Delhi District Court
State vs . Sanjay Etc. on 1 May, 2015
1
In the court of Dig Vinay Singh
Additional Sessions Judge/Special Judge : NDPS (N-W)
Rohini Courts/Delhi
In the matter of :
SC No. 22/13
State Vs. Sanjay etc.
FIR No. 691/06
PS Tilak Nagar
U/s 302/498A/304B/34 IPC
State
Versus
1. Sanjay
S/o Sh. Jagdish Prasad
R/o A-343, J.J.Colony, Khyala, Delhi
2. Jagdish Prasad
S/o Sh. Lahori Ram
R/o A-343, J.J.Colony, Khyala, Delhi
3. Sonu
S/o Sh. Jagdish Prasad
R/o A-343, J.J.Colony, Khyala, Delhi
4. Bishan Devi
W/o Sh. Jagdish Prasad
R/o A-343, J.J.Colony, Khyala, Delhi
Date of receipt : 17.12.2012
(Received in this court) : 29.10.2013
Date of arguments : 01.05.2015
Date of announcement : 01.05.2015
SC no. 22/13 Page 1 of 56
2
JUDGMENT
1. The above name four accused were sent for trial U/s 302/304B/498A r/w 34 of IPC.
1.1 The facts of the case are that the deceased Gudia was married to accused Sanjay around six years prior to the date of incident. The incident is of 10.09.2006. On that night at 11.25 P.M. DD No.23 was received in police post Khayala under police station Tilak Nagar, upon which ASI Madan Lal along with Ct. Brahm Singh reached DDU Hospital, where it was learnt that Gudia @ Laxmi was brought dead in the hospital vide MLC No.23512. Thereafter, the police officials went to the place of incident i.e. H.No. A-343, J.J. Colony, Khayala, Delhi. Crime team was called and the crime scene was got inspected. The parents of deceased lady were also informed, who arrived at Delhi from Agra.
1.2 Before the SDM, parents of deceased stated that the accused Sanjay was unemployed and he used to harass their daughter and he also used to give beatings to the deceased. It is alleged that accused Sanjay used to pressurize the deceased to bring money from her parents stating that he wanted to start business. Whenever deceased failed to bring money, she used to be given beatings. Mother of deceased, Smt. Sarla, claimed that around 2-3 months prior to the incident she had given a sum of Rs.5000/- cash to her deceased daughter in presence of accused Sanjay, which amount SC no. 22/13 Page 2 of 56 3 was demanded by Sanjay. She also gave a sum of Rs.1000/- and clothes etc. to Sanjay on the occasion of Raksha Bandhan, around 15 days prior to the incident. Thereafter, on 11.09.2006 they learnt about the incident and came to Delhi.
1.3 On the complaint of Smt. Sarla, FIR was registered and investigation was undertaken. During investigation, the investigating agency recorded the statements of certain neighbourers also. As per the statements of neighbourers, the four accused had pushed the deceased from the roof as a result of which the deceased fell in the Gali and subsequently expired.
1.4 However, in the post mortem report the cause of death was opined as asphyxia resulting from manual strangulation and sustained pressure over the mouth which was sufficient to cause death in the ordinary course of nature. The post mortem findings were observed to be consistent with ante mortem injuries, which were fresh prior to death in duration, as well as the post mortem injuries. The doctor also opined that the injuries were suggestive of post mortem knock down of deceased and that the injury i.e. Multiple irregular shape bruise of varying size with crescentric abrasions present over chin and its both sides and at both side submandibular region at upper one third part of neck at its front and both lateral aspects, were sufficient to cause death in the ordinary course of nature. The death was opined as homicidal.
1.5 Viscera of the deceased was preserved and was sent to the FSL and it was found that "nitrazepam" was present in the deceased.
SC no. 22/13 Page 3 of 56 41.6 Therefore, the case of prosecution is that after the deceased was administered the sedative, perhaps without her knowledge, she was manually strangulated and smothered, and then she was thrown from the roof top. The relation of the four accused with the deceased is that accused Sanjay is husband, Sonu is devar, Smt. Bishan Devi is mother-in-law and, accused Jagdish is father-in-law.
1.7 On completion of investigation chargesheet was filed.
2. Accordingly, my Ld. Predecessor Court framed charges U/s 498A/304B and Section 302 of IPC r/w 34 of IPC against all the four accused on 21.04.2007. Thereafter, in support of its case, prosecution examined total 20 prosecution witnesses. Subsequently, statements of the four accused were recorded and the accused examined one defence witness in their favour, namely Smt. Monika.
2.1 Thereafter, vide judgment dtd. 20.12.2010 my Ld. Predecessor Court convicted accused Sanjay U/s 498A & 306 of IPC. Accused Sanjay was acquitted of the charge U/s 304B & 302 of IPC. The remaining three accused were acquitted of all the charges.
2.2 In an appeal filed by the State, Hon'ble Delhi High Court vide judgment dated 27.11.2012, in Crl. Appeal No.1430/11, remanded the matter back, directing amendment of the charges and for giving opportunities to the accused to recall any of the prosecution witnesses pursuant to amendment of charges. The reason for remand of the matter is that in the earlier charges framed by the Ld. Predecessor Court, while framing charge U/s 302 of IPC, all that was mentioned was that the accused pushed the deceased from the roof SC no. 22/13 Page 4 of 56 5 in furtherance of their common intention. In the earlier charge framed, the Ld. Predecessor Court failed to take note that in the postmortem report of the deceased it was specifically mentioned that there were certain ante mortem and postmortem injuries on the deceased and that the cause of death of deceased was asphyxia as a result from manual strangulation and sustained pressure over the mouth which was sufficient to cause death in ordinary course of nature. Ld. Predecessor Court also failed to take note of the fact that the postmortem findings were consistent with ante mortem and postmortem injuries and were suggestive of postmortem knock down in this case. In the viscera report, it was also found that the stomach and piece of intestine, liver, spleen and kidney of deceased contained „Nitrazepam‟ which is a tranquilizer sedative and which could be administered to a person without his or her recognition, mixed with water, tea, or milk, etc. 2.3 Not only the charge U/s.302 of IPC did not speak of administration of tranquilizer/sedative, manual strangulation and the postmortem knock down, but also my Ld. Predecessor Court vide its judgment dtd. 20.12.2010 missed the medical evidence in this regard and acquitted the accused U/s.302 of IPC.
2.4 Consequently, Hon'ble Delhi High Court remanded the matter back for amendment of the charges keeping in view the postmortem report and the viscera report and thereafter giving opportunity to the accused to recall the witnesses the accused would like to further cross-examine upon amendment of the charges.
SC no. 22/13 Page 5 of 56 63. Accordingly, my Ld. Predecessor Court amended the charge on 23.01.2013, thereafter the accused persons exercised option to recall six prosecution witnesses, viz, PW5 K.K. Sharma, PW10 Mahesh Kumar, PW13 Dr. Ashish Arora, PW17 Dr. L.C. Gupta, PW18 SI Madan Lal and, PW20 Inspt. Pratap Singh. Thereafter, this Court further recorded the statement of the four accused U/s 313 Cr.P.C. The accused examined Dr. T. D. Dogra in their defence as DW2, in addition to DW-1, namely Smt. Monika Verma, already examined in the earlier trial.
4. It would be worth mentioning here that in the original charges framed by the Ld. Predecessor court on 21.04.2007, as well as in the subsequent amended charges framed by the Ld. Predecessor Court on 23.01.2013, the date of unnatural death of deceased was wrongly mentioned as 11.09.2006 instead of 10.09.2006. The said date was corrected and an amended charge was framed in this regard on 14.01.2015 by this court. The accused were given option to exercise their right to recall any of the prosecution witnesses for their further cross examination after amendment of the charge on 14.1.2015, but the accused did not opt to further recall anybody.
5. The gist of 20 prosecution witnesses examined by the prosecution is as follows:
5.1 PW1 Smt. Sarla and PW2 Sh. Suraj Pal are mother and father of the deceased, respectively. They supported the case of prosecution qua charges U/s 498A and 304B of IPC. These witnesses are not witnesses of the incident of administering any sedative or, fall or SC no. 22/13 Page 6 of 56 7 pushing of deceased, therefore, their testimony doesn‟t throw any light qua the offence U/s.302 of IPC. Their testimony is discussed at appropriate stage herein below.
