are as follows. Testimony of Relatives of Deceased and other Public Witnesses:
8. PW1 Jitender Saini brother of deceased deposed that his deceased sister married to accused Surender in the year 1997 and for about 5 years both lived happily and his sister blessed with two children but after the birth of third child another daughter accused and his family started harassing his sister and when he went to house of his sister after birth of second girl child and accused asked him to take his sister as he did not wanted to stay with her. Then he took his sister to his bua's house Bhogal and stayed there for about one month. He further State vs. Surender Saini, SC No. 196/11 (pg-4 of 43) deposed that accused was called at the house of Smt. Bimla where his bua and fufa made accused to understand and on this father of accused stated that he will hold his sister from hair and struck her with the ground. He further alleged that thereafter they brought his sister to their house at Lampur and on his back his father sent his sister with accused to her matrimonial house and at around 4 am, the date he do not remember, accused called at his father's home that his sister Ritu got fallen down from bed and admitted to AIIMS hospital thereafter he alongwith his bua went to AIIMS hospital and saw marks of severe body injury and further saw mark on her neck and blood was oozing from her ear and she was having injuries on her head also. He further deposed that ribs were broken and same was told by his bua on seeing his sister. On being put some leading questions, he stated that it is correct that accused demanded Rs. 2 lakhs from them to keep his sister happy and his father had given Rs. 2 lakhs.
9. In cross examination, he stated that at the time of marriage Ritu was around 18 years old and used to do agricultural work and had two kilas of agricultural land and sold one and half kila 10 years back and his father was employed in DESU but he cannot tell his salary and post. And he do not know whether they had filed any income tax return or not. He further deposed that it is correct that he has taken a loan of Rs. 50,000/ from Saini Cooperative Thift Credit Society. He further stated that it is correct that accused his sister and Mohar Pal brother of accused were guarantor and also stated that his father also obtained a State vs. Surender Saini, SC No. 196/11 (pg-5 of 43) loan of Rs. 80,000/ from that society. He further deposed that his father expired because of lungs ailment. He further deposed that in the year 2002 he and his father took the loan of Rs. 50,000/ and this loan was in fact taken by Surender Saini in his name. However, his father had taken the loan for himself. He further deposed that he is not aware of any decree for non payment of the loan. And further do not know whether accused was guaranter to loan of his father. He further stated that his deceased sister has 3 children and staying with family of accused Surender Saini and last rites of deceased were performed by accused and his family.
10. He further deposed that deceased was not able to write when admitted in hospital and also not in a position to speak. He denied the suggestion that his sister was able to write when she was admitted in hospital. He further deposed that after incident he first met his sister in hospital but cannot tell whether in emergency ward and at that time Bittoo s/o his bua , his wife Rupa and his bua Bimla was also present and they met her at 7 am and at that time accused , his brother mohar Pal, relative Ved, Govind and two brother in laws were also present. He further deposed that last time he met his sister at 10.30 pm on night of 13.03.2008 in hospital and at that time his bua's son was with him and his sister was feeded with juice during her admission in hospital and further he did not offer any juice to his sister and had no talk to his sister during this period with his sister as she was not in position to speak.
State vs. Surender Saini, SC No. 196/11 (pg-6 of 43)
11. He further deposed that his statement was recorded by police on 07.03.2008 in PS at 11/11.30 am. And his father lodged complaint to police on same day. And statement of Bimla was also recorded on same day. He further deposed that he cannot say when he went to PS to make a complaint and made complaint on 07.03.2008 when his statement was recorded. He further deposed that he had gone to his sister's house on the night of 06.03.2008 at around 10.30pm. He further denied suggestion that they have received notice of refund of loan from society and asked her to make arrangement of payment with assistance of accused Surender and his relatives. He further denied suggestion that his sister asked them to make arrangement of loan on their own and after denying suggestion he had a quarrel with his sister. He further deposed that police never questioned him regarding his visit to Ritu's house on 06.03.2008 and stated that accused Surender Saini was present on 06.03.2008 and also raised hands on him and asked him to take away his sister. He further denied suggestion that Surender Saini had scolded him for talking to his sister in high volume and further denied suggestion that he had no talks with accused Surender on 6.3.2008 and further volunteered that he was beating his sister and asked him to take away his sister as they will not keep her. He further deposed that he had not told to IO that accused Surender Saini raised hands on him on 06.03.2008. He further deposed that he met Tannu on 06.03.2008 but had not talked with her. He further deposed that he or his father or his sister had not made any complaint to police regarding State vs. Surender Saini, SC No. 196/11 (pg-7 of 43) behaviour of Surender Saini. He further deposed that he or his father had never made any complaint to Panchayat.
12. He further deposed that one month before 07.03.2008 his sister was also beaten but he had not conducted any medical examination of her. He further deposed that he do not know for what purpose accused demanded Rs. 2 lakhs from his father and his father gave that money out of his retirement amount and not paid that amount in his presence. He further deposed that he cannot tell in whose presence his father gave Rs. 2 lakhs. He further deposed that police had not searched room of Ritu in his presence and no writing paper was found from her room or from anywhere. He further deposed that it is correct that accused never demanded money or dowry articles from him and deceased Ritu used to disclose all the difficulties and demands to his bua and not to him and further deposed that she used to tell about her difficulties to his bua and not to anybody else. He was confronted with statement Ex. PW1/D where he had not stated to police that he saw marks of beating on body of his sister and blood was oozing from her ear. He further confronted with his statement Ex.PW1/DA where he had not stated about the factum of breaking of teeth of his sister as told by his bua. He further denied suggestion that he was demanding Rs. 5 lakhs from accused for deposing tutored version.
13. PW2 Premwati handed over the video of marriage of Surender and Ritu. In cross examination she stated that it is correct that on 06.03.2008 at around 10.30 pm Jitender brother of deceased came to State vs. Surender Saini, SC No. 196/11 (pg-8 of 43) her and she came to know that he asked Ritu to pay society loan and because of this altercation took place between Ritu and Jitender.
14. PW4 Ramphal Supervisor of Saini Cooperative society stated that Sh Mangat Ram was surety of loan amount of Rs. 50,000/ given to Jitender and Surender, Bimla and Ghanshyam were sureties of Fateh Singh of loan amount of Rs. 80,000/ and the said loan amounts were not paid by Jitender and Fateh Singh. In cross examination he stated that till date those amounts were not paid by Jitender and Fateh Singh and both were not traceable and accused was jailed for this default.
