Crl.A. No.761/2008 Page 1 of 26 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 20.2.2009 Judgment delivered on: 04.03.2009 + CRL.A.761/2008 SANJEEV ..... Appellants Through: Mr.Mohit Mathur, Advocate with Mr.Vishwajeet Singh, Advocate. versus STATE ..... Respondent Through: Mr.Pawan Sharma, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. By means of a telephone call received from an unknown person, the police received information at 5.40 PM on 27.2.2001 about the death of a woman at House No.K-48 Krishan Vihar. HC Bhura Singh PW-21, the duty officer at PS Sultanpuri, recorded DD No.58-B, Ex.PW-21/A, noting the said information. SI Ajay Solanki PW-22, and Const.Ashok Kumar PW-20, left for the house at around 5.45 PM and found the dead body of a lady on a cot inside the house. They learnt that the deceased named Upma was married to the appellant about 7 months back. Sri Crl.A. No.761/2008 Page 2 of 26 Krishan PW-11, a photographer was called, who took photographs Ex.PW-11/1 to Ex.PW-11/3; negatives whereof are Ex.PW-11/4 to Ex.PW-11/6, of the dead body. The dead body was seized and sent to the mortuary of Sanjay Gandhi Hospital. 2. Unfortunately, SI Ajay Solanki did not bother to conduct any proceedings at the spot in the form of summoning the mobile crime team to lift chance finger prints etc. from the place of the occurrence. He did not prepare a rough sketch of the place of the occurrence. He did nothing at all and after sending the body to the mortuary, went back to the police station without attempting to inquire in the neighbourhood and try and ascertain the whereabouts of any person who could throw light on how Upma died. 3. Nothing happened on the 28th of February 2001. Nothing happened on 1st of March 2001. On 2nd March 2001, Shri S.C.Saluja PW-13, the Sub Divisional Magistrate of the area recorded the statement Ex.PW-9/A of the father of Upma and made an endorsement Ex.PW-13/B thereon and forwarded the same for a FIR to be registered. The reason was that Upma’s father made a statement to the effect that the appellant and his family members used to harass his daughter for dowry and that his daughter had been killed by them. HC Shyam Sunder PW- 19, received the statement made by father of Upma and the Crl.A. No.761/2008 Page 3 of 26 endorsement of the Sub Divisional Magistrate, and registered the FIR Ex.PW-19/A on 2.3.2001. 4. On said date i.e. 2.3.2001, Dr. Komal Singh PW-10, conducted the post-mortem of Upma at 2.30 PM and noted in the post-mortem report Ex.PW-10/A that there were abrasions on the upper and lower lip of the deceased. There were bruises on the right forearm. There were four nail marks on the lateral side on the right side of the neck as also two nail marks on the left lateral side of the neck. The right upper cornex of the thyroid was broken. He opined that the cause of death was asphyxia due to throttling. He opined that the time of death was about 72 hours prior. 5. Statements of Raj Kumar PW-1, the paternal uncle of deceased Upma; Smt.Maharani PW-3, the mother of the deceased; Smt.Urmila PW-5, the paternal aunt (chachi) of the deceased; Shri Om Vir Singh PW-12, a cousin of the deceased and Shri K.C.Dhima PW-8, a neighbour of the deceased were recorded by the investigating officer. The family members of the deceased informed the police that the appellant and his family members used to harass Upma for dowry. K.C.Dhima PW- 8 informed the police that around 2.00 PM on 27.2.2001 he had seen the appellant remove his wife to a hospital in a TSR. Crl.A. No.761/2008 Page 4 of 26 6. Since the post-mortem report of the deceased clearly showed that the deceased had died due to strangulation and it was clearly a case of homicide; in view of the statements made by the persons whose names have been noted in para 5 herein above, a charge-sheet was filed indicting the appellant; his sister Laxmi; her husband Rishipal; Narender the elder brother of the appellant; his wife Suman; Devender the younger brother of the appellant and Madan Kumar the brother of Rishipal as the accused persons. The appellant was charged for the offence punishable under Section 302 IPC. An alternative charge under Section 304-B/34 IPC was framed against all the accused as also a charge under Section 498-A/34 IPC. 7. At the trial, HC Bhura Singh PW-21 proved DD No.58-B, Ex.PW-21/A. SI Ajay Solanki PW-22 and Const. Ashok Kumar PW- 20 deposed that on receipt of DD No.58-B they went to the house and saw the dead body of Upma and seized the same and sent it to the mortuary. Shri Krishna PW-11, proved the photographs of the dead body taken by him. Dr. Komal Singh PW-10, proved the post-mortem report Ex.PW-10/A. Shri S.C.Saluja PW-13, the Sub Divisonal Magistrate of the area proved the statement Ex.PW-9/A of father of the deceased recorded by him and his endorsement Ex.PW-13/B thereon. HC Crl.A. No.761/2008 Page 5 of 26 Shyam Sunder PW-19 proved the FIR Ex.PW-19/A recorded by him on 2.3.2001. 