IN THE COURT OF SH. [ENTITY], DISTRICT JUDGE & SESSIONS JUDGE,NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI SC no.38/10 Unique ID no. of the case.02402R0099222010 [ENTITY] Vs. 1) [ENTITY] s/o Sh. [ENTITY] r/o Z-II, H. No.591, Kabootar Market, Welcome, Delhi 2) [ENTITY] s/o Sh. [ENTITY], r/o Z-II, H. No.591, Kabootar Market, Welcome, Delhi. 3) [ENTITY] s/o [ENTITY] r/o Z-II, 609, Welcome, Delhi. 4) [ENTITY] w/o [ENTITY] r/o Balia Mohalla, [ENTITY], UP Permanent Address: Z-II/590, Kabooter Market, Welcome AND 5 [ENTITY] s/o [ENTITY] r/o Bhalia Mohallah, [ENTITY], UP Permanent Address: Z-II/590, Kabooter Market, Welcome SC no.38/10 Page 1/25 FIR No.03/2010 PS: Welcome u/[SECTION]-[SECTION] [ACT] JUDGEMENT
1. A charge of cruelty under [SECTION] and further charge of dowry death under [SECTION] under [SECTION] [ACT] of murder were put on trial against accused [ENTITY] and [ENTITY]. Accused [ENTITY] is the husband of deceased [ENTITY] and [ENTITY] is the real brother of [ENTITY]. The charge set for trial against them is:-
That since about 3 or 3 years prior to 04.01.2010, accused [ENTITY] being the husband and [ENTITY] being the brother in law of victim deceased [ENTITY] with other accused persons, relations of the husband in furtherance of their common intention subjected [ENTITY] to cruelty on account of demand of dowry in her matrimonial home Z-2, house no.591, Kabtoor Market, Welcome, Delhi. The dowry death charge is that deceased-victim [ENTITY], wife of accused [ENTITY] died under unnatural circumstances on 04.01.2010, which was within the seven years of her marriage with accused [ENTITY], and soon before her death she had been subjected to cruelty on account of demand of dowry by these two accused persons alongwith other accused, relation of the husband. The murder charge is that accused in furtherance of their common intention committed murder of [ENTITY] by intentionally setting her on fire and she died because of those burn injuries. Charge for said offences against [ENTITY] and [ENTITY] was framed on 09.12.2010 and they claimed trial by pleading not guilty.
2. Accused [ENTITY] son of [ENTITY] ( nephew of accused-
husband [ENTITY] ), [ENTITY], mother of [ENTITY] and [ENTITY], father of accused [ENTITY], were charge sheeted through supplementary challan in January, 2012. A prima facie case to try these three accused for offences under [SECTION], [SECTION] and [SECTION] [ACT] was found made out and accordingly charge was framed against these three accused on 02.02.2012 and they too claimed trial by pleading not guilty. Finally, accused [ENTITY] was also produced before the Court through supplementary challan on 19.09.2012 and he too was put on trial for offences under [SECTION], [SECTION] and [SECTION] [ACT] and that charge was framed on 20.09.2012. He too claimed trial by pleading not guilty. Till 02.02.2012 since some of the prosecution witnesses had already been examined against earlier two accused [ENTITY] and [ENTITY], these witnesses were recalled and re-examined and cross-examined on behalf of these supplementary charge sheeted accused.
3. Present case FIR Ex.PW4/A was registered on 05.01.2010 at 20:30 hours on the basis of statement of victim-deceased [ENTITY] and that statement of [ENTITY] was recorded by SDM, Shahdara and it is being pressed by the prosecution as dying declaration of the deceased. A Daily Diary 50B was recorded in Police Station Welcome at 2pm on 05.01.2010 on an information conveyed by Constable [ENTITY] from GTB hospital that one [ENTITY] son of [ENTITY] resident of Z-2/591, Welcome, Kabootar Market and his wife [ENTITY] had been admitted in GTB hospital by [ENTITY], cousin brother of [ENTITY], both having suffered burn injuries. HC [ENTITY], who was assigned this DD for inquiry reached GTB hospital and collected MLC of [ENTITY] as well [ENTITY] and he conveyed information to SHO Inspector [ENTITY] of Police Station Welcome that victim [ENTITY] and [ENTITY] had suffered 70% and 22% burns respectively. Inspector [ENTITY] then reached GTB hospital and came to know that [ENTITY] had been got married to [ENTITY] 3 or 3 years ago and accordingly Inspector [ENTITY] called SDM, Shahdara. SDM [ENTITY] PW1 reached GTB hospital and recorded statement of [ENTITY] as Ex. PW1/A.