15. PW7 Tannu daughter of Surender Saini aged around 9 years stated without oath that there was no quarrel between her mother and father and stated that one day Sonu Mama had come and had quarrel with her mother and pushed her mother and her father was at shop at that time.
16. PW9 Smt. Bimla deposed that after 56 years of marriage quarrel started taking place between her niece Ritu with her husband and family members. She further deposed that sister in law of Ritu did not liked her and accused Surender Saini used to admit mistake whenever used to be intervened. She further deposed that accused used to beat deceased Ritu badly and she used to tell conduct of accused to her on telephone whenever she used to get opportunity. She further deposed that two months before the incident Ritu Saini was thrown out of her matrimonial home and she told her brother Jitender to bring Ritu to her house at Bhogal and she remained with her for about two months, thereafter, she received a call from Surender who refused to talk to her State vs. Surender Saini, SC No. 196/11 (pg-9 of 43) but insisted to talk to Ritu Saini only. She further deposed that accused alongwith Mohar Pal, Ved Prakash and Govind came to their house and accused wanted to take Ritu Saini with him and they had some altercation on this issue also and thereafter Ritu went to her father's house and from there accused brought her to matrimonial home. She further deposed that again same thing started happening and they started demanding money and they also started beating Ritu and thereafter her brother gave accused Rs. 2 lakhs and after 1520 days Ritu was murdered by accused. She further deposed that after committing murder, father of accused informed parents of Ritu on telephone that Ritu had fallen from bed and on receiving said information he alongwith Jitender, his wife went to AIIMS and found Ritu admitted in emergency ward. She further deposed that she had seen the deceased Ritu bleeding from her ear and one of her eyes was also badly damaged and she was bleeding from her jaw also and further noticed ligature marks on her neck. She further deposed that Ritu was unconscious and concerned doctor told them that this girl has been killed and accused was also present at that time in hospital and he got altercation on this and came to PS to register this case.
17. In cross examination she stated that it is correct that she is the real mami of accused Surender Saini and marriage was solemnised between two on her mediation. She further deposed that she had not made any complaint to police or panchayat against accused or his family members and it is correct that accused was living separately State vs. Surender Saini, SC No. 196/11 (pg-10 of 43) after 56 years of marriage from his family alongwith two daughters and one son. She further deposed that it is correct that immediately on taking Ritu to hospital father of accused informed her brother Fateh Singh and she reached hospital at around 10 am and it is correct that accused and his relatives were present in hospital and she expired after 8 days of the admission i.e, 14.03.2005. she further deposed that on 07.03.2005 to 14.3.2005 deceased Ritu was looked after by accused and his relations and she had no talk with Ritu in hospital. She further deposed that she cannot tell the exact date of harassment and beatings given by accused to Ritu however she told about this happening two months prior to date of incident. She further deposed that Ritu told her that accused was asking her to bring money from her father and it is wrong to suggest that financial condition of Ritu's father and brother were not good. She further deposed that she do not know whether accused was guaranter of Fateh Singh and also do not know about non payment of loan taken by Jitender and Fateh Singh. She further denied suggestion that quarrel took place between Jitender and Ritu on payment of loan amount. She further stated that her statement was recorded in PS twice on 8 and 9th March and her statement was also recorded by SDM might be after two days of the incident. She was further confronted with her statement over that fact that family of accused used to demand dowry from deceased and also over the fact that accused used to beat her and also confronted with her statement that her brother Fateh Singh Rs. 2 lakhs to accused which were State vs. Surender Saini, SC No. 196/11 (pg-11 of 43) collected from her house. She further confronted with her statement regarding the fact that she saw Ritu bleeding from her ear , her eye was also badly injured and also bleeding from her jaw and noticed ligature mark on the neck. She further stated that she do not remember whether doctor concerned told her that girl has been killed. She further deposed that it is correct that Ritu had not talked with her or Jitender and Fateh Singh in hospital. She further deposed that it is correct that during 8 days in hospital she did not give anything in writing vol., she was not in a position to write anything. She further denied suggestion that deceased Ritu was improved and able to speak in hospital. She further deposed that it is correct that from 7.3.05 to 11.3.05 police used to meet them daily and they used to go to PS. She further denied the suggestion that there was no quarrel between Accused Surender and Ritu. She also denied that on day of incident quarrel took place between Ritu and Jitender.
Deposition of Doctors :
18. PW8 Dr. Chandrashekhar Gupta deposed that on 07.03.2008 he medically examined patient Ritu Saini brought by her husband with alleged history of fall from bed while sleeping in night and on local examinationhe found following injuries: 1) bleeding from right ear, ii) some conjuctible hemorrhage in right eye , iii) small patachae in whole face, iv) multiple linear mark on neck and prepared MLC vide Ex.
PW8/A. In cross examination he deposed that he had not given the State vs. Surender Saini, SC No. 196/11 (pg-12 of 43) dimension and duration of injuries. He further deposed that he had not mentioned ligature mark but stated about linear mark and cannot specify the difference between ligature and linear mark. He further deposed that he cannot comment whether linear mark can be caused by scratch of an infant body. He further deposed that injury no.2 means there is redness in the eye and cannot comment that it can be old redness in the eye. He further deposed that small patchae on face means accumulation of blood under skin and it may due to lack of oxygen, low platelet counts or some internal bleeding under surface of skin.
19. PW10 Dr. Sudhir Gupta conducted postmortem of dead body of deceased Ritu Saini on 14.03.2008 at about 2 pm and found fade brownish colour ligature mark measuring 5.10 cm in length and further deposed that time since death in this case was consistent with hospital record and cause of death in this case was asphyxia due to pressure over neck. He further deposed that on 24.04.2008 he alongwith Dr. Sunay and Shalini Girdhar given subsequent opinion to clarify the nature of injuries and its result and as per subsequent opinion the neck injuries mentioned in postmortem were highly unlikely to be produced due to fall and injury on neck of deceased was strangulation and strangulation is generally homicidal in nature and there is no other injury then fatal injury present on body of deceased which may suggest of scuffle.