8. Raj Kumar PW-1, the paternal uncle of the deceased Upma deposed that Upma was married to Sanjeev in July 2000 and his brother gave dowry articles according to his capability. That the accused Laxmi, Rishipal, Suman, Narender, Devender and Madan Kumar are residents of Sultanpuri. That they were the relations of Sanjeev. That 1½ - 2 months after her marriage Upma told him that the members of her husband’s family were harassing her, demanding more dowry. He went to see Upma but was not allowed to meet her. All the accused persons told him that he cannot meet Upma. He was insulted and was told that a motor cycle ought to have been given in dowry. In lieu of the motor cycle they demanded Rs.40,000/- in cash. He was threatened that if by Holi festival needful was not done, Upma would not live to celebrate Holi. That he had spent about Rs.35,000/- to Rs.40,000/- on the marriage of Upma. That on 27.2.2001 somebody informed him over the telephone that Upma had fallen from the roof. He and his wife went to the house and some children told him that Upma had been beaten and removed to Sanjay Gandhi Hospital. He went to the hospital and saw the dead body of Upma. On being cross-examined, he disclosed that a television, a fridge, cooler, bed, ornaments and Crl.A. No.761/2008 Page 6 of 26 clothes as also cash were given in dowry; but admitted that no receipts thereof were handed to the police. He denied the suggestion that all the accused persons were living separately. He denied that he was deposing falsely. 9. Suffice would it be to note that save and except deposition about a demand for a motor cycle and Rs.40,000/-, PW-1 did not depose of any other demand for dowry. 10. Smt. Maharani PW-3, the mother of Upma deposed that Upma was married with Sanjeev in July 2000 and that they had given her dowry articles. That on Rakshabandan day, she noticed that an earring of Upma was twisted and on being questioned Upma told her that her husband had beaten her and had taken her jewelry. That her daughter informed her that Sanjeev wanted money to start some business. That she did not tell her husband about Upma’s plight because of his ill-health. That Upma told her that the accused used to demand dowry and used to beat her. That 1½ months after Rakshabandhan, Raj Kumar, the younger brother of her husband, told her that he had given Rs.40,000/- to Sanjeev. That after 15 days thereof when her husband went to the house of Sanjeev, he (i.e. Sanjeev) demanded a motor cycle. Her husband gave his old scooter to Sanjeev, who after using the same for a month returned the scooter and demanded a motor cycle. That Sanjeev used to Crl.A. No.761/2008 Page 7 of 26 beat her daughter after consuming liquor. That at the marriage of the son of one Balbir Singh, which she had attended, after consuming alcohol, Sanjeev gave beating to her daughter Upma. That Sanjeev squandered the money given to him at the time of marriage. That their request to Sanjeev to behave properly was not heeded by him. 11. On being cross-examined she failed to disclose the registration number of the scooter given to Sanjeev. She admitted that her daughter and Sanjeev used to freely visit their house. On being questioned as to who informed them about Upma’s death, she responded that a boy named Amit had come to their house at 5.00 PM and had given them the information. She corrected herself that Amit had told her that a telephone call was received from Upma’s matrimonial house. She stated that when she went to the matrimonial house of Upma, accused Laxmi and Suman met her. She stated that she could not tell how much money was spent in the marriage of her daughter. 