Supreme Court of India
Vijay Narain Singh vs State Of Bihar & Ors on 12 April, 1984
Equivalent citations: 1984 AIR 1334, 1984 SCR (3) 435
Author: O C Reddy
Bench: Reddy, O. Chinnappa (J)
           PETITIONER:
VIJAY NARAIN SINGH

	Vs.

RESPONDENT:
STATE OF BIHAR & ORS.

DATE OF JUDGMENT12/04/1984

BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)

CITATION:
 1984 AIR 1334		  1984 SCR  (3) 435
 1984 SCC  (3)	14	  1984 SCALE  (1)736
 CITATOR INFO :
 D	    1986 SC2173	 (12,13,14,16)
 RF	    1986 SC2177	 (44)
 R	    1988 SC1256	 (12)
 R	    1989 SC 364	 (8,9,11)
 RF	    1989 SC2265	 (17)
 F	    1990 SC2069	 (5)
 RF	    1991 SC1640	 (11,12)


ACT:
     Bihar Control  of Crimes  Act 1981-Section 12 read with
section 2  (d). For  preventive detention  under section  12
authorities must be satisfied that the person to be detained
is anti-social element as defined in section 1(d).
     Bihar  Control  of	 Crimes	 Act,  1981-Section  2	(d)-
Definition   of	  'antisocial	element'-Interpretation	  of
expression 'habitually'	 in sub-clause	(i), (ii)  and (iv)-
Meaning of.
     Interpretation of	statutes-Rule of-Law  of  preventive
detention must be strictly construed.
     Practice-When person  enlarged  on	 bail  by  competent
criminal  court,   great  caution  should  be  exercised  in
scrutinising validity of preventive detention order which is
based on  the very  same charge	 which is  to  be  tried  by
criminal court.
     Words and Phrases-Expression `habitually'-Meaning of.



HEADNOTE:
     The petitioner,  who was  facing a	 Sessions trial	 for
offences under	section 302 read with sections 120B, 386 and
511 of	the Indian Penal Code, was allowed to be enlarged on
bail by	 the High  Court.  But	before	the  petitioner	 was
released, the  District Magistrate passed an order on August
16, 1983 under section 12 (2) of the Bihar Control of Crimes
Act 1981  for detention	 of  the  petitioner,  in  order  to
prevent him  from acting  in any  manner prejudicial  to the
maintenance  of	 public	 order.	 The  grounds  of  detention
supplied to  the petitioner  related to	 the incidents which
took place in 1975 and 1982 and also the incident which gave
rise to the above-mentioned trial. The petitioner challenged
the order  of detention	 before the High Court under Article
226 of	the  Constitution.  The	 High  Court  dismissed	 the
petition on  a technical  ground. Hence	 this petition under
Article 32  of the  Constitution. The  petitioner contended:
(1) that  the impugned	order of  detention was	 void  under
Article 22 (5) of the Constitution as one of the grounds was
too remote  and not  proximate in  point  of  time  and	 had
therefore  no	rational  connection   for  the	  subjective
satisfaction of the District Magistrate under section 12 (2)
of the Act, and (2) that the impugned order of detention was
male fide and consti-
436
tuted a	 flagrant abuse of power on the part of the District
Magistrate as  it was  meant to	 subvert judicial process by
trying to  circumvent the  order passed	 by the	 High  Court
enlarging the petitioner on bail.
     Allowing the petition by majority,
^
     HELD: (Per Venkataramiah and Chinnappa Reddy, JJ.)
     The law  of preventive  detention is  a  hard  law	 and
therefore it  should be	 strictly construed.  Care should be
taken that the liberty of a person is not jeopardised unless
his case  falls squarely  within the  four  corners  of	 the
relevant law.  The law of preventive detention should not be
used merely  to clip the wings of an accused who is involved
in a  criminal prosecution.  It	 is  not  intended  for	 the
purpose of keeping a man under detention when under ordinary
criminal law  it may  not be possible to resist the issue of
orders of  bail, unless	 the material  available is  such as
would satisfy  the  requirements  of  the  legal  provisions
authorising such  detention. When  a person  is enlarged  on
bail by	 a competent criminal court, great caution should be
exercised in  scrutinising  the	 validity  of  an  order  of
preventive detention  which is based on the very same charge
which is to be tried by the criminal court. [459C-D]
     Section 12	 of the	 Bihar Control	of Crimes  Act, 1981
makes provision for the detention of an anti-social element.
The detaining authority should, therefore, be satisfied that
the person against whom an order is made under section 12 of
the Act	 is an	anti-social element  as defined in section 2
(d) of	the Act.  The two sub-clauses of section 2 (d) which
are relevant  for the  purposes of  this case are sub-clause
(i) and	 sub-clause (iv).  Under sub-clause (i) a person who
either by  himself or  as a  member of	or leader  of a gang
habitually commits  or	attempts  to  commit  or  abets	 the
commission of  offences punishable under Chapter XVI dealing
with offences  affecting the  human  body  or  Chapter	XVII
dealing with  offences against property, of the Indian Penal
Code is	 considered to	be an antisocial element. Under sub-
clause	 (iv) a	 person	 who  has  been	 habitually  passing
indecent remarks  to, or teasing women or girls, is an anti-
social	element.   In  both   these  sub-clauses,  the	word
'habitually' is	 used.	The  expression	 'habitually'  means
'repeatedly' or	 'persistently'.  It  implies  a  thread  of
continuity  stringing	together  similar  repetitive  acts.
Repeated,  persistent	and  similar,	but  not   isolated,
individual and	dissimilar acts	 are necessary to justify an
inference of  habit. It connotes frequent commission of acts
or omissions  of the  same kind	 referred to  in each of the
said  subclauses   or  an   aggregate  of  similar  acts  or
omissions. Whereas  under sub-clause (iii) or sub-clause (v)
of section  2 (d)  a single  act or  omission referred to in
them may  be enough  to treat  the person  concerned  as  an
'anti-social element',	in the	case of sub-clause (i), sub-
clause (ii) or sub-clause (iv), there should be a repetition
of acts	 or omissions  of the  same kind referred to in sub-
clause (i),  sub-clause (ii)  or in  sub-clause (iv)  by the
person concerned  to treat  him as  an anti-social element'.
This  appears	to  be	clear  from  the  use  of  the	word
'habitually' separately	 in sub-clause	(i), sub-clause (ii)
and sub-clause	(iv) of section 2 (d) and not in sub-clauses
(iii) and  (v) of section 2 (d). If the acts or omissions in
question are  not of  the same	kind or	 even if they are of
the same kind when
437
they are committed with a long interval of time between them
they cannot be treated as habitual ones. [457B-458C]
     In the  present case the District Magistrate has relied
on three  incidents to	hold that the petitioner is an anti-
social element.	 They are-(o)  that on	April 15,  1975	 the
petitioner alongwith  his associates had gone to the shop of
a cloth	 dealer of  Bhagalpur Town  armed with an unlicensed
pistol and  had forcibly  demanded subscription at the point
of gun	and (ii) that on June 17/18, 1982 the petitioner was
found teasing  and misbehaving with females returning from a
cinema hall.  The third	 ground is  the	 criminal  case	 now
pending against	 the petitioner	 in the	 Sessions Court. The
first incident is of the year 1975. It is not stated how the
criminal case  filed on	 the basis of that charge ended. The
next incident  relates	to  the	 year  1982.  The  detaining
authority does not state how the criminal case filed in that
connection terminated.	If they have both ended in favour of
the petitioner	finding him  clearly not guilty, they cannot
certainly constitute  acts or omissions habitually committed
by the	petitioner Moreover,  the said	two incidents are of
different kinds	 altogether. Whereas  the first one may fall
under sub-clause (i) of section 2 (d) of the Act, the second
one falls  under sub-clause  (iv) thereof. They are, even if
true, not repetitions of acts or omissions of the same kind.
The third ground which is based on the pending Sessions case
is no  doubt of	 the nature of acts or omissions referred to
in sub-clause (i) of section 2 (d). but the interval between
the first  ground which falls under this sub-clause and this
one is	nearly eight  years and	 cannot, therefore, make the
petitioner a  habitual offender	 of the	 type falling  under
sub-clause (i)	of section  2  (d).  Therefore,	 it  is	 not
possible to hold that the petitioner can be called an 'anti-
social element'	 as defined by section 2 (d) of the Act. The
order of  detention impugned  in this  case therefore, could
not have  been passed  under section 12 (2) of the Act which
authorises  the	 detention  of	anti-social  elements  only.
[458D-459D]
     (Per Chinnappa Reddy J. concurring)
     I do  not agree with the view of my brother Sen J. that
'those who  are responsible for the national security or for
the maintenance	 of public  order must be the sole judges of
what the  national security or public order requires.' It is
too perilous a proposition. Our Constitution does not give a
carta blanche  to any  organ of	 the State  to be  the	sole
arbiter in  such matters. Preventive detention is considered
so raeacherous and such an anathema to civilized thought and
democratic polity  that safeguards against dndue exercise of
the power  to detain without trial, have been built into the
Constitution itself  and incorporated as Fundamental Rights.
There are  two sentinels, one at either end. The Legislature
is required to make the law circumscribing the limits within
which persons may be preventively detained and providing for
the safeguards prescribed by the Constitution and the courts
are required  to examine,  when demanded;  whether there has
been any  excessive detention,	that is,  whether the limits
set by	the  Constitution  and	the  legislature  have	been
transgressed. Preventive  detention is	not beyond  judicial
scrutiny. While	 adequacy or sufficiency may not be a ground
of challenge, relevancy and proximity are
438
tertainly grounds  of challenge.  Nor is it for the court to
put itself in the position of the detaining authority and to
satisfy itself	that the  untested facts  reveal a  path  of
crime. [440E-441B]
     I am  of the  view that the decision in Kamalkar Prasad
Chaturvedi's case  and the  host of  earlier cases  are	 not
distinguishable. This  Court has  always taken the view that
remoteness in  point of	 time makes  a ground  of  detention
irrelevant. [441D]
     Shibban Lal  Saksena v.  State of Uttar Pradesh & Ors.,
[1954] SCR  418 and  Kamlakar Prasad  Chaturvedi v. State of
Madhya Pradesh & Anr., [1983]4 SCC 433 referred to
     (Per Sen J. dissenting)
     On the  facts set	out in	the grounds of detention the
petitioner answers the description of an anti-social element
as defined in s. 2 (d) of the Act. [444F]
     The word 'habitually' connotes some degree of frequency
and continuity.	 'Habitually'  requires	 a  continuance	 and
permanence of  some tendency,  something that  was developed
into a	propensity, that  is,  present	from  day-to-day.  A
person is  a habitual  criminal who  by force  of  habit  or
inward disposition,  inherent or  latent in  him, has  grown
accustomed to lead a life of crime. It is the force of habit
inherent  or   latent  in  an  individual  with	 a  criminal
instinct, with	a criminal  disposition of  mind, that makes
him dangerous  to the society in general. In simple language
the word 'habitually' means 'by force of habit'. [444G-445E]
     Stroud's Judicial Dictionary' 4th end., vol. 2, p. 1204
and Shorter  Oxford English  Dictionary,  vol.	1.  p.	910,
referred to.
     It	 is   not  necessary   that  because   of  the	word
'habitually' in	 sub-cl. (i),  sub-cl. (ii) or sub-cl. (iv),
there should  be a  repetition of  same	 class	of  acts  or
omissions referred  to in  sub-cl. (i),	 sub-cl. (ii)  or in
sub-cl. (iv)  by the  person  concerned	 before	 he  can  be
treated to  be an  anti-social element	and detained  by the
District Magistrate  under s.  12 (2)  of the Act. It is not
required that  the nature  or character	 of the	 anti-social
acts should  be the same or similar. There may be commission
or attempt  to commit or abetment of diverse nature of facts
constituting offences  under Chapter  XVI or Chapter XVII of
the Indian  Penal Code.	 What has to be 'repetitive' are the
anti-social acts. [447B-C]
     The operation  of s.  12  (2)  of	the  Act  cannot  be
confined against  habitual  criminals  who  have  a  certain
number of  prior convictions for offences of the 'character'
specified. The	definition of  'anti-social element' in s. 2
(d) of	the Act	 nowhere requires  that there  should  be  a
number of  prior convictions  of  a  person  in	 respect  of
offences of a particular type.
439
     It is  not correct to say that merely because there was
an acquittal  of a  person, the	 detaining authority  cannot
take the  act  complained  of  leading	to  his	 trial	into
consideration. It  may be  that the  trial  of	a  dangerous
person may  end in  an acquittal for paucity of evidence due
to unwillingness  of witnesses	to come	 forward and  depose
against him  out  of  fright.  If  a  person  with  criminal
tendencies  consistently   or  persistently   or  repeatedly
commits or  attempts to	 commit or  abets the  commission of
offences under	Chapter XVI  dealing with offences affecting
human body  or Chapter	XVI dealing  with  offences  against
property of the Indian Penal Code, there is no reason why he
should not  be considered  to be  an  'antisocial  element'.
[446G-H]
     Those who	are responsible for the national security or
for the	 maintenance of public order must be the sole judges
of what	 the national  security or  public  order  requires.
Sufficiency of	the grounds is not for the court but for the
detaining authority  for the  formation	 of  his  subjective
satisfaction that  the detention  of a	person is  necessary
with a	view to	 preventing him	 from acting  in any  manner
prejudicial  to	  the  maintenance   of	 public	 order.	 The
sufficiency  of	  the  grounds	upon  which  the  subjective
satisfaction of	 the detaining	authority is based, provided
they have  a rational probative value and are not extraneous
to the scope or purpose of the legislative provision, cannot
be challenged  in the  court accept  on the  ground of	mala
fides. It  is not  for the  court  to  examine	whether	 the
grounds upon  which the detention order is based are good or
bad nor	 can it attempt to assess in what manner and to what
extent each  of the  grounds operated  on the  mind  of	 the
appropriate authority and contributed to the creation of the
satisfaction on	 the basis  of which the detention order was
based. [447D-449E]
     Keshov Talpade  v. The  King-Emperor,  [1943]  FCR	 88,
referred to
     Shibban Lal  Saksena v.  State of Uttar Pradesh & Ors.,
[1954] SCR  318 and  Kamlakar Prasad  Chaturvedi v. State of
Madhya Pradesh & Anr., [1983] 4 SCC 443, distinguished
     The past  conduct or the antecedent history of a person
can properly  be taken	into  account  in  making  order  of
detention.  It	 is  usually   from  prior   events  showing
tendencies or inclinations of a man that an inference can be
drawn whether  he is  likely, in  the future,  to act  in  a
manner prejudicial  to	the  maintenance  of  public  order.
[451B]
     Merely because  there is  pending prosecution  and	 the
accused is in jail, that is no impediment for his detention,
if the	detaining authority  is	 satisfied  that  his  being
enlarged on  bail would be prejudicial to the maintenance of
public order. [451D]
     Fitrat Raza  Khan v. State of U.P. & Ors., [1982] 2 SCC
449, Alijan  Mian v.  District Magistrate,  Dhanbad &  Ors.,
[1983] 3 SCC 301 and Raisuddin Babu Tamchi v. State of U. P.
JUDGMENT:

(Per Sen & Chinnappa Reddy, JJ.) It has always been the view of this Court that the detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law. [441C] & ORIGINAL JURISDICTION Writ Petition (Criminal) No. 47 of 1984.

(Under article 32 of the Constitution of India) R.K.Garg and U.S. Parsad for the Appellant. S.N. Jha for the Respondent.

The following Judgements were delivered CHINNAPPA REDDY, J. I entirely agree with my brother Venkataramiah, J. both on the question of interpretation of the provisions of the Bihar Control of Crimes Act, 1981 and on the question of the effect of the order of grant of bail in the criminal proceeding arising out of the incident constituting one of the grounds of detention. It is really unnecessary for me to add anything to what has been said by Venkataramish, J., but my brother Sen, J. has taken a different view and out of respect to him, 1 propose to add a few lines. I am unable to agree with my brother Sen, J. On several of the view expressed by him in his dissent. In particular, I do not agree with the view that `those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires.’ It is too perilous a proposition. Our Constitution does not give a carta blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the legislature have been transgressed. Preventive detention is not be-

yond judicial scrutiny. while adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen, J. when he says, “It has always been the view of this Court that the detention of individuals without trials for any length of time, however, short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law”

I am of the view that the decision in Kamlakar Prasad Chaturvedi’s case and the host of earlier cases are not distinguishable. This Court has always taken the view that remoteness in point of time makes a ground of detention irrelevant. In Fitrat Raza Khanis case, the two incidents were not separated by any great length of time. On the other hand, they were bound by a strong bond of inflammable communal violence.

I agree with all that has been said by my brother Venkataramiah, J. and concur with him and direct the detenu to be set at liberty forthwith.

SEN, J. I have had the benefit of reading the opinion prepared by my learned brother Venkataramiah, J. and it is my misfortune that I cannot subscribe to the views expressed by my learned brethren. I would like to give my reasons for the dissent.

Although the petitioner claims to be a student leader and has taken his degree in Master of Arts in Sociology in the year 1982 and at present is a student of Law in the Bhagalpur Law College, and asserts that at one time, in the year 1980-81, he was elected as the President of the Post- Graduate Department of the Bhagalpur University and also selected as a Senator, the facts emerging from the grounds of detention clearly show that he has taken recourse to a life of crime. The petitioner applies for a writ of habeas corpus for quashing an order of detention dated August 16,1983 passed by the District Magistrate, Bhagalpur on being satisfied that his detention was necessary with a view to preventing him ‘from acting in any manner prejudicial to the maintenance of public order’. The facts have been set out in the majority opinion and all that is necessary is to mention the horrendous incident which is the direct and proximate cause of the impugned order of detention.

It appears that there was a gruesome murder of two young sons of Kashinath Bajoria, owner of Bajoria petrol pump of Bhagalpur, on April 20, 1983. In the course of investigation by the police it transpired that they were kidnapped from the petrol pump on the earlier day i.e. on April 19, 1983 and the petitioner Vijay Narain Singh demanded a ransom of Rs. 50,000 from the father of the victims. The demand for ransom having not been fulfilled, the two boys were done to death brutally and their dead bodies were thrown at a place near Mount Assis School and Zila School and were discovered the next morning. On the basis of first information report a case was registered at Bhagalpur Kotwali (Police Case No. 281 dated April 20, 1983) under ss. 364302 and 201, all read with s. 34 and s. 120B of the Indian Penal Code, 1860 against the petitioner Vijay Narain Singh, his brother Dhanonjoy Singh, one Bimlesh Mishra and two unknown accused. The petitioner along with his co-accused has been committed to the Court of Sessions to stand his trial in Sessions Case No. 348 of 1983 and charges have been framed under s. 302 read with s. 34/120B386 and 511 of the Indian Penal Code and the case was set down for evidence on February 27, 1984 A learned Single Judge of the Patna High Court by his order dated August 9, 1983 appears to have directed that the petitioner be enlarged on bail of Rs. 10,000 with two sureties of the like amount to the satisfaction of the Chief Judicial Magistrate, Bhagalpur. The District Magistrate, Bhagalpur on being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, passed the impugned order of detention on August 16, 1983 before the petitioner could be released on bail But the petitioner moved a petition in the Patna High Court for grant of a writ of habeas corpus while he was still in jail challenging the impugned order of detention. When the matter came up for hearing before the High Court on October 5, 1983, the learned Judges adverted to the counter-affidavit filed on behalf of the State that the impugned order of detention was prepared in advance for service on the petitioner when he comes out of jail on the strength of the bail order issued by the High Court but by mistake the three copies of the order instead of being sent to the District Magistrate’s office for service were wrongly delivered at the Central Jail, Bhagalpur. The learned Judges accordingly by their order of even date dismissed the writ petition holding that they were satisfied that the petitioner was not in detention under the impugned detention order. They however observed that if and when the petitioner was served a copy of the detention order and placed under detention in prison, he could file a fresh petition for a writ of habeas corpus. In stead of moving the High Court, the petitioner has filed this petition under Art. 32 of the Constitution before this Court. The order of detention is in two parts, the first of which lays a factual basis for making the order on the ground that the petitioner is an anti-social element. The second part of the impugned order is styled as grounds. But it would be seen that the grounds mentioned therein are one and the same viz. his detention was necessary with a view to preventing him ‘from acting in any manner prejudicial to the maintenance of public order’.

At the hearing, learned counsel for the petitioner advanced no submission that the petitioner was not an ‘anti- social element’ within the meaning of s. 12 (2) of the Bihar Control of Crimes Act, 1981 but rested himself content by advancing a twofold submission, namely: (1) The impugned order of detention passed by the District Magistrate, Bhagalpur under s. 12(2) of the Act must be held to be void under Art. 22(5) of the Constitution as one of the grounds was too remote and not proximate in point of time and had therefore no rational connection for the subjective satisfaction of the District Magistrate s. 12(2) of the Act. He relied upon the principles laid down by this Court in Shibban Lal Saksena v. State of Uttar Pradesh & Ors. (1) followed in serveal subsequent cases, and particularly on the majority decision in the recent case of Kamlakar Prasad Chaturvedi v. State of Madhya Pradesh & Anr(2 And The impugned order of detention was mala fide and constitutes a flagrant abuse of power on the part of the District Magistrate as it is meant to subvert the judicial process by trying to circumvent the order passed by the High Court enlarging the petitioner on bail. There is, in my opinion, no substance in any of these contentions but before. I deal with them I must touch upon the question raised in the majority opinion.

Inasmuch as the District Magistrate has chosen to take recourse to s. 12(2) of the Act which is designed to make special provisions for control and suppression of anti- social elements with a view to maintenance of public order, the question at once arises : Whether the petitioner answers the description of an ‘antisocial element’ as defined in s. 2(d) of the Act. ‘Anti-social element’ as defined in s. 2(d) means-

2(d) Anti-social element” means a person who is-

(i) either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII of the Indian Penal Code; or

(ii) habitually or abets the commission of offences under the Suppression of Immoral Traffic in women & Girls Act, 1956; or

(iii) who by words or otherwise promotes or attempts to promote on grounds of religion, race, language, caste or community or any other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups of castes or communities; or

(iv) has been found habitually passing indecent remarks to or teasing women or girls; or

(v) who has been convicted of an offence under ss 25, 26, 27, 28 or 29 of the Arms Act, 1959.”

There is no reasonable doubt that on the facts set out in the grounds of detention the petitioner answers the description of an anti-social element; but the suggestion in that he is not to be treated as one under s. 12(2) of the Act because the definition of ‘anti-social element’ in s. 2(d) of the Act is too narrow to include it. The word ‘habitually’ connotes some degree of frequency and continuity. ‘Habitually’ requires a continuance and permanence of some tendency, something that has developed into a propensity, that is, present from day-to-day; Stroud’s Judicial Dictionary, 4th edn., vol. 2, p. 1204.

My learned brother Venkataramiah, J. is inclined to give a restricted meaning to the word ‘habitually’ as denoting ‘repetitive’ and he is of the view that no order of detention under s. 12(2) of the Act could be made on the basis of a ‘single instance’, as a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature Further, he is inclined to think that section under s. 12(2) of the Act can only be taken in resect of persons against whom there are verdicts of guilt after the conclusion of trials. According to him, merely on the basis of institution of criminal cases a person cannot be labelled as an anti-social element. I find considerable difficulty in subscribing to either of his views.

According to its ordinary meaning, the word ‘habitual’ as given in Shorter Oxford English Dictionary, vol. 1, p. 910 is :

“A. adj (1) Belonging to the habit or inward disposition, inherent or latent in the mental constitution;

(2) of the nature of a habit; fixed by habit; constantly repeated, customary.

B. A habitual criminal, drunkard, etc.”

A person is a habitual criminal who by force of habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In strengthen language the word ‘habitually’ means ‘by force of habit’. The Act appears to be based on Prevention of Crime Act 1908 (c-59). By Prevention of Crime Act, as amended by the Indictments Act, 1915, a person after three previous convictions, after attaining sixteen years of age could, with the consent of the Director of Public Prosecution in certain cases, be charged with being a habitual criminal and, if the charge was established, he could, in addition to a punishment of penal servitude, in respect of crime for which he has been so convicted, receive a further sentence of not less than five years or more than 10 years, called a sentence of preventive detention. Upon this question of a man’s leading persistently a dishonest or criminal life, where there has been a considerable lapse of time between a man’s last conviction and the commission of the offence which forms the subject of the primary indictment at the trial, notice containing particulars must have been given and proved of the facts upon which the prosecution relied for saying that the offender is leading such a life.

If, on the other hand, the time between a man’s discharge from prison and the commission of the next offence is a very snort one, it may be open to the jury to find that he is leading persistently a dishonest or criminal life by reason of the mere fact that he has again committed an offence so soon after his discharge from a previous one, provided the notice has state this as a ground. This essentially is a question of fact. The scheme under theEnglish Act is entirely different where a person has to be charged at the trial of being a habitual criminal. Therefore, the considerations which govern the matter do not arise in case of preventive detention under s. 12(2) of the Act.

I find it difficult to share the view that whereas under sub-cl. (iii) or sub-cl. (v) of s. 2 (d) a single act or omission referred to in them may be enough to treat the person concerned as an ‘anti-social element’, in the case of sub-cl. (i), sub-cl. (ii) or sub-cl. (iv) because of the word ‘habitually’ there should be a repetition of same class of acts or omissions referred to in sub-cl. (i), sub-cl.

(ii) or in sub-cl. (iv) by the person concerned to treat him as an ‘anti-social element’.

I also do not see why s. 12 (2) of the Act should be confined in its operation against habitual criminals who have a certain number of prior convictions for offences of the ‘character’ specified. The definition of ‘anti-social element in s.2 (d) of the Act nowhere requires that there should be number of prior convictions of a person in respect of offences of a particular type. I cannot also share the view that the commission of an act referred to in one of the sub-cl. (i), sub-cl. (ii) or sub-cl. (iv) of s 2 (d) and any other act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an ‘anti-social element’. Further, I do not think it is correct to say that merely because there was an acquittal of such a person, the detaining authority cannot take the act complained of leading to his trial into consideration. It may be that the trial of a dangerous person may end in an acquittal for paucity of evidence due to unwillingness of witnesses to come forward and depose against him out of fright. If a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under Chapter XVI dealing with offences affecting human body or Chapter XVII dealing with offences against property of the Indian Penal Code, there is no reason why he should not be considered to be an ‘anti-social element’.

It is not difficult to conceive of a person who by himself or as a member or leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code. It however does not follow that because of the word ‘habitually’ in sub-cl. (i), sub-cl. (ii) or sub-cl (iv), there should be a repetition of same class of acts or omissions referred to in sub-cl. (i), sub-cl. (ii) or in sub-cl. (iv) by the person concerned before he can be treated to be an anti-social element and detained by the District Magistrate under s.12(2) of the Act. In my view, it is not required that the nature or character of the anti- social acts should be the same or similar. There may be commission or attempt to commit or abetment of diverse nature of acts constituting offences under Chapter XVI of the Indian Penal Code. What has to be ‘repetitive’ are the anti-social acts.

Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Sufficiency of grounds is not for the Court but for the detaining authority for the formation of his subjective satisfaction that the detention of a person under s. 12(2) of the Act is necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The power of preventive detention by the District Magistrate under s.12(2) is necessarily subject to the limitations enjoined on the exercise of such power by Art. 22(5) of the Constitution. It has always been the view of this Court that the detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti- social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law. The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens. As observed by this Court in Narendra Purshotam Umrao v. B.B. Gujral(1), when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act or any other law providing for preventive detention-

“It is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupul-

ously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.”

Nonetheless, the community has a vital interest in the proper enforcement of its laws particularly in an area where there is worsening law and order situation, as unfortunately is the case in some of the States today in dealing effectively with persons engaged in anti-social activities seeking to create serious public disorder by ordering their preventive detention and at the same time in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The impugned order of detention has not been challenged on the ground that the grounds furnished were not adequate or sufficient for the satisfaction of the detaining authority or for making of an effective representation. The Court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of Art. 22(5) of the Constitution and where it is not suggested that the detaining authority acted mala fide or that its order constituted an abuse of power.

Turning to the merits of the contentions raised, I am quite satisfied that the impugned order is not vitiated because some of the grounds were non-existent or irrelevant or were too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority. The two decisions in Shibban Lal Saksena’s and Kamlakar Prasad Chaturvedi’s cases are clearly distinguishable on facts. In Shibban Lal Saksena’s cases the detenu had been supplied with two grounds for his detention. Subsequently, the detaining authority revoked one of the grounds communicated to him earlier. It was contended on his behalf that in such circumstances the detention was illegal and he was entitled to be released. The contention on behalf of the State was that although one of the grounds upon which the original order of detention was based was unsubstantial or non-existent and could not be made a ground of detention, nonetheless the remaining ground was sufficient to sustain the detention order. The Court rejected this contention and held that it was stated that the sufficiency of the grounds upon which the subjective satisfaction of the detaining authority is based, provided they have a rational probative value and are not extraneous so the scope or purpose of the legislative provision cannot be challenged in the Court except on the ground of mala fides. It was observed:

“A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under s.7 of the Act. What has happened, however, in this case is somewhat peculiar. The Government itself, in its communication dated the 13th of March, 1953, has plainly admitted that one of the grounds upon which the original on or of detention was passed is unsubstantial or non-existent and cannot be made a ground of detention. The question is, whether in such circumstances the original order made under s.3(1)

(a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative.”

The question was whether in such circumstances the original order made under s.3(1) (a) of the Preventive Detention Act, 1950 could be allowed to stand. The Court laid down that if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory, this would vitiate the detention order as a whole. That is a principle well-settled since the well-known case of Keshav Talpade v. The King Emperor(1): The Court reiterated the principle and said that it was not for the Court to examine whether the two grounds upon which the detention order was based were good or bad nor could it attempt to assess in what manner and to what extent each of the grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was based. It then added:

“To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.”

Following the decision in Shibban Lal Sakesena’s case, the Court in Kamlakar Prasad Chaturvedi’s case, supra, by a majority of 2:1 held the detention order dated May 6, 1983 passed by the District Magistrate under s.3(2) of the National Security Act, 1980 to be invalid inasmuch as some of the grounds were found to be too remote and not proximate in point of time. Per contra, Desai, J. following the recent decision of this Court in Fitrat Raza Khan v. State of U.P. & Ors held that there is no rigid or mechanical test to be applied. In Fitrat Raza Khaa’s case, the Court held that when both the incidents there were viewed in close proximity, the propensity of the petitioner to resort to prejudicial activity became manifest.

In Fitrat Raza Khan’s case, supra, the first incident was of August 13, 1980 when the communal riots broke out in Moradabad city, and the second of July 24, 1981. Although there was a lapse of a year between the two incidents, the second incident of July 24, 1981 was just on the eve of the Id festival and the ground alleged was that the petitioner was trying to instigate the Muslims to communal violence by promise of better arms, with a view to an open confrontation between the two communities. It was observed that the two grounds as set out in the order of detention were nothing but narration of facts brining out the antecedent history of the detenu and that the past conduct or the antecedent history of a person can properly be taken into account in making an order of detention and had observed:

“It is true that the order of detention is based on two grounds which relate to two incidents, one of August 13, 1980, and the other of July 24, 1981, i.e., the second incident was after a lapse of about a year, but both the incidents show the propensities of the petitioner to instigate the members of the Muslim community to communal violence. The unfortunate communal riots which took place in Moradabad city led to widespread carnage and bloodshed resulting in the loss of many innocent lives. The memory of the communal riots is all too recent to be a thing of the past. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order. ************* It cannot be said that the prejudicial conduct or antecedent history of the petitioner was not proximate in point of time and had no rational connection with the conclusion that his detention was necessary for maintenance of public order.” It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order.

Learned counsel for the petitioner also submitted that the ordinary criminal process could not be circumvented by resort to preventive detention. In somewhat similar circumstances, the Court recently in Alijan Mian v. District Magistrate, Dhanbad & Ors(1). held that merely because there was pending prosecution and the accused were in jail, that was no impediment for their detention under s.3(2) of the National Security Act, 1980 if the detaining authority was satisfied that their being enlarged on bail would be prejudicial to the maintenance of public order. The same view has been reiterated by this Court in Raisuddin Babu Tamchi v. State of U.P. & Anr(2).

For my part, I would therefore, for the reasons stated, dismiss the writ petition as well as the connected special leave petition.

VENKATARAMIAH, J. This is a petition under Article 32 of the Constitution. The petitioner has questioned in this case the validity of an order of detention dated August 16, 1983 passed by the District Magistrate, Bhagalpur, State of Bihar, directing the detention of the petitioner under sub- section (2) of section 12 of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as ‘the Act’) read with Notification No. H(P) 6844 dated June 20, 1983 of the Government of Bihar vesting the powers of detention in the District Magistrate, Bhagalpur.

The petitioner states that he having passed him M.A. Examination was studying law in the Bhagalpur Law College in the year, 1983. On the basis of information received on April 20, 1983 about the unnatural deaths of two persons within the jurisdiction of the Bhagalpur Kotwali Police Station, the police conducted investigation and at the conclusion of that investigation they filed a charge sheet in the court of the Magistrate having jurisdiction over the area in question, who committed him alongwith some others to the Court of Sessions for being tried for offences punishable under section 302 read with section 120B386 and 511 of the Indian Penal Code. The said case is even now pending. The petitioner moved the High Court of Patna for enlarging him on bail during the pendency of the said Session trial. On August 8, 1983, the bail petition was heard and the High Court made an order enlarging the petitioner on bail, the relevant part of which read thus:

“8.8.83. Heard learned counsel for the petitioner and the State.

The submission of the petitioner is that he has not been named in the F.I.R. and the only material against him is that when Kashi Nath Bajoria, father of the deceased learnt about taking away of his sons from the petrol pump he went to the house of petitioner and his brother Dhananja Singh and enquired about his sons. On his enquiry the petitioner, his brother Bijoy and his mother demanded a sum of Rs 50,000 for release of his sons. It is further submitted that three persons gave their confessional statement but even they did not name the petitioner-

Whether the petitioner was in conspiracy or had hand in the crime will be examined at the trial if such occasion arises. In the circumstances of the present case, let petitioner be released on bail of Rs 30,000 (Rupees ten thousand with two sureties of the like amount each) to the satisfaction of the Chief Judicial Magistrate, Bhagalpur in Bhagalpur Kotwali P.S. Case No. 281/83 dated 20.4.83.”

Even before the petitioner could furnish bail and secure his release from jail as per the above order, the District Magistrate passed the impugned order of detention on August 16,1983, the relevant part of which reads thus:

Order No. 151 dated 16.8.83 Whereas I am satisfied that with a view to preventing Shri Vijay Singh s/o Late Shri Jagannath Singh of Mohalla Mundichak P.S. Kotwali. District Bhagalpur from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained.

Now, therefore, in exercise of the powers conferred by (Bihar Act 7 of 1981) sub-section 2 of section 12 of the Bihar Control of Crimes Act, 1981 read with Notification H(P) 6844 dated 20.6.83 of the Government of Bihar vesting the powers of detention in District Magistrate, Bhagalpur, I hereby direct that Shri Vijay Singh be detained.

He shall be detained in Special Central Jail, Bhagalpur and classified as C and in division III.

District Magistrate Bhagalpur”

The grounds of detention in support of the above order read thus:

“In pursuance of section 17 of the Bihar Control of Crimes Act, 1981 (Bihar Act 7 of 1981) Shri Vijay Singh s/o Late Shri Jagannath Singh of Mohalla Mundichak, P.S. Kotwali, District Bhagalpur is informed that he was been directed to be detained in my Order No. 151/C dated 16.8.83.

The following incidents conclusively show that Shri Vijay Singh is an “anti-social element”. His criminal activities enumerated below date back to the year 1975.

(i) On 15.4.75 Vijay Singh alongwith his associates went to the shop of Gopal Ram Ramchandra, cloth dealer in Hariapatti market of Bhagalapur town armed with unlicensed pistol and forcibly demanded subscription at the point of pistol. On refusal, he created a row in the shop and indulged in filthy abuses, as a result of which the shopkeepers of the area became terribly panicky and feeling of uttar insecurity prevailed in the area. A case was instituted in Kotwali P.S. vide Case No. 25 dated 15-4-75 under section 144/448 I.P.C. In this case, he was chargesheeted.

(ii) On 17/18-6-82 at night Vijay Singh was found teasing and misbehaving with females returning from Cinema hall at Khalifabagh Chowk, one of the busiest throughfares of the town. On information, the police rushed to the spot. Vijay Singh had the avdacity to misbehave with the police personnel including the Dy. S.P. (Hqrs.) who happened to reach there. A case was instituted in this connection vide Kotwali P.S. Case No. 349 dated 18-6-82 u/s 294/353 I. P. C. In this case, Vijay Singh was chargesheeted.

Shri Vijay Singh has been detained on the following grounds:-

Grounds:

On 19.4.1983, the criminal activities of Vijay Singh mounted to its peak, when two young sons of Shri Kashinath Bajoria, owner of Bajoria Petrol Pump, Bhagalpur, namely, Krishna Kumar Bajoria and Santosh Kumar Bajoria were kidnapped from their petrol pump. Vijay Singh demanded a sum of Rs 50,000 (Fifty thousand) from their father as ransom. As the demand could not be fulfilled, the above-named two innocent young men were done to death in a ghastly manner and their dead bodies thrown away near Mount Assisi School and Zila School which were discovered next morning. These double murders caused panic throughout the Bhagalpur Town and public order was gravely disturbed. Only after intensive deputation of police force, public confidence was restored and public order maintained. A case was instituted vide Kotwali P.S. Case No. 281 dated 20-4-83 under sections 364/302/201/34/120(b) I.P.C Charge-sheet has been submitted in this case against Vijay Singh and others. Investigation shows that Vijay Singh is mainly instrumental to this heinous crime.

(Copy of F.I.R., brief of the case and copy of Memo of evidence enclosed).

In the circumstances, I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order.

For prevention of such activities, I considered his detention necessary. Shri Vijay Singh is informed that he may make a representation in writing against the order under which he is detained. His representation, if any, may be addres sed to the Deputy Secretary, Home (Police) Department, Government of Bihar, Patna, and forwarded by the Superintendent of Jail through special messenger with a copy to the undersigned.

Sd/-S.K. Sharma 16/8/83 District Magistrate Bhagalpur”

Aggrieved by the above order of detention the petitioner filed a petition under Article 226 of the Constitution before the High Court. On behalf of the detaining authority it was contended that the detention order had been prepared in advance for service on the petitioner when he came out of the jail on the strength of the bail order which he had obtained in the criminal case; that all the copies of order had been sent to the District Magistrate’s office but by mistake of the messenger three copies had been wrongly delivered at the Central Jail Bhagalpur where the petitioner had been kept and that when the mistake was detected by the Superintendent of the Central Jail, he did not serve the copy of the order and had returned all the copies. It was urged that since the order of detention had not been served on the petitioner, the petition was not maintainable. Accepting the above plea, the High Court held that there was no occasion to quash the order of detention as the petitioner had not been detained pursuant to it. Accordingly it rejected the prayer of the petitioner. Thereupon the petitioner filed the above writ petition before teis Court, He has also filed a special leave petition being S.L.P. (Criminal) 3306 of 1983 against the order of the High Court.

In this Court, the respondents have not depended upon the technical plea raised by them before the High Court but have tried to justify the order of detention on merits.

I shall give a brief summary of the relevant provisions of the Act. The Act was passed in 1981. It was enacted, as its long title suggests, to make special provisions for the control and suppression of antisocial elements with a view to maintenance of public order. Section 2(d) of the Act defines the expression ‘Anti-Social Element’ thus:

“2.(d) “Anti-Social Elements” means a person who is

(i) either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII of the Indian Penal Code ; or

(ii) habitually comints or abets the commission of offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956 ; or

(iii) who by words or otherwise promotes or attempt to promote on grounds of religion, race, language, cast or community or any other grounds what-soever feelings of enmity or hatred between different religions, racial or language groups of castes or communities ; or

(iv) has been found habitually passing indecent remarks to or teasing women or girls ; or

(v) who has been convicted of an offence under sections 25262728 or 29 of the Arms Act of 1959.” (underlining by us) Section 3 to 11 of the Act deal with the provisions relating to externment of anti-social elements. Chapter II of the Act deals with the provisions providing for the preventive detention of anti-social elements. The relevant part of section 12 of the Act which is in Chapter II of the Act reads :

“12. Power to make order detaining certain persons. The State Government may-(1) If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social element cannot be prevented otherwise than by the immediate arrest of such person make an order directing that such anti- social element be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may by an order in writing direct, that during such period as may be specified in the order, such District Magistrate may also, if satisfied as provided in sub-section (1) exercise the power conferred up-on by the said sub-section.. (underlining by us) It is seen fromsection 12 of the Act that it makes provision for the detention of an anti-social element. If a person is not an anti-social element, he cannot be detained under the Act. The detaining authority should, therefore, be satisfied that the person against whom an order is made under section 12 of the Act is an anti-social element as defined in section 2 (d) of the Act. Sub-clauses (ii), (iii) and (v) of section 2 (d) of the Act which are not quite relevant for the purposes of this case may be omitted from consideration for the present. The two other sub-clauses which need to be examined closely are sub-clauses (i) and

(iv) of section 2 (d). Under sub-clause (i) of section 2 (d) of the Act, a person who either by himself or as a member of or leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI dealing with offenences affecting the human body or Chapter XVII dealing with offences against property, of the Indian Penal Code is considered to be an anti-social element. Under sub-clause (iv) of section 2 (d) of the Act, a person who has been habitually’ passing indecent remarks to, or teasing women or girls, is an anti-social element. In both these sub-clauses the word ‘habitually’ is used. The expression ‘habitually’ means ‘repeatedly’ or ‘persistently’. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. If connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. This appears to be clear from the use of the word ‘habitually’ separately in sub-clause

(i), sub-clause (ii) and sub-clause (iv) of section 2 (b) and not in sub-clauses (iii) and (v) of section 2 (d) . If the State Legislature had intended that a commission of two or more acts or omissions referred to in any of the sub-

clauses (i) to (v) of section 2 (d) was sufficient to make a person an ‘anti-social element’, the definition would have run as ‘Anti-Social Element’ means ‘a person who habitually is …..’ As section 2 (d) of the Act now stands, whereas under sub-clause (iii) or sub-clause (v) of section 2 (d) a single act or omission referred to in them may be enough to treat the person concerned as an ‘anti-social element’, in the case of sub-clause (i), sub-clause (ii) or sub-clause

(iv), there should be a repetition of acts or omissions of the same kind referred to in sub-clause

(i), sub-clause (ii) or in sub-clause (iv) by the person concerned to treat him as an ‘anti-social element’. Commission of an act or omission referred to in one of the sub-clauses (i). (ii) and (iv) and of another act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an ‘anti-social element’. A single act or omission falling under sub-clause

(i) and a single act or omission falling under sub-clause

(iv) of section 2 (d) cannot, therefore, be characterised is a habitual act or omission referred to in either of them. Because the idea of ‘habit’ involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between the they cannot be treated as habitual ones.

In the present case the District Magistrate has relied on three incidents to hold that the petitioner is an anti- social element. They are-(i) that on April 15, 1975 the petitioner alongwith his associates had gone to the shop of a cloth dealer of Bhagalpur Town armed with an unlicensed pistol and had forcibly demanded subscription at the point of a gun and (ii) that on June 17/18, 1982 the petitioner was found teasing and misbehaving with females returning from a cinema hall. The third ground is the criminal case now pending against the petitioner in the Sessions Court. The first incident is of the year 1975. It is not stated how the criminal case filed on the basis of that charge ended. The next incident relates to the year 1982. The detaining authority does not state how the criminal case filed in that connection terminated. If they have both ended in favour of the petitioner finding him clearly not guilty, they cannot certainly constitute acts or omissions habitually committed by the petitioner. Moreover the said two incidents are of different kinds altogether. Whereas the first one may fall under sub-clause (i) of section 2(d) of the Act, the second one falls under sub-clause (iv) thereof. They are, even if true, not repetitions of acts or omissions of the same kind. The District Magistrate does not appear to have applied his mind to the above aspects of the case. The third ground which is based on the pending Sessions case is no doubt of the nature of acts or commissions referred to in sub-clause

(i) of section 2(d) but the interval between the first ground which falls under this sub-clause and this one is nearly eight years and cannot, therefore, make the petitioner a habitual offender of the type falling under sub-clause (i) of section 2 (d). When I say so I do not certainly minimise the gravity of the offence alleged to have been committed by the petitioner which is still to be tried by the Sessions Court. If the petitioner is found guilty by the Court, he will have to be awarded appropriate punishment. But the point for consideration now is whether the filing of the charge sheet is sufficient to bring the petitioner within the mischief of the Act. The Court should examine the case without being overwhelmed by the gruesomeness of the incident involved in the criminal trial. It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that tee liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.

Having given my anxious consideration to the case, I am of the view that it is not possible to hold that the petitioner can be called an ‘anti-social element’ as defined by section 2 (d) of the Act. The order of detention impugned in this case, therefore, could not have been passed under section 12 (2) of the Act which authorises the detention of anti-social elements only.

Before leaving this case, I should state that a number of decisions were cited before us in which it had been held that an order of detention based on a criminal charge which is still to be tried may not be invalid and that an order granting bail by a criminal court cannot be a bar to the passing of an order of detention. But I have not found it necessary to deal with them here as they would have become relevant only if I had been satisfied that the petitioner was an anti-social element. Moreover the orders of detention questioned in those cases were governed by the provisions of the statutes under which they had been issued.

In the result, I quash the order of detention passed against the petitioner. The petition is accordingly allowed. The petitioner shall be set at liberty forthwith unless he is required to be in custody on some other ground.

H.S.K.					   Petition allowed.

 

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Supreme Court of India
Bhagirath vs State Of Madhya Pradesh on 8 September, 1975
Equivalent citations: AIR 1976 SC 975, 1976 CriLJ 706, (1976) 1 SCC 20, 1975 (7) UJ 780 SC
Author: R Sarkaria
Bench: P Bhagwati, R Sarkaria

JUDGMENT R.S. Sarkaria, J.

1. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court. It arises out of these facts:

2. Three persons, named. Gopal, Bhagirath and Manohar were tried by the Additional Sessions Judge, Indore on charges under Sub-section 307, 307/34, Penal Code for the attempted murder of their co-villager, Kashiram. There was also a charge under Section 324against Gopal for causing hurt to Devisingh. (PW 2). The trial judge convicted Bhagirath appellant under Section 307. Penal Code and sentenced him to three years rigorous imprisonment. Gopal and Manohar were acquitted. Bhagirath’s appeal was dismissed by the High Court, his conviction was maintained but the sentence was reduced to two years rigorous imprisonment. Hence this appeal by him.

3. The prosecution story ran as under:

4. Bhagirath appellant and Gopal, the acquitted accused, are real brothera. On March 30, 1969, Kashiram (PW 1) returned to his village Sanavdiya at about 6 p.m. He went into his house and bolted it from inside. Immediately thereafter the appellant and the two acquitted accused, armed with weapons, raided the house, hammered at the entrance door, broke it open, pulled cut Kashiram and forcibly took him to a distance of 80 feet. There, Bhagirath and Gopal struck one spear blow each on the left flank of Kashiram, while Manohar gave him a farsi blow. The blade of the spear of one of the assailants got detached from its wooden handle and was left embedded in the would of Kashiram. Devisingh (PW 2) tried to intercede but Gopal dealt him a blow, too. The assailants then ran away. Devisingh (PW 2) went to the Police Station, Khudel and lodged the First Information Report (Ex. P-1).

5. Sub-Inspector Shankarrao Chouhan came to the village for investigation. There, the appellant, also, handed over a written complaint to the Sub-Inspector accusing that Kashiram, Devisingh and others had assaulted them. On this report, another case was registered against P. Ws. Kashiram, Devisingh and two others.

6. The prosecution examined sight eye-witnesses. P. Ws. 2, 5, 7 and 9 are the sister’s son, wife, brother’s wife and brother respectively of Kashiram, while P. Ws. 8 and 14 are his nephews. Smt. Keshar (PW 6) is the daughter- in-law of Kashiram’s brother. All the eye-witnesses were thus closely related to Kashiram.

7. At the trial all the witnesses with one voice reiterated the story that has been set out at the commencement of this judgment.

8. All the three accused in their examination under Section 342, Cr. PC denied the prosecution case. The appellant set up a counter-story. According to the defence, Kashiram is a notorious bully and a desperate character. On the day of occurrence, at about 6 P.M. he alighted from a Tampo near the Hotel in village Snavadiya. Brandishing an open knife, he started abusing the villagers in general who were languishing near the Hotel. Some of his relations and friends bodily carried away Kashiram and locked him inside his house so that he may not cause harm to anybody. Kashiram was however in rage and in a bellicose mood. He attempted to break open the locked door with a sword from inside. Ultimately Kashiram succeeded in coming out by scaling the wall. Sword in hand, he charged at Bhagirath and caused the latter a serious injury on the face. Kashiram caused another injury to Bhagirath. A third blow attempted by Kashiram landed on the ground with the result that his sword broke into two. While Bhagirath and Kashiram were scusffling, Devisingh, Puriya Narayan and Mukand armed with sword and spears came there and assaulted the appellant.

9. The courts below have rejected as false, this part of the prosecution story that Kashiram was pulled out from his house, and taken to a distance of 16 paces in the lane and there assaulted by the three accused.

10. In this connection, the learned trial Judge said:

Both pieces of the door clearly show that violence was put on it from inside and not outside. The edges of the holes were inverted showing that the weapon had been thrust from inside and not from outside. The defence version therefore, is supported that Kashiram was shut by his friends and his associates in his house when he acted like a bully after his arrival from Indore.

11. On this point the learned Judge of the High Court observed:

Kashiram’s statement that he was pulled out from his house is equally false. If the assailants, including the appellant, were armed and he came out, nothing could have prevented the assailants from making an assault on him then and there. They would not drag him to a distance of about 80 feet and then assault him.

It was concluded:

The prosecution witnesses have deliberately concealed to disclose the circumstances which preceded the infliction of injuries to Kashiram.

12. Further, both the courts found that the prosecution version, that Bhagirath and Gopal caused one injury each with their spear to Kashiram, stood falsified by the medical evidence according to which there was only one injury on Bhagirath which could be caused with a spear.

13. Notwithstanding their finding that to a material extent the prosecution story was false, the courts below have worked out the conclusion that this was a case of free fight in the course of which, Kashiram and Devisingh on one side, and Bhagirath and Manohar accused on the other, received injuries. In reaching this conclusion, the courts were influenced by the fact that the accused had also not come out with the whole truth. For suppression of truth, the High Court censured both the sides thus:

It is, therefore, evident that while making their statements at the trial, not only the prosecution witnesses but the appellant also were anxious to avoid their responsibility for the injuries which were received by the rival party.

14. It appears to us that the approach of (he courts below in reconstructing a story different from the one responded by the prosecution and then convicting the appellant on that basis was clearly erroneous. It was never the prosecution case that there was a fight or pitched battle between two parties According to the prosecution, the occurrence was only a one-sided affair that P. W. Kashiram was forcibly pulled out and taken from his house by three accused to a distance of 80 feet, and there assaulted. In the F. I. R., Devisingh made no mention whatever of the injuries received by the accused side At the trial also, the prosecution witnesses brazenly refused to concede that the appellant or his companion Manohar had received any injury at the time occurrence. Contrary to what these prosecution witnesses had stated, the courts have come to the conclusion that these injuries, three of which were incised wounds, were received by the accused side, in the course of a free fight at the hands of the complainant party.

15. It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own make out a new case for the prosecution and convict the accused on that basis.

16. Assuming for the sake of argument that this was a case of free fight, then also it could not be said with any stretch of imagination, that the appellant was the author of the solitary injury received by Kashiram. Dr Harish Chander (PW 4) found only one stab wound-which in his opinion could be caused with a spear-on the left chest of Kashiram. According to Devisingh the star witness of the prosecution the broken blades of both the spears wielded by Bhagiratath and Gopal had been left embedded in each of the stab wounds inflicted by them on Kashiram, and the witness had pulled out both the blades from the wounds and kept them at his house. Thereafter he handed over one of those blades to the police. Assuming that Devisingh’s version to the extent that he found one broken spear blade embedded in the solitary wound found on Kashiram was not untrue, the question that still remained to be determined was, whether this blade was of the spear alleged to have been used by the appellant A negative answer to this question is available from the testimony of Balmukand (PW 14), himself. In examination-in-chief, itself, this witness stated: “Gopal had used a blow with a spear which had struck Kashiram on the left side of his abdomen. … So the blade remained inside and the stick came out of the blade and remained in the hands of Gopal…. Devisingh had taken out the blade of the spear from the body of Kashiram.

17. If PW Balmukand were to be believed this solitary wound to Kashi Ram was caused by Gopal, the acquitted accused and not appellant.

18. Thus from wider angle the matter may be looked at, the prosecution had miserably failed to make out a case against the appellant Then the substratum of the evidence given by the eye-witnesses examined by the prosecution was found to be false, the only prudent course, in the circumstances of this case, left to the Court was to throw out the prosecution case in its entirety against all the accused.

19. For the forgoing reasons, we allow this appeal, set aside the conviction of the appellant and acquit him.

 

Supreme Court of India
Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri on 27 April, 1970
Equivalent citations: 1971 AIR 1162, 1971 SCR (1) 399
Author: C Vaidyialingam
Bench: Sikri, S.M., Shelat, J.M., Bhargava, Vishishtha, Mitter, G.K., Vaidyialingam, C.A.
           PETITIONER:
SHRI N. SRI RAMA REDDY ETC.

	Vs.

RESPONDENT:
SHRI V. V. GIRI

DATE OF JUDGMENT:
27/04/1970

BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SIKRI, S.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.