4. Victim [ENTITY] stated that she had been got married to [ENTITY] in accordance with Muslim rituals about 3 or 3 years ago, who was resident of Z-2, house no.591, Kabootar Market, Welcome, Delhi. Two daughters were born to her. On the previous night of 04.01.2010 her in laws picked up a quarrel with victim [ENTITY] on the issue of vegetable not prepared nicely by her and had given beating to her severely. Next day morning they again started bearing her. She further stated in this statement Ex. PW1/A that her in laws were always taunting her for having not brought sufficient dowry and they had been asking victim to bring Rs.1 or 2 lacs cash, AC, geyser, sewing machine and double bed. On the date of the incident in the morning her husband [ENTITY], her mother in law, [ENTITY], father in law [ENTITY], brothers in law [ENTITY], [ENTITY] and brother in law's son [ENTITY] and brother in law's daughter [ENTITY] all together put kerosene oil on her and her mouth was closed with a cloth and her husband [ENTITY] set her on fire by throwing a burning match stick on her. Her husband [ENTITY] then put kerosene oil upon himself and burnt his both hands. Informant-victim raised hue and cry and her in laws then brought her to hospital.
5. This statement of the victim was signed by her and SDM directed SHO to register the case.
6. Victim [ENTITY] died due to these burn injuries on 09.01.2010 at 1.45pm and her body was subjected to post mortem and as per post mortem report Ex. PW3/A, cause of death was septicaemic shock as a result of infection of ante mortem flame burns involving about 90% of the body surface area. Inquest report Ex. PW1/D was carried out by the SDM. [ENTITY], PW7 father of deceased gave a statement which was recorded by SDM on 11.01.2010 which is Ex. PW1/G. According to this witness he had got his daughter [ENTITY] married 3 or 3 years ago to [ENTITY] and two daughters were born in that wedlock. He further stated that soon after marriage, his son in law had started torturing [ENTITY] and started demanding dowry and he used to give beatings to victim. He did not mend himself despite repeated advices. On 05.01.2010 this witness received a telephone call from some private nursing home that his daughter had suffered burn injuries and that she had been referred to GTB hospital. This witness reached hospital and found his daughter in burnt condition and she died on 09.01.2010.
7. Meanwhile Inspector [ENTITY] recorded another statement of [ENTITY] in the hospital which has been proved as Ex. PW17/C and that statement is also being pressed as dying declaration. MLC of victim-deceased [ENTITY] prepared on 05.01.2010 in GTB hospital is Ex. PW16/A and MLC of the accused [ENTITY] prepared in GTB hospital on that very day is part of judicial file but not exhibited. Site plan of the scene of the offence is Ex. PW17/B which has been prepared by Inspector [ENTITY]. [ENTITY]ment of other material witnesses were also recorded by Inspector [ENTITY].
8. During post mortem, scalp hair of the deceased were sealed by the doctor alongwith sample seal and that exhibit had been seized through memo Ex. PW13/A.
9. On 05.01.2010 from the scene of the crime a bottle containing kerosene oil, some burnt clothes in the form of ash and sofa cover which was bearing some burn marks had been seized through memo Ex. PW5/A1. These exhibits were got examined from FSL and FSL report is Ex. PW18/A.
10. In this trial prosecution has examined 18 witnesses and a brief detail of these witnesses is as follow:
PW1 is the SDM, who had recorded statement of deceased [ENTITY] on 05.01.2010 in GTB hospital and later on also recorded statement of father of deceased on 11.01.2010. PW7 is [ENTITY], who is father of deceased.