12. Urmila PW-5, deposed that Upma was the daughter of the elder brother of her husband and was married to the appellant on 10.6.2000. That in October 2000 Upma told her that her husband and his relations i.e. the accused persons used to demand money from her. That Upma used to constantly contact her over the telephone and tell her that the accused persons Crl.A. No.761/2008 Page 8 of 26 used to trouble her for bringing money from her parents. That on 24.2.2001 she rang up Upma, but accused Madan Kumar did not allow Upma to come on the line. With great difficulty Upma came on the line and on hearing her voice started weeping, saying that the accused persons were demanding money and would kill her. At that, accused Suman snatched the receiver from her hand. In cross-examination she admitted that her statement recorded by the police under Section 161 Cr.P.C. does not contain the statement that Upma had been making telephone calls to her; that there was no mention of the telephone call dated 24.2.2001, that there was no mention in the said statement that the family members of appellant did not permit Upma to speak to her and that when Upma did finally speak to her, she said that she feared for her life. 13. Abalq Singh PW-9, father of Upma, deposed that his daughter was married to the appellant on 10.7.2000 and that at the time of the marriage there was no demand for dowry. That the usual house hold goods, as per his financial condition, were gifted by him to his daughter. That after 1½ months of the marriage a demand for gifting one colour television and a fridge was satisfied by him by gifting the same. That on 15.8.2000 i.e. Rakshabandhan day, accused Sanjeev demanded a motor cycle. He gave his scooter bearing No.HR-26-2905 to him telling him Crl.A. No.761/2008 Page 9 of 26 that when his financial position would improve he would give a motor cycle to Sanjeev. That his daughter told him that the accused persons used to beat her for not bringing a motor cycle. That Sanjeev used to consume liquor and thereafter used to beat her. That she informed him that Sanjeev had started gambling. That a few days before Dusshera festival Upma had complained to him about ill-treatment. He took Dhruv Pal, the mediator who had arranged the marriage, to the house of Upma where all accused persons assured him in presence of Dhruv Pal that his daughter would be treated with respect. That on 27.2.2001 he gave a telephone call at pay phone of the accused persons and was informed that Sanjeev was not present in the house. Tara wife of accused Madan Kumar responded on the phone. Then, accused Suman came on the line and told him to make a call later on. He made a second call which was responded to by Tara, who told him that Sanjeev was not present in the house. That his wife’s sister informed him at around 4 – 5 PM that Upma had died. He went to the house of Upma and learnt that the police had taken the body of Upma. He went to the police station and learnt that Upma had been removed to Sanjay Gandhi Hospital. He went to the hospital and saw the dead body of his daughter. Crl.A. No.761/2008 Page 10 of 26 14. On being cross-examined he deposed that he selected Sanjeev as the groom for his daughter as his family owned properties and Sanjeev was trading in chemicals and had a handsome income. He deposed that except for the dowry demand pertaining to a motor cycle, no other demand was ever raised. He deposed that he spent about Rs.1,50,000/- on the marriage of his daughter and that he was indebted in the sum of Rs.50,000/-, as on the date he deposed in Court i.e. 19.7.2002. 15. Shri Om Vir Singh PW-12, deposed that Abalaq Singh the father of Upma was the husband of his maternal aunt and that on 26.2.2001 he went to meet Upma and when he reached her house he witnessed a minor altercation between Upma and Sanjeev. All other accused persons were participating in the altercation. When he enquired from Upma as to what was the matter, she informed that the accused persons were harassing her for dowry and that accused Narender wanted Sanjeev to be married to the sister of Suman. On cross-examination he admitted that he had not informed the police about having visited Upma’s house on 26.2.2001 16. K.C.Dhima PW-8, deposed that on 27.2.2001 he was present at his house and about 2.00 PM saw appellant Sanjeev carrying his wife Upma in a TSR, from his house to a hospital and on making inquiry as to what had happened, Sanjeev told Crl.A. No.761/2008 Page 11 of 26 him that he had returned home to take lunch and found Upma in an unconscious condition, and that her earrings and ornaments were missing and that he was carrying Upma to the hospital. He deposed that Sanjeev was alone in the house at that time. On being cross-examined, he deposed that all the accused persons were residing separately in their own residences. 