CITATION:
 1971 AIR 1162		  1971 SCR  (1) 399
 1970 SCC  (2) 340
 CITATOR INFO :
 E	    1973 SC 157	 (21,22)
 R	    1975 SC1788	 (21)
 RF	    1986 SC   3	 (29,146,174,218)


ACT:
Evidence Act (1 of 1872), ss. 146 (1) 153, Exception (2) and
153    (3)-Tape-recorded   statement   of    witness-Whether
admissible to contradict his Evidence in Court.



HEADNOTE:
The  petitioners  filed	 an  election  petition	 under	 the
Presidential  and Vice Presidential Election Act,  1952	 and
according  to  them  undue influence was  exercised  by	 the
publication   and,   distribution   of	 certain   pamphlets
containing  scurrilous attacks on the defeated	presidential
candidate.   The  name of persons who were alleged  to	have
distributed the pamphlets were mentioned in the	 particulars
supplied in the election petition.  When one of them was  in
the witness-box as a witness for the returned candidate,  he
denied	in  his chief-examination that	he  distributed	 the
pamphlets.    When  it	was  suggested	to  him	 in   cross-
examination  that  he  attempted  to  dissuade	one  of	 the
petitioners  from filing the election petition as  otherwise
serious	 consequences would follow, the witness	 denied	 the
suggestion.   A	 tape  recorded	 conversation  between	 the
witness	 and  the  petitioners was sought  to  be  given  in
evidence by playing the tape-record to impeach the credit of
the witness.
On the question of the admissibility of the evidence,
HELD  :	 (1)  A	 previous statement made  by  a	 person	 and
recorded  on tape, can be used not only to  corroborate	 the
evidence  given	 by  the  witness  in  court  but  also	  to
contradict  his evidence given before the Court, as well  as
to test the veracity of the witness and also to impeach	 his
impartiality.  Apart from being used for corroboration,	 the
evidence is admissible in respect of the other three matters
under  ss. 146(1), 153, Exception (2) and s. 155(3)  of	 the
Evidence Act.  If a previous statement made by a person	 can
be  used to corroborate his evidence given before court,  on
principle,  there is no reason why such	 previous  statement
cannot 'be used to contradict under s. 153, Exception 2	 and
also  for the other purposes under ss. 146(1)  and,  155(3).
[410 B-C, D-E]
S.Pratap  Singh	 v. State of Punjab, [1964]  4	S.C.R.	733,
Yusuffalli v, Maharashtra State, [1967] 3 S.C.R. 720 and  R.
v. Maqsud Ali [1965] 2 All.  E. R. 464, referred to.
Rup  Chand  v. Mahabir Parshad, A.I.R.,1956  Punj.  173	 and
Manindra Nath v. Biswanath, 67 C.W.N. 191, approved.
(2)  The expression 'which is liable to be contradicted'  in
s.  155(3) does not mean 'which is relevant to the  issue'.
The observation contra in Khadijah Khanum v. Abdool  Kurreem
Sheraji, 1890 I.L.R. 17 Cal. 344 is too broadly stated.	 But
even  if  it mean 'relevant to the issue'  the	taperecorded
statement  in  the present case, is relevant  to  the  issue
before	this Court, namely, 'whether the respondent, or	 any
person	 with	his  connivance,  printed,   published	 and
distributed the pamphlets." [411 B-C, E]
400



JUDGMENT:

ORIGINAL JURISDICTION Election Petitions Nos. 4 and 5 of 1969.

Election Petitions in Admissibility in Evidence of Tape- Recorded Conversation.

K. C. Sharma, K. I. Rathee, M. S. Gupta, C. L. Lakhanpal and S. K. Dhingra, for the petitioners (in E.P. No. 4 of 1969).

S. C. Malik, M. S. Gupta and K. L. Rathee, for the petitioners (in E.P. No. 5 of 1969).

C. K. Daphtary, D. Narasaraju, S. Mohan Kumaramangalam, S. T. Desai, S. K. Dholakia, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the respondent (in both the petitions).

Jagadish Swarup, Solicitor-General, L. M. Singhvi and K. P. K. Nayer, for the AttorneY-General, Election Commission and Returning Officer, Presidential Election. The Order of the Court was delivered by Vaidialingam, J. On April 1, 1970 Shri Jagat Narain (R.W.

25) was being cross-examined by the counsel for the petitioners in Election Petition No. 5 of 1969, when certain suggestions were’ put to him that he had tried to dissuade the first petitioner in the said Election Petition, viz., Shri Abdul Ghani bhar from filing the election petition on political reasons and when the witness denied not only those suggestions but also certain other suggestions put to him, counsel for the petitioner represented that Shri Abdul Ghani Dar had a tape recording of the talk that took place between him and the witness and he sought permission from the Court to play the same for being put to the witness. Objection was raised by Mr. C. K. Daphtary, learned counsel for the respondent, that the tape recorded conversation was not admissible in evidence. In view of this objection, counsel on both side were heard regarding the admissibility of the tape recorded conversation, on April 2, 1970 and, after hearing arguments on both sides, we then expressed the opinion that the tape recorded conversation could be received in evidence and that we would give our reasons later. The further cross-examination and reexamination of the witness proceeded in respect of the tape recorded conversation which was played in Court in the presence of the witness.

We now proceed to state our reasons for holding that the tape recorded conversation could be admitted in evidence. But we make it clear that we have dealt with only the question regarding the admissibility in evidence of the tape recorded conversation, which is distinct and separate from the weight to be given to such evidence which question will be dealt with in the main judgment to be delivered in the election petitions. Before we deal with the question of admissibility of the tape recorded conversation, it is necessary to state that in Election Petition No. 5 of 1969 the, petitioners allege that offences of undue influence at the election had been committed by the returned candidate and by his supporters with the connivance of the returned candidate. The material facts relating to the strict allegations have also been given in the petition in paragraph 13 of the election petition. It has been alleged that on August 9, 1969 an unsigned pamphlet in cyclostyled form and also printed pamphlet without bearing the name of its publisher or printer (marked as Exhibits P-18B and P 37-A respectively) were published by free distribution among the members of the Electoral College for the Presidential Election. It has been further alleged that the offence of undue influence was freely committed at the election by the returned candidate and the persons mentioned in the election petition and by their supporters and workers with the connivance of the returned candidate, by voluntarily interfering and attempt- ing to interfere with the, free exercise of the electoral rights of the candidates and the various electors mentioned in the petition. It is further alleged that with the object of interfering with the free exercise of electoral rights by Sri N. Sanjiva Reddy, a candidate at the election, Sri Jagat Narain and certain other persons named in the petition who are described as supporters and workers of the returned candidate in general with the consent and connivance of the returned candidate published, by free distribution, pamph- lets in Hindi and English in cyclostyled form as well as in printed form in which very serious allegations were made against Shri Reddy which amounted to undue influence upon the persons referred to in the election petition within the meaning of s. 171 (c)of the Indian Penal Code. There is a further allegation that these pamphlets were distributed from August 9, 1969 to August 16, 1969 among all the electors of the Electoral College for the Presidential election and they were also distributed during this period in the Central Hall of Parliament by the various persons mentioned in the petition, which included Shri Jagat Narain. No doubt the allegations that undue influence in the manner mentioned was exercised by the respondent or by anybody with his connivance have been strongly refuted in the counter- affidavits filed by the respondent.

In the particulars given by Shri Abdul Ghani Dar, relating to the distribution of pamphlets in question, he has stated that the persons who distributed them between August 9 and August 16, 1969 had already been mentioned in the election petition. lie has further stated in the said particulars that Shri Jagat Narain was one of the persons who distributed the pamphlets in the Central Hall of Parliament on August 11, 1969 to the Members of Parliament whose names have also been given.

Issues have been framed whether the respondent, or any person with his connivance, printed, published and distributed pamphlets and other matters connected therewith. In chief-examination, Jagat Narain, as R.W. 25, has stated ,hat he has never seen either of these pamphlets being distributed and that he has seen them only in Court, on the day when he was giving evidence, viz., on March 31, 1970. He has also stated that he never received the pamphlets at salt. He has further reiterated that he has not distributed the pamphlet as spoken by some of the witnesses on the side of the petitioners and he has further affirmed that he has never distributed the pamphlets in the Central Hall of Parliament and that he has not seen the pamphlets except in Court. In cross-examination, the witness was asked about the telephone call that he had made to Abdul Ghani Dar about 6 or 7 days before the filing of the election petition, i.e., in the first week or second week of September 1969; and suggestions her made that the witness attempted to dissuade Abdul Ghani Dar from filling the election petition on the ground that serious consequences would follow from such action. Though the witness admitted that he had a telephone talk with Abdul Ghani Dar, he denied various other suggestions put to him regarding the nature of the talk that took place between him and Abdul Ghani Dar. It was at that stage that the counsel for the election petitioner wanted the tape recording of the talk that took place between Abdul Ghani Dar and the witness to be adduced as evidence on the ground that the answers given by the witness in Court were quite contrary to the nature of the conversation that he had with Abdul Ghani Dar. Objection was raised to receiving the same as evidence.

Mr. Daphtary, learned counsel for the respondent, raised two contentions regarding the admissibility of the tape-recorded conversation between R.W. 25 and Abdul Ghani Dar: (1) The tape-recorded conversation cannot be admitted in evidence for contradicting the evidence of the witness;and (2) Under S. 155 (3) any former statement_before it could be put in evidence to impeach the credit of a witness, the Court must be satisfied that the previous statement is relevant to the matter in issue and the tape recorded conversation, in his case, has no relevance to the matters which are in issue in these proceedings.

Mr. Daphtary, learned counsel, did not dispute the correct- ness of two decisions of this Court to which reference will be, made later, wherein the taped records of conversation had been admitted in evidence. But, according, to him, in those cases them tape recorded conversations were admitted in evidence to corroborate the evidence given by a witness before the Court, and not. to contradict his evidence. Both the grounds of objection raised by Mr. Daphtary have, been controverted by Mr. Malik and by Mr. Sharma, learned- counsel appearing for the election petitioners in Election Petitions. Nos. 5 and 4 of 1969, respectively. According to Mr. Malik. whose contentions were substantially adopted by Mr. Sharma,, issues have been framed whether undue influence has been exercised by the respondent or by any other person with his connivance. According to the petitioners undue influence has been’. exercised by the publication and distribution of the pamphlets, making scurrilous attack about the personal character of Sri Sanjiva Reddy. Specific allegations have been made in the election petition that R.W. 25 is one of those who distributed the pamphlets in the Central Hall of Parliament with the connivance of the, respondent. The witness denied this allegation in chief-examination and when certain suggestions, that the witness attempted to dissuade Shri Abdul Ghani Dar from filing his election petition on the ground that serious consequences would follow, were put to him in cross-examination, witness denied them and, ‘in that context the tape-recorded conversation between the witness and Shri Abdul Ghani Dar assumes importance. Relying upon that tape recorded conversation, counsel urged that his client is entitled to test the veracity of the witness and to impeach the credit of the witness and satisfy the Court that the evidence given by the witness before us is inconsistent or contrary to what he had stated on an earlier occasion.

In this connection counsel relied upon ss. 146, Exception 2 to s. 153 and cl. (3) of s. 155 of the Evidence Act. Section 146 deals with questions lawful in cross-examination and, in particular, cl. (1) thereof provides for a witness being cross-examined by questions being put to him which tend to test his veracity. Section 153 generally deals with exclusion of evidence to contradict answers to questions testing veracity, but Exception 2 states that if a witness is asked any question tending to impeach As impartiality and answers it by denying the facts suggested,, he may be contradicted. Section 155 deals with impeaching the credit of witness by the various ways dealt with in clauses (1) to (4). One of the ways by which the credit of a witness may be impeached is dealt with in cl. (3) and that is by proof of former-

statement in consistent with any part of his evidence which is liable to be contradicted. Mr. Daphtary pointed out that S. 146 must be read with S. 153. We cannot accept this contention in its entirety. It may be that cl. (3) of s. 146 may have to be read along with the main s. 153 but clause (1) of s. 146 and exception (2) to s. 153 deal with different aspects. Under s. 146(1) questions may be put to a witness in cross-examination to test his veracity and, under Exception 2 to s. 153 a witness may be contradicted when he denies any question tending to impeach his impartiality. :The object of the election petitioner to adduce the tape-recorded conversation as evidence is to impeach the testimony of the witness that he has never seen the pamphlet and that he has never attempted to induce the election petitioner not to file the election petition on threat of serious consequences, and to establish that the evidence given in Court is quite contrary to the statements made by him in the conversation that he had with Abdul Ghani. Dar and which has been recorded on tape. We will now refer to the case law on the subject. In Hopes ,and Another v. H. M. Advocate(1) a tape-recorded conversation which took place between a complainant and a black-mailer was played before the jury and sought to be put in evidence by a police ,officer who had listened to the conversation as it was transmitted through the loudspeaker. Objections were raised to the admissibility of the said evidence. The learned trial Judge over-ruled the ,objection as follows :

“New techniques and new devices are the order of the day. I can’t conceive, for example, of the evidence ,of a ship’s captain as to what he observed being turned down as inadmissible because he had used a telescope, any more than the evidence of what an ordinary person sees with his eyes becomes incompetent because he was wearing spectacles. Of course, comments and criticisms can be made, and no doubt will be made, on the audibility or the intelligibility, or perhaps the interpretation, of the results of the use of a scientific method; but that ‘is another matter, and that is a matter of value, not of competency, The same can be said of visual observation by a witness who says he sees something; his evidence can be criticised because of his sight or because of the sort of glasses he is wearing, and so on, but all these matters are matters of value and not of competency.

(1) (1960) Scots Law Times 264.

Accordingly, the learned Judge allowed the police officer to give evidence as to what he heard on the tape recorder, which was played before the Jury.

On appeal to the High Court of Justiciary, it is seen that no objection appears to have been taken to the competency of the evidence furnished by the tape-recorder but the admissibility of the evidence of the police officer based upon As hearing of the tape-recorded conversation was objected to. This objection was over-ruled by the High Court of Judiciary stating that, it is competent for the police officer to give evidence of conversation which he heard with the help of hearing aid or, as in the case before them, when the conversation is transmitted to him over a distance by wireless and that there may be criticism of the quality of his evidence and not about the competency of the evidence of what he has heard. The Court further observed at p. 267 “The Inspector’s evidence of the conversation was as much primary evidence as the evidence from the replaying of the tape recorder. Each received it at the same time, t he one recording it in the human memory the other upon a piece of tape.”

From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder.

In R. v. Mills(1) a conversation which had been recorded on tape between two of the persons was heard by a police officer who gave evidence that he has himself remembered the various remarks which passed between those two persons which could be corroborated by the conversation recorded on the tape. But the tape recording itself was not introduced in evidence nor was there any production of the record by consent before the Jury. They referred to the decision of the High Court of Judiciary in Hopes Case(-) and held that according to the said decision the tape recorded conversation was admissible as direct evidence. Though the discussion in the judgment shows that a tape-recorded conversation is admissible in evidence, ultimately the Court left open the question stating :

“The court has not debated, and is not deciding, any broad and general question of principle whether evidentiary material obtained by the use of a tape recorder without the concurrence of a human being listening to the same sounds is admissible or is not admissible in evidence in a criminal trial.”

(1) [1962] 3 All. E.R. 298. (2) [1960] Scots Law Times 264 L12Sup.CI/70-12 But it is significant to note that the Court of Criminal Appeal rejected the contention of the counsel for the accused that there has been any question of introduction of hearsay evidence at the trial by the evidence of the police officer giving evidence after refreshing his memory from the tape.

The question again directly arose in R. v. Maqsud Ali(1). In that case a conversation which took, place in Punjabi dialect between two persons and which had been recorded on the tape was played before the jury and was admitted in evidence by the trial Judge. Objection was taken before the Court of Criminal Appeal regarding the admissibility in evidence of the tape recorded conversation between the accused. Therefore the point that specifically arose before the-Court of Appeal was ‘Is a tape recording as such admissible in evidence, as a matter of law’?’ After referring to the observations in Mills’ Case 2 ) the appellate Court noted that the question regarding the admissibility of a tape record was not actually decided in that case. The decision of the High Court of Justiciary in Hopes’ Case(:”) was referred to and it was noted that the evidence of the police officer who listened to the tape recorder was held to be admissible. The Court said, at p. 469 :

“We think that the time has come when this court should state its views of the law on a matter which is likely to be increasingly raised as time passes. ‘For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting, and recording, conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence (1) [1965] 2 All.E.R. 464.

(2) [1962] All E.R. 298.

(3) [1960) Scots Law Times 264.

should always be regarded with some caution and assessed in the light of all the circumstances of each case There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.”

In consequence, the Court held that the tape-recorded conversation was admissible in evidence, subject to the limitations mentioned in the above extract. It will therefore be seen that though the question of admissibility of a tape-recorded conversation had been left open in Case(1), the same was specifically considered and decided affirmatively in Maqsud Ali’s Case (2). Before we deal with the decisions of this Court bearing on this point, it is necessary to advert to two decisions, one of Punjab High Court _and the other, of the Calcutta High Court. In Rup Chand v. Mahabir Parshad(3) the defendant, in answer to a suit for recovery of a certain sum of money on the basis of a promissory note., put forward a plea that the original promissory note containing certain endorsement had been destroyed and had been replaced by another promissory note bearing the same date. The defendant attempted to substantiate this plea by the oral testimony of a broker but the latter declined to support him. The defendant requested the Court to permit him to confront the broker witness with the conversation which had taken place between himself’ Blind the broker in regard to the destruction of the earlier promissory note and which,had been faithfully recorded on a tape-recorder. The plaintiff objected to the admissibility of the evidence by tape, recorder, but the trial Court over-ruled the objection. In the revision taken before the High Court by the plaintiff, the order of the trial Court was confirmed. The High Court relied upon s. 155(3) of the Evidence Act and held that as the broker appearing- as a witness in the case before it had made a statement to the defendant on a former occasion which was at variance with the statement made by him before the Court, there can be no doubt that the defendant could establish that a previous statement which was contradictory to the evidence given before the Court was made by the witness to him. Dealing with the question whether a record of such a previous statement, as prepared by a scientific instrument. could be produced in Court as evidence, the High Court held that such a tape-recorded statement was admissible in evidence, and observed as follows :

“I am aware of no rule of evidence which prevents a defendant who is endeavouring to shake the credit of (1) [1962] 3 All E.R. 298.

(3) A.I.R. 1956 Punj. 173.

(2)[1965] 2 All E. R. 464.

4 0 8 witness by proof of former inconsistent statements’. from deposing that while he was engaged in conversation with the witness a tape recorder was in operation, or from producing the said tape-recorder in support of the assertion that a certain statement was made in his presence.”

This decision lays down two propositions : (i) that a taperecorded conversation is admissible in evidence and that

(ii) if it contains a previous statement made by a witness, it can be used to contradict the evidence given before the Court.

In Manindra Nath v. Biswanath(1) the Calcutta High Court had to consider whether a defendant was entitled to adduce in evidence a previous statement of the plaintiff and recorded on the tape to contradict the plaintiff’s evidence given before the Court and held that, the tape-recorded conversation was admissible in evidence and the previous statement recorded therein could be used to contradict the evidence given before the court. After referring to Rup Chand’s Case (2) the Court observed at p. 192 “If the plaintiff, while he is in the witness box, makes a statement which is at variance with a statement previously made by him, the plaintiff may be asked whether he m ade such previous statement and if he denies having made the previous statement, such previous statement may be proved by the defendant. There, as in this case, it is alleged that the previous statements of the plaintiff were recorded in a tape-recorder, those statements may be admitted in evidence, if it is proved that they were made by the plaintiff and that the instrument accurately recorded those statements. The fact that the statements were recorded in a tap-,-recorder and the recording was made behind the back and without the knowledge of the plaintiff is by itself no objection to the admissibility of the evidence.”

There are two decisions of this Court bearing on this matter S. Pratap Singh v. The State of Punjab(3) and Yusuffalli v. Maharastra(4).

In Pratap Singh’s Case(“,) it has been held that rendering of a tape-recorded conversation can be legal evidence by way of corroborating the statement of a person who deposes that the other speaker and he carried on the conversation and even of the state-

(1) 67 S.W.N. 191.

(3) [1964] 4 S.C.R. 7533 (2) A.I.R. 1956 Punj. 173.

(4) [1967] 3 S.C.R. 720.

ment of a person who may depose that he overheard the conversation between the two persons and what, they actually stated had been tape-recorded and that weight to be given to such evidence will depend on the other facts which may be established in a Particular case. Though there was a difference of opinion in the majority and minority judgments regarding certain other aspects which arose for consideration, so far as the admissibility of it tape- recorded conversation in evidence, all the Judges appear to have been unanimous in the view that it was admissible. But it must be noted that in the majority judgment it is stated that it was not contended on behalf of the State that the tape-recording were inadmissible. Similarly, in the minority judgment also it is observed that tape-recordings can be legal evidence by way of corroborating the statements of a person who deposes that the speaker and he carried on that conversation and, as it had not been held by the trial Court that the record of a conversation on tape is not admissible in evidence for any purpose it was not necessary to pursue the matter further.

In Yusufjalli’s case(1) the question was whether a conversa- tion between the complainant and a person, who later figured ,as an accused on a charge of offering bribe, and recorded on tape was admissible in evidence. It is seen from the decision of this ,Court that the tape recorder was played in Court at the trial of the accused. This Court held that the evidence of the complainant was sufficiently corroborated by the tape-recorder and observed at p. 723 :

“The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under s. 8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record, of the dialogue corroborates his testimony. The process of tape-recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape-record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.”

Reference was made , with approval to the decision of the Punjab and Calcutta High Courts in Rup Chand’s Case(2) and Manindra Nath’s Case(3) and also to the earlier decision of this Court in Pratap Singh’s Case ( 4 ) where a tape- recorded conversation had been admitted in evidence. The decision in Maqsud Ali’s Case(5) was also quoted with approval.

(1) [1967] 3 S.C.R. 720.

(2) A.I.R. 1956 Punj. 173.

(3) 67 C.W.N. 191 (4) [1964] 4 S.C.R. 733.

(5) [1962] 3 All. E R. 298.

In particular, it will be noted that this Court, in the said decision, approved of the decision of the Punjab High Court in Rup Chand’s Case(1) holding that tape-recording of a former Statement of a witness can be admitted in evidence to shake the. credit of the witness underS. 155(3) of the Evidence Act.

Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three last- mentioned matters, under s. 146 ( 1), Exception 2 to s. 153 and s. 153(3) of the Evidence Act. Therefore it is not possible for us to accept the contention of Mr. Daphtary that the previous statement can be used only for purposes of corroboration but not for the purpose of contradicting the evidence given before the Court. If a previous statement made by a person can be used to corroborate his evidence given before the Court, on principle, we do not see any reason why such previous statement cannot be used to contradict and also for the other purposes referred to above. In particular the fact that the decisions of the Punjab and Calcutta High Courts Rup Chand’s Case(1) and Manindra Nath’s Case(2) where the previous statements have been used to contradict the evidence given before the Court has been approved by this Court in Yusuffalli’s Case(,) clearly establishes that the contention of Mr. Daphtary that the previous statement cannot be used to contradict the evidence given before the Court cannot be accepted. As pointed out already, Mr. Daphtary has not challenged the correctness of the decision in Yusuffali’s Case (3). Therefore the first ground of objection raised by Mr. Daphtary will have to be overruled.

Coming to the second contention of Mr. Daphtary, which has been set out earlier, in our opinion that question becomes really accademic when once we have held that the previous statement can be used to contradict the evidence given ‘before the Court under. 155 (3)for the purpose of impeaching the credit of the witness. But, as the question has been raised, we shall deal with that aspect also. According to Mr. Daphtary, the expression ‘which is liable to be contradicted’ in clause (3) of S. 155 means ‘which is relevant to the issue’. In support of this contention, the counsel referred us to the decision of the Calcutta High Court in Khadijah Khanum v. Abdool Kurreem Sheraji(4) and pointed out that the said’ decision has been referred to in text-books on the Law of Evidence (1) A.I.R. 1956 1 (2) 67 C.W.N. 191.

(3) [1967] 3 S.C.R. 720.

(4) 1890 I.L.R. 17 Cal. 344.

vize., Wodroffe & Ameerali’s Law of Evidence, Field’s Law of Evidence and Sarkar’s Law of Evidence. In the Calcutta decision the Court has stated :

“I am inclined to think that in s. 155(3) of the Evidence Act the words, ‘which is liable to be contradicted,’ mean ‘which is relevant to the issue”.

In our opinion, the proposition has been too broadly laid down by the learned Judge. A reference to the various clauses in s. 155 in our opinion does not warrant the interpretation placed by the Calcutta High Court. For instance, under cl. (1), the evidence that is contemplated and which could be given will certainly not be directly relevant to the issue which is before the Court but will be of a general nature that the witness is unworthy of credit. Again, under cl. (2), the evidence regarding the receipt of bribe will only be to establish that the evidence of the witness regarding the matters about which he speaks cannot be acted upon. Even otherwise, in this case, we have already referred to the relevant issue bearing on the matter and we have pointed out that according to the counsel for the petitioners their attempt is, to impeach the credit of R.W. 25, by establishing, if possible, that his evidence cannot be relied on in view of the fact that he is making contradictory statements. On that basis, even applying the test laid down by the Calcutta High Court, it will follow that the previous statement, recorded on tape, must be considered to be relevant to the issue before the Court. Counsel also drew our attention to the decision of the Judicial Committee in Bhogilal v. Royal Insurance Co.(1) to the effect that ss. 153 and 155 of the Evidence Act must be strictly construed. There can be no controversy that the provisions of any statute must be properly and strictly construed. This decision, hence, has no bearing on the matter before us. It is also significant that the Judicial Committee, when dealing with s. 155 of the Evidence Act, makes no reference to the decision of the Calcutta High Court in Khadijah Khanum’s Case (2).

It follows that the second ground of objection, urged by, Mr. Daphtary, to the admissibility of this piece of evidence, has also to be overruled.

In the result we hold that the conversation, which is stated to have taken place between the witness R.W. 25 and the first petitioner in Election Petition No. 5 of 1969 (viz., P.W. 55 and recorded on tape, is admissible in evidence. We once again emphasize that this order relates only to the admissibility in evidence of the conversation recorded ‘on tape (1) A.I.R. [1928] P.C. 54.

(2) 1890 I.L.R.17 Cal.344.

and has not dealt with the weight to be attached to that evidence. It must also be Pointed out that the question, whether the pamphlets, Exhibits P-18B and P-37A, have been circulated in the manner alleged by the petitioners and the further question whether they amount to exercise of undue influence are also matters which have not been considered in this order. The above are all aspects which will be dealt with in the judgment, while disposing of the Election Petitions.

R.K.P.S.

Madras High Court
Manokaran @ Ramamoorthy vs M. Devaki on 21 February, 2003
Equivalent citations: AIR 2003 Mad 212, I (2003) DMC 799, (2003) 1 MLJ 752
Author: P Sathasivam
Bench: P Sathasivam

ORDER P. Sathasivam, J.

1. Aggrieved by the order of the Principal Family Court, Madras dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000, granting interim maintenance at the rate of Rs.750/- per month and litigation expenses of Rs.1,500/-, the husband has preferred the above Revision under Article 227 of the Constitution.