5.2 PW3 Smt. Meena is the landlady of the accused. She deposed that the four accused were residing as her tenants on the second floor of her house for about 1½ years prior to the occurrence. She also deposed that some quarrel used to take place usually between Sanjay and his deceased wife, but she was not aware as to the cause of quarrel. On 10.09.2006 she returned from somewhere and noticed that besides accused Jagdish Prasad, who is father in law of the deceased, the other three accused were present in the house. Deceased was also present in the house at that time.
The witness further deposed that at about 10 pm she heard a noise from the Gali and came out. She saw that the deceased was lying in injured condition in the Gali and thereafter, the accused also got down to the Gali from their house and then accused Sanjay and Sonu took the deceased to hospital. When this witness said that accused persons also got down to the Gali from their house, witness obviously means that it was accused Sanjay, Sonu and Bishan Devi, as she already stated that Jagdish was not present at that time.
In the cross-examination of this witness, no suggestion was put on behalf of the accused Sanjay, Sonu and Bishan Devi to the effect that they were not present at the place of occurrence at the time of incident. In her four liner cross-
SC no. 22/13 Page 7 of 56 8examination, all that was suggested was that there used to be no quarrel between deceased and Sanjay or that the witness did not see them or that she deposed falsely in connivance with the complainant or the police, which suggestions were denied by the witness.
This witness was not cross examined by the prosecution also, as to the absence of accused Jagdish at the spot and as to the fact whether all the accused used to harass the deceased or used to beat the deceased, more particularly few days prior to the occurrence, as mentioned in the statement of this witness to the police. This witness was also not cross examined by the prosecution as to the presence of all the accused at the roof top at the time of incident. As per the case of prosecution, during investigation this witness had stated that she had seen the four accused standing at the roof of the house after the deceased fell. The witness did not support those facts in her examination as PW3, yet she was not cross examined on those points by the prosecution.
5.3 PW4 Babita, another neighbourer of the accused, turned completely hostile and did not support the case of prosecution. As per the case of prosecution, during investigation this witness had stated that she had seen the four accused standing at the roof of the house along with the deceased and thereafter she had heard the impact sound of deceased‟s body hitting the ground. It was also the SC no. 22/13 Page 8 of 56 9 case of prosecution that this witness had seen the accused quarreling with the deceased and abusing her.
But then the witness did not support the case of prosecution at all and turned completely hostile. The witness deposed that she cannot say whether there was any quarrel between the accused and the deceased. She saw the deceased in a pool of blood at the spot and that blood was oozing out from her injuries. In the cross-examination by the Prosecutor, nothing material could be brought out against the accused or in favour of the prosecution case. This witness denied that she told the police that on the date of incident she saw the deceased and the accused quarreling or the accused abused the deceased. She also denied that she had seen all the accused standing on the roof of the house along with the deceased or that after sometime thereafter she heard loud sound of somebody hitting the ground. She denied that all the accused were standing at the roof of their house. The witness also denied that she heard from the crowd gathered at the spot that the in-laws threw the deceased from the roof.
Thus, the testimony of this witness does not lead this Court anywhere against the accused. However, it would be worth mentioning here that in the testimony of this witness, it is specifically mentioned that when this witness saw the deceased lying on the ground, blood was still oozing out from her injuries and the deceased was in a pool of blood.
SC no. 22/13 Page 9 of 56 105.4 PW6 Smt. Raman Sharma is another neighbor, who also turned hostile to the case of prosecution. Even this witness was subjected to cross-examination by the Prosecutor, but nothing material could be brought out against the accused or in favour of the prosecution's case. This witness deposed that she never saw any quarrel between the accused and deceased at any time prior to the incident. The witness also deposed that she saw the deceased lying in injured condition after she heard the sound of somebody falling to the ground and that later on the deceased was probably taken by accused Sonu to the hospital. This witness during her cross examination by the prosecutor specifically denied that she stated to the police that accused used to quarrel with the deceased on various occasions or that they used to give beatings. The witness also denied that the accused quarreled with the deceased 2-3 days prior to the incident or that they used to quarrel with her continuously. She also denied that she ever stated to the police that she saw the four accused present on the roof at the time of incident.
5.5 Similarly, PW7 Smt. Vinita, another neighbor, also did not support the case of prosecution and turned hostile. This witness stated that she never saw the accused quarreling with the deceased. She deposed that she was sleeping at her house when her children woke her up and then she saw the deceased lying in the gali. There was a crowd gathered in the gali and the crowd was saying at that time "gudiya gir gayi, gudia gir gayi". The witness deposed that SC no. 22/13 Page 10 of 56 11 before she reached the spot, the deceased had already been taken to the hospital.
The witness was subjected to cross examination by the Ld. Prosecutor, in which nothing material came out in favour of the prosecution. Even in the cross examination by the Ld. Prosecutor the witness stated that she did not tell the police that few days prior to the incident or in the morning on the date of incident any quarrel occurred between the accused and the deceased. She also denied specifically that she told the police about having seen the accused on the roof top immediately after the deceased fell down from the roof.
5.6 Thus, from the testimony of PW4, 6 & 7 nothing can be inferred in favour of the prosecution and against the accused.
5.7 Another neighbourer examined in the matter is, PW9 Smt. Preeti.
Even this witness turned hostile to the case of prosecution. However, this witness deposed that when she heard the sound of impact of deceased hitting the ground and she reached there, the deceased was rushed to the hospital by accused Sanjay and Sonu. From the testimony of PW9 Preeti, presence of accused Sanjay and Sonu at the spot gets established, and remained unrebutted, as this witness was not at all cross-examined by the accused despite opportunities. However, this witness did not support the case of prosecution qua the allegations against the accused. She deposed that she did not know as to how deceased fell down and as to what type of relations the deceased and the accused SC no. 22/13 Page 11 of 56 12 shared. Even this witness was cross examined by the Ld. Prosecutor after declaring her a hostile witness, but nothing material came out in favour of the prosecution in the cross examination. The witness even in her cross examination claimed that she did not make any complaint to the police. The witness maintained the stand that she did not state to the police about any quarrel between the deceased and the accused or about any rebuking of the deceased or the fact whether she saw the four accused standing on the roof top of the house at the time of incident or that she saw the four accused pushing the deceased from the roof top.
5.8 PW5 K.K. Sharma was the concerned SDM who recorded the statements of the parents of deceased; before whom the dead body was identified and; who got the postmortem conducted. This witness was one of the witnesses who was recalled by the accused after the matter was remanded, but even in the subsequent cross- examination of this witness, nothing material could be brought out worth mentioning in the judgment.
5.9 PW8 Ct. Ravinder Singh and PW11 W/HC Nirmal are witnesses qua arrest of the four accused on 13.09.2006 from outside their house.
5.10 PW10 Mahesh Kumar is the Draftsman who prepared the scaled site plan of the place of incident, Ex. PW10/A, after he visited the place of occurrence on 20.10.2006, i.e. more than a month after the SC no. 22/13 Page 12 of 56 13 incident. PW10 Mahesh Kumar was also recalled and cross- examined by the accused after the matter was remanded.
5.11 PW12 HC Chander Kant was the Duty Officer who proved FIR Ex.
PW12/A. 5.12 PW13 Dr. Ashish Arora proved the MLC of deceased Gudia which was prepared by another doctor, namely, Dr. Ishwar, who had left the hospital by the time evidence was recorded. The MLC of deceased is proved as Ex. PW13/A. This witness was also recalled by the accused after remand of the matter. In this MLC, it is mentioned that the deceased was brought to the hospital by her husband at 11.20 PM on 10.09.2006. The deceased was admitted in the hospital with the history of fall from height as told by the husband i.e. accused Sanjay. In the MLC, a contused lacerated wound with skin loss over forehead is mentioned and one more injury is mentioned.
5.13 PW14 HC Ashok Kumar carried the sealed parcels containing exhibits from the Malkhana to FSL Rohini on 22.11.2006.
5.14 PW15 Sanjay took photographs of the body at the time of postmortem. Initially those photographs could not be exhibited in the evidence of this witness as negatives were never placed on record and they were claimed to be misplaced, but those photographs were subsequently admitted by the accused during the testimony of DW2 Dr. T. D. Dogra and they were Exhibited as Ex.DW2/A-1 to A-29.
5.15 PW16 Inspt. Lalit Kumar was the Incharge of the Mobile Crime Team and, PW19 HC Vijay Kumar was the Photographer of the SC no. 22/13 Page 13 of 56 14 Mobile Crime Team. Both these witnesses deposed that upon inspection of the crime scene on the intervening night of 10 th and 11th September 2006, photographs were obtained and PW16 prepared his report.