17. The appellant and other co-accused persons examined four defence witnesses viz. Suresh Kumar DW-1, Dhruv Pal DW-2, Balbir Singh DW-3 and Ashok Kumar DW-4. 18. Suresh Kumar DW-1 deposed that he was a neighbour of appellant Sanjeev and on 27.2.2001 was working at the godown behind the house of Sanjeev. He heard cries of Sanjeev and rushed to his house. Sanjeev told him as to what had happened to his wife. He, along with Sanjeev, took Upma to a hospital at Budh Vihar. The doctor declared her dead. They came back with the body of Upma. In the evening, the police came to the house. He deposed that Sanjeev and his wife used to live alone and that the other accused persons were residing at different places. 19. On being cross-examined he stated that the houses of other accused persons are within a radius of about 50 yds. from the house of Sanjeev. Crl.A. No.761/2008 Page 12 of 26 20. Dhruv Pal DW-2, deposed that he was the mediator and had arranged the marriage of Sanjeev with Upma and that no dowry was demanded at the time of the marriage. On being cross-examined, he deposed that Sanjeev was not related to him and that it was wrong that he was aware that Upma was being harassed for dowry. 21. DW-3 Balbir Singh, the maternal uncle of the deceased (Upma’s mausa) deposed that marriage of Upma with Sanjeev was solemnized in his house as he was having a government accommodation and that after her marriage Upma used to visit him and never complained of any harassment. 22. Nothing much turns on the deposition of DW-4 for the purposes of this appeal as he has deposed that the accused Rishipal was in his office from 11.00 AM to 6.30 PM on the day of the incident. The reason is that all accused except Sanjeev have been acquitted. 23. Acquitting all the accused of the charge under Section 304- B IPC, the learned Trial Judge has held that the evidence on record establishes that Sanjeev was residing alone with Upma and that the post-mortem report clearly revealed that Upma died a homicidal death. We note that Sanjeev’s presence with his wife Upma and no other co-accused being present in the house has been used by the learned Trial Judge as an Crl.A. No.761/2008 Page 13 of 26 incriminating circumstance against accused Sanjeev pertaining to the homicidal death of Upma. To quote from the impugned decision, in para 97 the learned Trial Judge has held:- “It has been deposed by the DW that accused Sanjeev along with his wife was living in the house, whereas all other accused persons were residing at different places. Hence, it was for the accused to establish that he was not in the house and was present at some place from where he could not have come before 2.00 PM, to commit the crime”. 24. Holding that the evidence establish that Sanjeev was absconding and returning a finding that the said conduct was a circumstance wherefrom guilt could be inferred; with reference to the deposition of Upma’s father Abalq Singh PW-9, the learned Trial Judge has observed as under in para 100:- “Abalq Singh has testified that on 27.2.2001, he gave telephone call at the pay phone of the accused persons and came to know that accused Sanjeev was not present in the house. The call was attended by Tara, wife of accused Madan Kumar. Initially, Tara told that Sanjeev was present at the house but subsequently she told that he was not present at the house. Similarly, Suman stated that Sanjeev was not present at the house. On asking, Abalq Singh again made telephone call and he was again told that Sanjeev was not present at the house. The sister of wife of Abalq Singh from DESU Colony, Najafgarh, Delhi informed them at about 4/5 PM that Upma had expired.” 25. Discussing the charge against the accused persons for the offence punishable under Section 498-A IPC, the learned Trial Judge has noted that Abalq Singh PW-9 testified that at the time of marriage no demand of dowry was made. Learned Trial Judge Crl.A. No.761/2008 Page 14 of 26 has further noted that as per him he gifted a colour television set and a fridge after 1½ months of the marriage. His wife Smt.Maharani PW-3 never deposed to said fact but interestingly Rajkumar PW-1 the paternal uncle of the deceased i.e. the younger brother of Abalq Singh deposed that the television and the fridge were gifted at the time of the marriage. With reference to his testimony that he spent between Rs.35,000/- to Rs.40,000/- on the marriage of Upma, the learned Trial