2. The petitioner/husband has preferred the said O.P. for divorce under Section 13(1)(1a) and (1b) of the Hindu Marriage Act. Pending the said petition, the wife/respondent herein has filed I.A. No. 1058/2001 claiming interim maintenance at the rate of Rs.2,000/- per month and Rs.5,000/- towards litigation expenses under Section 24 of the Hindu Marriage Act. The said application was resisted by the husband stating that she is working in a private concern and drawing a salary of Rs.4,500/- per month. It is also stated that he is earning only Rs.2000/- per month. Before the Family Court, salary certificate of the husband dated 10-6-2002 has been marked as Ex.R-1. Based on Ex.R-1, after finding that he is earning Rs.70/- per day by working in Senthil Auto Garage, the Family Court has concluded that the wife is entitled to interim maintenance at the rate of Rs.750/- per month from the date of petition till the disposal of O.P. and also awarded Rs.1,500/- towards litigation expenses.

3. The only question to be considered in this Revision is whether the wife/respondent herein has made out a case for interim maintenance in terms of Section 24 of the Hindu Marriage Act.

4. Mr. N. Manokaran, learned counsel for the petitioner, after drawing my attention to Section 24 of the said Act and the admission of the wife in the counter statement filed in the main petition viz., O.P. No. 1310/2000, would contend that since she is earning sizeable income and in view of the fact that the petitioner/husband is getting only Rs.2000/- per month, the Family Court has committed an error in granting interim maintenance and litigation expenses.

5. There is no dispute that the petition has been filed by the respondent/wife claiming maintenance pendente lite and expenses of the proceedings under Section 24 of the Hindu Marriage Act. Section 24 reads thus:

“24. Maintenance pendente lite and expenses of proceedings.- Where in any proceedings under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.”

The above provision would show that for grant of maintenance pendente lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that the applicant has found sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per Section 24 of the Act. While construing the very same provision in similar circumstance, A.S. Venkatachamoorthy, J., in KUMARESAN v. ASWATHI [(2002) 2 M.L.J. 760 has arrived a similar conclusion. Now I shall consider whether the respondent/wife has any independent income which is sufficient for her survival and for the proceedings. In para 10 of the counter statement filed by the wife in O.P. No. 1310/2000, she herself admitted that, …..Now the respondent (wife) had got her present job in private body and running her life with the salary and staying with her brother…”. The above statement shows that she is employed in a private concern, getting salary and staying with her brother. In the application for interim maintenance, the husband has filed a counter affidavit wherein he has specifically stated that his wife is drawing a salary of Rs.4,500/- from a private concern. In para 5 of the counter affidavit it is stated that, “5. The respondent denies all the allegations in para 5 and put the petitioner strict proof of the same. The averment about I am liberally suffering without financial assistants is put to strict proof since this petitioner is working in the organization Kumari Neruvanam at No. 40, Venkat Narayanan Road, T. Nagar, Chennai 600 017, and drawing a salary of Rs.4500/- she also disclosed this before the All Women Police Station, Thousand Lights, and this petitioner also admitted in her counter statement that she is working in private and running her life. But contradictory to her statement in counter statement now this petitioner come forward with a plea that she is without financial assistance. This petitioner is working as typist and main organizer for a programme in Neingalum Pachalar Agalam a programme telecaste in RAJ TV during Sunday 8.00 A.M, from her company Kumari Neruvanam. The averment about that this respondent is owner of the “Venkataswari Turning Works” at Muthumariamman Koil Street, Anna Nagar, Chennai-600 040 is put to strict proof since this respondent is not the owner of the said company and A. Loganathan is the owner of the said Turning works and this respondent is working in Senthil Auto Garage at Annai Sathya Nagar, Anna Nagar (East) Chennai-600 102, and drawing a salary of Rs.2000/- and this respondent need not to give any monetary assistance to the petitioner for her claim.”

The above averment shows that the petitioner herein/husband is working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2000/- per month. Likewise, it is also seen that the respondent herein/wife is working in Raj T.V and drawing a salary of Rs.4,500/-. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.1310/2000 wherein she admitted that she secured a private job and is getting salary and staying with her brother. On the other hand, it is established particularly from Ex. R-1, the petitioner herein is getting only Rs.70/- per day or Rs.2000/- per month by working in Senthil Auto Garage. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. In the light of the materials available, particularly the admitted case of the respondent/wife, she is employed in a private Satelite T.V. and earning for her livelihood staying with her brother, it cannot be construed that she is not having sufficient independent income. The Family Court lost its sight to consider the above material aspect.

6. In the light of what is stated above, the impugned order of the Principal Family Court dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000 is set aside and the Civil Revision Petition is allowed. No costs. It is made clear that pending the divorce proceedings at any point of time if the applicant/wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite. Consequently, C.M.P. No. 16264/2002 is closed.

Delhi District Court
State vs . Anuj Kapoor & Anr. on 11 January, 2019
            IN THE COURT OF MM (MAHILA COURT­02)
             (SOUTH­WEST), DWARKA COURTS, DELHI

PRESIDING OFFICER: NEHA, DJS.

IN THE MATTER OF :
State Vs. Anuj Kapoor & Anr.
FIR No. 140/10
PS: Nanakpura
U/s 498A/406/34 IPC
Date of Institution        : 12.12.2012
Date of reserving of order : 26.11.2018
Date of Judgment           : 11.01.2019

JUDGMENT
   1. Serial No. of the case                : 248/16
   2. Name of the Complainant               : Neha Kapoor
   3. Date of complaint                     : 19.03.2010
   4. Name of accused person                :1. Anuj Kapoor
                                             S/o Late Parvesh Kapoor

                                             2.Veena Kapoor
                                             W/o Late Parvesh Kapoor
                                             Both R/o Flat no.1, Swastic
                                             Residency, Narayan Vihar,
                                             Kargi Road, Dehradoon,
                                             Uttrakhand.

   5. Offence charged                       : U/s 498A/406/34 IPC

   6. Plea of accused                       : Not guilty
   7. Final Order                           : Acquitted


FIR No. 140/10                 State Vs. Anuj Kapoor & Anr.       Page No. 1 of 27
PS: Nanakpura
 Counsels for the parties.
Ms. Rajesh Kumari, Ld. APP for the State.

Sh. Aklank Jain, Ld. Counsel for both accused persons.

BRIEF REASONS FOR ORDER:

1. The accused persons namely Anuj Kapoor and Veena Kapoor have been charge­sheeted for committing offences punishable under Section 498A/406/34, Indian Penal Code (45 of 1860) (hereinafter referred to as “IPC“). It has been alleged by the prosecution that during the subsistence of marriage of accused Anuj with complainant Neha, both accused, in furtherance of their common intention, subjected the complainant to cruelty to meet unlawful demands. It is also alleged that accused persons were entrusted/having dominion over stridhan articles of complainant which they misappropriated to their own use and did not return to the complainant despite demand.

2. Complaint was made and an FIR was registered. IO conducted the investigation. After completion of investigation, the present charge­sheet has been filed for offences punishable under Section 498A/406/34 IPC against accused Anuj Kapoor (husband) and Smt. Veena Kapoor (mother­in­law).

3. Cognizance of offence was taken and both accused were summoned to face trial. The copy of the charge­sheet was supplied under Section 207 Cr.P.C. to the accused persons.

4. Vide order dated 11.12.2014, charge for offence u/s 498­ FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 2 of 27 PS: Nanakpura A/406/34 IPC was directed to be framed against both accused. Accordingly, charge for offence u/s 498­A/406/34 IPC against both accused was framed, to which they pleaded not guilty and claimed trial.

5. Prosecution Witnesses have been summoned for evidence and total 11 prosecution witnesses have been examined to prove the case of the prosecution against the accused persons.

6. PW­1 Ms. Neha Kapoor is the complainant. She has deposed that she married accused Anuj Kapoor on 03.02.2005. It was a love marriage and she informed about the marriage to her parents, through her uncle on 05.02.2005. Initially her parents got angry but later they organized a function (a lunch for friends and families of both the sides) on 07.02.2016. The said function was celebrated as a marriage function. All the articles including jewelleries, T.V. etc. were given by her parents in that function. She came to her matrimonial house at Subhash Nagar, Delhi. On the very same day, her mother­in­ law namely Veena Kapoor took all her jewelleries on pretext of safe keeping and assured her that she would handover the same to her whenever she needed.

7. PW­1 has further deposed that her husband used to get angry on petty things. Whenever she used to ask for her stridhan from her mother­in­law for any function, her mother­in­law used to refuse to handover the same. This used to happen on almost every function like Diwali, Karva Chauth etc. Whenever she used to discuss this matter with her husband, he used to get angry and beat her. On the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 3 of 27 PS: Nanakpura occasion of Diwali 2005 also, her husband beat her up on the same issue. On first marriage anniversary, her parents came to her matrimonial house and gifted various articles, including gold articles and cash etc. to her and the accused persons. After her parents left, her husband, mother­in­law, sister­in­law namely Meenu Juneja started giving taunts to her that the articles given by her parents were of sub standard quality. On 01.12.2005, she gave birth to a daughter. Her mother­in­law was not happy as she was expecting a male child. She also refused to take her daughter in her lap. Whenever she used to talk on this issue with her husband, he did not use to support her and beat her up. Her husband used to come late at night and completely drunk and whenever she objected, he used to give her abuses and beat her up.

8. PW­1 has further deposed that in July 2006, her mother­ in­law retired from her service. All in­laws planned to shift to Uttarakhand. However, the same was not informed to her. After about a month, they shifted to Uttarakhand. One week prior to first birthday of her daughter, her husband told her to ask her parents to bring Rs. 2 Lakh in the birthday of the daughter as he was planning to start a business. When she objected to the demand, her husband got angry and said that he would send her back to Delhi, if the demand was not met. She called her father and told him that Anuj was planning to start a small business and she asked him to bring Rs. 2 lacs on birthday of daughter. Her parents gifted various articles including gold jewellery and cash. Her father also gave Rs. 2 lakhs to her which she handed over to her husband. When her parents left, her husband, mother­in­ FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 4 of 27 PS: Nanakpura law and sister­in­law started giving taunts that the goods brought by her parents were not as per their expectations.

9. PW­1 has further deposed that her husband took a rented shop at Rajpur Road, Dehradun and started doing business. She used to do all the household chores and also used to help her husband at his shop. Despite all her efforts, her husband used to get angry on petty issues and started beating. Her husband did not use to give her any money for her daily expenses. He also started forcing her to do some job. Due to this, she took up a job in Himalayan Public School, Dehradun. She alone had to manage both her job and school and also look after her daughter. When she started doing the job, things went good for 2­3 months but the situation again changed. In Dehradun also, her mother­in­law did not hand over her jewellery to her whenever she asked to give the same for wearing in any function. She used to say that the same were lying in a bank locker.

10. PW­1 has further deposed that in 2008 on occasion of Lohri, her husband beat her mercilessly when she asked for her jewellery. On 23.07.2009, her husband called her to cook dinner as he was on the way back to home. Her husband and mother­in­law came to her and took her inside the room of her mother­in­law. Both accused started beating her mercilessly without any reason. Her husband also forced a pillow on her face to kill her. Somehow, she came outside the room and rushed towards the main door but she found that the door was locked. She was bleeding from her forehead and near her left eye. She shouted for help but no one came for her FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 5 of 27 PS: Nanakpura rescue. She called her parents and informed her father about the incident. Her husband snatched the phone. Her father called back on that number but she was not able to pick it up. Her father immediately called the husband of her sister­in­law namely Rakesh Juneja and also to the Mama of her husband namely Arun Gaba. Thereafter, her husband shouted at her and opened the main door. She picked her daughter and left the house. Someone informed her husband that since he had mercilessly beaten her up, he would be in trouble. Thereafter, her husband came to her and got her talk to Rakesh Juneja who asked her to stay quiet and assured her that he would settle down the issue. Thereafter, her husband took her to Sunder Palace Hotel, Dehradun. They spent a day there. In the meantime, relatives from both the sides called on the mobile phone of her husband and they all assured them to stay quiet in order to save their matrimonial life. On the assurance of relatives, she went to her matrimonial house.

11. PW­1 has further deposed that in December 2009, her husband asked her that he had booked train tickets for her and her daughter so that she could visit her parent’s house. When she reached Delhi, she called her husband but the phone was switched off. She came to know from the neighbours that the house was locked and even the car was not there. Later on, she came to know that her husband had come to Delhi on the same day to her uncle’s house. Her husband told her uncle to keep the complainant in Delhi. Thereafter, her husband went away. She called him but he did not take her call. In the night, her husband called her and asked her that there was no need for her to FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 6 of 27 PS: Nanakpura come to Dehradun. She also came to know that they had filed a false complaint against her that she voluntarily left her matrimonial house. Her husband also filed a false divorce case against her in Dehradun in 2010. She was left no option but to complain to the police. Hence, she made a complaint to CAW Cell which is Ex. PW­1/A.

12. PW­1 has further deposed that when she left Dehradun, there was only one bag with her which has only some clothes of her and her daughter. All her istridhan articles were lying with her mother­ in­law. She handed over the marriage photographs and other documents to Police which was seized vide Ex. PW­1/B. She handed over the list of articles which is Ex. PW­1/C. She proved tickets booked by her husband in December 2009 as Ex. PW­1/D and the complaint filed by her at PS Madhu Vihar as Ex. PW­1/E.

13. PW­2 Sh. Kuldeep Chander Trikha is the father of the complainant. He has deposed that his daughter’s marriage was solemnized on 03.02.2005 and it was love marriage. Keeping in mind the reputation and prestige of the families, he decided to perform an arranged marriage on 07.02.2005 at his house and some ceremonies were done at Birla Mandir. He arranged lunch for the relatives from both the sides. The photographs of marriage are Ex. PW2/A. After giving sufficient dowry articles, he sent his daughter to her matrimonial house. When his daughter came to his house on phera ceremony, she told that her in­laws taunted her for bringing less dowry.

14. PW­2 has further deposed that on the next day, the in­ FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 7 of 27 PS: Nanakpura laws of his daughter arranged a function in the name of reception. He alongwith his relatives went there and gave sufficient articles. On 01.12.2005, his daughter gave birth to a girl child. On this, her in laws taunted her that they were already burdened with his daughter and they have got more burden now. They were not happy with the girl child. After going to matrimonial home at Subhash Nagar from the hospital, the behaviour of the accused persons did not change. They did not even provide proper meal to the complainant and often taunted that her parents had not given anything in the marriage. On several occasions, the accused tried to beat the complainant. On one night, the complainant called him and informed that she was standing on the road and she complained about misbehavior of accused Anuj Kapoor in the matrimonial house. When he reached there and confronted accused Veena Kapoor, she felt sorry.

15. PW­2 has further deposed that in the month of June 2006, mother­in­law of complainant retired from job. All of a sudden, they said that they were going to small town at Uttrakhand. They sold their property at Subhash Nagar and shifted to Dehradoon. As the accused were not providing basic amenities to his daughter and her child, she joined a school on provisional basis to meet her basic needs.

16. PW­2 has further deposed that accused Anuj also demanded salary of the complainant. Both accused beat his daughter and also misbehaved with her. On 23.07.2009, accused Anuj came home all drunk and beat the complainant and even co­accused Veena asked Anuj Kapoor to beat the complainant and teach her a lesson. In FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 8 of 27 PS: Nanakpura the night at about 12 midnight, the complainant called and narrated about the incident. Thereafter, he informed brother­in­law (Jija) and uncle (Mama) of accused Anuj and told them that he was going to Dehradun. Uncle of Anuj said that he was not aware of all these things and he assured that he would talk to the accused persons. Suddenly, accused Anuj asked his daughter that if she wanted to go to Delhi, he would take her there. While Anuj was coming to Delhi, his uncle called him and asked him not to go to Delhi but to stay at some hotel. Thereafter, accused Anuj and the complainant went to hotel Sunder Palace Dehradun and remained there as there were several bruise marks on the body of his daughter. In the morning, he alongwith his wife and brother inlaw went to the house of mama of accused Anuj at Ramesh Nagar. They all showed their unawareness about the issue and they called Anuj and talked to him.

17. PW­2 has further deposed that in the month of December 2009, his daughter asked accused Anuj that she wanted to go to Delhi. Accused deboarded his daughter at railway station at Dehradun and himself came to Delhi by his car to his friend’s house namely Surender Pal Vij in the evening. He picked his daughter from railway station. In the evening, his friend Surender Pal Vij came to his house and told that accused Anuj, his mother and his mami had come to his house and asked him to arrange a meeting with them. Thereafter, they told these facts to his daughter to which she got upset and started weeping. His daughter burst out and narrated the entire facts to his friend. Thereafter, they went to the house of his friend at around 12 noon on FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 9 of 27 PS: Nanakpura the next day. Accused Anuj, his mother and his mami were present in the meeting. Both accused demanded additional dowry and when the demand was objected to, both accused left the house. Thereafter, accused Anuj had filed a complaint against his daughter that she had left matrimonial house on her own. After few days, he received copy of divorce petition filed by accused Anuj against Neha at Dehradoon. Thereafter, his daughter filed a complaint before CAW Cell on which FIR was registered.

18. PW­3 Sh. Surender Pal Vij is the friend of the complainant’s father. He has deposed that on 20.12.2009, both accused with Mami of accused Anuj came to his house and told him to arrange a meeting with complainant’s parents. When he inquired about the complainant, both accused said that she had already come to Delhi. The meeting was arranged on 21.12.2009 where mother of accused Anuj demanded money for establishing business for accused Anuj. Heated arguments took place and both accused alongwith mami ji left the house.

19. PW­4 Smt. Ranjana Trikha is the mother of the complainant. She has deposed that on 03.02.2005, her daughter solemnized love marriage. They went to meet Anuj and Neha at his mama’s place and decided that the marriage would be solemnized in Birla Temple on 07.02.2005. On 07.02.2005, after marriage Anuj and his entire family was called for lunch. They gave jewelery and other articles to her daughter and her in­laws. On 01.12.2005, one grand daughter was born. After birth of the girl child, the in­laws of Neha FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 10 of 27 PS: Nanakpura were not happy because she gave birth to a girl child. Accused Anuj and Veena started harassing the complainant for bringing more dowry. After retirement of mother­in­law, they shifted to Dehradoon. They went to Dehradoon on first birthday of grand daughter on 01.12.2006. During their visit, they gave Rs. 2 lacs cash and gold article. They also gave some amount for scooter. In 2006, Neha was again tortured but she did not inform them anything as it was love marriage.

20. PW­4 has further deposed that on 23.07.2009, they got a call from Neha at late night. Neha said that she was out of the house in mid night and she was beaten by her mother­in­law and husband. She was thrown out of the house with small child. They told her that they would come to Dehradoon. The mama of Anuj living in Delhi was informed by Anuj that Neha had left the house. Mama called them and asked not to go to Dehradoon and he would patch up. Mama called Anuj and asked him to take Neha and child in a hotel for two days. After two days, Anuj, Neha and child went back to the matrimonial home but still the accused persons tortured her and asked her to bring more dowry. On 20.12.2009, Anuj asked Neha to go to Delhi and Neha came to Delhi with child in train. On the same evening, Surender Vij called to inform that Anuj and his mother came at his house to keep a meeting with them. On 21.12.2009, the meeting was called and both accused asked Neha to give in writing that she would not leave the house without permission and that the accused were not harassing her. They also asked for more money. Her husband did not allow for anything, as the daughter was thrown out of the house after beating.

FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 11 of 27 PS: Nanakpura

21. PW­5 Sh. Rajiv Chopra is jija of father of complainant. He has deposed that after marriage, he had come to know from Kuldeep that there was some problem in the matrimonial life of the complainant. He also came to know that the complainant had come to Delhi on 20.12.2009. He attended the meeting on 21.12.2009 where he found that both accused were demanding dowry because of birth of girl child to the complainant.

22. PW­6 Subhash Chand is a friend of the complainant’s father. He has deposed that on 06.02.2005, Kuldeep had demanded Rs. 50,000/­ from him to solemnize marriage of complainant.

23. PW­7 Gopal Krishan is also one friend of the complainant’s father. He has deposed that on 06.02.2005, Kuldeep had requested for an amount of Rs. 50,000/­ for expenses of his daughter’s marriage.

24. PW­8 Gaurav Bajaj is the son of tent house proprietor. He has deposed that Bajaj Tent House was run by his father and the business was closed two years ago after death of his father. The death certificate is Ex PW­8/A. He proved that the document Ex PW­8/B was in the handwriting of his father.

25. PW­9 SI Krishanji (retd.) is the first IO of the case. He served notice to complainant to produce marriage card, photographs and other relevant documents which were seized vide Ex PW 9/B. The Notice u/s 91 Cr.P.C is Ex PW 9/A.

26. PW­10 SI Hari Singh (retd.) is also second IO of the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 12 of 27 PS: Nanakpura case. He has deposed that he had interrogated accused persons and also went to Dehradoon to recover the istridhan but no recovery was effected. He also visited Sunder Palace Hotel in Dehradoon to receive record of stay of the complainant with accused Anuj in the hotel. He verified the tent bill and marriage certificate from Akhil Bharat Hindu Maha Sabha.

27. PW­11 Inspector M C Pandey is one of the IO with whom investigation remained for sometime. He served notice to the complainant under section 91 Cr.P.C which is Ex. PW­11/A.

28. All the witnesses were cross examined. The prosecution evidence was closed vide order dated 02.06.2018. Accused were examined under Section 313 Cr.P.C r/w Section 281Cr.P.C. Substance of incriminating evidence was put to them separately. Accused persons denied all the incriminating evidence.

29. The accused persons examined themselves in defence. Thereafter, the matter was fixed for defence evidence.

30. DW­1 is Ms. Veena Kapoor is the accused herself. She has deposed that she has celebrated all the festival and functions after the marriage and incurred expenses. They even celebrated birthday of the complainant. The grand daughter got a award of Chubby Cheeks and they celebrated this also. They even got published invitation card for the mundan of the child. She has the photographs of all the functions. On some of the photographs, the complainant had also mentioned the occasion on which the photographs was taken. On the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 13 of 27 PS: Nanakpura marriage, she had gifted three rings, one gold chain, one mangalsutra to Neha and she has got the receipts to show the purchase. They have even got the complainant enrolled in computer course and she got the certificate to prove it. She has got even hand written document of Neha to prove that very nominal amount was given by her family members on functions and occasions. The same is Ex. DW1/1. When the complainant was coming to Delhi on 20.12.2009, she said that one family was coming to see her brother and her brother might get engaged and she needed money for the function. She had withdrawn an amount of Rs. 1 lac from the account and gave Rs. 50,000/­ to Neha. She always treated the complainant with love and affection but she was very abusive towards me. She (complainant) used to call her “bitch” and sometimes she even used to push her from her elbow out of the kitchen.

31. DW­1 has further deposed that when the complainant gave birth to a girl child, she was very happy on this but the mother of complainant was not happy and she was expecting a baby boy. After delivery, she had taken leave to take care of the complainant. The complainant herself got the return ticket from Delhi cancelled. The complainant was maintaining one album of the functions of the child and other festivals. She proved some of the photographs as Ex. DW1/2 to Ex. DW1/22, the bills of purchase of jewellery as Ex. DW1/23 to Ex. DW1/24, the bills of fee receipts of computer course as Ex. DW1/25 & Ex. DW1/26 and original passbook showing withdrawal of Rs. 1 lac before the complainant went to Delhi on 20.12.2009 as Ex.

FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 14 of 27 PS: Nanakpura DW1/27.

32. DW­2 Anuj Kapoor is also one of the accused. He has deposed that he has never harassed the complainant in any manner. False allegations has been made against him that he used to beat the complainant after consuming alcohol. No articles as per the list was given to him and only cash sagan of Rs. 1,100/­ was given to him and his mother at the time of vidayi and Rs. 500/­ to his relatives. He has borne all the expenses of his daughter since beginning. He had closed his shop at Dehradoon and Neha had given all the articles (artificial jewellery) to her friends and family. The complainant had also completed her Graduation during her stay in the matrimonial house. The complainant has stated that she was forced to do a job because he did not have much income. However, in the maintenance case, she had claimed that he was earning Rs. 50,000/­ per month. She had made false allegations that he used to take her salary.

33. DW­2 has further deposed that the child was brought up with love and affection and even her photo was published in magazine “Womens Era” in August, 2008. He proved three photographs of marriage and one photograph of reception as Ex.DW2/A colly, vaccination record of girl child as Ex.DW2/B, copy of registration certificate of scooter as Mark D1, copy of DD deposited with Director of School of Open Learning as Mark D2, list of artificial jewellery with price in the handwriting of complainant as Ex.DW2/C, magazine ‘Womens Era’ as Ex.DW2/D, certified copy of complaint to SSP Dehradoon as Ex.DW2/E and certified copy of petition as Ex.DW2/F. FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 15 of 27 PS: Nanakpura The articles mentioned in the list Ex.DW2/C were disposed off by the complainant and she had given the money to her parents.

34. The accused did not examine any witness in defence and DE was closed vide order dated 09.10.2018. Thereafter, the matter was fixed for final arguments.

35. Written arguments were filed on behalf of the accused and the complainant. Oral arguments also heard.

36. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts against the accused persons. The prosecution witnesses have proved that both accused used to harass the complainant to fulfill unlawful demands. It is also proved beyond reasonable doubt that accused persons had kept all the jewellery of the complainant and did not return on demand. The prosecution has proved all the ingredients of the offences punishable under Section 498­A/406/34 IPC and the guilt of the accused persons has been proved beyond reasonable doubts. Hence, it is prayed, the accused persons may be convicted.

37. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimony of the prosecution witnesses. The evidence of prosecution witnesses is not reliable. The prosecution has failed to prove beyond reasonable doubts that accused persons had ever beaten the complainant or demanded dowry or any jewellery of the complainant was kept by the accused persons. Hence, it is prayed, the benefit of doubts may be FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 16 of 27 PS: Nanakpura given to the accused persons and they may be acquitted.

38. I have heard the rival submissions and carefully perused the material available on record.

39. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.

40. Both accused have been inter­alia charged for committing offence punishable under section 498­A & 406 IPC. The prosecution has alleged that both accused had subjected the complainant to cruelty / harassment to meet unlawful demands of dowry. Section 498­ A IPCprovides punishment for subjecting a woman to cruelty. The essential ingredients of section 498­A IPC are :

A.        A woman must be married.
B.       She must be subjected to cruelty.
C.       Cruelty must of the nature of :
(i)      Any willful conduct as was likely to drive such woman: a.

to commit suicide; b. cause grave injury or danger to her life, limb or health (either mental or physical);

(ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security, (2) or on account of failure of such woman or by any of her relation to meet the unlawful demand.

(iii) Woman was subjected to such cruelty by : (1) husband of that woman, or (2) any relative of the husband.

41. It is settled that for proving offence u/s 498­A IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry or any willful FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 17 of 27 PS: Nanakpura conduct on the part of accused of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health.

42. The complainant has made several allegations against the accused persons. This Court shall now decide whether the prosecution has been able to prove the allegations against the accused persons beyond reasonable doubts.