5.16 PW17 Dr. L.C. Gupta conducted the postmortem of the deceased, and proved the post mortem report as Ex. PW17/A. He deposed that following external injuries were present on the body at the time of postmortem:
A. Lacerated wound in an area of 8 cms x 15 cms with ragged and sirrated margins, tissues in between was missing, present at front of forehead, without sub scalp and subperiostal hematoma and effusion of blood. It was postmortem injury.
B. Deformity with swelling was present at right side hip joint which was extending up to upper half of the thigh and on dissection underneath joint found dislocated with shaft of the femur bone found fractured without collection of local hematoma. It was postmortem injury.
C. Mucosal aspect of both lips found contused deeply with mark of indentation responding to anterior set of teeth, both lips were swollen and on incision underneath tissues deeply contused with local effusion of blood. It was ante mortem injury and fresh prior to in duration.
D. Abraded bruise which was extending into 27 cms x 13 cms area, irregular in shape with swelling, on dissection underneath shoulder joint found dislocated and local hematoma was found collected at SC no. 22/13 Page 14 of 56 15 the dislocated area. It was reddish in colour and injury was ante mortem in nature and fresh prior to death in duration.
E. Abraded bruise 2 x 2 cms, irregular shape was present at right elbow and on dissection underneath tissues found effused with blood. It was reddish in colour, ante mortem in nature and fresh prior to death in duration.
F. Reddish bruise of irregular shape was present at front of right thigh on its upper 1/3 part and on incision underneath tissue found effused with blood. It was ante mortem in nature and fresh prior to death in duration.
G. Contusion of 8 cms x 6 cms was present at left side iliac crashed. It was reddish in colour and on incision underneath tissue found effused with blood. It was ante mortem in nature and fresh prior to death in duration.
H. Swelling over top of head was present, on incision of scalp, a sub scalp hematoma of size 13 x 14 cms was present at both sides parietal region and on occipital bone area. It was reddish in colour and ante mortem in nature.
I. Multiple irregular shake bruise of varying size between 2 cm x 1 cm to 0.5 cm x 0.5 cm with cresentric abrasions were present over the chin and its both side, and at both side submandibular region and at upper 1/3 part of neck at its front and both lateral aspect. On incision, underneath tissue upto tissue between trachea and esophagus found effused with blood and blood clots.SC no. 22/13 Page 15 of 56 16
On further dissection, following internal findings were revealed.
Head: Skull was NAD (No abnormality detected), vessels were dilated and engorged, brain matter was congested and oedomatos.
Neck: As mentioned rusti colour blood mixed with froth was present in trachea.
Chest: Both lungs were congested and oedomatos, heart was empty and NAD.
Abdomen: Stomach was empty and healthy and there were multiple intestinal loops were found contused and reddish in colour. It was ante mortem injury and fresh prior to death in duration. Other abdominal viscera were congested. Rest was NAD.
Sample of Viscera, blood in gauze piece and clothes were preserved and sealed to IO with total 25 photographs were handed over to the police.
Opinion about time since death: It was about 36 hours prior to postmortem examination.
Opinion about cause of death: Cause of death was asphyxia resulting from manual strangulation and sustained pressure over the mouth which was sufficient to cause death in ordinary course of nature. Postmortem findings were consistent with ante mortem injury as well as postmortem injuries and were suggestive of postmortem knock down in this case. Injury caused by manual strangulation mentioned at point no.(I) was alone sufficient to cause death and nature of death was homicidal.SC no. 22/13 Page 16 of 56 17
The witness also deposed that from the viscera report received from FSL which is Ex. PW17/B, the stomach and piece of intestine/piece of liver, spleen and kidney preserved during postmortem, on examination, were found to contain Nitrazepam, which is a tranquilizer and sedative and can be given to a person without his or her recognition mixed with water, tea or milk, etc. and it will give no sign on postmortem examination. He deposed that probably in this case, initially, Nitrazepam was given and thereafter attempt of manual strangulation and smothering was made and after her death, deceased was knocked down.
5.17 PW18 ASI Madan Lal was the initial Investigating Officer who went to the hospital and then reached the spot and then called the concerned SDM and Crime Team, etc. 5.18 PW20 Inspt. Pratap Singh is the Investigating Officer who deposed regarding conducting investigation, recording of statements of witnesses and, arrest of the accused etc. 6 Upon completion of prosecution evidence all the incriminating evidence was put to the four accused in their examination U/s 313 Cr.P.C. As mentioned above, in the earlier trial the accused were examined under the said provision and thereafter when the matter was remanded back, further supplementary statements of the four accused was recorded by this court. The four accused generally denied the evidence against them and claimed that they have been implicated falsely. They claimed that none of them used to ill-treat the deceased and demand dowry. They also claimed that the SC no. 22/13 Page 17 of 56 18 deceased in fact used to remain depressed due to the second marriage performed by her father and due to the ill treatment meted out to her by her parents. It is also claimed that the deceased was disturbed so much that she did not even use to take care of her minor daughter and instead her minor daughter used to be taken care of by accused Sonu and his wife Monika.
6.1 Accused Sanjay and Sonu admitted that both of them took the deceased to the hospital from the spot. They however claimed that when they returned to their house from their job, they noticed crowd gathered in the Gali and the injured was lying in the Gali and then they removed the injured/deceased to the hospital.
6.2 Bishan Devi also admitted that Sanjay and Sonu took the deceased to the hospital and that she followed them to the hospital.
6.3 However, when the accused persons Sanjay, Sonu and Bishan Devi were questioned about their presence in the house as seen by PW3 Meena, all three accused, including accused Bishan Devi, denied the said fact.
6.4 The accused persons examined defence witness DW1 Monika in the earlier trial. In the present re-trial, the accused also examined Dr. T. D. Dogra, the forensic expert and retired Director of AIIMS Hospital who worked as HOD, Forensic Medicine, AIIMS, Delhi, as DW2.
6.5 DW1 Monika is wife of accused Sonu. She deposed that her marriage with Sonu was got arranged by none other than the SC no. 22/13 Page 18 of 56 19 deceased and mother of deceased namely, Sarla. She claimed that she had visited her in-law‟s house (accused‟s house) on 2-3 occasions even prior to her marriage with Sonu, and that deceased Gudia as well as Smt. Sarla had told her that deceased was very happy in her matrimonial home. She also claimed that she was never tortured by the accused persons and that even the deceased was not ill-treated ever. The witness even claimed that at the time of incident, she was present in the house, but her husband Sonu, jeth Sanjay and, father-in-law Jagdish had gone to their respective places of work and they were not present in the house at the time of incident. She even deposed that sometime before the incident, but after Raksha Bandhan, when the deceased had returned from her parental house, she used to remain depressed and quite but she never disclosed anything as to what was troubling her. She also deposed that there used to be quarrel between the brothers of the deceased, the deceased, who were born out of the first wedlock of her father, and the other family members, and that was the cause troubling the deceased.
6.6 DW2 Dr. T.D.Dogra trashed the post mortem report of Dr. L. C. Gupta (PW17).
6.7 Since there were two absolutely conflicting opinions given by two doctors, i.e. PW17 Dr. L.C.Gupta and DW2 Dr. T.D.Dogra, on the same set of injuries, as to the cause of death of deceased, a third expert was examined as a court witness namely Dr. Vijay Dhankar.
SC no. 22/13 Page 19 of 56 20Their testimonies on being discussed herein below while deciding the charge of homicide.
7 I have heard Ld. Prosecutor for the State and Ld. Amicus curiae for the accused persons.
8. Taking up the main charge U/s 302 of IPC first, as is evident from above discussion, there is no eye witness to the incident of murder of the deceased by strangulating her, or pushing of the deceased from the roof top of her house by the four accused, individually or collectively.
8.1 All the independent public witness from the neighbourhood turned hostile to the case of prosecution on this aspect of the matter. Not even a single witness supported the case of prosecution that any of them saw the deceased being pushed by any of the accused. Rather all of them categorically deposed that they did not see any such thing and they did not state any such thing to the police.
8.2 From the testimony of PW3 Meena, presence of Jagdish at the spot at the time of incident becomes highly doubtful. This witness claimed that Jagdish was not there at the time of incident. This witness was not declared hostile by the prosecution and was not cross examined by the Ld. Prosecutor as to the presence of accused Jagdish at the spot. No other witness of prosecution spoke about presence of accused Jagdish at the spot at the time of incident.