20. In cross examination he deposed that he had not seen the entire State vs. Surender Saini, SC No. 196/11 (pg-13 of 43) medical record at the time of conducting postmortem and same was perused lateron and further on court query he stated generally first autopsy is conducted thereafter they call medical record and opinion as to cause of death is given. He further deposed that he perused the medical records including blood report and MRI before giving opinion and further do not remember whether whole medical record or patient chart was perused by him or not. He further deposed that he had not consulted clinical chart before preparing postmortem report. He further deposed that patient was admitted and treated in hospital as brain damage (diffuse hypoxic injury). He further deposed that it is correct that patient expired because of brain damage. He further deposed that it is correct that in MLC there is no mention of ligature mark on neck. He further deposed that there is severe injury in the form of ligature mark on the dead body however the word 'severe' is not written in postmortem. He further deposed that no injury on thyroid hyoid complex of neck as well as laryngeal complex and further there is no abrasion mark on neck or around the neck. He further deposed it is correct that there is no injury of struggle mark or of huge force on body of deceased. He further deposed that it is correct that if complete asphyxiation of brain occur as a result of effecting throttling /strangulation the death will occur within 3 to 7 minutes. Witness further stated that he cannot comment whether one single person can cause strangulation or not. He further deposed that it varies from case to case whether bleeding is from mouth or nose in case of State vs. Surender Saini, SC No. 196/11 (pg-14 of 43) strangulation however in this case bleeding was from right ear, right eye as documented in MLC. He further deposed that it is possible that ligature mark can be put after death of person. And ligature mark was soft and further he had not given duration of injury in postmortem report though the same is consistent with the hospital report. He further deposed that ligature mark was not all around the neck and it was incomplete and partial ligature mark. He further deposed that it is correct that patient survived more than 7 days. And this is suggestive of force less than fatal force required in complete asphyxia causing cerebral damage and brain damage in present case is consequent to strangulation and further he cannot tell whether strangulation was caused from soft or hard material and in MLC there is mention of linear mark on neck with pictorial representation. He further deposed that there is no mention of saliva in MLC.
21. PW11 Dr. Ajay Gandhi deposed on behalf of Dr. Ritesh Kruthi who left the hospital and his present whereabouts are not available with the hospital. And as per report of MLC the patient was unfit for statement. However, his cross examination was deferred but thereafter as per record not found for cross examination.
22. PW12 Dr. Shalini Girdhar deposed that he conducted the postmortem of the deceased alongwith Dr. Sudhir Gupta and opined the cause of death asphyxia as a result of pressure of neck which was likely to cause death in ordinary course of nature and on subsequent opinion the injury on neck was due to strangulation and strangulation State vs. Surender Saini, SC No. 196/11 (pg-15 of 43) is generally homicidal in nature. In cross examination she deposed that MLC of deceased was seen at the time of postmortem and further stated that there is reference of linear mark on neck in MLC and difference between ligature mark and linear mark is that ligature mark can be produced by any ligature material and linear mark can be produced by anything. She further deposed that brain hemorrhage has not been shown as cause of death in postmortem report and death caused due to pressure on neck and there are chances of brain damage due to blockage of arterial blood and it is correct that tension can cause brain damage and the ligature mark in present case are ante mortem in nature though there is no specific mention that ligature mark was ante mortem or postmortem. She further deposed that there is no thyroid hyoid injury and laryginal injury on neck and except ligature mark, there was no injury on neck and death due to strangulation could be caused without there being any blood oozing from mouth or neck. This witness however further stated that this can be due to accidental pressure on neck but she cannot tell whether pressure was accidental or not. However again said that present case can be of accidental pressure. He further deposed that pure asphyxia is common in case of strangulation. She further deposed that ligature was not produced before them at the time of postmortem or at the time of giving subsequent opinion. She further deposed that it is not necessary that there will be abrasion on body part in case of strangulation.
State vs. Surender Saini, SC No. 196/11 (pg-16 of 43)
23. PW17 Dr. K.D. Prasad deposed that on 09.03.2008 he examined patient Ritu Saini and opined patient unfit for statement and on 10.03.2008 also opined patient unfit for statement. In cross examination he stated that the patient was unconscious and denied the suggestion they declared the patient unconscious because of their presumption and assumptions. He further deposed that he only mentioned the level of consciousness not specifically mentioned that patient was unfit for statement.
24. PW18 Dr. Sunay Mahesh deposed that on 14.03.2008 he conducted the postmortem alongwith Dr. Shalini Girdhar and Dr. Sudhir Gupta and cause of death opined to be pressure over the neck which is likely to cause death in ordinary course of nature and injury on the neck was strangulation which is generally homicidal in nature. In cross examination he deposed that they have considered the MRI report, blood report and other medical report at the time of postmortem and it is correct that they have written that injuries are sufficient to cause death but pressure over the neck itself shows that injuries are sufficient to cause death and in medical jurisprudence, "sufficient" and "likely" have same meaning. He further deposed that defused hypoxic brain damage is not possible due hit on the hard object. He further deposed that the details as mentioned in MLC are not sufficient to comment on on the sufficiency of cause of death and other than ligature mark there was no other antemortem injury present over the neck. He further deposed that it is possible to cause linear mark even after death but State vs. Surender Saini, SC No. 196/11 (pg-17 of 43) injury on the neck in present case was antemortem in nature which is unlikely to be caused after death of the deceased. He further deposed that it is difficult to ascertain the nature of ligature material used in this case. He further deposed that it is correct that duration of injury is must but in this case duration of injury is not mentioned but nature of injuries i.e, ligature mark has been written in detail. He further deposed that it is correct ligature was present over the front of the neck and was absent on side and back of the neck. He further deposed that cutting at A, B, C and D are due to spelling and grammatical mistake. Deposition of Police Officials
25. PW3 HC Sher Singh recorded DD no. 41A on the basis of telephonic information by Ct. Surender from AIIMS hospital that one Ritu w/o Surender Saini was admitted by her husband in injured condition. PW5 HC Banwari Lal deposed that on 09.03.2008 being DO of PS Malviya Nagar he recorded the FIR on the basis of rukka produced by ASI Hazari Lal. In cross examination he deposed that DD no. 41A was. entrusted to ASI Hazari Lal on 07.03.2008 and it was kept pending till 09.03.2008. PW6 SI Mahesh prepared scaled site plan and in cross examination stated that it is correct that place of occurrence is in thickly populated area and in that premises many other family members were residing separately.