43. The complainant has deposed in her examination that on her first marriage anniversary, her parents came to the matrimonial house and gifted various articles including gold for her and her in­laws but after her parents left, the accused persons taunted her over the quality of articles. It is settled that mere taunts do not constitute ‘cruelty’ within meaning of Section 498­A IPC.

44. The complainant has further alleged in her evidence that on 01.12.2005, she had given birth to a daughter and the mother in law was not happy as she was expecting a male child and she even refused to take the girl child in her lap.

45. In the complaint to CAW cell Ex.PW­1/A, the complainant has not made any such allegations against the mother­in­ law that she was not happy on birth of girl child or that the mother­in­ law did not take the girl child on lap.

46. The accused have examined themselves in defence to prove that they liked the girl child very much and the complainant has made false allegations. DW­1 Smt. Veena Kapoor has produced the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 18 of 27 PS: Nanakpura original album of the functions of the child. The photographs placed by the witness show that the child was treated with love and affection. The medical card / vaccination card of the child proved as Ex. DW­ 2/B also shows that the child was given regular vaccination. The documents placed by the accused prima facie shows that the accused persons used to take proper care of the child and the child was treated with love and affection by both accused.

47. The complainant has further stated in her examination in chief that accused Anuj used to come late at night completely drunk and whenever she used to say anything to him, accused used to give her abuses and beat her up. The complainant has not mentioned any specific date or month even by way of approximation when these incidents have taken place.

48. As per the examination in chief, the incident had taken place also during the time while she was living in Delhi with the accused persons. There is no explanation of the complainant as to why she did not inform her parents or as to why her parents did not come to talk to the accused persons about their alleged behaviour.

49. PW­2 Kuldeep Chander has stated that on several occasions, accused tried to beat the complainant and on one night, the complainant called him and said that she was standing on the road and she was crying at that time. He went to the house of the accused and confronted the situation to the mother­in­law after which she felt sorry.

50. As per the testimony of the father, once while the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 19 of 27 PS: Nanakpura complainant was living in Delhi with her in­laws, the complainant has called him and informed about the harassment and he had talked to the mother­in­law / accused Veena Kapoor on which she apologized about the behaviour.

51. In the entire examination in chief, the complainant has not stated that at any point of time, her father had come to the matrimonial house at Delhi and talked to the mother­in­law about the misbehaviour or alleged harassment by accused Anuj Kapoor or any of the accused have apologized for such behaviour.

52. In the examination, the complainant has further stated that one week before birthday of the daughter, her husband / accused Anuj Kapoor told her to ask her parents to bring Rs.2,00,000/­ on the birthday of the daughter as he was planning to start a business. When she objected to the demand, the husband got angry and told her that he would send her to Delhi if the demand was not fulfilled. Thereafter, she called her father and told him to bring Rs. 2 Lacs cash with him as accused Anuj was planning to start a business.

53. The complainant has deposed in her evidence that she had asked her father to bring Rupees 2 Lac cash as accused Anuj was planning to start a business. However, in the complaint to CAW Cell Ex.PW­1/A, in para no. (e), she has stated that her husband and in­ laws forced her to demand Rs.2,00,000/­ from her father for purchase of residential flat at Dehradun, Uttaranchal. There is contradiction in the statement of the complainant recorded before the Court and the allegations made in the police complaint.

FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 20 of 27 PS: Nanakpura

54. In the police complaint, she has stated that the demand of Rs. 2 Lacs was made to purchase a flat at Dehradoon. However, in the evidence, she has stated that accused Anuj demanded Rs 2 lakh to start a business. Further, in the evidence, she has stated that she asked her father to bring Rs. 2,00,000/­ cash and she informed her father that accused Anuj needed Rs 2 lacs to start a business. However, in the police complaint, the complainant has stated that she informed her father that accused Anuj needed a loan.

55. The complainant has not made any such allegation in the police complaint that the demand of Rs. 2 lacs was made before the first birthday of the daughter. The father of the complainant has also not stated that any such demand of Rs.2,00,000/­ was made from him by the complainant at the instance of the accused persons. He has only stated that he had given Rs. 2,00,000/­ at the time of first birthday of the grand­daughter.

56. There are material contradictions in the statements of the complainant and her parents as regards the mode of payment of Rs. 2 lacs. In the examination dated 30.08.2016, the complainant had stated that she had asked her father to bring Rs. 2 lacs cash when he comes to birthday of her daughter to Dehradoon and her parents gifted various articles and cash for her, her daughter and all in­laws. Her father also gave Rs. 2 lacs to her which she handed over to her husband.

57. The father has stated in his cross examination that he had given the amount of Rs. 2 lacs by way of FD of Karnataka Bank. He FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 21 of 27 PS: Nanakpura has stated in the cross examination that he had made payment to Neha on the first birthday of her child, FD was made in Kartnataka Bank and copy was given to accused Anuj on the second birthday of the child.

58. As per the testimony of the father, the amount of Rs. 2 lacs was in the form of FD and it was given to the complainant on the first birthday of the child and the copy of FD was given to accused Anuj on the second birthday of the child.

59. Contrary to the statement of father, the mother of the complainant/PW­4 has stated in the examination that during visit to Dehradoon on first birthday of grand daughter on 01.12.2006, they had given Rs. 2 lacs cash. The contradiction in the statement of the witnesses are material and it creates doubt over the demand of Rs. 2 lacs or payment of Rs. 2 lacs as per the demand.

60. The complainant has further alleged in her evidence that on 23.07.2009, accused Anuj and Veena had given merciless beatings to her and she was also bleeding from her forehead. This was the first time when she had called her parents and told her father that accused Anuj and Veena had beaten her badly.

61. As per the testimony of the complainant, she had informed her father / PW­2 about the alleged harassment by the accused persons only on 23.07.2009 and not prior to that. However, PW 2 Kuldeep Chander stated that after birth of the girl child and before June 2006, once the complainant called him and informed about the misbehaviour and he also visited the matrimonial home. FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 22 of 27 PS: Nanakpura

62. Perusal of the complaint Ex.PW­1/A would show that in the complaint, the complainant has not made any allegation about any such incident of 23.07.2009. The allegations made by the complainant in complaint Ex.PW­1/A are very general and vague as regards the mental and physical harassment. She has not stated in complaint that she was assaulted or beaten by any accused on 23.07.2009.

63. The father of the complainant has also stated that on 23.07.2009, the complainant called him and informed that she was mercilessly beaten by both accused and thereafter, he talked to the relatives of accused Anuj who assured to sort out the matter. PW­2 Kuldeep Chandra has stated that he was informed about the incident at about 12 midnight.

64. As per the testimony of PW­2, he was informed about the beating and injuries on the same day. However, he had not filed any police complaint nor he went to Dehradoon to provide medical treatment to the complainant or to talk personally to the accused persons and the complainant about the alleged incident. He had talked to the relatives of the accused persons. The conduct of the father in not going to Dehradoon or filing any police complaint makes it difficult to believe that any such incident had taken place.

65. The complainant has further stated in her examination that in December 2009, when she expressed her wish to go to Delhi to meet her parents, accused Anuj book train tickets and she came to Delhi with the daughter by train. But accused himself came to Delhi by car. She has further alleged that in December 2009, accused Anuj FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 23 of 27 PS: Nanakpura came to her uncle’s house and told her uncle to keep the complainant in Delhi and also said that there was no need for the complainant to come back to Dehradoon. Thereafter, her husband /accused Anuj went away. He called the accused but he did not take her call and later, accused Anuj called her and asked her that she need not come back to Dehradoon.

66. In the entire examination, the complainant has not stated that any meeting had taken place at her uncle’s house or that any demand was made by accused Anuj or his mother to take the complainant to Dehradoon or any condition was put by accused Anuj or Veena to take the complainant to Dehradoon.

67. The father of the complainant has stated that one meeting was held at the house of Surender Pal and heated arguments took place in that meeting. He had also alleged in the examination that accused Anuj and Veena demanded additional dowry in the meeting and asked the complainant to give in writing that she would live peacefully and not misbehave with any family member. Thereafter, quarrel started between them and accused persons left the house.

68. PW­3 Surender Pal Vij has also deposed about the meeting held on 21.12.2009. He has stated that accused Veena said that they needed money for establishing business of Anuj and she also put condition that the complainant would give in writing that she would live peacefully.

69. PW­4/ mother of the complainant has also stated that the demand of more money was made by accused Anuj and Veena in the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 24 of 27 PS: Nanakpura meeting held on 21.12.2009.

70. PW­5 Rajiv Chopra is one of the person who had attended the meeting held on 21.12.2009. He has deposed that during the conversation of meeting, they found that there was demand from the side of accused Anuj and Veena because of birth of girl child. He has stated that he came to know about the demand from the gestures and there was no specific demand. He has deposed, “We had come to know about the demand only from the gestures like they were saying “Hamara kaam bhi nahi hai”, “Delhi chorke hum dehradoon chale gaye”, “ab to karki bhi ho gayi” and there was no specific demand.”

71. It is clear from the testimony of PW5 that there was no demand of money by any accused in December 2009. The allegations made by the complainant, her parents and public witnesses as regards the demand in December 2009 is contradictory. Further, in the police complaint Ex. PW1/A also, the complainant has not stated that any demand of money was made on 21.12.2009. In these facts and circumstances, this Court is of the view that the material on record is not sufficient to prove that any demand of money was made on 21.12.2009 or the accused persons refused to take the complainant to the matrimonial house due to non­fulfillment of demand.

72. The complainant and her parents have admitted in their evidence that accused Anuj had filed complaint in Dehradoon and he had also filed a divorce petition and after receipt of notice of divorce, the complainant had filed the present complaint. There is no explanation of the complainant and her family members as to why no FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 25 of 27 PS: Nanakpura complaint was filed after 21.12.2009 when the settlement talks between the parties failed and no talks had taken place thereafter. There is no explanation for delay in filing of complaint with CAW Cell.

73. In view of the discussion herein­above, this Court is of the view that the prosecution has failed to prove, beyond reasonable doubts, that accused Anuj or Veena had subjected the complainant to cruelty or harassed her to fulfill any dowry demand.

74. The accused persons have also been charged with offence u/s 406 IPC.

75. In the examination in chief, the complainant has stated that on the same day of the marriage, her jewellery was taken by mother­in­law Veena Kapoor on the pretext of safe keeping. The complainant has not produced any jewellery bill to show that jewellery as mentioned in the list Ex. PW1/C was purchased or gifted to her in the marriage.

76. In the police complaint Ex. PW1/A, she has stated that all her jewellery and other istridhan, accumulated over the years being gifts and other purchases including those from her salary, have been usurped by her mother­in­law and she has disposed of the same. As per the allegations in the police complaint, the jewelleries, which was accumulated by the complainant over a period of time, were allegedly taken by accused Veena Kapoor. There is no allegation in the police complaint that jewelleries were taken by the accused on the day of marriage.

FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 26 of 27 PS: Nanakpura

77. Mere vague allegations of the complainant that the accused persons had misappropriated her jewellery without any specific date, month or year are not sufficient to prove that the jewellery was entrusted to accused Veena Kapoor or to accused Anuj and they misappropriated the same to their own use/ refused to return the same on demand. Therefore, this Court is of the view that the prosecution has failed to prove the essential ingredients of offence punishable u/s 406 IPC beyond reasonable doubts.

78. In view of the discussion herein­above, this Court holds that prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Accordingly, benefit of doubt is given to the accused persons. Both accused are acquitted of the charges alleged.

79. Bail bond and surety bond of both accused u/s 437 A Cr. P.C. alongwith photographs and address proof have been furnished and accepted.

Digitally signed by NEHA NEHA Date:

2019.01.11 18:15:45 +0530 Pronounced in the open Court (NEHA) on 11th January, 2019 Metropolitan Magistrate Mahila Court­02/Dwarka New Delhi FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 27 of 27 PS: Nanakpura

 

Delhi High Court
Suhaib Ilyasi vs State on 5 October, 2018
$~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 CRL.A.314/2018 and CRL.M.B.439/2018
                                            Reserved on: 17th August 2018
                                            Decided on: 5th October, 2018
SUHAIB ILYASI                                               .....Appellant
                               Through:    Ms. Rebecca M. John, Sr.
                                           Advocate with Mr. Rajiv
                                           Mohan,        Mr. Abhimanyu
                                           Kampani, Ms. Priyanka Singh,
                                           Ms. Rudrani     Tyagi       and
                                           Mr. M.A. Karthik, Advocates.
                                 versus

STATE                                                       ....Respondent
                               Through:    Mr. Sanjay Jain, Sr. Advocate
                                           with Mr. Kewal Singh Ahuja,
                                           APP for State with Ms Siddhi
                                           Mittal and Ms Himanshi
                                           Yadav, Advocates.
                                           Mr. Satender Sharma and
                                           Mr. Sachin Tyagi, Advocates
                                           for Complainant.
CORAM: JUSTICE S. MURALIDHAR
       JUSTICE VINOD GOEL

                              JUDGMENT

Dr. S. Muralidhar, J.:

1. Did the Appellant murder his wife (hereafter ‘the deceased’) or was it a case of suicide? The learned Additional Sessions Judge, Shahdara District, Karkardooma Courts, Delhi (hereafter „trial Court‟) in a judgment dated 16th December 2017, which is under appeal here, held that the Appellant had indeed murdered the deceased. We, however, think not. Our reasons follow.

Charge

2. The first charge against the Appellant in terms of an order dated 29th March 2003 of the trial Court was that soon after his marriage to the deceased Anju alias Bullu on 12th November 1993, subjected her to harassment, mental and physical cruelty on account of demand for dowry and thereby committed an offence punishable under Section 498A of the Indian Penal Code 1860 (IPC). The second charge was that on the intervening night of 10th/11th January 2000, the deceased died at the All India Institute of Medical Sciences („AIIMS‟) otherwise than under normal circumstances with stab injuries and within seven years of her marriage to the Appellant and that soon before her death, she was subjected to cruelty and harassment by him and thereby, he had committed an offence punishable under Section 304B IPC.

Additional charge

3. An application was filed before the trial Court by Mrs. Rukma Singh (PW-6), the mother of the deceased, seeking the framing of an additional charge under Sections 302/468/471/201IPC. This application was dismissed by the trial Court by its order dated 19th February 2011.

4. PW-6 then filed Crl.Rev.P.208/2011 before this Court. By a judgment dated 12th August 2014, after making reference to the decisions in Jasvinder Saini v. State (Govt. of NCT of Delhi) (2013) 7 SCC 256 and Rajbir @ Raju v. State of Haryana (2010) 15 SCC 116, this Court allowed Crl.Rev.P.208/2011 and held that the prima facie material collected by the prosecution justified the framing of an additional charge against the Appellant under Section 302 IPC. A direction was issued to the trial Court to frame an additional charge under Section 302 IPC by following the procedure under Section 217 Cr PC.

5. Pursuant to the above order of this Court, which was affirmed by the Supreme Court by the dismissal of SLP (Crl.) 6502-6503/2014 on 22nd August 2014, the trial Court by its order dated 6th September 2014, framed an additional charge against the Appellant to the effect that on the intervening night of 10th/11th January 2000, at B-13, IFS Apartments, Mayur Vihar Phase-I (hereafter the flat concerned), he murdered the deceased and thereby committed an offence punishable under Section 302 IPC.

Background facts

6. There are both admitted and contested facts. The admitted facts are that when they first met, the Appellant and the deceased were studying at Jamia Millia Islamia in 1993. The deceased has two sisters. Ms. Rashmi Singh (PW-20) staying in Canada was the eldest and Mrs. Reeta Van Eck (PW-

18), staying in the U.S.A, the next. Mr. K.P. Singh (PW-5) is the father of the deceased. He and PW-6 stayed in Delhi in an apartment complex not far from where the deceased lived with the Appellant and their daughter. Mr. Prashant Singh (PW-2) is the brother of the deceased.

7. PW-20 states that in January 1993, when she came to India from Canada for the wedding of PW-18, the deceased told her that she was in love with the Appellant and wanted to marry him. On 18th November 1993, the Appellant and the deceased got married in London in a civil marriage which was attended by PW-6, the mother of the deceased. Till 1994, the Appellant and the deceased lived in London. Thereafter, they shifted to Delhi. Initially, both the Appellant and the deceased lived with the parents of the Appellant at a house known as „Big City‟ on Kasturba Gandhi Marg.

8. It must be recalled at this stage that until the framing of the additional charge, the case of the prosecution against the Appellant was with regard to his conduct in light of the charges framed against him for the offences under Sections 498A and 304B IPC. In that context, attempts were made to show that the deceased was being subjected to cruelty and harassment by the Appellant soon after their marriage. In support of this line of argument, the prosecution relied on the version of events that emerged from the testimonies of PWs 18 and 20, the two sisters of the deceased.

9. According to this version, since the Appellant had no money to support the deceased, money was one reason for fights between them. Further, PW- 20 claimed that she had sent money to the deceased for various reasons on numerous occasions and that whenever PW-20 used to talk to the deceased on the phone when the deceased was residing in London along with the Appellant, she would tell PW-20 about the financial hardships she was enduring. Further, PW-20 deposed that when PW-18 and her husband David visited London in April 1994, they witnessed the miserable conditions in which the deceased was living.

10. According to the Appellant, however, there was never any financial difficulty. He also claims that no fights took place between him and the deceased. He denied subjecting the deceased to harassment or torture. His version was the flat concerned had been purchased in 1999 in the joint names of the Appellant and the deceased. Further, he stated that the deceased was an equal shareholder/Director of their business concern, viz. Aaliya Productions. He also denied the claims of PWs 18 and 20 that while in London, he had purchased expensive items including a BMW car and on this account, there were arguments and fights between him and the deceased.

11. According to PWs 18 and 20, the deceased had visited them in Canada and the USA in May-June 1995 and at that time, had discussed the possibility of her divorce from the Appellant. According to them, while in London, the deceased lived with her brother (PW-2). When the Appellant learnt from PW-2 of the intentions of the deceased, he flew to London, convinced the deceased to return to India and not file divorce proceedings.

12. In September 1996, the deceased returned to India and became part of a project called „Crime Stoppers‟ which the Appellant had been working on. Initial episodes of „Crime Stoppers‟ were anchored by the deceased. The version of PWs 18 and 20 was that when they visited India in December 1996, the deceased told them the situation had not changed but also that she still wanted to give the Appellant a chance to save the marriage. In January 1997, the deceased told PW-20 about her expecting a baby and that during this time, the situation become even more tense because of the financial problems of the Appellant and because of his ties with one Vinod Nayar who had become a producer of „Crime Stoppers‟. This too was denied by the Appellant.

13. On 24th September 1997, a baby girl Aaliya was born to the deceased and the Appellant. According to PW-20, the Appellant paid the nursing home bills but after the deceased returned home with the baby, all expenses were borne by PWs 5 and 20. The Appellant denied that PWs 5 and 20 had paid for any of the medical expenses.

14. PW-20 further claimed that on New Year‟s Eve 1997-98, the Appellant came to the house of PW-6 at 1 am in an intoxicated state. He is then stated to have gotten into an intense argument with the deceased and also slapped her. PW-20 states that she was present at the time and along with PW-6 told the Appellant to leave. They threatened to call the police if he did not comply. According to PW-20, she and PW-6 decided that the deceased and her child should stay out of India for a while. Accordingly, on 6th March 1998, PW-6 along with the deceased and her child visited PW-20 in Canada. The expenses for the journey were borne by PW-20.

15. While the Appellant denied the above version, he was unable to recall if the deceased had visited Canada during this time. He, however, admitted as correct that on 6th October 1998, he arrived in Canada and informed PW-20 that he had bought the flat concerned and would like to take the deceased and the child back to India. He admitted that in February 1999, the deceased, the baby and PW-6 came to India and stayed at UNESCO Apartments. He further admitted that the deceased carried out renovations at her parents‟ UNESCO Apartments residence at his expense but denied that after her parents had left for the USA in June-July 1999, financial problems again arose. He also denied that he, the deceased and their child were staying at the house of PW-6 at that time.

16. During this time, the Appellant started another production in the name of „India‟s Most Wanted‟. He admitted as correct that in her capacity as the Director of the concern, the deceased had asked PW-20 for a friendly loan of 10,000 Canadian Dollars. According to PW-20, two days after they had moved into the flat concerned, PW-5 returned to India. The deceased was unhappy with the move to the flat concerned on account of financial problems and is supposed to have asked PW-20 if she and the child could travel to Canada. PW-20 purportedly asked the deceased to inform her of suitable dates so that PW-20 could send her the tickets. This was denied by the Appellant.

17. According to PWs 18 and 20, along with PW-6, they had called the deceased on 8th January 2000 to wish her for Eid. The deceased told them that she was tired because the entire family of the Appellant was visiting to celebrate Eid. She stated that she would call PW-20 the following day. The Appellant admitted as correct that on the aforementioned date, PWs 6, 18, and 20 had wished the deceased for Eid.

18. According to PW-20, she talked to the deceased on two occasions thereafter. The first occasion was when she spoke to the deceased for 36 minutes on 9th January 2000 when the deceased asked her when she would be sending tickets. PW-20 claims to have informed her that she would be sending tickets to the deceased on the following day by courier and on account of hearing this, the deceased was “very happy”. The Appellant claims not to know of the above developments.

Events immediately preceding the incident

19. In her testimony during the trial, PW-6 stated that on 9th/10th January 2000, when she was with her daughter PW-18 in New Jersey, USA, PW-18 received a phone call from the Appellant who told her that the deceased had taken his revolver and was threatening to kill him. Hearing this, PW-18 told PW-6 to pick up the extension line. PW-6 asked the Appellant what had happened and asked him to call the deceased to the phone. PW-18 stated that she could hear the sounds of the baby crying. The deceased did not come to the phone and the phone was disconnected. Thereafter, when PW-6 called, the Appellant picked up the phone. PW-6 could again hear the baby crying. Again, the deceased did not come on the line and the phone was disconnected.

20. Meanwhile, PW-6 phoned PW-20 in Canada and informed her that the deceased and the Appellant were having a fight and so PW-20 should phone them. PW-6 also phoned her husband PW-5 and asked him to go to the flat concerned and find out what was happening. PW-5 told PW-6 that the deceased had visited him earlier that day and had stayed till 9 pm. PW-5 wondered what could have happened in such a short period. PW-6 stated around 30 to 45 minutes later, PW-5 phoned her from the flat concerned and informed her that nobody was there and that nothing untoward seemed to have occurred.

21. At this juncture it must be noticed that PW-2, the brother of the deceased, was on a train from Bombay to Jammu and the train was to stop at the Old Delhi Railway Station on the intervening night of 10th/11th January 2000. The deceased had gone to the house of PW-5, her father, to pick up warm clothes to hand over to PW-2. At the time of her visit, PW-5 found the deceased to be in a very happy mood.

22. After the call was received from PW-6, PW-20 called the deceased but the phone was picked up by the Appellant who told her, “Didi, Bullu ka to dimag kharab ho gaya hai”. What she claims happened immediately thereafter is vehemently contested by the Appellant. According to PW-20, at this stage, the deceased snatched the phone from the Appellant. She was crying and according to PW-20 she said, “Didi, take me away or he is going to kill me”. PW-20 then states that the Appellant snatched the phone from the deceased and told PW-20 that she had interfered in his life and that he would take care of the deceased and then disconnected the phone. Thereafter, according to PW-20, she kept trying to call the deceased but the phone was busy. PW-20 then called PW-6 who was in the USA with PW-18 and told her that she could not contact the deceased and asked her to try the number of the deceased.

Statement of the Appellant under Section 176 Cr PC

23. The critical part of this narration is what exactly transpired at the flat concerned during the relevant time. The prosecution seeks to reconstruct the events that transpired during this time from the statement given by the Appellant (Ex.PW-4/E) during the course of the inquest proceedings under Section 176 Cr PC conducted by the Sub-Divisional Magistrate („SDM‟), Mr. Ravi Dadhich (PW-4). At this stage, the Court does not propose to discuss the admissibility of such a statement but shall refer to its contents for the sake of completing the narration.

24. The said statement was made to the SDM by the Appellant at around 12:30 pm on 11th January 2000 at UNESCO Apartments. The following details provided by the Appellant to the SDM are relevant to this part of the narration. The Appellant stated, inter alia, that there was a fan/acquaintance, viz. Z (anonymised by the Court to respect privacy), who at one point took the Appellant and his infant daughter to a gurudwara and had also given him a locket. When the deceased came to know about this, she objected and this resulted in a quarrel. On the insistence of his wife, the Appellant returned the locket to Z. He then stated that Z had sent the locket back to the Appellant soaked in his own blood. When the deceased came to know about this, her dislike for Z only grew. At this time, the Appellant received a phone call from the wife of Z who told him that Z had stopped eating and had also stopped working altogether. Thereafter, he claims to have ceased all contact with Z at the insistence of the deceased.

25. The Appellant stated that a few days before Eid, Z sent him a gift comprising four small bottles of whisky which the Appellant brought home. When the deceased asked him as to where he had brought these items, he replied that these were brought from Palika Bazaar. The deceased did not believe him. Ultimately, that gift was returned to Z by the deceased herself. As a result of these events, the relationship between the Appellant and the deceased became strained.

26. According to the Appellant, on 10th January 2000, after completing some work at the Big City residence, he had slept between 4 and 8:30 pm. When he woke up, he was told that the deceased had called and wanted to speak to him. The Appellant tried calling the deceased but his calls remained unanswered. Eventually, his driver Sunder answered the phone and told the Appellant that he was bringing his daughter to the office on the instructions of the deceased. The Appellant purportedly told the driver not to do so as he would be returning home shortly. He states that he then proceeded along with his staff to East of Kailash in search of suitable properties for his business. At that time, he received a call on his mobile phone from the deceased who purportedly stated that she had told Z that she had lost and he had won. The Appellant states that he asked her why she was saying such things and told her that he would come home and speak to her.

27. When the Appellant returned to his office, he came to know that contrary to his instructions, the driver had brought his daughter to the Big City residence. When the Appellant asked the driver why he had done so, he was told that the deceased had insisted on it. When he came to his office, he was told by the typist that the deceased had called and said that the Appellant‟s revolver had been left behind at home. He claims that he sensed that matters were becoming very grave and decided to immediately leave for home along with his daughter. He then states that when he reached home, the deceased opened the door. However she immediately left.

28. The Appellant states he had called a barber to trim his hair as there was a shoot for an episode of his television series on the following day. Meanwhile, he claims that the deceased and he had a conversation in their daughter‟s bedroom about Z. According to the Appellant, the deceased alleged that he was more interested in spending time with Z than with her. He states that their conversation was interrupted when the doorbell rang and the barber arrived. As the barber was getting ready to trim the Appellant‟s hair, the deceased came there and stated that she wanted to speak to the Appellant. The Appellant states that he then asked the barber, Fazlu Rehman (PW-36), to come to his office on the next day to trim his hair.