PW8 [ENTITY] is daughter of mother's sister of the deceased and she being of the age group of the deceased and friendly with her, witness deposed that deceased [ENTITY] used to narrate and tell her about her marital life soon after her marriage. PW9 is the sister of the mother of deceased and she also deposed the facts what [ENTITY] narrated to her whenever she visited her house. PW10 is the maternal uncle of the deceased and witness deposed that he had paid some amount to [ENTITY] on various occasions towards satisfaction of demand raised by accused persons. PW11 is the younger brother of the deceased.
11. Rest other witnesses are police officials and PW3 is Doctor, who had conducted post mortem on the body of the deceased. This witness stated in the evidence that ante mortem flame burns superficial to deep in nature was present all over the body sparing scalp, palms of both sides and foot of both sides. Burn area was covered with foul smelling pus and greenish yellow scough. The burn area involved about 90% of the total body surface and finally cause of death was opined to be septicaemic shock. Scalp hairs were sealed in an envelope for detection of any flammable substance.
12. Amongst police officials the material witnesses are PW5 [ENTITY] and then Investigating Officer, who has appeared as PW17. Prosecution witnesses, who are the relations of the deceased have supported prosecution charge. PW7 father of deceased deposed that after marriage his daughter was being maltreated and given beatings by her husband and family members. He had given AC, microwave, gold articles on the occasion of birth of child. Witness deposed that even on that occasion victim [ENTITY] was given beating by accused persons. Witness deposed that about three months prior to death of [ENTITY] on the occasion of "Mithi Eid", accused [ENTITY] and his other family members gave beating to [ENTITY] and that fact was conveyed by [ENTITY] through telephone call to this witness given somewhere in midnight on that day and she asked witness to retrieve her from her matrimonial home. Witness deposed that he alongwith 10-12 persons went to the matrimonial home of his daughter on the same night but no family member responded and [ENTITY] opened the door. Witness saw his daughter bearing swelling on various parts of her body and witness made 100 number call, Police arrived and took [ENTITY] to GTB hospital. Medical reports were prepared on that occasion in GTB hospital. Witness handed over photocopy of those medical reports mark X1 to X3 to the Investigating Officer which had been seized through seizure memo Ex. PW7/A on 31.03.2010 in this case. Witness deposed that because of influence of accused persons, police officials pressurized the witness to compromise the matter and accused persons also assured not to repeat such incidents in future and accordingly matter was compromised. Accused persons, however, did not mend their ways. Other witnesses also deposed that [ENTITY] used to narrate her tales of woes as she was being harassed and treated with cruelty on account of insufficient dowry brought by her.
13. Accused persons when examined under [SECTION] [ACT] to explain incriminating evidence, a defence plea put up by them is that victim had sustained burn injuries accidently and they were being implicated falsely. [ENTITY] explained that as soon he heard victim's cries when he was in the bathroom, he came out and tried to extinguish her fire by his hands and took her inside bathroom and poured water on her body and thereafter he alongwith his brother [ENTITY] and other family members brought victim to GTB hospital. Two defence witnesses have been examined wherein DW1 is [ENTITY], wife of [ENTITY]. She had been got married to [ENTITY] in the year 2006 somewhere near around marriage of deceased with [ENTITY]. She further deposed that she alongwith her husband were residing in the second floor and they had a separate kitchen. Accused [ENTITY] and [ENTITY] were residing on the first floor with their separate kitchen. Her parents in law namely [ENTITY] and [ENTITY] were residing in second floor with this witness and on the third floor two cousins of her husband namely [ENTITY] and [ENTITY] were residing. She further deposed that [ENTITY] was residing with her husband [ENTITY] and there had never been any demand for dowry by any of her in laws to the parents of [ENTITY]. She further deposed that on 05.01.2010 her parents in law namely [ENTITY] and [ENTITY] had gone for their medical check up to a private nursing home in Dilshad Garden with her brother in law [ENTITY] as her parents in law were not keeping well. Witness states she being busy in routine household work and her husband and cousin [ENTITY] were engaged in whitewash work being carried out in the second floor and her husband [ENTITY] was attending bakery shop business on the ground floor of that house that at around 9/9.15 am, witness heard noise "bachao bachao". [ENTITY] came upstairs and [ENTITY] also reached and this witness also reached there. There they saw [ENTITY] under flames and [ENTITY] was trying to extinguish her fire in the bathroom by pouring water on her and by the time fire had been extinguished, [ENTITY] was badly burnt. Both hands of [ENTITY] were badly burnt. Witness then deposed that she talked to [ENTITY] and [ENTITY] told her that she had caught fire accidently from a gas cylinder while doing some work. [ENTITY] had towel wrapped around his body/waist. Second defence witness is [ENTITY], who has deposed on the lines as deposed by DW1 and finally third witness was a summoned official witness from private nursing home i.e [ENTITY] Health and Maternity Centre, Dilshad Garden. Witness has brought OPD record of that Nursing Home of 05.01.2010 and as per that record two patients namely [ENTITY] aged 65 years and [ENTITY] aged 65 years came to Nursing Home for blood test and check up and an entry to that effect in the OPD register was proved by the witness as Ex. DW3/A. With that trial concluded and arguments were addressed from both sides.
14. Learned counsel Sh. [ENTITY] appearing for accused persons argued that murder charge is entirely based upon dying declaration and dying declaration was not reliable piece of evidence. Learned counsel submitted that incident occurred at around 10am whereas victim-deceased has been brought to GTB hospital at 2.30pm. There is no evidence or material to show as to where in between four hours time was spent. It is further argued that SDM, PW1 arrived in hospital at around 6.30pm and no reason is explained for that delay. Learned counsel further submitted that no medical opinion or certificate was obtained by PW1 that victim deceased was in a fit state of mind and body to give her statement. Learned counsel referred to Supreme Court judgment reported as 2003 (1) JCC 110 Satish Kumar vs. [ENTITY] on the point that where no time was recorded in dying declaration and there was no certificate of doctor that at the time of recording the dying declaration injured was in fit state to give statement and there was no doctor in whose presence that statement of victim was recorded, a serious doubt would arise in the authenticity of such a dying declaration. Learned counsel referred to another Supreme Court judgement reported as [PRECEDENT]. In that case deceased a 70 years old person had suffered 80% burn injuries, dying declaration was recorded after 8 to 9 hours of the incident. Absence of any certificate by doctor or his attestation on declaration, detailed providing material for motive and manner of the incident, contents of document was so arranged as to accommodate the space above the thumb impression. All such circumstances created doubt in the dying declaration. On this point learned counsel referred to dying declaration in this case and pointed out that initial part of this statement of [ENTITY] upto to 10 to 15 lines is a comfortable recording with due gap between lines but then last 6 to 8 lines are congested recording which could suggest if this dying declaration was to be accommodated within the space appearing above signatures by [ENTITY].
15. Learned counsel further assailed this dying declaration about its independent nature and character whether being influenced and tutored by anybody and counsel referred to cross-examination of PW1 where SDM in that cross-examination dated 14.2.2011 has stated that father and one or two relatives of injured were present with the patient at that time. Counsel submitted that if father and other relations of the victim were present with her before her statement was recorded by SDM then a possibility of she being tutored could not be ruled out. Counsel further argued that SDM in cross- examination says that before recording the statement of deceased [ENTITY], he had not gone through her MLC. It is submitted that where in MLC different version of the occurrence came to be recorded as alleged history then it ought to have been clarified from the victim and she would have explained it. Learned counsel submitted and argued that where accused himself had sustained burn injuries to an extent of 20% then the defence version was probablized that on seeing [ENTITY] to have sustained burn injuries accidentaly, accused-husband had tried to put off those burn and sustained injuries. Learned counsel referred to MLC of [ENTITY] which mentioned burn injuries on whole right hand, half side of face right side and anterior part of right thigh and left wrist. Those burns were assessed approximately 22%. Learned counsel submitted that in such circumstances dying declaration could not be taken and accepted to base the conviction for murder. On the other hand, learned Addl. PP submitted that where dying declaration was recorded by the SDM himself satisfying that victim was in a fit state of mind and body there was no reason to not to accept that testimony. There was no reason why SDM would record any distorted statement. It is argued that [ENTITY], cousin brother of husband of deceased had taken victim to hospital and alleged history recorded in MLC could be found to have been manipulated. It is further submitted that deceased too had no motive appearing from any circumstances to make false statement. It is submitted that dying declaration of deceased was not attended with any suspicion or circumstance creating any doubt on it and as a well settled legal proposition, it can be adopted as a basis to hold conviction. I have appreciated these arguments.