26. PW13 ASI Hazari Lal deposed that on 07.03.2008 on receiving DD no. 41 he reached AIIMS hospital where he collected the MLC of State vs. Surender Saini, SC No. 196/11 (pg-18 of 43) injured Ritu Saini and doctor declared her unfit for statement and he met no eye witness there therefore kept pending and on 09.03.2008 Fateh Singh father of deceased came to PS and he recorded his statement and prepared rukka and on 09.03.2008 he filed an application for recording statement of injured but not found her fit for statement. And thereafter on 10.03.2008 he prepared site plan of spot at instance of Jitender and on 11.03.2008 also deceased Ritu Saini was found unfit for statement and on 12.03.2008 accused Surender Saini was arrested at instance of Fateh Singh and on 13.03.2008 he received an information that deceased Ritu Saini died. And on 14.03.2008 he conducted inquest proceedings and moved application for postmortem thereafter dead body was handed over to father of deceased. And on 04.04.2008 he collected the postmortem report. And on 07.04.2008 IO Pratap Singh seized two CD's from house of accused and on 10.03.2008 he seized 5 photographs from house of the accused. In cross examination he deposed that he reached hospital at 6.30 am but did not met Mangat Ram or Jitender and also not met relative of injured on 07/08/09 March 2008. he further deposed that he had not kept the DD entry by which DD entry was kept pending and also not mentioned the fact that original DD was kept pending and he prepared rukka on basis of that MLC received on 07.03.2008. He further deposed that before recording rukka he had not taken opinion of doctor regarding nature of injury and further had not seen the diagnostic chart of deceased Ritu. He further deposed that he met Fateh Singh in PS at State vs. Surender Saini, SC No. 196/11 (pg-19 of 43) around 5 am and could not tell whether he gave rukka round midnight. And he had not filed any arrival or departure entry of complainant Fateh Singh. He further deposed that he had not investigated complainant on point that he had spent 56 lakhs in marriage. He further deposed that he had not recorded statement of Tannu before preparation of rukka. He further deposed that he do not know whether Jitender was present at the time when injury was inflicted to Ritu and he had not investigated from that point of view. He further stated that he cannot produce DD entries when he went to hospital or went for preparation of site plan. And no complaint was lodged against Surender on 07.3.08 or 08.3.08. he further deposed that he had not made any inquiries from daughter and son of deceased because they did not met him. He further deposed that he had seen the mark on neck of deceased but had not noticed any ligature mark on neck of deceased and also not found any rope or incriminating articles on spot.
27. PW14 HC Anil deposed that he alongwith Inspector Pratap Singh went to AIIMS hospital and from there went to the house of accused where ASI Hazari Lal also reached there and from ground floor of the house of the accused from one almirah two CD's having cover of border film were taken out and seized..
28. PW15 HC Shyambhaji Rao deposed that at the pointing out of complainant Fateh singh on 12.03.2007 accused was apprehended.
29. PW16 Ct. Shish Pal deposed that on 14.03.2008 postmortem of the deceased was conducted and her dead body was handed over to her State vs. Surender Saini, SC No. 196/11 (pg-20 of 43) fatherinlaw Mangat Ram. In cross examination he deposed that IO recorded the statement of Jitender Saini and Fateh Singh Saini in his presence.
30. PW19 ACP Pratap Singh deposed that on 14.03.2008 investigation of present case was entrusted to him and on 23.03.2008 he recorded the statement of Tannu daughter of deceased and on 07.04.2008 seized two CD's of border film from house of accused and on 24.04.2008 he seized record pertaining to loan taken by Fateh Singh and his son Jitender. And on 28.04.08 he obtained subsequent opinion from the doctors. In cross examination he deposed that he did not interrogated Jitender. And it is correct that in loan agreement Surender and his wife deceased Ritu were guaranter. He further denied suggestion that during altercation Jitender beaten Ritu and also pressed her neck.
31. PW20 Sh Praveen Singh Ld. MM deposed that on 26.07.08 one Tanu was brought before him for recording of statement u/s 164 Cr.P.C but her statement was not recorded by him.
32. Accused in his statement u/s 313 Cr.P.C denied all the incriminating circumstances put to him and further stated that police has not interrogated Jitender Saini (PW1) as an accused for murdering Ritu Saini and further submitted that he was not present in house or room where Ritu Saini sustained injuries and also stated that PW7 Tannu clearly stated that after Ritu Saini sustained injuries, he was called to his house. Accused further stated that he is falsely implicated in this case and opted to lead DE, however, not produced any defence witness. State vs. Surender Saini, SC No. 196/11 (pg-21 of 43) Material Exhibits:
33. Ex.PW3/A is DD no.41 A dated 6/7.03.2008 recorded at around 3.20 am in night regarding admission of injured Ritu Saini in hospital by her husband Surender Saini. Ex.PW13/A is statement of Fateh Singh recorded by ASI Hazari Lal on 09.3.08 pursuant to which rukka Ex. PW13/B was prepared and endorsement Ex. PW5/B was made by DO and FIR Ex. PW5/A was registered. Ex.PW13/D is site plan prepared on 10.03.2008. Ex.PW8/A is MLC of Ritu Saini showing her time of arrival at 1.25 am on 07.03.2008 with endorsement that she is not fit for statement at around 4.30 am on 07.03.2008 and brought to hospital by her husband Surender with alleged history of fall from cot while sleeping in the night.
34. Ex.PW3/B is DD no.48A dated 13.03.2008 recorded at 11.25 pm at PS regarding death of injured Ritu Saini in hospital. Ex.PW13/C is the inquest proceeding conducted by ASI Hazari Lal . Ex.PW13/M is request for postmortem. Ex. PW10/A is postmortem report showing the cause of death asphyxia as a result of pressure over the neck which is likely to cause death in ordinary course of nature. Ex.PW13/O is seizure memo of slide of brain tissue. Ex. PW13/M is seizure memo of handing over of dead body of Ritu Saini to his father Mangat Ram.
35. Ex.PW13/C application dated 09.03.2008 for taking the statement of deceased who was declared unconscious and not fit for statement. Ex. PW13/E and Ex.PW13/G also application in this regard on 10.03.08 State vs. Surender Saini, SC No. 196/11 (pg-22 of 43) and 11.03.2008. Ex.PW19/A is an application for giving subsequent opinion by the doctors. Ex.PW10/B is the subsequent opinion given by Dr. Sunay, Shalini Girdhar and Dr. S.P. Gupta who opined that neck injury is highly unlikely to be produced due to fall and injury on neck is strangulation and strangulation is generally homicidal in nature. Ex.PW13/I arrest memo of accused dated 12.03.2008. Ex. PW13/J personal search memo of accused. Ex. PW13/K disclosure statement of the accused. Ex.PW13/B seizure memo of two CD's from the house of accused. Ex.PW4/E seizure memo of documents pertaining to loan given to Jitender Saini and Fateh Singh. Ex.PW4/A, Ex.PW4/B, Ex.PW4/D and Ex.PW4/C are loan documents. Ex. PW2/A seizure memo of video cassette and photos. Ex. PW20/A proceeding conducted by Sh Praveen Kumar, Ld. MM and PW7 Tannu not given statement to Ld. MM.