29. The Appellant then went back to their daughter‟s bedroom and there he saw the holster of his revolver lying empty. He further claims that when he asked the deceased where the revolver was, she revealed that she was holding the same in her hand. He then states that she asked him angrily whether, if anything were to happen to her, the Appellant would take care of their daughter. According to him, even as he was imploring her to hand over the revolver to him, the deceased made a phone call to her sister (PW-18) in the USA on the cordless telephone. He states that as the call was going through, the deceased tossed the handset to him and told him to relay his vow to take care of their daughter to PW-18. He states that he told PW-18 that the deceased was behaving in an unhinged manner and that she was holding a loaded revolver in her hand. PW-18 asked the Appellant to give the telephone to the deceased. The Appellant claims that he did so but the deceased kicked the handset back towards him and refused to speak on the phone. When the Appellant informed PW-18 of the deceased‟s refusal, PW- 18 told him to wait while she called PW-20.

30. The Appellant then states that the deceased repeatedly asked him to promise that he would take care of their child if anything were to happen to her. He states that even though he kept assuring her of the same, she remained unconvinced and became increasingly agitated that the Appellant was not taking her seriously. He states that in anger, he asked her to shoot him first. He then claims that due to his apprehension that the deceased might turn the revolver on herself, he grabbed her and snatched the revolver from her hand. He states that he unloaded the revolver and threw it under the bed.

31. The Appellant then picked up the bullets and took the child to his room where he purportedly threw the bullets behind the headboard of the bed. He goes on to narrate that the deceased came there and at that point, he answered a phone call from PW-5. He states that he asked PW-5 to come there quickly. After the phone call, the Appellant claims, he was sitting on the bed next to his daughter when the deceased came to the doorway of the room and with a big knife, stabbed herself in the stomach twice. He rushed towards her and grabbed the knife from her. He noticed that a white fluid was flowing from the wounds and not blood. He states that as he was dragging her out of the room, he kept apologising and also exclaimed, “Ye tumne kya kar liya?”. He then called the Personal Security Officer („PSO‟) HC Shatrughan (PW-13) and with his help, the deceased was taken to Virmani Nursing Home, Mayur Vihar Phase-II.

Testimonies of other witnesses

32. Even if one were to disregard the above narration of events as stated by the Appellant to the SDM (PW-4), there is evidence that emerges from the testimonies of other witnesses which helps reconstruct the sequence of events leading up to the death of the deceased. As regards the calls made during the relevant time, we first have the written statement furnished to PW-4 by PW-18 (Ex.PW-18/A). This was sent by fax to the SDM on 20th January 2000, i.e. within ten days of the incident. It reads thus:

“I received a telephone call approximately 1:10 or 1:15 P.M. U.S. Eastern Standard time this is on estimate of the time to the best of my recollection. I heard my sister Anju‟s voice asking “May I speak with Ms. Rashmi Singh”. I replied, “Arre Bullu”. She replied: “Talk to Suhaib (Suhaib se baat karo)”. Then I asked Suhaib “What happened? (Kya baat hai?)”. Suhaib replied in what sounded to me to be a concerned tone, “She [Anju] is annoyed (Ye bhaut Pareshan hai)”. I asked him “What happened? (Kya baat ho gayi?)”. He then said “we have gotten into an argument, and look Bullu has taken my revolver, and she is threatening me with suicide. (hum logo ki ladai ho rahi hai aur dekho Bullu ne meri revolver leli hai suicide karne ki dhamki de rahi hai)” Then he (Suhaib) said “Call Bullu to America (Bullu ko America bula lo)”. Then I got concerned and asked Suhaib to give the phone to Anju. Anju refused to take the phone; even Suhaib insisted. “Bullu talk to Daisy (Bullu Daisy se baat karo)”. But Anju did not come on the line. I told Suhaib “I am going to call Dolly, maybe she will take her”.

Another phone call was made from our phone to the Ilyasi residence at approximately 1:30 P.M. U.S. Eastern Standard Time and Suhaib picked up. Our mother asked to speak with Anju. Suhaib said to Anju, “Bullu is here, talk to her (Bullu yaha hai baat karo)”. Anju refused to talk saying, “Don‟t want to talk to anyone (Kisi se baat nahi karni)”. Our mother said, “Bullu! Bullu! Bullu! Talk to me! (Bullu! Bullu! Bullu! Baat karo)”. I picked up another extension of our telephone and listened in. In the background we heard their daughter Aaliya crying a lot and Anju yelling and Suhaib saying, “If you want to shoot, shoot me, at least take care of Aaliya (Agar goli marni hai toh mujhe maro ya Aaliya ka khyal karo)”. Anju was saying, “You will take care of Aaliya (Tum Aaliya ko dekh loge)”. At that point it sounded as if the phone was [dropped] to the floor and the phone got disconnected.

We kept trying to call again but got a busy signal. Then my mother called my father Dr. K.P. Singh telling him there was a fight going on between Anju and Suhaib and that he should go to Anju‟s apartment right away. This is all I can recall.”

33. In her typed complaint dated 16th March 2000 (Ex.PW-4/TT) which was handed over to the SDM, PW-20 states in para „u‟:

“I say that on the fateful day, i.e. 10th January, 2000, when my mother informed me that some serious problem had arisen between Suhaib and Anju, I telephonically contacted Suhaib and Anju and phone was lifted by Suhaib. I clearly heard Anju screaming and crying loudly. I also heard her daughter crying loudly. Suhaib told me that “Bullu ka dimag kharab ho gaya hai”. It appears that Anju snatched the receiver from Suhaib and screamed “Didi, take me away”. However, it further appears that Suhaib again snatched the receiver from Anju, told me that he would take care of Anju and I should not interfere and thereafter kept the receiver down whence the telephone got disconnected. I made various attempts to connect the telephone again, but I failed to have a telephonic conversation.”

34. Then we have the evidence of the barber Fazlu Rahman (PW-36) who states that he reached the apartment at around 9:10 pm. As for the pertinent moments, he stated:

“One police man was sitting outside house of the accused. I told him that I have come to give hair cut to accused. Policeman went inside and thereafter I was called inside. I along with Amiruddin went inside the house. Accused gave me a cloth bedsheet and I started cutting his hairs. I had just started cutting his hairs, wife of the accused came there and they talked with each other in English and thereafter accused went inside the room. After two minutes accused came outside and told me to go and asked me to come tomorrow in my studio at Noida. Thereafter I along with Amiruddin left his house.”

35. Although this witness was declared hostile, in his cross-examination by the APP, he maintained that “It is correct that when I was preparing for the hair cut, the wife of accused Suhaib came there and told something in English to him which I could not understand. It is correct that thereafter Suhaib told me to leave my house. It is correct that I left the house of accused. It is correct that due to lapse of time I had forgot the above said facts in my examination-in-chief”.

36. The PSO HC Shatrughan (PW-13) reconstructs the events in his examination-in-chief as under:

“On 10.1.00 at 8 pm I reported for duty at KG Marg. Alongwith the accused I left KG Marg at about 9/9.30 p.m in his Honda City car. Another PSO Raj Kumar was with us, he was in civil dress whereas I was in uniform. Accused himself was driving the car. His daughter Kumari Aaliya was also with him. At about 10/10.30 pm we reached at B-13, IFS Apartment, Mayur Vihar. Accused rang the bell and his wife opened the door. He along with his daughter entered into the house. I along with PSO Raj Kumar remained outside the main gate and sat on stools. After 5-10 minutes Smt. Anju Illyasi w/o the accused came outside from the house. She returned back to the house after 5-10 minutes. At about 10/10.30 pm two boys one namely Faqroo came to the house. Faqroo told me that he is the personal barber of the accused and has been called for hair cut. I rang the bell and enquired from the accused. Accused opened the door. I checked their bag and let them in. After 5-7 minutes they came out from the house and went away. They told me that accused has instructed them to come some other day for hair cut.

After 10-15 minutes of that, accused opened the door. I entered the house as I was under the impression that I will be given the beddings. As I entered into the house I found that Smt. Anju Illyasi lying on the floor wearing a blue colour jeans and a blue colour top. I noticed some blood oozing out near her belly button (nabhi). I enquired from the accused and I was told that she had stabbed herself with a kitchen knife. I found an old baniyan (an undergarment worn under the shirt) lying nearby. I tied the baniyan on the wound. I called the second PSO. On the instructions of the accused I along with PSO Rajkumar with the help of accused took Smt. Anju through stairs in the car of accused parked in the apartments. We put Smt. Anju on the back seat of the car. PSO Rajkumar along with daughter of the accused sat on the front seat. I sat on the back seat holding head of Smt. Anju. Accused drove the car. We went to Virmani Nursing Home, Mayur Vihar-Phase-II.”

37. In his cross-examination by the APP, PW-13 further clarified as under:

“It is correct that IO recorded my statement u/s 161 Cr PC in present case on 08.01.2001. It is also correct that my statement was read over to me by IO. It is correct that I had stated to the IO in my statement u/s 161 Cr PC Ex PW13/A that I heard the noise of weeping of Alia. It is correct that I had told the IO in my statement Ex. 13/A that after five minutes P.P. opened the door and called me inside, I saw that Madam was lying on the carpet and her hairs were in loose conditions and she was wearing jeans pant and full sleeves sweater and sweater was on the upper side of the body and I also noticed the wound and blood on her stomach. It is correct that I had told IO in my statement u/s 161 Cr PC that when Madam was being taken to the hospital she was taking turns on both sides and saying “Mujhe Bacha Lo”. It is correct that I had told the IO in my statement that in way to hospital her condition deteriorated and her movement was also stopped. I could not disclose these facts in my statement in the examination due to lapse of time.”

38. In his further cross-examination by the defence, PW-13 stated as under:

“When the barber had left the house then the door was opened by the accused. When accused told me that his wife Anju Illyasi had stabbed with the kitchen knife then I asked her as to what she has done. On this she replied that she had committed a mistake. It took us 10 minutes at the most to reach Virmani Hospital from the house of the accused. We remained in the Virmani Hospital for about 5-7 minutes. Thereafter we left for AIIMS. While on the way to AIIMS Smt. Anju asked accused Suhaib „Suhaib Mujhe Bacha Lo‟.”

39. It must be mentioned at this stage that even in his statement under Section 161 Cr PC, PW-13 maintained that on the way to AIIMS, the deceased kept saying “Mujhe bacha lo”.

40. When the injured victim was taken to Virmani Nursing Home by the Appellant, accompanied by both PSOs, i.e. HC Shatrughan (PW-13) and Raj Kumar, the victim was first examined by Dr. R.K. Dixit (PW-33) at around 11:30 pm. The Appellant asked for Dr. Virmani but the latter was not there at that point in time. A stretcher was provided to the Appellant to bring in the injured at which time, PW-33 enquired as to what had happened to the deceased. According to PW-33, the Appellant told him that she had eaten something. PW-33 noticed a white colour cloth having two blood spots tied around the abdomen of the deceased. He lifted the cloth and saw two stab wounds. On enquiry, the Appellant told PW-33 that the wounds were inflicted by a sharp object.

41. PW-33 then checked the blood pressure and found that it was not recordable. There was a noticeable pulse. He informed the Appellant that the condition of the patient was serious. The Appellant then asked PW-33 to talk to Dr. Virmani. PW-33 called up Dr. Virmani and explained to him the condition of the patient. Dr. Virmani (PW-7), the Director of Virmani Nursing Home, advised that since the condition of the patient was serious and it was a police case, PW-33 should refer the patient to some big government hospital. The Appellant then spoke to PW-7 who explained to him that since no proper treatment could be provided at the nursing home, he should take the injured to AIIMS.

42. The deceased was brought to AIIMS where her MLC (Ex.PW-4/C) was prepared noting that she had been brought by her husband on 11th January 2000 with the opening line saying, “Pt. brought dead with stab injury in abdomen ~ 12.26 hours”. Dr. Sanjeev Lalwani (PW-25), who had been deputed to depose in the trial on behalf of Dr. N.K. Vyas, spoke to the fact that the pupils of the deceased were fixed dilated, no heart rate was found, no blood pressure was recordable, and that cardio-pulmonary resuscitation was tried and the patient was intubated. Ultimately, the “patient could not be revived” and she was declared dead. The MLC did not reflect the precise time of admission.

43. By this time, Dr. K.P. Singh (PW-5), the father of the deceased, first went to the house of the deceased at the flat concerned at around 11:40- 11:45 pm. He opened the door of the house and went inside. He found no one inside and having searched for the revolver he was told his daughter was holding, he could not find it. He did not observe anything else except that the heater was on in the baby‟s room which he switched off. He called up PW-6 in the USA to get the telephone number of the Appellant‟s father. However, the father of the Appellant was not at home. The younger brother of the Appellant to whom he spoke immediately rushed to the IFS Apartments. Just five minutes after the arrival of the Appellant‟s brother, the driver of the Appellant brought Aaliya in a car. PW-5 came to know that the deceased had been admitted to AIIMS and that they were looking for PW-5. Even as he left IFS Apartments, PW-5 learnt that there was a wireless message that his daughter had expired.

44. Thereafter, PW-5 left Aaliya at the Big City House and rushed to AIIMS. There he found the Appellant weeping. He also found the Appellant‟s father, brother, and other family members present. The doctor took PW-5 to the place where the dead body of his daughter was lying. He then brought the Appellant to his house at UNESCO Apartments.

Inquest proceedings conducted by the SDM

45. Mr. Ravi Dadhich (PW-4), SDM, was contacted by Inspector Mahesh Kumar (PW-1), who at that time was the Additional Station House Officer („ASHO‟) of PS Trilok Puri. PW-4 instructed PW-1 to get the body preserved at the AIIMS mortuary. At around 10 am on 11th January 2000, PW-4 reached the flat concerned along with the police officers and a team from the Forensic Science Laboratory („FSL‟), Delhi and the Central Forensic Sciences Laboratory („CFSL‟), Central Bureau of Investigation („CBI‟), Delhi. The flat was opened and photography and videography of the scene was done in his presence. PW-4 prepared the site inspection report and a brief history (Ex.PW-4/A). The site was handed over to the FSL and the CFSL to collect materials and evidence. A rough site plan was drawn up and a brief history of the place of occurrence was drawn up (Ex.PW-4/B).

46. PW-4 recorded the statement of PW-13. Thereafter, he went to UNESCO Apartments and recorded the statements of the Appellant (Ex.PW-4/E) and PW-5 (Ex.PW-5/A). On the same day, PW-4 passed an order to the effect that the post-mortem examination of the deceased should be conducted by a Board to be constituted.

47. On 12th January 2000, PW-4 went to AIIMS and inspected the body. He then started the inquest proceedings under Section 176 Cr PC. The body of the deceased was identified by Umer Ilyasi, the younger brother of the Appellant. His statement was recorded. The SDM also recorded the statement of Prashant Singh (PW-2), the brother of the deceased. At 4:25 am, PW-4 recorded the statement of Z (Ex.PW-4/K). Dr. Virmani (PW-

7) also gave PW-4 a written statement (Ex.PW-4/L) in his own handwriting.

First post-mortem report

48. The post mortem examination of the deceased was first conducted by a panel of three doctors comprising Dr. R.K. Sharma of AIIMS (PW-22), Dr. Alexander Khakha of Safdarjung Hospital, and Dr. L.C. Gupta of Aruna Asaf Ali Government Hospital (PW-10). It was conducted on 12th January 2000 between 12:15 and 2 pm at the AIIMS mortuary. The SDM had raised specific queries to the panel along with the inquest form as per the Punjab Police Rules, the site inspection report, and statements of the relatives.

49. The aforesaid panel of three doctors submitted a report dated 12th January 2000 (Ex.PW-10/A) which specified the number and nature of injuries found on the body of the deceased. The cause of death was opined to be injury No.1 described therein. The panel‟s opinion as to whether the injuries were suicidal or homicidal was deferred pending consideration of the following factors:

“a. Members of the Board desire to visit crime scene to have first hand information.

b. IO shall indicate whether the deceased was right handed or left handed person.

         c.       Photographs of the crime scene taken by the IO.

         d.       Medical treatment received at the Nursing Home prior to
                  bringing the deceased to AIIMS.

         e.       Facts revealed from the viscera report, report of the
                  vaginal swabs, nail clippings and clothes of the
                  deceased."

50. Arrangements were made for the panel to visit the site of incident, photographs of the scene were provided. The panel was informed that the deceased was right handed. The viscera report received from the CFSL which revealed that it had tested negative for common poisons was also provided to the panel. The knife seized from the site was seen by the panel.

51. By an order dated 14th January 2000, the SDM (PW-4) put forth the following queries to the panel:

“1) How deep was the injury No. 1 which has caused the death?

2) The location of aorta of the body that it was located posteriorly or anteriorly and how it was cut in transverse or oblique manner?

3) The location/distance of aorta from the abdominal wall?

4) Whether the injury no. l (which has caused the death as per the P.M. report No.39/2000 of AIIMS, dated 12.1.2000) is self inflicted or otherwise?

52. In a subsequent opinion dated 18th January 2000, the panel answered theaforementioned queries as under:

“1) The injury no. l is 15.5 cms deep from the external injury to the point of injury to the aorta.

2) The cut on aorta was obliquely placed on left-antereo-

lateral wall.

3) The distance of aorta from ant. abdominal was 10 cms and aorta was usually placed.

4) Injury no. 1 & 2 are self-inflicted and suicidal in nature.”

53. The post mortem report dated 12th January 2000 along with the subsequent opinion dated 18th January 2000 are hereafter together referred to as the „first post mortem report‟.

54. The SDM (PW-4) carried on with the inquest proceedings, during the course of which fingerprints of the deceased and the Appellant were taken. Fingerprints (Q1 to Q5) were lifted from the walls and the knife. The CFSL report (Ex.PW-4/PP & 4/QQ) found that none of the chance fingerprints matched those of the Appellant. Meanwhile, chance fingerprints Q2 to Q5 could not be determined to be identical to those of the deceased but chance fingerprint Q1 was opined to be “identical with specimen right little finger impression” of the deceased.

The SDM’s Report

55. The SDM’s inquest report (Ex.PW-4/YY), records that Mrs. Rukma Singh (PW-6), the mother of the deceased stated on 13th January 2000 that her daughter never faced any trouble in her in-laws‟ home but was short- tempered. She did not allege any foul play in the death of her daughter. She conveyed to the SDM that she thought that the deceased had committed suicide by stabbing herself with the knife.

56. Raj Kumar (a PSO of the Appellant who was not examined at the trial) made statements consistent with what PW-13, the other PSO of the Appellant, had told the SDM. Fazlu Rehman (PW-36) and Amiruddin made statements on 15th January 2000 about their going to IFS Apartments to trim the Appellant‟s hair and then being asked to leave within a few minutes. Anil Kumar Yadav, a security guard at IFS Apartments, confirmed that two barbers had arrived at IFS Apartments and that their names had been entered in the register which was later seized by the police.

57. Dr. R.K. Dixit (PW-33), the doctor at Virmani Nursing Home, made statements before the SDM on 11th, 14th and 17th January 2000 regarding the condition of the patient and his conversation with the Appellant. No dying declaration was recorded by him. He stated that he did not report the matter to the local police as, according to him, two PSOs were already accompanying the Appellant. Dr. Harish Virmani (PW-7), the owner of the nursing home, made statements on 11th and 17th January 2000 confirming his telephonic conversation with the Appellant as also his directing PW-33 to ask the Appellant to take the patient to a bigger hospital.

58. The SDM, on 14th January 2000, also recorded the statements of the three doctors who were present at the casualty ward of AIIMS, viz. Dr. Krishan Kumar Munjal, Dr. Subodh, and Dr. Neel Kamal Vyas. What emerged therefrom was that the deceased was sought to be revived but was declared brought dead at 12:26 am on 11th January 2000.

59. The SDM in his report dated 23rd March 2000 also acknowledged receiving the statement (Ex.PW-18/A) of PW-18, the sister of the deceased, by fax on 20th January 2000. This statement has already been referred to hereinbefore. The statements of the father, mother, and brother of the Appellant were also recorded.

60. The SDM also noted that he received a typed statement (Ex.PW-4/TT) from PW-20, the other sister of the deceased, on 16th March 2000, a part of which has already been referred to hereinbefore. The SDM summarised the contents of that statement thus:

” i) The husband of the deceased inflicted extreme mental & physical torture on late Mrs. Anju Ilyasi since marriage (Para b, page 1).

ii) Anju was being neglected financially and emotionally and Anju was tortured by Suhaib, his mother, his father and his sister-in-law (Rukhsana) in 1994 (Para g, page 3).

iii) Anju was physically tortured by Suhaib in December, 1994 (Para h, page 3&4).

iv) Anju was ill treated by her husband (Para 1, page 4).

v) Suhaib’s misbehavior and torture and cruelty in September, 1996 (Para 6, page 5).

vi) Suhaib stopped all financial help to my sister and was neglecting her on all counts (January, 1997 onwards) (Para n, page 6).

vii) Suhaib developed relation/affair with X (anonymised), daughter of Y (anonymised) and driven Anju to start thinking about divorce (Para q, page 6).

viii) On 10th January 2000 Suhaib told to Rashmi Singh on telephone that he would take care of Anju and Rashmi need not interfere (Para u, page 9).

ix) A letter seen by Prashant and reportedly destroyed by Suhaib & family members and the letter was containing vital facts, which might have proved decisive (Para w, page 9).

x) Threat to cause harm to my sister’s daughter, Aaliya in my family member’s presence on January 23, 2000 (Para x, page 10).

xi) Allegations that Suhaib acted in a planned and calculated manner with their common object & intention to finish my sister.”

61. The SDM noted that PW-20 raised doubts as to the past conduct of the Appellant towards the deceased. PW-20 had alleged that the torture meted out to the deceased suggested that it could not have been a case of suicide but was in fact a custodial death or murder. The SDM went on to note that PW-20 arrived in India on 14th February 2000 and claimed to have been in a state of extreme depression prior to that date. After seeking some time from the SDM to make a statement, she finally made the statement referred to hereinabove on 16th March 2000. She had also submitted two personal diaries and two letters written by the deceased. This was apart from the first diary recovered by the police from the flat concerned soon after the incident.

62. The SDM stated that he cross-examined PW-20 on the statement made by her. On 22nd March 2000, PW-20 again submitted a detailed statement running into seven pages with 31 pages of enclosures wherein she alleged that the Appellant had committed passport forgery, bank forgery, credit card forgery, and academic qualifications forgery. According to PW-20, this fact was only known to the deceased and that she wanted to “get rid of all this cheating” by leaving the Appellant and going to Canada on 3rd February 2000. According to PW-20, “this was the motive for Suhaib to kill Anju, so that his forgeries could never be made public”.

63. It appears that on 21st March 2000, PW-6, the mother of the deceased, appeared before the SDM and made a statement which contradicted what she had stated earlier. She now told the SDM that she was wholly in agreement with the statement given by PW-20 on 16th March 2000. According to PW-6, she had earlier given a contradictory statement because she was concerned for the welfare of the child Aaliya who was in the custody of the Appellant of whose behaviour she was aware. When cross- examined by the SDM, PW-6 stated that the deceased was harassed since the day of her marriage by the Appellant and his family. She stated that the deceased did not commit suicide but had been killed as was evident from the past behaviour of the Appellant and his family. According to PW-6, the deceased was also subjected to physical torture.

64. The SDM noted that the post-mortem report clearly indicated that injury Nos. 1 and 2 “were self-inflicted and suicidal in nature”. Further, the various CFSL reports regarding blood groups, fingerprints, viscera, etc. “have also not indicated anything specific to point out that Anju Ilyasi was killed”. However, since both PWs 6 and 20 had made allegations against the Appellant of having harassed, tortured, and ultimately murdered the deceased, the SDM forwarded all the relevant documents to the Deputy Commissioner of Police (East Delhi) („DCP East‟) for further investigation and necessary legal action as per the relevant provisions of the law.

65. On receipt of the case file from the DCP East on 27th March 2000, ACP Rajiv Ranjan (PW-30), who was posted at the Operations Cell (East District) at the time, made an endorsement on the statement of PW-6 and ordered the registration of a case under Sections 498A/304B/201 IPC. Consequently, FIR No.94/2000 was registered at PS Trilok Puri and thereafter, the case was marked to SI Rajesh Kumar (PW-19) for investigation.

Investigation

66. PW-19, having received a copy of the FIR, proceeded to the flat concerned but found it locked. Thereafter, the police team reached the office of the DCP East where the statement of PW-20 under Section 161 Cr PC was recorded. The Appellant at that time was living at the Big City House on K.G. Marg. PW-19 along with the SHO and other police staff reached there and brought the Appellant to PS Trilok Puri and interrogated him.

67. The Appellant was arrested in the early hours of 28th March 2000, produced before a Metropolitan Magistrate (MM) and sent to judicial custody. The file was thereafter transferred to PW-30 for further investigation.

Charge sheet

68. The charge sheet was filed only after a considerable period of time on 19th March 2002. It again confirmed that the chance fingerprint lifted from the knife (Q2) did not match the fingerprints of either the Appellant or the deceased. They also did not match the fingerprints of any of the other persons who had visited the flat concerned either shortly before or immediately after the commission of the crime and whose sample fingerprints were taken, viz. PW-5, Ct. Raj Kumar (PSO of the Appellant), PW-13, PW-36, Amiruddin (who accompanied PW-36), and the brothers of the deceased among others.

69. The charge sheet noted the apprehensions expressed by PW-20 that the Appellant was aware that the deceased and her daughter were due to travel to London on 29th January 2000 for which air tickets had been purchased and due to which, the Appellant “anticipated danger from the deceased that she would definitely unearth his illegal deeds”. In the charge sheet, it was stated that the Appellant could not properly explain the presence of blood in the bathroom.

Second post mortem report

70. The charge sheet then referred to a second post mortem report sought by PW-30 from the same panel of doctors which had earlier been constituted in pursuance of the order of the SDM. Two doctors, viz. Dr. R.K. Sharma (PW-22) and Dr. Alexander Khakha, submitted a report dated 12th April 2001 (Ex.PW-22/A) running into six pages. Therein it was noted that the meetings of the board had taken place on 21 st March 2001 and 11th April 2001 in the Office Chamber of the Head of the Department of Forensic Medicine & Toxicology, AIIMS.

71. In his cross-examination during the trial, PW-22 stated: “I had invited Dr. L.C. Gupta to participate yet he did not respond/attend nor did he give any reasons for his non-attendance”. The responses of PW-22 and Dr. Khaka in the report dated 12th April 2001 (Ex.PW-22/A) to the seven queries addressed to the panel read as under:

“Question 1:

Whether the theory of homicide can be ruled out in this case with definite wordings on the basis of above facts and circumstances?

Answer:

After consideration of the post-mortem findings, facts and circumstances brought by the I.O. vide above referred letter dated 8th March, 2001, we are of the considered opinion that the theory of homicide is ruled out as the pattern of injuries is self inflicted and suicidal in nature.

Question 2:

Kindly also opine if a more powerful right handed person can inflict downward-backward injuries from the knife(as in this case) on a victim‟s abdomen by overpowering her from behind in standing position. Kindly opine this with specific consideration of chance prints lifted from the weapon of offence which do not match with finger prints of either the victim or the accused who has deep knowledge about crime & criminals, being the maker of ‘India’s Most Wanted‟ a famous crime serial.