16. Murder charge in the present case is sought to be pressed and proved by the prosecution only on dying declaration. Law is settled that dying declaration which is an exception to to the basic law that a person cannot be condemned on one sided version of a witness in the absence of an opportunity to cross-examine him but then statement given by a person as to the cause of his death or the circumstances in which he happened to suffered death is an exception and has been made admissible under [SECTION] of the [ACT]. [ENTITY]ment of such a person is acceptable in law for the reason that a person staring death on his face would not be telling lie. If dying declaration is found credible and trustworthy by the Court, the same can be a basis for convicting the accused. Court, however, must ensure its acceptability and creditworthiness. Learned counsel Sh. [ENTITY] very strongly argued that where the SDM failed to obtain either the presence of doctor to ensure medical certificate that victim was in a fit state of mind to give the statement, such a dying declaration must be found to be doubtful and in the absence of any corroboration it should not be accepted to holding the charge. Learned counsel referred to Supreme Court judgment reported as Kanti Lal vs. [ENTITY] of Rajasthan, 2009 (2) RCR 892. It was a case of death of a bride by burns within three years of marriage. "Tehsildar", who recorded statement of victim had not obtained certificate from doctor that victim was in a fit state of mind and nor did he himself record an endorsement to that effect on dying declaration. He had also not put any preliminary question to deceased before recording her statement and dying declaration had not been recorded in question answer form. It was held that all such circumstances created reasonable doubt in dying declaration, it could not be basis for conviction. On the same proposition learned counsel also relied upon Delhi High Court judgment in a case Surender Kumar vs. [ENTITY], 1992, Crl.LJ 616. Learned counsel further referred to another Supreme Court judgment Arvind Singh vs. [ENTITY] of Bihar 2001(2) RCR 631 that dying declaration ought to be treated with care and caution since the maker of statement was not to be subjected to cross-examination. Medical certificate would be a primary element in such matters.
17. In the present case admittedly no medical opinion was got recorded by SDM before and after recording statement of the victim nor is any case that while recording statement of [ENTITY], SDM procured presence of doctor. Learned counsel then referred to MLC of the victim [ENTITY] where at point DA the relevant column if patient/victim was fit or unfit for statement, it has been left blank. In such circumstances, I do find the arguments raised by learned defence counsel hold a ground that before proceeding to record statement of victim, SDM ought to have ensured from medical certificate or opinion that victim was in fit state of mind to give her statement. Learned defence counsel also rightly argued that where the alleged history recorded in the MLC when victim was brought to Casualty that it was a case of fire burn injuries at 10am on 05 01.2010 due to clothes ignited from cylinder then SDM ought to have been cautious to get it explained and ought to have obtained medical opinion that victim was in fit state of mind when her statement was being recorded.