8.3 The only evidence left in support of the charge of murder is circumstantial evidence of the fact that accused Bishan Devi, Sanjay and Sonu were present in the house at the time of incident and that SC no. 22/13 Page 20 of 56 21 the doctor who conducted post mortem (PW17) noted few post mortem as well as ante mortem injuries on the body of deceased and he opined that the deceased was initially manually strangulated and then she was thrown from the roof.
8.4 Presence of accused Bishan Devi, Sonu and Sanjay gets established from the testimony of PW3 who claimed that after the deceased fell to the ground, these three accused also came down to the gali from their house and then deceased was removed to the hospital by accused Sanjay and Sonu. Not only this witness was not cross examined by Bishan Devi, Sanjay and Sonu as to their presence at the spot, but these accused also admitted in their statements that deceased was taken to the hospital by Sanjay and Sonu, and Bishan Devi followed them to the hospital. Thus, there is no doubt that accused Bishan Devi, Sanjay and Sonu were present at the spot at the time of incident.
8.5 But the question is whether after manually strangulating the deceased she was thrown from the roof? Prior to that question, the question is whether the deceased was actually manually strangulated and then thrown from the roof as claimed by PW17 Dr. L. C. Gupta, or is it a case of fall from roof or suicidal jump?
8.6 PW17 stated that when he examined the body of deceased, he found two vital post mortem injuries on the body of deceased. One was a lacerated wound on the forehead of the deceased which was opined as post mortem injury. This witness also deposed that there was a deformity of right side hip joint and on dissection underneath SC no. 22/13 Page 21 of 56 22 joint was found dislocated with shaft of the femur bone found fractured without collection of local hematoma, and it was also a post mortem injury. The witness also deposed that there were crescentric abrasions present over the chin and its both sides, and at both sides submandibular region and at upper 1/3rd part of neck at its front and lateral aspect. The witness opined that the injury mentioned at point (I), in the post mortem report caused asphyxia from manual strangulation and sustained pressure over the mouth which alone was sufficient to cause death and the post mortem injuries suggest that it was a case of post mortem knock down. In the FSL result Ex.PW17/B, it has come that „Nitrazepam‟ was found in the viscera which includes stomach, pieces of small intestine with contents, pieces of liver, spleen and kidney. Thus, PW17 gave opinion that after administration of the sedative „nitrazepam‟, the deceased must have been strangulated and thereafter thrown from the roof.
8.7 The evidence of PW17 is completely negated by DW2 Dr. T. D. Dogra who examined the chargesheet, the statement of Dr. L. C. Gupta in the court, the postmortem report, the MLC and, the photographs of the crime scene as well as the photographs of the body obtained during post mortem conducted by PW17. Dr. T. D. Dogra is a senior and renowned doctor who worked as a Director, AIIMS and, as also Head of the Department, Forensic Medicine, AIIMS, New Delhi. He did not agree at all with the post mortem report of this case. Dr. T. D. Dogra came to a conclusion that the death in this case was due to multiple injuries. The reason explained by Dr. T. D. Dogra appears to be more plausible. He has explained SC no. 22/13 Page 22 of 56 23 that the injury on the forehead of the deceased, which is termed as post mortem injury by Dr. L. C. Gupta is in fact an ante mortem injury. The reasons explained by Dr. T. D. Dogra is that there was only one open wound on the body of deceased on the forehead as reflected in the postmortem report, the MLC and the photographs of the body. It is lacerated wound on the forehead with gaping tissue. The photographs of the crime scene reveal a substantial amount of blood at the spot where the deceased fell. On the floor showing fixed tiles, blood stains were spreading over an area of more than four tiles, thus covering wide area. The factum of collection of lot of blood in the gali where the deceased fell, particularly, when there was no other open wound injury on the body of deceased suggests that this injury was ante mortem and not postmortem. The witness also deposed that the photographs Ex.DW2/22, 23 & 24 also reflects subarchnoid hemorrhage, and the photograph Ex.DW2/21 reflects extravasation of blood in scalp tissue in the frontal region and the parietal region, which suggests the injury on the forehead to be ante mortem injury. Some quantity of blood is observed on Dura mater of brain on top side. There are blood stains scattered in area of more than four tiles, suggestive of bleeding from open ante-mortem wound. There is only one open wound, i.e. CLW in the forehead region. It means bleeding occurred from this wound on the forehead, implying that it is ante-mortem wound. Photographs shows the extravasation of blood in scalp tissue region which is ante-mortem phenomenon. On brain surface, some evidence consistent with subarachnoid hemorrhage is observed. Findings consistent of SC no. 22/13 Page 23 of 56 24 extravasation of blood in scalp tissue in frontal region is visible in the photograph suggesting the fore head injury to be ante-mortem in nature. In the photograph showing brain out of skull, observations consistent with subarachnoid hemorrhage are visible.
8.8 This witness also clarified that the fracture of femur could be on the left side of the leg and not on the right thigh, which appears to be a mistake in the post mortem report, as there was deformation of left thigh and not right thigh, with extravasation of blood visible in the left thigh, as reflected in photographs Ex.DW2/18, 19 and there was no extravasation of blood in right thigh as reflected in Ex.DW2/20. The cut section of left thigh, shows darker areas suggestive of blood infiltration. Photograph showing incision in the left thigh shows appreciable findings suggestive of extravasation of blood, suggestive of injury being ante-mortem. The fact that there was extravasation of blood in the left thigh is suggestive of the fact that injury was ante mortem and not postmortem as claimed. This fact is also reflected from photograph Ex.DW2/17.
8.9 It was also observed by Dr. T. D. Dogra that there was no evidence of crescentric abrasion seen in the photographs of the neck region and in the submandibular region contusion like marks are visible. On the neck region as visible in photograph and adjoining area of face, there was no evidence of crescentic abrasions seen in the given photographs. Dr. L. C. Gupta who conducted post mortem did not take photographs of layer by layer dissection of neck and also did not take photographs of chest, abdominal cavity and their SC no. 22/13 Page 24 of 56 25 organs. Thyroid-hyoid complex is visible but fracture or extravasation of blood is not visible in trachea or thyroid-hyoid region. In another photograph right side of face and neck are visible but there are no appreciable crescentic abrasion. In another photograph with retracted lower lip, the incisor teeth are not visible. Dr. T. D. Dogra did not notice any crescentric abrasion appreciable on the face and neck and therefore challenged the observation of Dr. L. C. Gupta to the effect that the deceased was strangulated or smothered.
8.10 Dr. Dogra opined that considering the documents and photographs, the injuries present on the body of deceased could be sustained by blunt force as in fall from height, Injuries in the region of forehead could be ante-mortem in nature and could be produced by striking against hard blunt object/surface as in fall from height and that the cause of death was due to multiple injuries.
8.11 When two contradicting opinion of two experts came on the same set of injuries, this court examined one expert as a court witness, namely, Dr. Vijay Dhankad, the Specialist and HOD, Forensic Medicines of BSA Hospital. Upon perusing the MLC, post mortem report and the photographs of the crime scene as well as post mortem of the deceased, even Dr. Vijay did not agree with the findings given by Dr. L.C.Gupta.
8.12 Dr. Vijay Dhankad deposed that it is noticed that though in injury no. (I) in the postmortem report, crescentric abrasions are mentioned to be present, but there is no photograph obtained during SC no. 22/13 Page 25 of 56 26 postmortem of the neck from both the sides and front which could have clarified and revealed those crescentric abrasions. He deposed that the neck as visible in the photographs Ex.DW2/A-25 & A-26 do not reveal crescentric abrasions. Also in the postmortem report, eyes are mentioned to be congested but no photographs of the eyes of deceased were taken during postmortem. He deposed that eyes could not have been congested in this case as the present case appears to be a case of death due to hemorrhagic shock, and that congestion of eyes occur in the case of slow death. He deposed that if a person is strangulated or smothered, eyes would be congested, but in the present case, photographs of eyes of deceased are not there to reveal that fact.
8.13 Dr. Vijay Dhankad also deposed that the quantum of blood lying at the spot where the body of deceased hit the ground reveals that the injury on her forehead, which is the only open wound mentioned in the P.M.Report and revealed in the photographs, was an ante mortem injury and not a postmortem injury. Therefore, injury no. (A) in the Postmortem report appears to be ante mortem and not post mortem. Bleeding could not have occurred from any other injury as this wound in the forehead was the only open wound. Ex.DW2/A-12 and 21 also reveal extravasation of blood in the scalp and contusion of the margins of injury no. (A) as mentioned in the P.M. report and those two photographs are contradictory to the postmortem report injury no. (A). According to these two photographs, there was extravasation of blood and therefore, injury on the forehead could not have been postmortem injury. The photograph Ex.DW2/A-12, A-
SC no. 22/13 Page 26 of 56 2715 & A-21 also reveal that rest of the scalp does not appear to be congested. He deposed that had it been a case of strangulation/smothering, it would have very likely been congested.