Answer:

In the absence of any other injury (marks of struggle on clothes, body & defence cuts etc.) other than stab injuries in abdomen (Injury No.1&2) such possibility as suggested by Question No.2 is not possible.

Question 3:

Which of the two injuries is prior in time?

Answer:

Injury No.2 as mentioned in the Post-mortem report is hesitational cut and is prior to the injury No.1 which was fatal.

Question 4:

Is it possible to inflict a second injury 3.5 cms deep after first injury 15.5 cms deep has been inflicted by the victim herself or conversely?

Answer:

Post-mortem findings in this case have been wrongly misinterpreted by investigating officer. It is further mentioned that injury No.1 has been caused after injury No.2 and it is possible to inflict fatal injury after inflicting hesitational cut (Injury No.2).

Question 5:

In the face of availability of a loaded revolver, is it likely that a knife would be preferred for committing suicide, which is but obviously a far more painful option?

Answer:

The choice of weapon or mode for committing suicide depends on the mental frame work of the person committing suicide at that material time. Suicide is mostly a matter of impulse.

Question 6:

Are there any cases on record, where women victims have used this mode of committing suicide?

Answer:

There are many cases on record where women victims have used this method of committing suicide. Enclosed herewith is a copy of table showing distribution of suicides by means adopted from the published data from National Crime Records Bureau, Ministry of Home Affairs, Govt. of India entitled “Accidental Deaths & Suicides in India 1998”.

Question7:

Please also opine whether the deceased was in phase of menstrual period at the time of death?

Answer:

The deceased was not in the phase of menstrual period as observed during post-mortem examination.”

72. Dr. L.C. Gupta (PW-10) did not sign this report but instead submitted his own separate opinion on 30th August 2001 (Ex.PW-10/D) wherein he answered the above seven queries in the following manner:

“Question No.1: whether the theory of homicide can be ruled out in this case with definite wordings on the basis of above facts and circumstances?

Answer No.1: A candid opinion as desired by the Investigating officer not possible in response to this question as in any other case of unnatural death, therefore before finalize the expressed opinion in this question, undersigned like to mentioned a detail scientific discussion in this regards as:-

A) The speed of approach of the knife is particularly important in achieving penetration, in case of stab injury during self infliction as well as homicide;

B) Suicidal knife wounds favour certain sites of election, which are predominantly the throat, the wrist and front of chest;

C) Suicidal knife wounds are rare and almost uncommon made in abdomen, some time to the extent of Disemboweling (Forensic pathology, page no-146, 213 & 217, Bernard Knight).

D) It is some time incorrectly claimed by the prosecution that a deep stab wound must imply extreme force and continuing pushing after penetration, this is not so, and experiment have shown that once penetration occurs, it is difficult or even impossible to prevent deep penetration because of the suddenness of the break through, when the stab wound is inflicted in a stab fashion launched by knife against the skin like dart;

E) Fortunately Taylor, in his Principle & Practice of Medical Jurisprudence also has contended that once the point of weapon has passed through the skin, it will continuous with little thrust until progress is stopped by the haft or the thrusting force ceases unless it strikes bone (and the abdominal wall fortunately has no bone) therefore injury no.2 cannot be hesitational cut and difficult to stamp it as self inflicted hesitational cut. [Taylor‟s Principles and Practice of M.J. page no. 241 & 242];

F) Further in instant case the injury no.2 (as mentioned in PM report), is of 2.5 x 6 x 3.5 cm, which cannot be concluded other than stab injury since it is not possible by drawing or sawing method, as the width of the injury no.2 is exactly the same as the width of the weapon of offence and depth of the wound is greatest in its diameter, then it is impossible or difficult to hold the knife up to and at depth 3.5 cm. Only after penetration of the skin by a person who having intense mood of suicide, therefore to categorise it as hesitational cut is only an equivocal, inconsistent explanation. [All this based on Extracts from Forensic Pathology, B Knight and Author‟s experience].

G) As far as injury no.1 concerned, which has been designated as fatal injury in this case and most probably a resultant to second attempt with help of the weapon of offence, would not possible if this attempt would have restricted in between.

Expressed opinion in response of question no.1:- “That theory of homicide cannot be ruled out in this case with definite wordings”. Further in view of new facts emerged and submitted before undersigned it can be said that patterns of injury are not decidedly be said as self inflicted or suicidal.

Question No.2: Kindly also opine if a more powerful right handed person can inflict downward and backward injuries from the knife (as present in this case on a victim‟s abdomen) by over powering her from behind in standing position. Kindly opine with specific consideration of chance prints lifted from the weapon of offence which do not match with finger prints of either the victim or the accused who has deep knowledge about & criminals, being the maker of “India‟s most wanted” a famous crime serial.

Answer No.2: In the light of the comprehensive description given in response to question no.1, upper three line of the question no.2 are deviation from the axis norm; further relative position of victim and assailant can be explained by more than one way; and rest of the below 5 lines of the questions is/are the matter of serious investigation, explanation and justification.

Question No.3: Which of the two injuries is prior in time?

Answer No.3: No definite opinion can be given in dogmatic term but the probable scientific speculation may reveal that the injury no.2 as mentioned in PM report was inflicted first than the injury no.1 which was fatal in this case.

Question No.4: Is it possible to inflict a second injury 3.5 Cm deep after first injury 15.5 Cm. Deep has been inflicted by the victim herself or conversely?

Answer No.4: The contents of question not in the normal line in the light of the reply given in question no.1.

Question No.5: In the face of availability of a loaded revolver, is it likely that a knife would be preferred for committing suicide, which is but obviously a far more pain full option?.

Answer No.5: As per available most of literature and experience of undersigned. The common sites for committing suicide or inflicting self-stab injuries is not abdomen. The question asked by the I.O. needs hair splitting views and comprehensive investigating analysis by the agencies responsible to decide it.

Question No.6: Are there any cases on record, where women victim have used this mode of combating suicide?

Answer No.6: As such no case/statistics available in these particular regards. The table showing distribution of suicides by means adopted. Annexed by two members of the board does not mentioned any of case where women has committed suicide by stab injury inflicted over abdomen as present/exist in this case which is highly uncommon site for self infliction of stab injury, upon which most of Forensic experts of the world agreed as true.

Question No.7: Please also opine whether the deceased was in phase of menstrual period at time of death?

Answer No.7: Deceased was not in menstrual phase at time of her death.

Final Conclusion: In light of above detail discussion and my considered opinion, in this case homicide cannot be ruled out.”

73. This dissenting opinion of PW-10 has been referred to in the charge sheet. It has also been stated that “during the course of investigation, it has been found that the accused was not having cordial and affectionate relation with the deceased”. It was further noted that this fact had an adverse effect on the mind of the deceased and “acted as a slow poison on her life due to which she has committed suicide”.

74. Further, in making out the specific case of „dowry death‟ against the Appellant, the following conclusion was recorded in the charge sheet:

“Because the unnatural death of deceased Anju Illyasi within seven years of her marriage and on demanding the dowry by accused from in-laws of deceased Anju Illyasi which they sent the money from Canada to Delhi by Sita Travels to accused Suhaib Illyasi proved that accused used to harass deceased for more dowry and the detail of three diaries written by deceased Anju Illyasi herself proved that she was so tortured by accused resulting that she committed suicide. Accordingly the case is being challan U/S 498A/304B/306 IPC. On believing the statements of witnesses and evidences the accused may kindly be charge and call the witnesses by summon and accused by notice.”

75. In other words, the case was presented by the prosecution before the trial Court as one of suicide, i.e. unnatural death, which occurred within seven years of marriage and was immediately preceded by harassment and torture in connection with a demand for dowry. Thereby, Sections 498A and 304B IPC stood attracted.

76. After the aforementioned charge sheet was filed, charges were framed by an order dated 29th March 2003 whereby the Appellant was charged with having committed offences under Sections 498A and 304B IPC. Central to both these charges was the allegation that the Appellant had subjected the deceased to cruelty and harassment in connection with a demand for dowry shortly prior to her death. It was also noted that she had died in AIIMS “otherwise than under normal circumstances with stab injuries”.

77. The prosecution examined 37 witnesses in all. It soon became apparent that the father and brother of the deceased took a stand different to that taken by her mother and sisters.

Deposition of PW-2

78. Prashant Singh (PW-2), the brother of the deceased while being cross- examined, confirmed that a love marriage had taken place between the deceased and the Appellant and that “they had great love and affection for each other”. He also affirmed as correct that since it was a love marriage, there was no demand for dowry by the Appellant or any of his family members. He also stated that the deceased was “very intelligent and strong but she was not (sic) short tempered”.

79. As regards what happened after the death of the deceased he stated as under:

“It is correct that after the death of my sister Anju, myself, my father and mother made statement before the SDM. It is correct that we all in our statement had stated that there was no foul play and that Anju was not harassed for demand of dowry by the accused. It is correct that my sister Rashmi came from Canada on 16.2.2000 after the death of Anju. It is correct that she wanted the custody of Aaliya daughter of Anju. It is correct that accused had fatherly love and affection with the child and did not part with the custody of his daughter to Rashmi. It is correct that Rashmi was adamant to take the child with her to Canada and when the entire deliberations failed it resulted into the complaints and registration of the FIR against the accused. To my knowledge accused never demanded dowry from any of our family member, i.e. from me, my mother and my sister Rashmi.”

80. When asked about his mother changing her statement at the behest of PW-20 to implicate the Appellant in the death of her daughter even though she had previously given him a clean chit, PW-2 stated that “it was a sense of insecurity which probably resulted in change of statement of my mother on the behest of Rashmi”.

Deposition of PW-5

81. Likewise, Dr. K.P. Singh (PW-5), the father of the deceased, while affirming his statement before the SDM, stated that his daughter “was intelligent but many a times she used to lose temper and fight with the accused. She was temperamental and in hotheadedness she could do anything”.

82. In his cross-examination, he confirmed that “there was no demand for dowry”. The dispute between PW-20 and the Appellant was also adverted to by this witness and in that regard, he stated:

“It is correct that Rashmi wanted the custody of Alia for taking her to USA for her education and for her bringing up and she is a director of educational institute of her own. Volunteered. Suhaib wanted his daughter to be here with him for some time and send her to USA after sometime. In my view this was the bone of contention as myself and father of Suhaib also wanted to send Alia to USA after sometime for her education and bringing up. This was the reason for the delayed statement made against the accused.”

Deposition of PW-6

83. The mother of the deceased, Mrs. Rukma Singh (PW-6), in her examination-in-chief, left out details which she had purportedly spoken about in her statement to the police. The learned SPP was then permitted to cross-examine her and she gave a series of answers which began with the words “It is correct that…” In other words, the questions put to her in this way would have been impermissible had they been asked during her examination-in-chief. While being cross-examined by the learned defence counsel, she admitted that that she and her daughter PW-20 had litigated against the Appellant on the issue of the custody of Aaliya, the daughter of the deceased and the Appellant. PW-6 also admitted that they were not successful in that endeavour.

Deposition of PW-18

84. Reeta van Eck (PW-18), an elder sister of the deceased, also supported the case of the prosecution when examined and cross-examined in the trial on 21st December 2009. She was confronted with the fax message sent by her to the SDM (Ex.PW-18/A). She confirmed that both the deceased and the Appellant wanted the marriage to be a simple affair. When asked about her father, her mother, and her brother giving a clean chit to the Appellant in their initial statements to the SDM, she stated that all of them, including her, were in shock and did not know what to say as at that time “nothing was clear”. She further stated that she was still in shock even almost 10 years after the death of her sister. As regards the fraudulent activities allegedly committed by the Appellant, she stated:

“The various frauds and other things which I stated above in my statement against Suhaib Illyasi was disclosed by me to Anju during her visit to me in USA in the year 1996. Again said I am not sure about the year.

Q. Did you yourself lodge any complaint to any authority against Suhaib for the alleged frauds?

Ans. I had not done so.

Q. Did you ask Anju to do so if yes, when?

Ans. I did not ask Anju even about it.

It is correct that I did not disclose about the credit card, passport and other frauds alleged against Suhaib in my statement to police when I arrived in Delhi. Voln. The police had already known about it from the papers collected by them. It is incorrect to suggest that whatever I have deposed today is at the behest of my mother and sister.”

Deposition of PW-20

85. Rashmi Singh (PW-20), the eldest sister of the deceased, confirmed that she had come to India on 14th February 2000 and “started doing research of my own based on the facts and circumstances I knew”. She confirmed not having written to the SDM until 16th March 2000. Leading questions were put to this witness as well with several statements made by her in the post- lunch session on 4th January 2010 beginning with the words “It is correct that…”

86. PW-20 suggested that the Appellant was having illicit affairs with the family member of a co-producer of his show and another couple. None of the said individuals were examined by the prosecution. While being cross- examined, she was asked why she had kept quiet till 16th March 2000 even though she had arrived from Canada on 14th February 2000. She replied that she was in extreme shock and trauma on account of her sister‟s death. She also claimed that she was under sedation by her personal physician but admitted that she did not produce any proof of the same before any authority, including the SDM, and also that she had not brought any such proof to the trial Court.

87. PW-20 went on to claim that her father and brother had been totally influenced by the Appellant. As regards the dispute between her and the Appellant with respect to the custody of the child Aaliya, PW-20 stated the she “was not interested in taking Aaliya to Canada because as per the Canadian Child Law, a child cannot travel to any foreign country without a written authorisation of one of the parents”. When confronted on the matter of the illicit relationships of the Appellant as alleged by her, she admitted that she did not have any proof to substantiate those scandalous claims even though she maintained that they were true.

Deposition of PW-30

88. The IO ACP Rajeev Ranjan (PW-30) was first examined in the trial on 12th May 2010 and was recalled for further examination thereafter on 13th May 2010 and 4th August 2010. He stated that on the night of 10th January 2000, the Appellant had left Virmani Nursing Home for AIIMS at 11:40 pm and had reached AIIMS at 12:26 am. He further deposed that a test drive was conducted using the same car and under similar weather and traffic conditions and speed and it was found that the journey only took 20 minutes whereas the Appellant took 46 minutes. He further claimed to have analysed the personal diary maintained by the deceased which purportedly reflected her anguish and frustration as well as her wanting to leave her husband and be free rather than stay as his slave. His examination continued on 4th August 2010. His cross-examination commenced on that date. Thereafter, he was further cross-examined a year later on 20th August 2011, 5th November 2011, and 27th February 2016.

Constitution of the five member medical board

89. It appears that PW-30, while still deposing in the trial, wrote to the Government of NCT of Delhi on 30th September 2011 seeking the constitution of a medical board of five doctors. This request was acceded to by the Department of Health and Family Welfare (DHFW) which, by order F.342/MB-77/2011/H&FW/2815-21 dated 21st May 2012, constituted a medical board comprising five doctors, the Chairman of which was Dr. Anil Aggrawal (PW-37).

90. The constitution of this five-member medical panel was challenged by the Appellant in W.P. (Crl.) 25/2013 which came to be disposed of by a learned Single Judge of this Court by an order dated 12th August 2014. The learned Single Judge noted that PW-30 had sent a letter requesting its constitution on 30th September 2011 to reconsider the split opinion given by the earlier medical board. This request was reiterated in subsequent letters dated 31st October 2011 and 1st November 2011. Thereafter, the aforementioned order of the DHFW was passed. Pursuant thereto the Home Department, by a letter dated 7th August 2012, constituted a medical board comprising Dr. Anil Aggrawal (PW-37), Dr. Sunil, Dr. Sone Lal, Dr. Vijay Dhankar, and Dr. Akash Jhanjee.

Order of the Single Judge

91. In the proceedings before the learned Single Judge, it was contended by the Appellant that in view of the judgment of the Supreme Court in Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762, no investigating agency is empowered to conduct fresh or de novo investigation under Section 173 Cr PC unless directed by a higher court for which reasons have to be given. It was further contended that the constitution of a medical panel at the instance of PW-30, the IO and a witness in the case, suffered from illegality. On the other hand, it was contended by the Respondents therein that in view of the judgment of the Supreme Court in State of Andhra Pradesh v. A.S. Peter (2008) 2 SCC 383, further investigation can be carried out after filing of the charge sheet and this is a statutory right of the police which cannot be curtailed.

92. The learned Single Judge noted that the Appellant had filed complaints against three of the doctors who were part of the newly formed medical panel due to their attempts to extort money from him. It was then opined that the powers of the police to conduct fresh reinvestigation under Section 173 Cr PC are unfettered in light of the decision in A.S. Peter (supra). It was further noted that the decision in Vinay Tyagi (supra), which was relied upon by the Appellant in those proceedings, was delivered on 13th December 2012 whereas the order of the Department of Health and Family Welfare was made prior in time. In dismissing the petition as being without merit, the learned Single Judge held that the “opinion of the newly constituted Medical Board would in fact assist the Court in coming to a conclusion as to whether the death of the victim was suicidal or homicidal”. It was further noted that this opinion would be of particular relevance considering the split opinion given by the earlier panel.

93. By the same order, the learned Single Judge also dealt with Crl.Rev.P.208/2011 (filed by PW-6) which challenged the order of the trial Court dated 19th February 2011 whereby the application put forth by the complainant for framing of additional charges against the Appellant under Sections 302/468/471/201 IPC was rejected.

94. In tracing the history of the matter, the learned Single Judge noted that the prosecution, not being satisfied with the charges framed by the trial Court‟s order dated 29th March 2003, had filed an application dated 17th July 2003 seeking framing of an additional charge under Section 302 IPC. This application came to be dismissed by the trial Court‟s order dated 3rd February 2004 wherein it was noted that the material adverted to in seeking framing of an additional charge was already available at the time when the original charge was framed and would not constitute fresh material found against the accused. Thereafter, the complainant (PW-6) filed an application dated 12th July 2005 seeking fresh investigation into the matter under Section 173(8) Cr PC. This application came to be dismissed by the trial Court on 4th August 2005. This was challenged by way of filing W.P. (Crl.) 3020/2006 which was disposed of on 20th December 2006 with this Court noting that with the charge sheet already having been filed, a direction for further investigation may, if at all, be given only by the concerned court which is seized of the whole matter. Another application seeking further investigation was filed on 15th January 2007 which came to be dismissed on 8th August 2007 as the learned Sessions Judge was of the view that since the order dated 4th August 2005 had attained finality having not been challenged, they could not sit in appeal over an order passed by a co-ordinate bench.

95. Thereafter, on 19th February 2011, the trial Court dismissed the complainant‟s application dated 19th August 2010 under Section 216 Cr PC for framing of additional charges. In support of this application, it was stated that in view of the statements made by PWs 6, 18, and 20 and the subsequent medical opinion of Dr. L.C. Gupta (PW-10) which has been referred to hereinbefore, a clear case of murder was made out which called for framing of additional charges under Sections 302/468/471/201 IPC. It was claimed by the complainant that the original charge under Section 304B IPC was an attempt to subvert the ends of justice as there was no material before the trial Court of any demand for dowry. It was further submitted that an attempt had been made to camouflage the real controversy as this was a glaring case of murder.

96. In this regard, on behalf of the Appellant, it was submitted that an earlier application seeking framing of an additional charge under Section 302 IPC had been dismissed on 3rd February 2004 and that order had attained finality. Further, it was pointed out that PW-6 had, on two separate occasions, made applications for fresh reinvestigation into the matter and both these applications came to be dismissed by orders of the trial Court dated 4th August 2005 (upheld by the High Court) and 8th August 2007 (attained finality) respectively. Reliance was placed on the decision in Jasvinder Saini v. State (Govt. Of NCT of Delhi) (2013) 7 SCC 256 which, it was submitted, clarified the ratio decidendi laid down in Rajbir v. State of Haryana (2010) 15 SCC 116. It was submitted that an alternate charge under Section 302 IPC cannot be framed as a matter of routine and unless and until there is sufficient material for doing so, such a charge cannot be framed.

97. The learned Single Judge, in analysing Section 216 Cr PC, noted that a new charge may be added or altered if there is material before the Court to justify such an action. It was also noted that the decision in Jasvinder Saini (supra) – wherein the Supreme Court was considering the converse situation of an additional charge under Section 304B IPC being framed in a case where the offence under Section 302 IPC was not made out – “does not impose any rigors upon the Courts to add additional charge if there is material justifying it”. Reference was also made to the Supreme Court‟s observation in Jasvinder Saini (supra) that “the ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients”.

98. The learned Single Judge went on to note that the first unanimous opinion of the original three-member panel of doctors was given at a time when they did not have the “report of vaginal swab, nail clippings, and clothes worn by the deceased”. Further, it was noted that the case was based on circumstantial evidence and at the time of framing of charge, only a prima facie view of the matter had to be taken into account. Thus, holding that “prima facie material collected by the prosecution justifies the framing of additional charge under Section 302 IPC”, the learned Single Judge directed the trial Court to frame an additional charge under Section 302 IPC by following the procedure under Section 217 Cr PC.

Trial Court frames additional charge

99. Pursuant to the order of the learned Single Judge of this Court, the trial Court, without waiting for the opinion of the five-member medical board, framed an additional charge against the Appellant by its order dated 6th September 2014. The said charge reads as under:

“That on the night intervening 10/11.01.2000 at B-13, IFS apartments, Mayur Vihar Phase-I, Delhi within the jurisdiction of PS Trilok Puri, you committed the murder of your wife Anju Illyashi and thereby you committed an offence punishable under Section 302 IPC and within the cognizance of this Court.”

Opinion of the five member medical board

100. The medical board comprising five doctors only submitted its opinion one month thereafter, on 9th October 2014, wherein it observed as under:

“The board members deliberated through all the documents made available to the board by the police authorities in the said case and noted the following points:-

1. There is presence of two stab wounds on the abdomen as per the post mortem report. (Multiple stab wounds are in favour of homicide).

2. Depth of the fatal injury was 15.5 cm which is very unlikely in case of suicidal injury.

3. As per the photographic printouts of deceased‟s post mortem submitted by the I.O., two more injuries are evident on the body of the deceased which have not been mentioned in the original post mortem report prepared.

4. Neither post mortem report nor photograph printouts made available, depict path/track taken by the two stab wounds on the abdomen region.

5. There is no scientific finding mentioned in the post mortem report which can be considered to be the basis of the conclusion, as to which injury is inflicted first and which injury is inflicted later on.

6. There are no cuts on the clothes of the deceased as per the documents made available.

7. There are no finger prints detected on the recovered weapon of offence per the documents made available.

8. Absence of hesitation cuts/tentative cuts around the fatal injury or elsewhere.

9. Stab injury infliction over the abdomen region is highly uncommon site for self infliction.

Opinion of the Board:-

The board is of the unanimous opinion that the preponderance of evidence submitted in this case points towards commission of homicide.”

101. At this stage, it is pertinent to note that the five-member panel did not have the benefit of the video recording of the first post mortem examination. Dr. Anil Aggrawal (PW-37) was first examined in the trial on 27th February 2015. His cross-examination on behalf of the Appellant also commenced on that date and thereafter continued on 21st September 2015 and 28th September 2015. When asked during cross-examination whether the five-member medical board had seen: (i) the order of the SDM constituting the three-member panel and putting forth queries (Ex.PW-4/F); (ii) the first post mortem report (Ex.PW-10/A); (iii) the order of the SDM issued in response to the clarifications sought by the three member panel (Ex.PW- 4/V); (iv) the MLC (Ex.PW-4/C); (v) the subsequent opinion of the panel in response to queries raised by the SDM in Ex.PW-4/V determining the death to be suicidal (Ex.PW-4/JJ); and (vi) the two differing opinions of the three- member panel (Ex.PW-10/D and Ex.PW-22/A), PW-37 was only able to confirm that the medical board had seen the post mortem report (Ex.PW- 10/A) and was unable to recall seeing any of the other aforementioned documents.

102. PW-37 was further cross-examined on the specific matter of the photographs and videography pertinent to the case including the post mortem examination and the scene of the crime. PW-37 admitted that as per the minutes of the meeting of the medical board on 12 th December 2012, it was recorded that the photographs and video recordings sought by the board in the previous meeting on 11th October 2012 were not submitted. It was further noted that the “photographs/video clips of the case are extremely relevant” and it was requested that “the above mentioned documents may be made available to the board for arriving at a conclusion in this case”. PW-37 further admitted that the aforesaid minutes were marked to PW-30 and the SHO of PS Pandav Nagar (the PS investigating the matter).

103. PW-37 also admitted the contents of the minutes of the meeting held on 9th January 2013 wherein it was noted that the board did not proceed further in the case as there was an order of this Court to “stop the proceedings of the case”. He then stated that between 9th January 2013 and 9th October 2014 – when the final opinion of the board was submitted – “no steps were taken by the board” or PW-37 as Chairman. In response to a specific query in that regard, he stated that “it is incorrect to suggest that after 12.12.12 the photographs were never produced before the board or that the same were not seen by the board”. However, when asked whether he had any file noting or document showing the receipt of the photographs of the victim, PW-37 answered in the negative.

104. Four PWs, viz. SDM Ravi Dadhich (PW-4), SI Ramesh Malik (PW-14), Dr. S.K. Chadha (PW-21A), and ACP Rajeev Ranjan (PW-30), were recalled at the instance of the Appellant for further cross-examination. The prosecution, on the other hand, opted not to recall any witnesses for further examination.

Statement of the Appellant under Section 313 Cr PC

105. Initially, the Appellant‟s statement under Section 313 Cr PC was recorded on five dates between 2nd December 2011 and 28th April 2012 with 195 questions being asked. Thereafter, in light of the additional charge framed by the order of the trial Court dated 6th September 2014, an additional statement was recorded on 27th August 2016 comprising six questions. Parts of this statement with respect to the events that transpired at the flat concerned on the fateful night have already been referred to hereinbefore.

106. The Appellant denied as incorrect the statement of PW-20 that the deceased had snatched the phone from him and cried to PW-20 that “Didi take me away or he is going to kill me” (Question No.28). He, however, admitted as correct that after snatching the phone from the deceased, he told PW-20 that she had interfered in his life and that he would take care of the deceased and then disconnected the call (Question No.29). As regards the allegations raised by PW-20 following her arrival in India (Question No.36), he stated, “PW-20 being litigant in nature and fond of Agatha Christie detective novels. All these allegations are pure figment of her imagination”. Further, when asked about the allegation that on 23rd February 2000, in the presence of PW-2, PW-20 asked about the future of the child Aaliya causing him to become furious and shout as well as threaten to cause harm to the child (Question No.56), the Appellant responded:

“It is correct that PW20 was negotiating the custody of baby Alia and on 23.02.00 there was heated arguments between me and PW20 as I refused to part with the custody of Alia to be taken with her to Canada at her tender age.”

107. When asked about the telephonic conversation he had with PW-18 on the night of 10th January 2000 (Question No.60), the Appellant admitted that he had spoken with her on the phone. However, he denied the other statements made by her to the effect that he had told PW-18 that the deceased was trying to kill herself and that he had said that if she wants to kill anybody, it should be him. He also denied PW-18‟s claim that the Appellant had told her that the deceased had asked him to take care of their daughter. Question No.77 and the response thereto are also of particular importance and read as under:

“Q77. It has come in evidence against you that in February 1999, PW6 and Anju returned back to India Z used to give threatening calls to Anju threatening that he would get her killed and some calls were attended by PW6 also. In this regard a complaint was made to PS Mandawali and Anju had made a complaint to Crime Branch in this regard. At times you used to reside in the house of PW6 and used to harass Anju. What you have to say?