36. Ld. counsel for the accused submitted that complainant Fateh Singh died before examination in the court and IO had not proved the complaint in his testimony. Ld. counsel further submits that sole eye witness Tannu did not supported the prosecution case however, categorically stated that injuries were inflicted by PW1 Jitender and accused was not present at that time in house. Ld. counsel for the accused further submitted that PW1 Jitender Saini and PW9 Bimla are not at all believable witness. Ld. counsel further submits that PW1 Jitender Saini and Ritu Saini deceased had developed strained State vs. Surender Saini, SC No. 196/11 (pg-23 of 43) relations because they had not paid the loan taken from Saini Co operative Society in which accused and deceased stood as guaranter and because of this reason quarrel had taken place on the day of incident and in that quarrel, PW1 Jitender inflicted injuries to the deceased. Ld. counsel further submits that as per postmortem report, injuries as mentioned is opined as 'likely' to cause of death and not 'sufficient' to cause death. Thus , the matter do not fall in the ambit of section 302 IPC but under section 304 IPC. Ld. counsel further submits that there cannot be any strangulation by a single person and testimonies of doctors are in contradiction to the medical jurisprudence. Ld. counsel further submits that there is a deliberate delay in registration of FIR which is not duly explained by prosecution. Ld. counsel submits that the matter was reported to police on 07.03.2008, however the FIR was registered two days later on the statement of Fateh Singh father of deceased and during this period all manipulations were made. Ld. counsel further relied upon certain judgments that mere living as husband wife in a house is not enough circumstance to convict the accused. Ld. counsel further submits that the accused is falsely implicated in the present case.
37. Ld. Addl. PP on the other hand submitted that PW1 Jitender Saini and PW9 Bimla Devi categorically deposed that deceased was harassed on demand of dowry by accused persons and further on the day of incident, accused was present with deceased and brought her to hospital and gave false explanation that deceased died by falling on State vs. Surender Saini, SC No. 196/11 (pg-24 of 43) bed where as per medical evidence deceased died due to strangulation and because of strangulation cerebral damage caused. Ld. Addl. PP further submits that the evidence on record clearly shows that accused caused harassment to the deceased and committed her murder, hence, liable to be convicted for offence u/s 498A/302 IPC.
38. Arguments heard. Record perused.
39. Brief background of prosecution case is that on the night 6/7.03.08 at around 1.25 am accused Surender saini brought deceased Ritu in AIIMS hospital in unconscious state with alleged history as stated by accused to the doctor that she fell from the cot while sleeping in the night. Further as per MLC doctor (PW8) observed that there is external ear bleeding, conjectible hemorrhage of right eye, multiple small patchae on her face and multiple linear marks on neck. Further police was informed and PW13 Hazari Lal on receiving DD no. 41A came to hospital and found injured unfit for statement thereafter kept that DD pending and as per rukka he could not met any eye witness. According to rukka, Fateh Singh father of the Ritu Saini came to PS on 09.03.2008 and PW13 recorded his statement. In his statement he alleged that he married his daughter 1314 years back with accused and she had 3 children out of that marriage and for 45 years there was no demand of dowry from accused side but after birth of second female child they started raising demand of money and most of the time deceased used to visit Bimla (bua of deceased) at Bhogal and four months prior to incident he received a call from his daughter that she State vs. Surender Saini, SC No. 196/11 (pg-25 of 43) was beaten and thrown out of house thereafter she was taken by his son to house of Bimla where she stayed and during this period he received a call from accused for demand of Rs. 2 lakhs for opening shop however, in the meantime, all the children remained with accused and two month prior to incident he arranged 2 lakhs and after some time again he started demanding money and on 07.03.2008 he received a call from accused Surender that Ritu got injured by falling from bed and is presently in hospital in serious condition. Thereafter on his statement police registered FIR u/s 307 IPC and IO from time to time went to hospital for recording statement of Ritu but she was found unfit and died on 13.03.2008 thereafter section 302 IPC was added.
40. Before examination in court Fateh Singh father of deceased Ritu died. However, her brother Jitender Saini and her Bua Bimla were examined before the court as PW1 and PW9. PW1 and 9 also alleged about the beatings given to the deceased and harassment on account of demand of money after the birth of third child i.e, female child and about 2 months back of incident she was thrown out of matrimonial house and was brought to house of PW9 Bimla and thereafter accused demanded Rs. 2 lakhs from Fateh Singh which was paid by her father, PW1 Jitender Saini also deposed that he visited the house of deceased Ritu Saini at around 10.30 p.m. on 06.03.2008 and found accused quarreling with his sister and also raised hands on him and asked him to take his sister and then in the morning they received a call at around 4 am that deceased had fallen from bed and admitted in State vs. Surender Saini, SC No. 196/11 (pg-26 of 43) hospital and thereafter they went to AIIMS and lateron their sister expired due to beating by accused.
41. As per medical evidence, deceased Ritu died due to strangulation which is homicidal in nature. However, PW7 Tannu only eye witness turned hostile and not supported prosecution. Therefore, prosecution case banked on other circumstances to prove homicidal death. Allegations of harassment on account of demand of money by accused from deceased father:
42. Fateh Singh father of deceased (died before examination in court) PW1 Jitender Saini brother of deceased and PW9 Bua of deceased who is also real Mami of the accused, stated that after marriage both accused and deceased remained cordially for 56 years and after birth of third child accused and his family started harassing deceased. Neither Fateh Singh, Jitender Singh nor PW9 Bimla could specify in their statement what kind of harassment and what demand they had made from them after birth of second female child , however, as per FIR Fateh Singh stated that deceased was thrown out from matrimonial home 4 months prior to the incident, however PW1 had not stated that the deceased was thrown from matrimonial home 4 months prior to the incident. On the other hand PW1 stated that he took deceased from their in laws house after birth of second female child as accused told him that he do not want to live with deceased and thereafter deceased was taken to her Bua's house (PW9). PW9 Bimla Devi on the other State vs. Surender Saini, SC No. 196/11 (pg-27 of 43) hand stated that after 56 years of the marriage quarrel started taking place between accused and his family members with deceased and she used to intervene and Surender Saini used to admit his mistakes and further stated that 2 months before incident she was thrown out of matrimonial home and PW1 left her at her house at Bhogal.