8.14 Dr. Vijay Dhankad also deposed that Photographs of layer by layer dissection of neck are extremely important in a case of strangulation and smothering, which again have not been taken during postmortem of this case. Similarly, photographs of internal organs like heart, kidneys, lung, spleen etc. have not been taken during postmortem of this case, which again is very important, as had it been a case of strangulation/smothering, those organs would have been congested. In the postmortem report, blood in abdomen is mentioned but again photographs of the abdomen have not been taken during postmortem to support the finding.
8.15 Dr. Vijay Dhankad also deposed that in the postmortem report, injury no. (F) has been mentioned in the right thigh, whereas, the injury as per photographs appears in the left thigh and not the right thigh.
8.16 Dr. Vijay Dhankad also deposed that upon considering the documents and photographs of this case, he was of the opinion that the pattern of injuries on the body of deceased is consistent with fall from height; the injury on the forehead was ante-mortem in nature and; the cause of death in this case most likely appears to be hemorrhagic shock due to the multiple ante mortem injuries.
SC no. 22/13 Page 27 of 56 288.17 Dr. Vijay also opined that the photographs and the documents of this case is inconsistent of the theory that the deceased was strangulated or smothered or then thrown from the roof. He deposed that the nature of injuries on the body of deceased was consistent with fall from height and that not only the injury on the forehead was ante mortem in nature but also there was no definite evidence to reflect that the deceased was strangulated or smothered. According to him, had the deceased been smothered congestion would have been noticed in the scalp, which are missing in the photographs Ex.DW2/A-12, 15 & 21. Also it was important to take photographs of layer by layer dissection by neck in a case of strangulation and smothering and also photographs of the internal organs which would have revealed signs of strangulation/smothering, but those photographs have not been obtained, to indicate congestion.
8.18 The testimonies of Dr. T. D. Dogra and Dr. Vijay Dhankad gets corroborated from the deposition of PW-3 Babita, who deposed that blood was oozing from body of deceased at the spot where she fell in the gali at the time when this witness saw her after fall. In absence of any other open wound, that bleeding could have been from the injury on the forehead only.
8.19 The testimonies of Dr. T.D.Dogra and Dr. Vijay Dhankad, who have given convincing reasoning in favour of their opinion and who have contradicted the report of Dr. L.C.Gupta based on logical reasoning, SC no. 22/13 Page 28 of 56 29 clearly creates more than reasonable doubt about the post mortem report and the testimony of Dr. L.C.Gupta.
8.20 The version of Dr. L.C.Gupta that deceased was smothered/strangulated and then she was thrown from the roof is therefore, seriously in doubt. In such circumstances, even the medical report does not prove beyond reasonable doubt that the deceased was strangulated or smothered or thereafter thrown from the roof.
8.21 Thus neither there is any direct evidence nor there is any circumstantial evidence in the present case to hold that the accused committed murder of deceased by strangulating her or smothered her or threw her from the roof. Rather the nature of injuries indicate that the deceased died because of injuries sustained due to fall or suicide.
8.22 I have already mentioned above that there is no eye witness supporting the prosecution that the accused persons pushed the deceased from the roof. Rather none of the prosecution witnesses have supported the fact that the four accused or any of them were even seen on the roof top at the time when the deceased fell. Therefore, the mere fact that in the FSL result, traces of „Nitrarzepam‟ was noticed in the viscera of deceased cannot lead to a conclusion that the deceased was first administered „nitrazepam‟ and then her murder was committed either by strangulating her or by throwing her.
SC no. 22/13 Page 29 of 56 308.23 No investigation has been done by the investigating officer as to the source and manner of procurement of „nitrazepam‟. It cannot be assumed in a criminal case that if viscera of a deceased contained any sedative, the sedative must have been administered by the accused. It may well be a case where the sedative was consumed by the deceased. Accused have claimed that deceased was in depression. „Nitrazepam‟ is indeed used as sleeping pills. It is also available across the counter, though it should be only given on prescription of a doctor. Investigating officer did not bother to investigate from independent sources as to whether the deceased was depressed or not. In absence of any investigation as to the procurement or administration of the sedative by the accused to the deceased, presumption cannot be raised against the accused that they must have administered it.
8.24 In view of the above discussion, all the accused persons are acquitted U/s 302 of IPC, as there is no material evidence against them qua the said offence.
9 Charge U/s 304B and Sec. 498A of IPC, is taken up together being interconnected.
9.1 It is not in dispute that the deceased was married to accused Sanjay. It is also not in dispute that she died within a period of seven years from the date of her marriage. It is also not in dispute that the deceased died an unnatural death. Whether deceased committed suicide or fall from the roof accidentally, in both the eventualities her death was unnatural. It appears more to be a case of suicide from SC no. 22/13 Page 30 of 56 31 the circumstances and nature of injuries. The only question therefore to be considered U/s 304 B of IPC is whether the deceased was subjected to cruelty or harassment by the accused, if yes, whether such cruelty or harassment was for, or in connection with, any demand for dowry and whether such cruelty or harassment was „soon before her death‟. It may be mentioned here that in the earlier judgment, my Ld. Predecessor not only acquitted accused Jagdish, Bishan Devi and Sonu U/s 304B of IPC but also acquitted Sanjay for the said offence U/s 304 B of IPC and instead convicted him U/s 306 of IPC. While remanding the matter back Hon‟ble High Court directed that even the issue U/s 498A and Sec. 304B of IPC be re- examined by the trial court threadbare without being influenced by the earlier decision.
9.2 In order to prove cruelty and harassment meted out to the deceased in connection with demand of dowry, particularly soon before her death, the prosecution has examined two witnesses. Those two witnesses are Smt. Sarla (PW1), the step mother of deceased, and Sh. Suraj Pal (PW2), the father of the deceased.
9.3 PW1 Sarla deposed that deceased was married to the accused around six years prior to the incident. After marriage all the accused started harassing the deceased and all the accused used to demand money from them through the deceased and that they demanded watch, gold chain etc. The witness also deposed that all the four accused usually gave beatings to the deceased by catching hold of her hairs. Whenever the deceased used to visit her house, those SC no. 22/13 Page 31 of 56 32 incidents were narrated by the deceased to them. The witness also deposed that those demands were also made directly by accused Sanjay from them, and that three months prior to the death of deceased, she gave a sum of Rs. 5000/- to the deceased in presence of accused Sanjay, as per the demand of Sanjay. The witness also deposed that on the festival of Raksha Bandhan, preceding the date of incident, she gave clothes of accused Sanjay and his family members and she also gave a sum of Rs. 1000/- to accused Sanjay. The witness also deposed that she tried her best to pacify the accused and told them that she was not in a sound position, yet the accused did not mend their ways and continued to harass her daughter and continued to demand money. The witness also deposed that when she went to the place of incident after the occurance, the neighbourers told her that there was some quarrel continuously for last two days between the accused and the deceased and that all the accused had pushed the deceased from the roof.
9.4 So far as the claim of this witness that neighbourers told her after the incident that there was quarrel between the accused and the deceased, or that anybody saw the deceased being pushed from the roof is concerned, the same can be straight away rejected being barred by the principle of hearsay. Neither those neighbourers have been named by this witness in her testimony, nor any such neighbour supported the case of the prosecution in this regard.
SC no. 22/13 Page 32 of 56 339.5 If we peruse the initial complaint of this witness given before the SDM on 12.09.2006, it would be clear that this witness has made material improvements in her testimony in the court against accused Jagdish, Bishan Devi and Sonu. In her initial complaint to the SDM, there is no allegation whatsoever against accused Jagdish, Bishan Devi and Sonu. In her said complaint, the allegations of beatings, harassment, demand of dowry etc. are only and only against Sanjay and none else. The witness did not mention name of any other in-laws of the deceased, besides the husband of the deceased in her initial statement. What is mentioned in her initial statement is that accused Sanjay became unemployed after his marriage with the deceased and when he could not get any employment, for that reason he used to create trouble and fight with the deceased, and he also used to give beatings to the deceased. The accused Sanjay used to pressurize the deceased to bring money from her parents for the purposes of commencing some business, and when deceased used to fail in bringing money, she used to be given beatings by holding her hairs. Around 2-3 months prior to the incident, she gave Rs. 5000/- to the deceased in presence of accused Sanjay and that amount was demanded by Sanjay. It is also stated that around 15 days prior to the incident on the occasion of Raksha Bandhan, when deceased and Sanjay came to her house, she gave Rs. 1000/- to Sanjay.