18. Burnt clothes pieces in the form of ash and some burnt part of sofa were collected from the spot and then got examined from FSL. The FSL report Ex. PW8/A does not support the prosecution case. Those exhibits as well scalp hair of the deceased when examined none of the exhibits was found bearing any residue of petrol, diesel or kerosene. Report, thus, rules out any kerosene oil present on the clothes of the victim or her scalp hair. It is also not the case of the prosecution if victim when brought to GTB hospital and her MLC was being prepared whether any kerosene smell was noticed from her body or clothes. Learned defence counsel also rightly argued and pointed out that site plan prepared in this case is of little assistance to the Court to know the exact place or situation in which this incident of victim having suffered burns occurred. A look at that site plan Ex. PW17/B shows that point A is shown a spot in the bedroom and adjoining to that room is a bathroom. In the corner of that bedroom, there is a sofa set. No measurement of the room has been mentioned. Point A which is described to be a spot where victim was set on fire is just very close and adjoins the bed in the room. It is no case of the prosecution if any kerosene oil on that spot was on any other article near around was detected. Seizure of the kerosene oil bottle through seizure memo Ex. PW5/A1 shows that kerosene oil bottle was found inside the bathroom and there is no other supporting evidence to suggest if kerosene oil had been put on the victim deceased and she was set on fire as found recorded in dying declaration. Defence counsel rightly argued that if father and other relatives of the deceased were with deceased in the hospital before SDM arrived and recorded statement then a possibility those persons influencing deceased may not be ruled out. History of burns recorded in the MLC contradicts the averments made in the dying declaration. Defence counsel rightly argued that there was no investigation to rule out that there being no cylinder in or around area where the incident occurred that catching of fire by deceased from such an incident of cylinder was not a possibility. I do agree with the contentions of learned defence counsel that dying declaration in such circumstances fails the test of it complete truthfulness and it cannot be a basis for holding the charge of murder proved against accused persons.
19. Then comes the charge of dowry death. Learned defence counsel argued that even if prosecution case was considered that victim deceased was being harassed for demand and non-fulfilment of further dowry, there was no evidence that "soon before the death" deceased was subjected to cruelty. It is submitted that even statement of victim deceased Ex. PW1/A alleged that beating to the victim on the previous night of the date of incident was on an issue of victim having not prepared vegetables according to standard. On the point of any cruelty for dowry demand, the only allegation is that her in laws always taunted her for having not brought sufficient dowry and they had been asking her to bring Rs.1 or 2 lacs and other such articles like double bed, sewing machine, geyser, etc. Learned counsel argued that PW7, father of the victim-deceased as regards any harassment or cruelty committed to victim on the point of demand of dowry, witness had referred to an incident of "Mithi Eid" which was three months prior to present case incident. Witness claimed that on that occasion his daughter gave him a telephone call that she had been given severe beating and he visited matrimonial home of his daughter and he visited matrimonial home of his daughter. Learned counsel relied upon Supreme Court judgment reported as [CASE NUMBER] argued that where an incident of cruelty and harassment even according to prosecution case had occurred about three months prior to death of the victim, it would not bring the prosecution case within the parameter of offence of dowry death as it would satisfying ingredients "soon before death". Learned Addl. PP on the other argued that where deceased being harassed and treated with cruelty soon after her marriage and her death has taken place within about 3 or 3 years of marriage then offence of dowry death could be found to have been duly established. I have considered these contentions.
20. As seen above the dying declaration by victim herself is a most crucial and important evidence being pressed by the prosecution. On the charge of murder that dying declaration has been found not reliable piece of evidence. Even otherwise the only allegation as regards the cruelty and harassment committed to the victim concerning dowry demand is that her in laws had always been taunting her for brining less dowry and were asking victim to bring further dowry as stated that statement. Allegations fail to specifically pin point and satisfy the ingredients of offence of dowry death that victim deceased was subjected to cruelty for demand of dowry " soon before death". Expression soon before death implied that there was a close proximity between the criminal act of cruelty and harassment for demand of dowry and death of the victim under unnatural circumstances. Learned defence counsel appears well founded in his contention that even if there was an occasion on the eve of "Meethi Eid" which was about three months before the death of the victim that victim called her father and informed him that she was being given physical beatings and accused persons asking her to satisfy their dowry demand, that will be beyond the context "soon before her death". The second point proving weak for the prosecution charge is the non-specific evidence as to whether death of the victim could be held and said to be under unnatural circumstances. The facts in this case also suggested a theory of an accidental fire and considering that aspect the dying declaration has been found to be doubtful and murder charge has been held not duly proved. It is none of the prosecution charge that incident of burn injuries suffered by victim was a self inflicted or suicidal. If it was accidental then charge of dowry death cannot be said to be made out against accused.