Judge has held that if this was true, it evidenced his active participation in the marriage of his niece Upma and that the conflicting statements of the family members viz. Abalq Singh, his wife Maharani and that of Rajkumar did not inspire confidence. Pertaining to the deposition of Smt.Maharani PW-3, that on Rakshabandan day she noticed that Upma was wearing twisted earrings and on enquiry Upma told her that the appellant used to beat her and had taken her gold ornaments; the learned Trial Judge has noted that she had not stated said fact to the police when her statement was recorded. Pertaining to the demand of a motor cycle or alternatively the sum of Rs.40,000/-, the learned Trial Judge has noted the contradictions in the statements of PW-1, PW-3 and PW-9 in paras 62 to 64 and 70 of the impugned decision which read as under:- Crl.A. No.761/2008 Page 15 of 26 “62. The statement of PW-3 Smt.Maharani and PW-9 Ablak Singh are contradictory, as to what was told to them by Upma at the time of visit on the occasion of Raksha Bandhan, PW-1 Raj Kumar has claimed that about 1 ½ to 2 months of the marriage of Upma with accused Sanjeev, he received a telephone call from Upma and she told him that her husband and his family members were demanding more dowry and were harassing her. Raj Kumar visited the matrimonial house of Upma. The accused persons demanded motor cycle and Rs.40,000/-, which had not been given in the marriage. He sought time to fulfill the demand. The accused persons warned him that in case, the demand would not be met before Holi festival, then Upma would not be able to see Holi. The statement of Raj Kumar also does not corroborate the statement of Smt.Maharani, that at the time of visit on the occasion of Raksha Bandhan, the ear-rings of Upma were twisted. However, the statements of PW-1 Raj Kumar, PW-3 Smt.Maharani and PW-9 Ablak Singh co-relate the demand of motor cycle and a sum of Rs.40,000/- by accused Sanjeev. Ablak Singh has been cross-examined at length. From his cross-examination, accused Sanjeev and others have not been able to create a dent in the case of Ablak Singh, that he had supplied his old scooter to the accused, which was returned back in damaged condition. Ablak Singh has admitted that now, he has sold the said scooter and it is not in his possession. 63. PW-3 Smt.Maharani has testified that after 1 ½ months of the festival of Raksha Bandhan, her Devar (younger brother of the husband), Shri Raj Kumar arranged a sum of Rs.40,000/- and went to the house of accused Sanjeev and handed over that amount to accused Sanjeev. Raj Kumar returned back and told PW-3 that money had been given to accused Sanjeev. Raj Kumar has not deposed that he had arranged the amount of Rs.40,000/-, or that the same was given by him to accused Sanjeev at his house, or that on his return, he confirmed to PW-3 that the amount was paid to accused Sanjeev. Ablak Singh has also not testified that the amount of Rs.40,000/- was paid to accused Sanjeev by Raj Kumar, PW-5 Smt.Urmila, wife of Raj Kumar has not deposed that her husband ever told her that he had given Rs.40,000/- to accused Sanjeev. Crl.A. No.761/2008 Page 16 of 26 Consequently, the statement of Smt.Maharani is unfounded and cannot be believed to hold that Raj Kumar had made payment of Rs.40,000/- to accused Sanjeev. 64. In spite of the fact that it has not been confirmed that Rs.40,000/- was paid to accused Sanjeev, the prosecution has brought evidence on the record in connection with the demand of dowry and harassment and torture caused to Upma. Ablak Singh made statement before the SDM on 2.3.2001. In that statement also, Ablak Singh has stated that at the time of marriage of Upma, there was no demand of dowry. After sometime of the marriage, the motorcycle was demanded. He was not having money to meet the demand and as such, he had given his old scooter, but it was returned back in damaged condition. The demand of motor cycle was continuously pressed and on that account, Upma was harassed. The complainant also came to know that accused Sanjeev Singh used to consume liquor and then, he used to beat Upma. xxx xxx xxx xxx 70. The parents of Upma have deposed that the demand of motor cycle was raised by Sanjeev, whereas PW-1 Raj Kumar has deposed that at the time of visit to the matrimonial house of Upma, all the accused persons demanded motor cycle and sum of Rs.40,000/-. The statements of parents is to be believed about the raising of demand of