9.6 Thus, there is not even a word mentioned in the statement of this witness given to the SDM that any other accused beside SC no. 22/13 Page 33 of 56 34 Sanjay ever used to ill-treat the deceased; or used to demand dowry or; used to harass or; beat the deceased.
9.7 Even in the supplementary statement of this witness recorded by the investigating officer on 12.09.2006, there is no allegation against any of the accused beside Sanjay.
9.8 It is nobody‟s case that the statement of this witness given before the SDM or to the investigating officer was in any manner incorrect. Rather the witness admitted in her cross examination that the statement Ex.PW1/A recorded by the SDM bear her signature and that the statement was readover to her by the SDM. When the witness signed her statement given to the SDM and the statement was also readover, coupled with the fact that the witness nowhere claimed either at the time of making the statement or while deposing in the court or at any other time that the statement recorded by SDM was either incorrectly recorded or that she for some reasons could not mention the complete details, clinches the issue.
9.9 Therefore, the allegations made by this witness as PW1 against accused Jagdish, Bishan Devi and Sonu are allegations made for the first time in the court after more than one year of the incident and therefore, those allegations against these three accused cannot be made basis of convicting them for cruelty or harassment for or on account of dowry.
9.10 Similarly, when Suraj Pal (PW2) deposed, he also introduced allegations against accused Jagdish, Bishan Devi and Sonu. He also SC no. 22/13 Page 34 of 56 35 introduced those allegations against these three accused in the court for the first time. Suraj Pal deposed that after marriage all the accused started harassing the deceased and they used to demand money from them. On several occasions the demands of accused were fulfilled within their means, but the accused continuously demanded money through the deceased from them. The witness deposed that all the four accused usually gave beatings to the deceased by catching hold of her hairs and that they used to demand watch, gold chain etc. from them. The witness also deposed that the demand used to be made by accused Sanjay from them directly. Around three months prior to the incident this witness gave Rs. 5000/- to the deceased in presence of accused Sanjay as per the demand of accused Sanjay. The witness also deposed that accused Sanjay was unemployed at that time and that on the festival of Raksha Bandhan prior to the incident, this witness gave Rs. 1000/- to Sanjay. Even this witness deposed about the hearsay part as deposed by PW1 regarding what was told by the neighbourers to the witnesses after the incident, which can be safely ignored, for the reasons mentioned above. It may be mentioned here that the facts told by the neighbours to PW1 and PW2 are not sought to be proved as res gestae, as these witnesses came to Delhi from Agra after learning about the incident, on the next day of the incident.
9.11 If we peruse the statement given by this witness before the SDM on 12.09.2006, Ex.PW2/DA, it would be clear that even in the statement given by this witness to the SDM, besides making allegations against accused Sanjay, there is absolutely no allegation against SC no. 22/13 Page 35 of 56 36 any of the other three accused namely Jagdish, Bishan Devi and Sonu. In his statement Ex.PW2/DA, what is mentioned is that after accused Sanjay could not get re-employment, he started altercations with the deceased and started beating the deceased. Sanjay also started pressurizing the deceased to bring money from her parents for commencing some business and whenever deceased failed to bring money, she was given beatings. The witness also deposed that his wife, on 2-3 occasions, gave Rs. 2000-3000/- so that Sanjay can commence business, but the deceased continued to be harassed. The witness also stated that he came to know that the deceased was pushed by accused Sanjay.
9.12 Thus, in Ex.PW2/DA, the first statement of this witness given to the SDM, does not contain even a word against other in-laws of the deceased besides accused Sanjay. Even this witness admitted in his examination in chief itself that his statement was readover to him by the SDM before he signed it. It is nowhere claimed that his statement Ex.PW2/DA does not contain true account of the version presented by this witness. The witness was confronted with the fact that names of other accused persons besides Sanjay is not mentioned in the statement Ex.PW2/DA. The witness claimed that he had told the names of all the four accused before SDM. However, the names of other accused are not there.
9.13 Thus, the version of this witness against accused Jagdish, Bishan Devi and Sonu in his deposition as PW2 was made for the first time SC no. 22/13 Page 36 of 56 37 and has to be discarded. This witness made material improvements in his testimony qua these accused.
9.14 Besides PW1 & 2, there is no other witness of the prosecution on the point of harassment or cruelty meted out to the deceased by the accused. The very fact that the other in-laws besides accused Sanjay, were not even named by the parents of deceased in their signed statement given to the SDM, charge U/s 498A and 304B of IPC does not survive against accused Jagdish, Bishan Devi and Sonu and these three accused ought to be acquitted for those charges.
9.15 Turning to the charge U/s 498A and 304B of IPC against accused Sanjay, the allegation that a sum of Rs. 1000/- was given to the accused Sanjay on Raksha Bandhan around fifteen days prior to the incident, does not fall within the definition of dowry. It is nobody‟s case that this amount of RS. 1000/- was demanded by accused Sanjay from Sarla or Suraj Pal, much less as dowry, and all that is alleged is that this amount was given to Sanjay on Raksha Bandhan. It is not even alleged that Sanjay ever demanded this amount as dowry. There is contradiction in the testimony of PW1 & 2 as to who gave this amount of Rs.1000/- to Sanjay. PW1 claimed that she gave that amount to Sanjay, whereas, PW2 claimed that he gave that amount to Sanjay.
9.16 On the occasion of festival of Raksha Bandhan, giving such a small amount to a son-in-law by one‟s own self does not amount to demand or giving of „dowry‟. Nor does giving of clothes on that SC no. 22/13 Page 37 of 56 38 occasion of Raksha Bandhan by one‟s own self amounts to giving or demanding „dowry‟. That amount and clothes appears to have been given as customary gifts, which are usually given to a son-in-law on such occasions. It is nowhere mentioned in the original complaint or in the testimonies of PW1 & 2, that this amount of Rs. 1000/- or clothes were ever demanded by or given to the accused as „dowry‟ pursuant to his demand. Therefore, the fact of giving Rs. 1000/- and clothes on the occasion of Raksha Bandhan cannot fall within the purview of „dowry‟ and that allegation has to be excluded, so far as Sec. 304B of IPC is concerned.
9.17 Qua Sec. 304 B of IPC the only other piece of evidence against accused Sanjay is that a sum of Rs. 5000/- was given to the deceased in presence of accused Sanjay about 2-3 months prior to the occurance and that the said amount was given on the demand of Sanjay. No other specific demand of any particular cash amount or any other article is even specified in the complaints Ex.PW1/A or Ex.PW2/DA. Rather perusal of those complaints would reveal that there is not even a word mentioned that any kind of dowry was given or demanded in the marriage, before, after or at the time of marriage. Perusal of these complaints would give only one inference i.e. that accused being unemployed used to pressurize the deceased to bring money from her house for the purposes of doing some work/business. It is not the case of prosecution that any article was demanded as dowry or any article was given.
SC no. 22/13 Page 38 of 56 399.18 If we peruse the statements of PW 1 & 2 given before SDM, Ex.PW1/A and Ex.PW2/DA, dated 12.09.2006, it would be clear that the said amount was demanded or given for commencing business by accused Sanjay. In Ex.PW1/A and Ex.PW2/DA there is no mention that any dowry whatsoever was given at the time of, before or after the marriage. In Ex.PW1/A and Ex.PW2/DA there is no mention that any specific article was ever demanded by Sanjay.
9.19 Hon‟ble Supreme Court in the case of Ashok Kumar Vs. State of Haryana (2010) 12 SCC 350, examined the question whether every demand by the husband or his family members can be termed as dowry demand within the meaning of Sec. 2 r/w 4 of the Dowry Prohibition Act, 1961. In that case, one week prior to the date of occurrence the accused demanded a refrigerator, a television etc., which demand was narrated by the deceased to her father. The deceased specifically mentioned that her husband wanted to set up a new business for which he required a sum of Rs.5000/-. Father of deceased could not manage that amount and the deceased was allegedly burnt by sprinkling kerosene oil on her. The accused did not inform the family of deceased about the demise. All the three accused were convicted by the Ld. Trial court. In Appeal, Hon‟ble High Court partially accepted the appeal acquitting other relatives of the husband but maintaining the conviction of the husband. Before Hon‟ble Supreme Court, the husband took up a plea that demand made for commencing business cannot be called as demand of dowry. After examining the provisions and the relevant precedents, Hon‟ble Supreme Court held that in that case there was SC no. 22/13 Page 39 of 56 40 definite evidence to show that merely 20-22 days prior to her death the deceased went to her parental home and informed her father about the demand of Rs. 5000/- and harassment and torture to which she was subjected to by the accused and her in-laws. It was held that ingredients of Sec. 304B of IPC were satisfied. The conviction of husband was maintained. In that case, the accused had examined sister of deceased as a defence witness in which the sister of deceased deposed about the fact that deceased told her parents twenty days prior to her death that in- laws were demanding television and Rs. 5000/-, which was held as a clinching evidence against the accused. The defence was held to be bound by the statement of that witness who was produced by the accused. The testimony of that witness was clear as to cruelty and harassment inflicted upon the deceased.