43. Further Fateh Singh in FIR stated that 2 month prior, accused demanded Rs. 2 lakhs for shop which he had given. PW1 Jitender though himself not stated in examination in chief about any demand of Rs. 2 lakhs but on putting some leading questions he stated that accused demanded Rs. 2 lakhs from his father. And the same was given by his father. However, in cross examination he could not tell for what purpose accused demanded Rs. 2 lakhs and even could not state in whose presence Rs. 2 lakhs was given to Surender Saini and also could not place any document of giving Rs. 2 lakhs and though stated to have given from retirement funds. PW9 also deposed that accused took Rs. 2 lakhs from Fateh Singh from his house 1516 days back prior to the incident which is inconsistent with the version of Fateh Singh as in FIR it is mentioned that the said money was taken two months prior to the incident. And she was further confronted from her statement u/s 161 Cr.P.C where she had not stated that 2 lakhs were collected from her house and also confronted with statement that 1516 days prior to incident he collected such amount.
44. The IO in investigation had not tried to investigate about the fact how Fateh Singh arranged Rs. 2 lakhs, neither PW1 Jitender Saini nor State vs. Surender Saini, SC No. 196/11 (pg-28 of 43) PW9 Bimla could explain from where Fateh Singh arranged the said money. Jitender Saini even could not tell that for what purpose accused demanded such money. Further, Fateh Singh and Jitender Saini (PW1) even had not paid the loan amount of Rs. 50,000/ and Rs. 80,000/ due to which accused has to go to jail (as told by PW4 in cross examination). It is worth noticing when they could not pay their loan amount and made accused Surender Saini to go jail for their default, then it can't be expected that they can provide him 2 lakhs of rupees. This all makes the allegation of fulfillment of demand of Rs. 2 lakhs unreliable and not worth consideration.
Medical Evidence:
45. As per MLC Ex.PW8/A deceased Ritu Saini was brought to hospital by the accused Surender Saini at around 1.25 am on 07.03.2008 with alleged history of falling from the cot and external bleeding from ear, sub conjectible in right eye, small patche on whole face and multiple linear mark on neck were noticed and she was brought in hospital in unconscious condition and endorsement was made by doctor in MLC at around 4.30 am that patient was not fit for statement. Lateron, IO moved application for recording of her statement on 09.03.2008, 10.03.08 and 11.03.08 and on all dates it is endorsed by doctor that patient is unconscious and not in position to give statement. PW1 Jitender Saini and PW9 Bimla in their statement stated that they had no talk with deceased in hospital as she was not in position to speak. State vs. Surender Saini, SC No. 196/11 (pg-29 of 43) This all cumulatively shows that deceased remained unconscious from 07.03.2008 till her death on 13.03.2008.
46. Deceased Ritu Saini died at around 11.25 pm on 13.03.2008 and her postmortem was conducted on 14.03.2008 and as per postmortem report the cause of death is asphyxia as a result of pressure over neck which is likely to cause death in ordinary course of nature.
47. Prosecution has examined PW8 Dr. Chandrashekhar Gupta who prepared MLC, PW10 Dr. Sudhir Gupta, PW12 Dr. Shalini Girdhar and PW18 Dr. Sunay Mahesh who conducted postmortem and PW17 Dr. KD Prasad who declared patient unconscious on 09.03.2008 and 10.03.2008.
48. PW8 Dr. Chandrashekhar Gupta deposed that deceased was brought by her husband with alleged history of falling from bed while sleeping in night and noticed bleeding from right ear, hemorrhage on right eye and small patche on all face and multiple linear mark on neck. However, in cross examination he could not tell the difference between linear mark and ligature mark and further cannot comment on the timing of redness caused in the eye and further stated that small patche on face could be due to lack of oxygen, low platelet counts or some internal bleeding under the surface of the same. However, from his testimony one thing is clear that deceased was brought to hospital by accused himself with alleged history of falling from cot and nothing was suggested to this witness in cross examination that accused had not brought her to hospital at said time and date.
State vs. Surender Saini, SC No. 196/11 (pg-30 of 43)
49. PW10 Dr. Sudhir Gupta deposed that in postmortem they noticed that there is ligature mark on neck and cause of death was asphyxia due to pressure over neck. And it is highly unlikely that the said ligature mark could be produced due to fall and however, the injury of neck was strangulation and strangulation generally is homicidal in nature and further found no other fatal injury on the body of the deceased. In cross examination he categorically deposed that first he conducted the postmortem then called medical record and then given opinion. However, he saw blood report and MRI before giving opinion but not consulted the clinical charts etc. He further deposed that patient was treated for brain damage in hospital and also expired because of brain damage and further stated it is correct that there is no mention of ligature mark in the MLC . In cross examination he further deposed that there is no injury of struggle mark or huge force on the body of deceased and if there is complete strangulation the death will occur within 37 minutes however as patient survived of 7 days it is suggestive of force less than fatal force required in complete asphyxia causing cerebral damage or brain damage consequent to the strangulation. This witness also stated that there is mention of linear mark on neck in MLC.
50. This witness categorically stated that though decesed was treated for brain damage however brain damage is consequence of strangulation committed on the deceased and if there is complete asphyxation on strangulation then death can occur within 37 minutes however as State vs. Surender Saini, SC No. 196/11 (pg-31 of 43) patient survived more than 7 days it is suggestive of force less than fatal force required in complete asphyxia causing cerebral and brain damage consequent to strangulation.
51. PW12 Dr. Shalini Girdhar another doctor associated in postmortem stated that the injury on neck was due to strangulation and strangulation is generally homicidal in nature. And further stated that there is difference between linear and ligature mark as ligature mark is produced by any ligature material and linear mark can be produced by anything. And further stated that ligature mark in present case is ante mortem in nature though it is not specifically mention in postmortem. PW18 Dr. Sunay Mahesh also stated though linear mark can be put even after death however, in present case those marks are ante mortem in nature.
52. PW12 further stated that there was no injury on neck except ligature mark and strangulation can be caused even without any blood oozing from mouth or neck though suggested that pressure on neck can be caused accidentally and further also suggested that there is no necessity of any abrasion on body in case of strangulation. PW18 Dr. Sunay Mahesh who also conducted postmortem also stated that injuries present on body of deceased are sufficient to cause death and in medical jurisprudence word 'sufficient' and 'likely' have same meaning. And diffused hypoxic brain damage is not possible due to hit on hard object.