21. Finally comes the charge of cruelty. Learned counsel Sh. [ENTITY] submitted that entire prosecution evidence was in the nature of hearsay evidence. He pointed out that prosecution witnesses admitted that at no point of time any of the accused had put up any demand directly to PW7, father of the deceased. Counsel further argued that major part of the testimony of PW7 and the other witnesses has been confronted with previous police statement and thereby improved part of that testimony was to be viewed with suspicion. Counsel finally argued and submitted that even when statement of the father of the deceased namely [ENTITY] PW7 was recorded by the SDM as Ex. PW1/G the allegation is only against the husband. It is specifically mentioned in this statement that soon after marriage, son in law of this witness started committing cruelties to victim and used to demand dowry and used to inflict physical beating from time to time. Counsel argued that both parents in law of deceased were old persons and suffering from various ailments and other accused namely brother of husband had their own family i.e wife and children and they were all settled in their marital life. Counsel referred to testimony of defence witness PW1 [ENTITY], who is wife of [ENTITY] and [ENTITY] is elder brother of husband. Witness deposed that she was happily passing through her marital life and rather she further deposed that victim deceased was also being kept comfortable in her matrimonial home and there was never any demand for dowry. Referring to an incident of "Meethi Eid"
of the year 2009, counsel argued that medical reports mark X1 to X3 given by PW7 to the Police since had not been got legally proved, it was liable to be kept out of consideration and counsel relied upon Supreme Court judgment reported as [PRECEDENT]. Learned Addl. PP on the other hand argued that there is specific evidence and consistent evidence by prosecution witnesses that victim [ENTITY] was being committed cruelties and harassment and accused persons were demanding dowry. I have given due consideration. PW8 appears to be a reliable witness. She is the daughter of deceased mother's sister and she belonged to age group of deceased. She deposed that soon after marriage when [ENTITY] happened to meet this witness and when asked by this witness about her matrimonial life, [ENTITY] had tears in her eyes and told the witness that her in laws were not happy with the articles given in dowry in her marriage. [ENTITY] further stated to witness that her husband asked [ENTITY] that he would have got much more dowry had he contacted marriage elsewhere. Witness has deposed other accused persons throwing some taunts on [ENTITY]. And finally, witness deposed on oath, that [ENTITY] said to witness " kabhi na kabhi uske sasural wale uski izzat karenge". Cross- examination on the witness puts only defence as suggestion that [ENTITY] had never disclosed any such harassment to this witness at any point of time and witness denied and refuted suggestion. I find testimony of the witness carries truth and appears to be believable. Another assurance to this witness come from the statement of the victim [ENTITY] herself which is dying declaration. Though statement on that aspect of cruelty in that dying declaration may not qualify to be a dying declaration but then this statement which is the basis for registration of the case and being FIR of this case, it provides a due support and corroboration. Victim deceased specifically stated in this dying declaration that on the previous night of 04.01.2010 her in laws took up a quarrel and gave her physical beating on the issue of vegetable not prepared by her properly and they gave her physical beating on the next day morning also. She further stated that they used to taunt her for having not brought sufficient dowry.