9.20 Contrary to the facts of the case of Ashok Kumar(Supra), in the present case the allegations qua demand of Rs. 5000/- is 2-3 months prior to the date of incident. It is nobody‟s case that any other article was demanded with this amount or that any other article was ever given or demanded as dowry at any point of time, before, at the time of, or after marriage. Between the said incident of demand of Rs. 5000/- and the date of incident, there is a gap of two to three months. There is absolutely no evidence in the present case that during this period of 2-3 months also the deceased was subjected to cruelty. PW1 & 2 deposed that accused Sanjay was unemployed and he used to ask deceased to bring the money from the parents of deceased for the purposes of commencing business SC no. 22/13 Page 40 of 56 41 since he was unemployed. There is no allegation that after payment of Rs. 5000/- the deceased was again subjected to cruelty or harassment or any dowry was demanded thereafter.
9.21 The question in this case is whether the demand and payment of Rs.
5000/- to accused Sanjay, as claimed by PW1 & 2, can be termed as „dowry‟ and whether after this incident of payment of Rs. 5000/- there was any cruelty or harassment meted out to the accused. Though PW1 & 2 have deposed that the deceased used to be subjected to cruelty and beatings, but no specific date is mentioned in the testimony of these two witnesses. This incident of giving beatings appear prior to the fact of demand of Rs. 5000/-.
9.22 Recently, in Manohar Lal v. State of Haryana, (2014) 9 SCC 645, it was held as follows;
"7. Raj Rani (PW 1), mother of the deceased Darshana alias Phullan stated that the accused married her daughter about five years back. The accused used to harass her daughter on account of inadequacy of dowry and used to make demands for cash. According to PW 1, the accused made a demand of Rs 10,000 which she could not meet. All the accused persons used to give beatings to Darshana alias Phullan and she was pressurised to bring more items of dowry while sufficient dowry was given to the accused at the time of marriage. Initially for about eight days, the accused kept her daughter nicely but thereafter she used to be harassed SC no. 22/13 Page 41 of 56 42 and beaten by the accused repeatedly. During the lifetime of the father of the deceased, he used to meet the dowry demands of the appellant. The deceased used to complain that her husband was not allowing her to stay in the matrimonial home unless some payments were made and the complainant (PW 1) had been paying her money and used to send her back to the matrimonial house by meeting the demands of the appellant.
8. One day prior to the last Rakhi festival, Jindu Ram, father-in-law of PW 1 went to the house of the in-laws of Darshana alias Phullan to meet her and on his return, Jindu Ram (father-in-law of PW 1) informed her that Darshana alias Phullan told that she was beaten by the accused after taking liquor and it was not possible for her to live in the matrimonial house. This information was given to PW 1 by her father-in-law in the presence of her maternal uncle Devi Lal. She further stated that about 8-9 months after the Rakhi festival, her daughter Darshana alias Phullan died. She had been killed by her in-laws. She then came to Yamuna Nagar and saw the dead body of her daughter having external injuries on her dead person which appeared to have been caused on being strangulated. Police recorded the statement of PW 1 and took thumb impression which was marked as Ext. PD. The above statement is not SC no. 22/13 Page 42 of 56 43 supported by any evidence and is contradictory to the post-mortem report, which shows that the death was due to shock resulting from burns.
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19. In Sunil Bajaj v. State of M.P. [(2001) 9 SCC 417 :
2002 SCC (Cri) 608] this Court held: (SCC pp. 420-21, paras 5-6) "5................. In order to convict an accused for an offence under Section 304-B IPC, the following essentials must be satisfied:
(1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(2) such death must have occurred within 7 years of her marriage;
(3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(4) such cruelty or harassment must be for or in connection with demand of dowry.
6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called „dowry death‟ and such husband or his relative shall be deemed to have caused her SC no. 22/13 Page 43 of 56 44 death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to nature of death as „dowry death‟ and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinising the evidence and in arriving at the conclusion as to whether all the abovementioned ingredients of the offence are proved by the prosecution..........."
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SC no. 22/13 Page 44 of 56 4520. ............................ As per the definition of „dowry death‟ in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been „soon before her death‟ subjected to cruelty or harassment „for or in connection with the demand of dowry‟. ....................
Similar observation was made by this Court in Balwant Singh v. State of Punjab [(2004) 7 SCC 724 : 2004 SCC (Cri) 2057] . In the said case this Court held: (SCC p. 728, para 10) "10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that „soon before‟ is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim."
22. The statement of the complainant, PW 1 is general and not specific. No specific incidence has been indicated suggesting the cruelty or harassment made by the accused Manohar Lal. Her SC no. 22/13 Page 45 of 56 46 statement is not reliable and not trustworthy.
Though the allegation of demand of dowry was made none of the witnesses including PW 1 stated that the deceased was harassed "soon before her death" for or in connection with demand of dowry. The appellant-accused was charge-sheeted under Sections 498-A and 304-B IPC but the trial court has not convicted the accused under Section 498-A. In this background, we are of the opinion that the prosecution has miserably failed to prove that the accused harassed the deceased soon before her death for or in connection with a demand of dowry."
9.23 In Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684, the appellant therein was married to the deceased on 22-2-1996. The case of the prosecution was that ever since the marriage, the deceased was subjected to physical and mental torture by the appellant and others for not getting sufficient dowry. The trial court convicted all the accused under Sections 304-B and 498-A IPC. The High Court acquitted the relatives of the appellant husband, but, confirmed his conviction. The High Court while noting that the allegations against the appellant were general in nature stated that the demand of Rs. 50,000 was made six months after the marriage and that was for enabling the appellant therein to purchase a computer and for setting up his own business. While acquitting the appellant Supreme Court held that demand made for purchasing a computer, six months after the marriage, was not a demand in SC no. 22/13 Page 46 of 56 47 connection with marriage and was not a dowry demand within the meaning of Section 2 of the Dowry Prohibition Act, 1961. 9.24 In Appasaheb v. State of Maharashtra (2007) 9 SCC 721, the accused was convicted under Section 304-B read with Section 34 IPC. The incident had taken place on 15-9-1991. The deceased was married to the accused about 2½ years prior to the date of the incident. The deceased consumed poison and died in the house of the accused. The allegations were that there was a demand for money and consequent beating of the deceased. The evidence disclosed that the demand was made for defraying expenses of manure, etc. It was held that;
"11. ... A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
The Court held that being a penal provision Section 2 of the Dowry Prohibition Act, 1961 will have to be construed strictly.
9.25 Thus, in the present case not only the demand of cash for the purposes of commencing work/business is outside the purview of "dowry", but also there is no positive evidence that the deceased was subjected to cruelty or harassment for or in connection with demand of dowry soon before her death. The proximity test of „soon before her death‟ is missing in the present matter. Therefore, accused Sanjay has to be acquitted U/s 304B of IPC.
SC no. 22/13 Page 47 of 56 489.26 However, from the testimony of PW1 and 2, there is no doubt that accused Sanjay used to treat his deceased wife with cruelty. He used to not only harass her but also used to beat her. In the cross examination of PW1 & 2, nothing could be brought out as to discredit their evidence qua behavior of accused, to show that accused Sanjay did not meet out cruelty or harassment to his deceased wife. Even in the testimony of PW3 Meena it has come that there used to be quarrels between accused Sanjay and his deceased wife. Although PW3 was not aware of the reason for quarrel, but the said reason is clarified by the PW1 and PW2 both. Both these witnesses deposed that since the accused was unemployed after he left his services in the earlier factory, he used to enter into altercations with the deceased, he used to pressurize the deceased to bring money from her house to start business, and when the deceased failed to bring money, she used to be given beatings. Thus, so far as accused Sanjay is concerned, against him there is unimpeached evidence of PW1 & 2 that this accused used to harass and beat the deceased and he used to pressurize the deceased to bring money from her parents to start the business as he was unemployed.