53. On overall appreciation of testimonies of these doctors, it transpires State vs. Surender Saini, SC No. 196/11 (pg-32 of 43) though the deceased died due to brain damage however, the said brain damage is caused due to strangulation which is homicidal in nature. As deceased survived for more than 7 days it all suggests that full fatal force was not applied for strangulating the deceased. Defence of Accused:
54. Accused in his statement U/s 313 Cr.P.C stated that Jitender Saini (PW1) has not been interrogated by police as an accused for murdering deceased and further stated in his statement that he was not present in the house or room when Ritu saini sustained injuries and in this regard he relied upon the testimony of PW7 Tannu (8 years old) daughter of accused who has not supported the prosecution and stated in her examination in chief without oath that one day Sonu Mama (PW1 Jitender) came and quarreled with her mother and pushed her and her father was at shop at that time and further stated that he pushed hard her mother and therefore something hit on her mother's head and when her father came, he took her mother to hospital. Thus, as per defence of accused, deceased Ritu Saini was pushed by PW1 Jitender Saini on that fateful day and pursuant to which she received injuries on head and at the time of incident, he was at his shop.
55. PW1 was thoroughly cross examined by the defence and in that cross examination no question asked to PW1 that in presence of Tannu he pushed hard the deceased Ritu saini pursuant to which she received present injuries however only one suggestion is given that he attacked State vs. Surender Saini, SC No. 196/11 (pg-33 of 43) deceased on that day. PW1 also admitted that he went to the house of the deceased at around 10.30 pm but in cross examination he stated that accused Surender Saini was present in the house at that time and who also raised hands on him and asked to take away his sister (i.e, deceased). The defence of the accused is that when Jitender Saini (PW1) hit the deceased accused Surender Saini was not present in the house and this fact accused also stated in his statement u/s 313 Cr.P.C as well as taking benefit on this point from testimony of PW7 Tannu (8 years daughter of accused). However, PW1 was suggested in cross examination that accused had scolded him at that time for talking with the deceased in high volume. This itself shows that the accused was present at the time when PW1 visited his house i.e, at around 10.30 pm and he himself belittled his defence that he was not present when PW1 came to their house.
56. As per MLC, accused brought the deceased to the hospital at around 1.25 am in night of 6/7.3.2008 and in the MLC as per alleged history, deceased had fallen from cot as told by accused to the doctor. PW8 Dr. Chandrashekhar was also examined in this regard and it was not suggested to this doctor that accused has not brought the deceased to the hospital and also not suggested to doctor that accused has not given the alleged history as mentioned in the MLC. However, accused himself admitted that he brought the deceased to the hospital. PW7 Tannu also stated that accused took her mother to hospital.
57. There is one thing pertinent to be mentioned here that if deceased State vs. Surender Saini, SC No. 196/11 (pg-34 of 43) received injuries due to assault by PW1 then accused must have made complaint in this regard to police or higher authority but he has not done so at any point of time. PW7 Tannu (child witness) daughter of the accused who is residing with accused since beginning cannot in any way be fall in category of independent witness and there is no doubt that she is tutored by accused before deposing in the court, thus not supported the prosecution case and also not deposed before the Ld. MM when she was sent for recording of her statement u/s 164 Cr.P.C therefore no reliance could be placed on statement of PW7. Thus, accused defence that the injuries were caused to the deceased by PW1 Jitender is all after thought and a lame excuse which is contradicted by the circumstances on record as already discussed.
58. Ld. counsel for the accused submitted that the cause of quarrel between PW Jitender and deceased Ritu is that PW1 Jitender and her father Fateh Chand had taken loans from Saini Cooperative societies for Rs. 50,000/ and Rs. 80,000/ respectively and had not paid the same therefore, the relations between the deceased Ritu and brother Jitender (PW1) became strained and because of that the quarrel took place between the two on that night and he caused injuries to the deceased.
59. It is proved on record by PW4 Ram Phal Supervisor of Saini Co operative society that PW1 Jitender and Fateh Singh had taken loan amount of Rs. 50,000/ and Rs. 80,000/ from cooperative society and they had not paid back the said amount and warrant of attachment State vs. Surender Saini, SC No. 196/11 (pg-35 of 43) were taken against them but those could not be executed because as per police report, Fateh Singh was out of station and Jitender reported to be untraceable and in this regard accused Surender Saini was also sent to jail. Therefore as far as the contention of the defence that PW1 Jitender and his father defaulted in making the payment of loan amount and because of that accused suffered the imprisonment is alright, however, it is far fetched to connect this circumstance with the cause of inflicting fatal injuries by PW1 Jitender Saini to the deceased. Defence has not even put any suggestion to PW9 Smt. Bimla Devi regarding strained relations between Jitender Saini and Ritu Saini because of non payment of loan by Jitender and Fateh Singh. Further there is no question asked to Jitender Saini that because of this relation between deceased and Fateh Singh became strained therefore nothing could be inferred in favour of accused from the factum of default of loan amount. Thus, it cannot at all be inferred that because of this PW1 Jitender Saini quarreled and assaulted deceased.
60. Thus on overall appreciation the defence of accused that deceased was injured by Jitender not by him is completely untenable further the other circumstances that he brought the deceased to hospital and taken plea in hospital that she fell from the cot, also corroborated by PW1 Jitender and PW9 Bimla who stated that they were informed that deceased injured due to fall from the bed. Further, the defence of the accused that he was not present at the time of incident of quarrel with State vs. Surender Saini, SC No. 196/11 (pg-36 of 43) PW1 appears to be false as already discussed and his defence that he was at shop at that point cannot be believed at all because it was midnight time when the incident happened and she was brought to the hospital by accused himself, thus, the burden is on accused to show how the deceased received the injuries. Further, one more point to be noticed that accused took the defence that deceased was pushed hard and same is also stated by PW7 Tannu but this is contradictory to medical record which shows that deceased received ligature marks on neck caused by some ligature material. PW17 Dr. Sunay Mahesh categorically deposed defused hypoxic brain damage can't be caused by hit on hard object. This further falsifies the defence of accused.
61. Thus, on considering the entire circumstances that is the bringing of deceased to hospital by accused and further his version to doctor that she fallen from cot and as per postmortem report cause of death strangulation and his false defence all indicates that accused caused alleged injuries to the deceased.