22. PW7 has also corroborated this part of the prosecution case. He deposed another such instance of cruelty committed to his daughter. Witness deposed that three months prior to her death it was an occasion of "Mithi Eid" that accused [ENTITY] and his family members gave beating to [ENTITY] and some where in midnight [ENTITY] gave a phone call to her father, this witness and this witness with 10 to 12 persons reached matrimonial home and he found his daughter having swelling on her body and he gave 100 number call to the police and police took [ENTITY] to GTB hospital. Witness had handed over that medical report comprising three papers which he referred to mark X1 to X3 to the Police and which were seized by the Police through memo Ex. PW7/A. Counsel argued that those medical reports had not been got proved. However, prosecution case to the extent that those medical reports were seized has not been disputed. Fact situation where accused persons were being arrested for a charge of murder and dowry death, that incident of assault on the person of victim [ENTITY] remained not very significant to attract notice of the IO to be formally proved. Defence suggested to PW7 and other witnesses on that part is that medical reports were fabricated. How, why and from where these reports were fabricated, there is no reason or suggestion given to witness. A look at this reports shows that [ENTITY] had been taken to GTB hospital as a case of history of assault. It provide a corroboration to evidence of PW7 that he saw victim [ENTITY] with swelling on her body parts when on that occasion he reached the matrimonial house of his daughter after being informed by his daughter. This testimony of PW7 appears to be believable and acceptable nature. Point to be examined is as to who could be stated to be person responsible for committing act of cruelty and harassment to [ENTITY]. PW7 when gave statement before SDM, he specifically states that his son in law namely accused [ENTITY] had been committing cruelties and harassment to [ENTITY] and had been demanding dowry. To considered opinion of this Court where husband brought a girl as his wife in matrimonial house and life then he was to take care of her well being and was to be held responsible if any physical hurt or injury happens to occur to his wife. Other accused persons are either married brothers of the husband or their children or both parents of husband. It has not come on record very specifically if besides giving taunt to victim [ENTITY] on the issue of dowry, the other accused persons committed any cruelty to her. Reasonable inference could be drawn that husband was participant in those cruelties and has to be held responsible for that offence. Accordingly, I find charge under [SECTION] [ACT] could held to have been duly proved against accused [ENTITY]. Other accused persons can be given a benefit of doubt on that charge. Accordingly, other accused persons are acquitted of the charge under [SECTION] [ACT]. Accused [ENTITY] is held guilty of that charge of [SECTION] [ACT].
Announced in the open Court on ( [ENTITY] ) 25.02.2013 District Judge & Addl. Sessions Judge, In-Charge ( NE Distt. ), Karkardooma Courts, Delhi
IN THE COURT OF SH. [ENTITY], DISTRICT JUDGE & SESSIONS JUDGE,NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI Unique ID no. of the case.02402R0099222010 [ENTITY] Vs. 1) [ENTITY] s/o Sh. [ENTITY] r/o Z-II, H. No.591, Kabootar Market, Welcome, Delhi
2) [ENTITY] s/o Sh. [ENTITY], r/o Z-II, H. No.591, Kabootar Market, Welcome, Delhi.
3) [ENTITY] s/o [ENTITY] r/o Z-II, 609, Welcome, Delhi. 4) [ENTITY] w/o [ENTITY] r/o Balia Mohalla, [ENTITY], UP
Permanent Address: Z-II/590, Kabooter Market, Welcome AND 5 [ENTITY] s/o [ENTITY] r/o Bhalia Mohallah, [ENTITY], UP Permanent Address: Z-II/590, Kabooter Market, Welcome PS: Welcome u/[SECTION]-[SECTION] [ACT] ORDER ON SENTENCE
1. Accused [ENTITY] husband has been convicted under [SECTION] [ACT].
Both sides have been heard on the question of sentence. Learned counsel Sh. [ENTITY] argued that custody of accused in this case now comes to around three years and since he has already suffered incarceration for almost the sentence of three years prescribed for the offence, sentence deserved to be restricted to period undergone and in particular where prosecution has not been able to prove its charge on dowry death. Learned Addl. PP, however, submitted that since victim was being subjected to cruelties appropriate sentence be awarded. I have considered these submissions.
2. There was no controversy on the point that at present accused [ENTITY] is in custody for over 2 year. He had been in custody earlier and in between he enjoyed bail, which had been granted in terms of [SECTION] [ACT]. However, considering all the facts and circumstances of the case, I find sentence which should be awarded to accused in this conviction deserved to be restricted to period already undergone by accused and a fine of Rs.1,000/-. In default of payment of fine, accused shall undergo further three months imprisonment.
3. Copy of judgment alongwith order on sentence be supplied to accused free of cost.
4. File be consigned to record room.
Announced in the open Court on ( [ENTITY] ) 27.02.2013 District & Sessions Judge(NE) Karkardooma Courts,Delhi