10 The said allegations convincingly prove the charge U/s 498A of IPC against accused Sanjay. Accused Sanjay is accordingly held guilty U/s 498A of IPC.
11 Turning to the question whether the accused Sanjay can be convicted U/s 306 of IPC or not, it may be mentioned that the Ld. Predecessor Court acquitted accused Sanjay U/s 304 B of IPC but SC no. 22/13 Page 48 of 56 49 convicted him U/s 306 IPC. No charge was framed U/s 306 of IPC in the present matter, yet in view of the judgment of Hon‟ble Supreme Court in the case of Harjit Singh Vs. State of Punjab 2006 Cri. L. J. 554 (SC), even in absence of framing of charge U/s 306 of IPC, the accused can be convicted U/s 306 of IPC.
11.1 I may more usefully refer to the case of Dalbir Singh v. State of UP AIR 2004 SC 1990, where the question was whether in a given case, it is possible to convict the accused under Section 306 IPC, if a charge for the said offence had not been framed against him. In brief, the relevant facts of the said case were that the accused therein had been charged under Section 302 IPC for having committed the murder of his wife and two daughters. He was further charged under Section 304B IPC for causing the death of his wife and under Section 498-A IPC, for subjecting her to cruelty. After the trial, the Sessions court convicted the accused under Section 498A IPC, but acquitted him under Section 304B IPC. In the appeal, the High Court came to the conclusion that the charge under Section 302 IPC was not established and acquitted the accused for the said offence. However, after concluding that the accused was guilty under Section 306 IPC, for having abetted commission of suicide by his wife, the court was of the opinion that the accused could not be convicted for the said offence, in view of the fact that no charge had been framed against him under Section 306 IPC. In appeal, the observations made by the Supreme Court on this aspect are apposite and are reproduced hereinbelow:-
"14. Here the Court proceeded to examine the question that if SC no. 22/13 Page 49 of 56 50 the accused has been charged under Section 302 IPC and the said charge is not established by evidence, would it be possible to convict him under Section 306 IPC having regard to Section 222 Cr.P.C Sub-section(1) of Section 222 lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub-section (2) of the same Section lays down that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Section 222 Cr.P.C is in the nature of a general provision which empowers the Court to convict for a minor offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said Section also make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely Chapter XXXV which deals with Irregular Proceedings and their effect. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub-section (1) of this Section provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no SC no. 22/13 Page 50 of 56 51 charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This clearly shows that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. In Lakhjit Singh v. State of Punjab reported as 1994 Supp (1) SCC 173, though Section 464 Cr.P.C has not been specifically referred to but the Court altered the conviction from 302 to 306 IPC having regard to the principles underlying in the said Section. In Sangaraboina Sreenu (supra) the Court completely ignored to consider the provisions of Section 464 Cr.P.C and keeping in view Section 222 Cr.P.C alone, the conviction of the appellant therein under Section 306 IPC was set aside."
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17. ..................it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself............."
SC no. 22/13 Page 51 of 56 5211.2 In the case of K. Prema S. Rao v. Yadla Srinivasa Rao AIR 2003 SC 11, the Supreme Court made the following pertinent observations:
"22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. .......................
11.3 Yet the fact of the matter is that before an accused can be convicted U/s 306 of IPC, there has to be some material before the court to show that the accused instigated commission of suicide. Once this SC no. 22/13 Page 52 of 56 53 court came to a conclusion that the deceased was not murdered, as observed above, the only inference which can be drawn is that the deceased committed suicide by jumping from the roof top of the house. Even by their own defence the accused took a plea that the deceased committed suicide. It is nobody‟s case that the deceased had an accidental fall. Before an accused can be held guilty U/s 306 IPC, it must be shown by the prosecution that the accused in any manner instigated commission of suicide by the deceased. Sec. 306 of IPC which provides punishment for abetment to suicide clearly requires a positive act of instigation by an accused before a person can be held guilty.
11.4 However, the present matter is one in which a daughter-in-law who used to be harassed by the husband for bringing money from her house died unnaturally within seven years of her marriage. U/s 113A of the Indian Evidence Act, a presumption is allowed against the husband or his relative where the woman commits suicide within seven years of her marriage and where it is shown that her husband or relative of her husband had subjected the woman to cruelty. The presumption is that in such cases, husband or such relative shall be presumed to have abetted the suicide. Cruelty is extended the same meaning as in Sec. 498A of IPC.
11.5 Under Sec. 498A of IPC not only harassment of a women with a view to coerce her to meet any unlawful demands for any property or valuable security is covered, but it also covers willful conduct of an accused which is of such nature as is likely to drive the woman to SC no. 22/13 Page 53 of 56 54 commit suicide or to cause grave injury or danger to her life, limb or health.
11.6 In the present case, accused Sanjay has been found guilty U/s 498A of IPC. Therefore, indeed he treated the deceased with cruelty. In the testimony of PW1 & 2, though no specific date of cruelty meted out to the deceased by accused Sanjay is given, but the incident of payment of Rs. 5000/- by PW1 to accused Sanjay was about 2-3 months, prior to the commission of suicide. However, testimony of PW3 Meena establishes that there used to be quarrel between the deceased and accused Sanjay, though, she was not aware as to what the reason was behind the said quarrel. Even PW3 did not specify any date when she noticed accused Sanjay quarreling with the deceased. But it must have been within one and a half years prior to the incident since, it was only from that time the accused were residing as tenant of PW3. Perusal of testimonies of PW1 & 2 would reveal that 2-3 months prior to the incident on demand of accused Sanjay, a sum of Rs. 5000/- was paid by PW1. It has also come in their evidence that accused Sanjay used to give beatings to the deceased, whenever, she failed to bring that amount from her house. The said fact that the accused used to give beatings to the deceased on account of not bringing money from her parents, as demanded by the accused because of his unemployment, would indeed be willful conducted by the accused Sanjay driving the deceased to adopt the extreme step. When the life of deceased must have been made unbearable because of the attitude of accused Sanjay, the deceased must have chosen to adopt the SC no. 22/13 Page 54 of 56 55 extreme step. Once it is shown that accused Sanjay used to treat the deceased with cruelty within seven years of her marriage and that the deceased committed suicide, presumption U/s 113A of Indian Evidence Act has to be resorted to against the accused Sanjay.
11.7 In the instant case the accused cannot complain of any want of opportunity to defend the charge under Section 306, IPC or any consequent failure of justice. The same facts found in evidence, which justify conviction of the accused under Section 498A for cruel treatment of his wife, make out a case against him under Section 306, IPC of having abetted commission of suicide by the wife. The accused was charged for an offence of higher degree causing "dowry death" under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act also arises against him on same facts constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence was required to be granted to the accused when he had ample opportunity to meet the charge under Section 498A, IPC, particularly when earlier he had been once convicted for the said offence u/s 306 IPC and he was given opportunity to recall any of the witnesses of prosecution after amendment of charge in this retrial. Therefore, on the same facts and evidence on which accused Sanjay was charged under Section 498A and Section 304B, the accused can be convicted and sentenced under Section 306, IPC. Accused was duly confronted with the offence for which he was charged and was given ample opportunity of a fair trial. He was well aware of what he was being tried for. The offences for which he was charged were grave in SC no. 22/13 Page 55 of 56 56 nature, namely, Section 302 IPC and 304B IPC. Section 302 prescribes the punishment of death or imprisonment for life, for the commission of the offence of murder and Section 304B IPC prescribes the minimum punishment of seven years that may extend to imprisonment for life. As against the aforesaid offences of a higher degree, Section 306 IPC prescribes the punishment of imprisonment that may extend to ten years with fine for abetment to suicide and is therefore an offence of a relatively lesser degree. The appellant was made aware of the basic ingredients of the offence for which he was being tried; he was also aware of the facts of the case sought to be established against him by the prosecution. He had been given a fair chance to defend himself and it cannot be urged that any prejudice had been caused to the accused.
11.8 Accused Sanjay therefore is held guilty U/s 306 of IPC also.
12 The sum and substance of the matter is, accused Jagdish, Bishan Devi and Sonu are acquitted of all the charges.
13 Accused Sanjay is acquitted under section 302 & 304B of IPC, but convicted under section 306 & 498A of IPC.
Announced in the open court on 1st day of May, 2015. Dig Vinay Singh ASJ/Spl.Judge : NDPS (N-W) Rohini Courts/Delhi SC no. 22/13 Page 56 of 56