62. Ld. counsel for the accused has relied upon " Pradeep Kumar Vs. State of Haryana, 2009 (2) CC case SC 358" for proposition that only evidence that accused and deceased stayed in same house is no ground for conviction of accused u/s 302 IPC. Ld. Counsel further relied upon the judgment "Sohail Mehboob Shaikh Vs/.State of Maharashtra 2009(3) JCC 2310 (SC)" that when prosecution unable to prove that accused was present in the room at the time of incident with deceased then mere living together are not the circumstances which can be used State vs. Surender Saini, SC No. 196/11 (pg-37 of 43) against the accused. ld. Counsel further relied upon the judgment 'Mukesh Kumar @ Pilwa @ Chuha" Vs. State , 2012 (2)JCC 920 (Delhi)" that prosecution has to prove beyond reasonable doubt that it was only accused none else who committed the offence.
63. I have gone through these judgments and none of these judgments could be of any help to the accused because in present case as already discussed, accused was present with deceased on that night and brought up the deceased wife immediately after the incident to the hospital and further gave false explanation in hospital that she received injuries by falling from bed in contradiction to the medical evidence which shows that the cause of death is strangulation. Further, also found false on the fact deceased was injured by Jitender (PW1).
64. All these circumstances definitely indicates that it is the accused who caused injuries to the deceased on the day of incident and burden shifts on accused to rebut those circumstances however, accused utterly failed to rebut the same.
65. The accused was also charged for commission of offence u/s 498A IPC. However, as already discussed, the prosecution witnesses PW1 and PW9 are not found reliable on the factum that accused demanded Rs. 2 lakhs from the father of the deceased Fateh Singh but the court cannot reject the testimony of a witnesses merely because of falsity of some portion of their testimony and court has to see what part of witness appears to be believable. The accused defence is that the relations between the deceased and her brother were strained due to State vs. Surender Saini, SC No. 196/11 (pg-38 of 43) non payment of loan by Jitender and Fateh Singh however, on the other hand this factor appears to be the main cause of strained relations between accused and the deceased, therefore, the accused has started beating the deceased. As per the testimony of PW1 and PW9 she was forced to leave the house and deceased Ritu Saini was taken by Jitender Saini (PW1) to the house of Bimla bua (PW9) where she stayed for considerable time. PW1 stated that accused asked to his sister to leave his house and further when the relatives of the accused went to the house of PW9 quarrel also took place between them and further PW9 also corroborated the same fact, however, there are number of contradictions and improvements found in their testimonies on this point but this part that deceased was asked to leave the house and Jitender brought her to house of PW9 stood its ground and if these circumstance coupled with circumstance that deceased was beaten on the night of incident and strangulation injuries were inflicted upon the deceased, then this all shows that deceased was treated with cruelty though there is no harassment on account of demand of money is proved by the prosecution.
66. Section 498A IPC, relating to cruelty against married woman, is set out herein below:
498A. Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, State vs. Surender Saini, SC No. 196/11 (pg-39 of 43) subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation For the purpose of this section, cruelty means
(a) any willful conduct which is of such a nature as is 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
(b) harassment of the woman where such harassment is with a view to coercing her or any person related 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."
67. The basic purport of the aforesaid provision is to avoid 'cruelty' both physical and mental. Therefore, two dimensions, physical and mental, have been taken note of in order to ascribe a broader meaning to the word 'cruelty'.
State vs. Surender Saini, SC No. 196/11 (pg-40 of 43) Explanation (a) involves three specific situations, viz.,
(i) to drive the woman to commit suicide,
(ii) to cause grave injury,
(iii) to cause danger to life, limb or health, both mental and physical, thus involving a physical torture or atrocity.
In Explanation (B) of Section 498A, there is absence of physical injury which indicates that the legislature thought it fit to include coercive harassment also in the category of cruelty, which is equally heinous to match the physical injury. Whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498A. Thus, 'cruelty' for the purpose of constituting the offence under the aforesaid section need not be physical. Even mental torture, abnormal behaviour may amount to cruelty and harassment in the given case. Acts of cruelty, whether mental or physical, are required to be established in order to bring home the application of Section 498A, IPC.
68. As per evidence on record accused was found to be causing mental and physical torture to the deceased and caused grave injuries on day of incident clearly points towards physical and mental cruelty and thus accused is found guilty for commission of offence u/s 498A IPC.
69. The next most pertinent question is whether the injuries inflicted upon the deceased by the accused are with intention or knowledge to cause death so as to bring his case in purview of section 302 IPC. There is State vs. Surender Saini, SC No. 196/11 (pg-41 of 43) no doubt that there are strained relations between accused and the deceased and accused asked her to leave the house. However, as per testimony of PW9 most of the time accused used to admit his mistakes and brought back the deceased to his house. The incident from the circumstances as appeared on record do not suggest any pre meditation or preplanning by the accused to inflict injuries to the deceased, it appears that all of sudden some quarrel had taken between the accused and the deceased, consequently deceased suffered injuries.
70. Further, the conduct of accused in bringing the deceased to hospital immediately and informing the relatives and parents about the condition of the deceased indicates that he has no malafide intention to kill the deceased. Further, deceased had survived in hospital for more than 7 days and PW10 Dr. Sudhir Gupta categorically stated in cross examination that as the patient survived more that 7 days, this suggests application of less force than the fatal force required for complete asphyxia resulting cerebral damage and also took care of deceased in hospital. Thus it cannot be inferred that accused has inflicted the injuries with intention or knowledge to commit murder, however it appears that in sudden quarrel, out of rush of blood and anger, he caused injuries on neck which later proved fatal. The only inference therefore, could be drawn that accused caused injuries to the deceased with likely knowledge that due of his act there is possibility of homicidal death. Therefore, accused is found guilty for committing culpable homicide not amounting to murder and liable to be convicted State vs. Surender Saini, SC No. 196/11 (pg-42 of 43) for offence u/s 304 (II) IPC.
71. Ld. Counsel for the accused also raised submissions about lapses in investigation as there is a delay in registration in FIR and further stated that as per PW1 and 9 their statements were recorded on 07.03.2008 however no such statement was filed and FIR was belatedly registered on 09.03.2008. Ld. Counsel further submits explanation of delay by PW13 not appears to be truthful. However, in present set of facts and circumstances as discussed, no benefit, of lapses in investigation as alleged or incredible explanation of the delay, could be given to the accused.
72. Thus on overall appreciation of evidence on record, the prosecution though unable to prove the offence u/s 302 IPC but able to prove its case beyond reasonable doubt against accused Surender Saini for commission of offence u/s 498A/304(II) IPC, hence convicted accordingly. Accused be heard on point of sentence on 15.05.2012.
Announced in Open court
Dated: 10th May, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State vs. Surender Saini, SC No. 196/11 (pg-43 of 43)