A. It is correct that one stalker and obsessed fan of mine called Z used to harass me and my wife and my mother in law Rukma Singh by stalking and making obsessive phone calls. It is correct that I had made a complaint in police in this regard. It is not correct that I used to reside at the house of PW6 and harass Anju.”

108. In response to being asked about the call made by him to PW-6, who was in the USA with PW-18, informing them that the deceased had taken his revolver and was threatening to kill him (Question No.78), the Appellant stated that “it is correct that I made a call to PW-6 and PW-18 informing them that my wife was holding my licensed revolver and was behaving in a very aggressive manner, threatening to kill me, Aaliya, and herself”. He also clarified in response to Question No.79 that the deceased did not wish to speak to PW-6, PW-20, or PW-18 “in her fit of anger at that time” although she had spoken to PW-18 some minutes earlier.

109. The Appellant admitted as correct that he along with his two PSOs rushed to the Virmani Nursing Home for immediate first aid to be provided to his injured wife (Question No.105). He also admitted as correct that on the advice of the doctor (PW-33), they rushed the deceased to AIIMS for urgent medical help.

110. As regards the two passports alleged to have been obtained by him using false information and for which a case had been registered at PS Tilak Marg (Question No.120), he stated that “it is correct that a false case has been registered against me by my sister in law (Rashmi Singh) to put pressure on me to handover the custody of my daughter Aaliya”.

111. Question No.122 pertained to the purported attempt made by the Appellant to conceal evidence from the crime scene and the question and response in that regard read as under:

“Q122. It has come in evidence against you that during the examination of scene of crime blood of Anju was found on the bed which showed that deceased was on the bed at that time when she sustained injuries which was found to be contrary to the claim made by you in your statement before SDM. Blood sample of Anju were lifted from the bathroom sink and drain which showed that attempt was made to wash evidence. What you have to say?

A. It is incorrect as when I rushed Anju to hospital the house door was left open and unlocked. Reportedly more than 50 police, CFSL officials, special branch officials, media persons, some of my relatives visited the site. They would be in better position to explain the above.”

112. As regards presence of blood in the bathroom, the following query and response is illuminating:

“Q123. It has come in evidence against you that during your interrogation you stated that deceased was having menses and blood in the room on bed could be menses blood. However, report of autopsy Surgeon made it clear that Anju was not in the menstrual phase. What you have to say?

A. When IO asked me to explain the presence of blood in bathroom at the time of making the statement I was unaware that more that 50 people had visited my unlocked flat including the bathroom and I presumed may be my wife was having menstrual cycle and that could be the reason of blood in the bathroom.”

113. In response to Question No.128 posed to him with regard to the personal diaries maintained by the deceased with last entry dated 1st December 1999, the Appellant denied that relations between them were not cordial or that the deceased was in a great deal of anguish and frustration. In response to the question that the deceased had been brought to AIIMS in an unconscious condition by the Appellant and was declared „brought dead‟ (Question No.157), the Appellant stated that “Anju was very much alive when we took her to the hospital AIIMS”.

114. When asked why this case had been filed against him (Question No.191), the Appellant answered:

“The instant case has been filed against me in order to put pressure on me to gain custody of my daughter Aaliya Illyasi who was two and half years old at that time and my sister in law Rashmi Singh loved her sister deceased Anju Illyasi and therefore was in extreme love with her daughter Baby Aaliya Illyasi. My sister in law Rashmi Singh is single and runs a Montessori school in Canada and she wanted to take Aaliya to Canada against my will. There were arguments, negotiations to gain the custody of Aaliya and I remember after two weeks her arrival from Canada to India, I had the heated arguments with Rashmi Singh and that day she swore to take Aaliya away by hook and crook. My father in law Dr. K.P. Singh and brother in law Prashant were against Rashmi Singh to take Aaliya to Canada. They tried their best to persuade Rashmi Singh not to force me to handover the permanent custody of Aaliya to Rashmi Singh. My father in law and brother in law had been with me and they have come to this court to inform this court of the correct facts as to why this false case has been filed against me.”

115. After additional evidence was recorded, his additional statement under Section 313 Cr PC was recorded on 27th August 2016. As regards the five- member board having given its opinion as to the cause of death, the Appellant‟s response was as under:

“The setting of the Board is a matter of record, however, the said Board was constituted after the eleven years of the case when the case was fixed for final arguments, the complainant seeing and realizing that no case of 498-A or 304-B IPG is made out against me and there was no evidence whatsoever, therefore, the complainant by misusing the judicial and legal process initiated to form a Board of Doctors to give another opinion after so many years of the incident. It was done to put pressure on me so that I can give the custody of the child to the complainant and her mother. The earlier false case and charge against me by the complainant of Dowry Demand was demolished by the evidence on record before this Hon’ble Court by the Ex.PW6/DC (collectively) and also Ex.PW6/DB, in view of which the complainant with the help of prosecution established the said Board which gave the total false report.”

116. When the findings of the five-member board, which have been referred to hereinbefore, were put to the Appellant (Question No.196), he questioned the integrity of the Chairman (PW-37) of the five-member board stating that his integrity “in terms of deposing dishonestly before this Hon‟ble Court has come very clearly in his cross-examination”. In making his final remarks, he stated that the present case was a malicious prosecution pursued against him by way of misusing the provisions of the law.

Judgment of the trial Court

117. The trial Court delivered a 125 page judgment on 16th December 2017. The case was first examined in respect of the charges under Sections 498A and 304B IPC. In that regard, the trial Court came to the following conclusions:

(i) There was no specific allegation against the Appellant with regard to the demand for dowry purportedly made by him. The allegations were vague and general in nature. With regard to the acrimony between the deceased and the accused, it was found that those were issues unrelated to dowry. In fact, there was no incriminating evidence available relating to the alleged demand for dowry and cruelty committed on the deceased for not fulfilling such demand.

(ii) Although PW-6 and PW-20 claimed that the deceased had been harassed for the demand for dowry, it was an admitted fact that no complaint was given to any authority. On the other hand, PW-2 in his cross-examination admitted that the accused and the deceased had great love and affection for each other and that there was no demand for dowry by the Appellant or any of his family members.

(iii) The father of the deceased, Dr. K.P. Singh (PW-5), also confirmed that there was no demand of dowry. He went on to state that his wife (PW-6) had no grievance or complaint against the Appellant and that her statement to the SDM spoke of her opinion about the Appellant.

(iv) It was noted that the deceased was in continuous touch with her parents and sisters. The trial Court opined that had there been any kind of harassment on account of demand for dowry, she would have disclosed the same to them. However, no such complaint was made by her or by her parents and other family members. There was no clear allegation of any specific demand for dowry against the Appellant.

(v) It was further noted that in her initial statement, PW-6 did not make any allegation against the Appellant with regard to demand for dowry. PW-20 also did not come forward immediately after the death to depose anything alleging a demand for dowry made by the Appellant. It was held that therefore, her delayed statement could not be given much importance. The trial Court opined that “the improvements made in the case and the contradictions coming out in the statements of witnesses are vital and cannot be brushed aside easily”.

(vi) On the question whether on account of demand for dowry, the deceased was harassed by the Appellant, it was concluded that “none of the PWs has mentioned any specific incident when on account of non-fulfilling of demand of dowry deceased was given beatings or subjected to cruelty, thereby making the entire story of prosecution doubtful”. Further, it was noted that the “evidence of PW-6 and PW-20 has not been corroborated by PW-2 and PW-5 rather they contradicted their versions by admitting that there was no demand of dowry ever made by the accused”. Thus, it was concluded that the prosecution had failed to prove any demand for dowry or any harassment or cruelty meted out to the deceased on that account.

(vii) On the question whether, immediately prior to her death, the deceased was subjected to cruelty in respect of demand for dowry, it was noticed that such complaint was made for the first time to the SDM by PW-20 on 16th March 2000 around three months after the incident. The trial Court noted that there was also the admission made by the PWs that PW-20 “wanted to have the custody of daughter of accused and since it was not agreeable to accused, she levelled allegations regarding demand of dowry and cruelty committed to deceased. There is no cogent evidence that deceased was subjected to cruelty or harassment on account of demand of dowry, till her death”.

(viii) Even the SDM (PW-4) admitted during cross-examination that during the inquest proceedings conducted by him, he could not get any material suggesting that the deceased had been subjected to cruelty shortly prior to her death with regard to demand for dowry.

(ix) It was, therefore, concluded that the prosecution was unable to bring on record anything substantial against the Appellant to prove the allegations under Sections 498A and 304BIPC. Further, it was concluded that since the initial burden of proving the ingredients ofSection 304B IPC had not been discharged by the prosecution, the presumption under Section 113B Indian Evidence Act (IEA) did not stand attracted. Therefore, the trial Court found that the prosecution had failed to prove the charges under Sections 498A and 304BIPC and consequently, the Appellant was acquitted of those charges.

118. As regards the charge under Section 302 IPC, it was noted that although the initial burden to prove its case beyond reasonable doubt was on the prosecution, since the entire incident happened in his presence, the Appellant too bore the burden of explaining “certain circumstances which are within his special knowledge”. Proceeding to consider the relevant circumstances, the trial Court observed as under:

(i) It was concluded that the absence of fingerprints on the knife would not benefit the Appellant to the extent that he would not be entitled to an order of acquittal on that ground. Dismissing the „two knives‟ theory posited by the learned defence counsel, the trial Court observed that “knife which was recovered from the spot was taken by finger print division; same was taken for opinion of autopsy doctor as per documents mentioned and deposited with the same finger print branch, from where it was sent to Biology Division. Identity of knife was never disputed by Ld. Defence Counsel when the experts appeared in witness box”.

Therefore, it was concluded that there was no doubt that Ex.P1 was the weapon of offence and that the „two knives‟ theory was without substance.

(ii) Coming next to the question of the deceased‟s mental state at the time of the incident, the trial Court noted that the letters written by the deceased way back in 1990 before her marriage with the Appellant revealed mixed emotions of “love and fights which are usual in the life of ordinary loving couples”. It could not be said that before her death, the relations between the deceased and the Appellant “became extremely strained and went to the extent point of no return”. It was concluded that “the totality of evidences on record do not suggest that deceased in all probabilities would have committed suicide”.

(iii) As regards the divergent views of the panels of medical experts constituted in the present case, the trial Court noted that “this is a strange case where we have opinion of two medical boards given at different points of time which are clearly conflicting each other”. It was observed that although the opinions of the two medical boards could not be considered conclusive, “the same can be taken into consideration if the other evidences on record fully excludes one theory and establishes the cause of death either as suicidal or homicidal”. After considering the submissions of the learned defence counsel and referring to decisions of the Supreme Court as regards the evidentiary value of medical opinions, the trial Court concluded that:

“since there is conflicting opinion of two medical boards regarding the death being suicidal or homicidal and none could be relied upon to form a definite opinion without there being any incriminating evidence, I shall proceed further to see if there is other material on record, which is sufficient to establish the additional charge under Section 302 IPC as framed against the accused”.

119. At this stage, the trial Court considered the presumption in law under Section 106 IEA making reference to decisions of the Supreme Court and concluded that where an offence is purportedly committed within the privacy of a house, it becomes incumbent on the inmates of the house to give a cogent explanation as to how the crime was committed. It then proceeded to list the following incriminating circumstances which “stares at the face” of the Appellant:

(i) When the deceased visited PW-5 around one to two hours prior to her death, he did not notice anything abnormal in her attitude. He also did not find her to be unhappy.

(ii) PW-18 stated that on 10th January 2000, she received a telephone call from the deceased asking for PW-20. Then the Appellant came on the line informing PW-18 that the deceased was holding his revolver in her hand and was threatening to kill herself. However, the phone was disconnected before she could talk to the deceased. PW-6 who was with PW-18 at that time called the deceased but she did not come to the phone. Thereafter, PW-20 was asked to call the deceased and when she did so, the Appellant picked up the phone and said, “Didi Bulu ka dimag kharab ho gaya hai”. Thereupon, as stated by PW-20, the deceased snatched the phone from the Appellant and said, “Didi take me away or he is going to kill me”. In his statement under Section 313 Cr PC, in response to Question No.29, the Appellant admitted as correct that he had snatched the phone from the deceased and told PW-20 that she had interfered in their life and that he would take care of the deceased and then disconnected the phone.

(iii) If in terms of his statement to the SDM (PW-4), the Appellant had thrown the revolver under the bed after unloading it, the question remains as to how it could have been recovered from an open shelf as mentioned in the brief history of the case prepared by PW-4. This fact created a doubt as to the plea of the Appellant that the deceased wanted to kill herself with the revolver which he snatched from her and threw under the bed.

(iv) The Appellant did not inform PW-5, who was in Delhi at the time, about the deceased trying to commit suicide with the revolver but instead made a call to PW-6 and PW-18 knowing that it would have been impossible for them to reach the spot.

(v) If the Appellant had snatched the revolver from the hands of the deceased, he could well have snatched the knife brought by her from the kitchen. Why he did not stop her from stabbing herself – if not the first time, at least the second – was a question to be answered by the Appellant. However, no explanation has been offered by him in that regard. The Appellant did not inform the police about the incident at any point of time. He made no efforts to stop the flowing of blood and it was the PSO who tied the banyaan (vest) around the wound.

(vi) The Appellant misled Dr. Dixit (PW-33) at the Virmani Nursing Home by stating that the deceased had consumed „something‟. His response to Question No.7 in his statement under Section 313 Cr PC that he presumed that the deceased had taken sleeping pills was a false statement even to his own knowledge. When again asked by PW-33, he said “koi nukeelee cheez lag gayi hai” whereas he knew what had happened to her. This prevented her from getting timely treatment that could have saved her life.

(vii) It had come in prosecution evidence that in similar traffic conditions, the journey between Virmani Nursing Home and AIIMS was found to take only 20 minutes whereas the Appellant took 46 minutes to make the same journey on the fated night. Further, the two barbers (PW-36 and his companion Amiruddin) did not notice any scuffle or loud arguments and even the PSOs did not hear any commotion from within the house. Thus, it was opined that the version of the Appellant that an altercation took place between him and the deceased during which calls were made to the mother and sister of the deceased “does not inspire confidence”.

(viii) In terms of the Appellant‟s statement to the SDM, there was no occasion for the blood of the deceased to be found on the bed. Bloodstains were lifted from the bathroom tiles and the jaali of the drain in the bathroom. Human blood of group „A‟ was found to be that of the deceased and this was shown present in the bathroom and on the bed. During post mortem examination, it was found that the deceased was not in her menstrual phase. The explanation offered by the Appellant as to the presence of blood in the sink and drains in the washroom did not inspire confidence since he kept changing his version time and again to suit his claim.

(ix) Further, it was opined that the statement of the deceased to the PSO (PW-13) saying “mujhe bacha lo” showed that she wanted to survive and thus rules out the possibility of her having committed suicide. No explanation regarding the death of the deceased was offered by the Appellant although it was within his exclusive knowledge.

(x) The trial Court finally noted its observation that “there exists adequate material on record to prove that the relations between the two were strained and that the conduct of the accused towards his wife was not cordial. The evidence on record also suggests that the accused was at pinnacle of his career and had earned immense reputation/success from his show „India‟s Most Wanted‟ and his wife deceased Anju, who knew about all the forgeries & wrong acts, i.e. possessing two passports, using fake degree for job (Mark 30/Y), committing credit card fraud, etc. could have let public know about these facts, which could very easily ruin his hard earned success, since she had made up her mind to leave the accused and settle down in Canada, as such, the circumstances so appeared would have impelled the accused to go to any extent”.

120. Having made the aforementioned observations as regards the incriminating circumstances against the Appellant, the trial Court proceeded to convict the Appellant of the offence punishable under Section 302 IPC. The trial court by the consequent order dated 20 th December 2017 sentenced him to imprisonment for life along with payment of fine of Rs. 2 lakhs and in default of payment of fine, to undergo further simple imprisonment for six months. The trial Court also awarded a sum of Rs. 10 lakhs as compensation to the parents of the deceased under Section 357(3) of the Code of Criminal Procedure 1973 (Cr PC) in default of payment of which, the Appellant was to undergo further simple imprisonment for six months.

The present appeal

121. In these proceedings, the Appellant has stated in his affidavit on oath in the memorandum of appeal that while he has deposited the entire fine amount, he has not deposited the compensation amount of Rs.10 lakhs as, according to him, that sum was awarded without jurisdiction.

122. The present appeal was admitted on 15th March 2018. On that date, learned counsel Mr. Satender Sharma appeared on behalf of the complainants (PW-6 and PW-20). He was permitted to assist the learned APP at the time of final arguments.

123. On 3rd April 2018, the Court observed in its order that it proposes to hear the appeal itself at an early date without granting suspension of sentence. On 26th April 2018, interim bail for a period of four weeks was granted to the Appellant subject to certain conditions which were duly complied with. Adjournments were sought for the appointment of a Special Standing Counsel on behalf of the State.

124. This Court has heard the submissions of Ms. Rebecca John, learned Senior Counsel and Mr. Rajiv Mohan, learned counsel on behalf of the Appellant. This Court has also heard the submissions of Mr. Sanjay Jain learned Senior Counsel and Mr. Kewal Singh Ahuja, learned APP on behalf of the State. Mr. Satender Sharma, learned counsel, advanced arguments on behalf of PW-6.

Trial Court proceedings consequent to framing of additional charge

125. Before commencing the discussion on the submissions made by the parties, one broad observation that requires to be made is that till the learned Single Judge of this Court passed the order dated 12th August 2014 directing the framing of an additional charge against the Appellant for the offence punishable under Section 302 IPC, the case of the prosecution proceeded on the basis that it was required to prove its case against the Appellant beyond reasonable doubt for the offences punishable under Sections 498A and 304B IPC.

126. In other words, the entire effort of the prosecution was to prove, through the witnesses and the materials on record, that after her marriage with the Appellant on 18th November 1993 and in any event shortly prior to her death, the deceased was subjected to harassment by the Appellant on account of demand for dowry and was subjected to cruelty by him. For the purposes of the charge under Section 304B IPC, it was not necessary for the prosecution to prove that the death was homicidal. It was sufficient for it to prove that the death was “otherwise than under normal circumstances”.

127. This explains why, when the charge was originally framed by the trial Court on 29th March 2003, the wording of the charge specific to Section 304B IPC was: “Secondly, that during the intervening night of 10th/11th January 2000, your wife Anju Ilyasi died in AIIMS otherwise than under normal circumstances with stab injuries”. No reference was made to the place of death being the flat concerned where both the Appellant and the deceased resided together along with their daughter.

128. The said charge goes on to refer to the deceased being subjected to cruelty and harassment in connection with demand for dowry at their house i.e. the flat concerned. In other words, the charge was not that she died otherwise than under normal circumstances at that place. At this stage, the prosecution was proceeding on the basis that it was not a case of murder. This was presumably because at that stage there was no conclusive medical evidence to support the theory that the death of the deceased was homicidal.

129. This is also evident from the charge sheet dated 19th March 2002 filed by the SHO of PS Trilok Puri which referred to the opinions given by the three-member medical panel. The first was the report dated 12th January 2000 together with the subsequent unanimous opinion dated 18th January 2000 as to the nature of death. The charge sheet also referred to the second opinion dated 12th April 2001 of Dr. R.K. Sharma (PW-22) and Dr. Alexander Khakha and the dissenting opinion dated 30th August 2001 of Dr. L.C. Gupta (PW-10). These opinions, with the exception of the opinion of PW-10 dated 30th August 2001, ruled out the possibility of homicidal death.

130. The charge sheet concluded that the Appellant did not have a “cordial and affectionate” relationship with the deceased which acted as a slow poison on her life due to which, “she has committed suicide”. Reference was then made to the “unnatural death” of the deceased within seven years of her marriage to the Appellant as well as to the fact that the family members of the deceased had sent money to the Appellant which “proved that accused used to harass the deceased for more dowry”. The charge sheet also mentioned the personal diaries maintained by the deceased which “proved that she was tortured by accused” resulting in her committing suicide.

131. After the learned Single Judge of this Court issued directions to the trial Court to frame an additional charge, on the same evidence, under Section 302 IPC, the trial Court framed an additional charge on 6th September 2014 to the effect that on the intervening night of 10th/11th January 2000, at the flat concerned, the Appellant committed the murder of the deceased. Thus, the prosecution was now required to categorically prove that the death was homicidal and that the murder took place at the aforementioned place.

132. The prosecution did not seek to re-examine any of the PWs. It is the Appellant who sought to cross-examine for the second time six of the PWs, two of whom were later dropped. Significantly, the trial Court, on 6th September 2014, i.e. the date on which additional charge was framed with the consent of the Appellant and his counsel and to which he pled „not guilty‟, noted that “since the Prosecutor has to decide which witnesses he wants to recall, re-summon, or re-examine after the framing of additional charge, the report of Chief Prosecutor be awaited for 15.09.2014”.

133. Thereafter, on 15th September 2014, the learned APP stated that “she does not want to re-examine any witness already examined by the prosecution after the framing of additional charge”. The trial Court nevertheless decided to wait for the opinion of the five-member medical board that had been constituted. The matter was adjourned to 18th October 2014, on which date, the trial Court noted that in terms of the report of the five-member medical board, “the preponderance of evidence points towards the commission of suicide”. Clearly, this was an inadvertent error. The crucial words in the above order should have read as “commission of homicide” instead of “commission of suicide”.

134. At that stage, the learned APP made a request that he be permitted to summon Dr. Anil Aggrawal (PW-37), the Chairman of the medical board. No objection was raised by the learned defence counsel to this request. Thereafter, the examination and cross-examination of PW-37 was conducted and eventually concluded on 28th September 2015. On that date itself, the statement of the learned APP that he did not want to lead further evidence was recorded. The learned defence counsel prayed for an adjournment “for furnishing the list of witnesses which he intends to cross-examine after framing of additional charges”. The matter was then adjourned to 15th October 2015.

135. The order passed by the trial Court on 15 th October 2015 reveals that the counsel for the Appellant had filed an application under Section 217 read with 311 Cr PC for recall of six witnesses for further cross-examination, viz. PWs 4, 5, 12, 14, 21, and 30. The Appellant also requested that Dr. N.K. Vyas, the author of the MLC (Ex.PW-4/C) be summoned. This application was allowed. However, as far as Dr. Vyas was concerned, he had since left the services of the hospital and Dr. Sanjeev Lalwani (PW-25) was deputed to attend the trial Court on his behalf. Liberty was granted to the Appellant to seek recall of PW-25.

136. On 17th December 2015, PWs 4 and 14 were cross-examined on recall. However, the counsel for the Appellant in the trial Court dropped his request for further cross-examining PWs 12 and 15 who were also present. He also stated that he did not wish to cross-examine PW-25. The cross-examination of PW-30 concluded on 27th February 2016. On that date, the counsel for the Appellant stated that he did not wish to cross-examine PW-5 who had earlier been recalled. The only PW remaining to be cross-examined was Dr. S.K. Chadha (PW-21A). He was summoned for 19th March 2016. His cross- examination began on that date and ultimately concluded on 14th May 2016. The further recording of the statement of the Appellant was concluded on 27th August 2016.

137. The submission by Mr. Rajeev Mohan, learned counsel for the Appellant is that the trial Court failed to follow the procedure under Sections 216 and 217 Cr PC in letter and spirit. Relying on the decision in R. Rachaiah v. Home Secretary, Bangalore (2016) 12 SCC 172, it was submitted that since the alteration of the charge to one under Section 302 IPC was obviously prejudicial to the accused, there necessarily had to be a de novo trial since from that stage the trial proceeded as if “the altered or added charge is the original charge”. It is submitted that this has caused grave prejudice to the Appellant.

138. Mr. Sanjay Jain, learned Senior counsel for the prosecution distinguished the decision in Rachaiah (supra) by pointing out that in that case, the charges were initially framed under Sections 306/365/34 IPC and thereafter, an alternative charge under Section 302/34 IPC was framed. Therefore, both charges could obviously not stand together. The trial Court there had not granted an adjournment in terms of Section 216 (4) Cr PC and barring one police witness, it had not examined any new witness under Section 217 Cr PC. It is submitted that it was in those particular circumstances that the trial was held to be vitiated. However, since in the present case the additional charge framed by the trial Court was only on the directions issued by the High Court which were subsequently upheld by the Supreme Court, it could not be said that any prejudice was caused to the Appellant if the trial were to continue as if the additional charge was the original charge. It was, therefore, not necessary to examine the witnesses again as if in a de novo trial.

139. Furthermore, it is pointed out by Mr. Jain that no such plea was taken by the Appellant at any time before the trial Court. In support of the proposition that no new evidence needs to be brought on record before framing an additional charge, Mr. Jain referred to the decision in Anant Prakash Sinha v. State of Haryana (2016) 6 SCC 105.

140. The above submissions have been considered. Mr. Jain is right that the additional charge under Section 302 IPC was framed by the trial Court only pursuant to the order dated 12th August 2014 of the learned Single Judge of this Court in Crl.Rev.P.208/2011. Thereby, the trial Court was directed to follow the procedure under Section 217 Cr PC, which reads thus:

“217. Recall of witnesses when charge altered.-Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re- examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material.”

141. The submission of the Appellant is based on Section 216 (4) Cr PC which states that if the additional charge is such that proceeding immediately with the trial is likely to prejudice the accused or the prosecutor, “the Court may either direct a new trial or adjourn the trial for such period as may be necessary”. Thus, there is discretion vested with the trial Court as to whether it should direct either a new trial or adjourn the trial for such period as it may deem necessary.

142. It appears to this Court that by asking the trial Court to adhere to the procedure under Section 217 Cr PC, the learned Single Judge, being conscious of the fact that the matter pertained to an incident which took place in January 2000, confined the proceedings before the trial Court to those envisaged under Section 217 Cr PC and as a consequence, curtailed the discretion conferred upon the trial Court under Section 216 (4) Cr PC. Therefore, any grievance that the Appellant might have had in this regard could have only been raised in his challenge to the order of the learned Single Judge before the Supreme Court. That challenge came to be negatived by the Supreme Court‟s order dated 22nd August 2014 dismissing the Appellant‟s SLP (Crl.) 6502-6503/2014. Thereafter, the trial Court was bound to following the procedure under Section 217 Cr PC. From its orders extracted hereinabove, it is plain that the trial Court has in fact done so.

143. It was not incumbent upon the trial Court in the present case, having framed an additional charge, to resort to the procedure envisaged under Section 216 (4) Cr PC, notwithstanding that framing of the additional charge was prejudicial to the Appellant. Pertinently, the discretion conferred upon the trial Court thereunder leaves it open to the trial Court to adjourn the trial for such period as it may deem necessary. Therefore, it is not that whenever an additional charge is framed, which may be prejudicial to the accused, the trial Court must mandatorily direct a de novo trial.

144. The prosecution is right that the decision in Rachaiah (supra) is distinguishable on facts. In the present case, the order passed by the learned Single Judge directing the trial Court to frame an additional charge under Section 302 IPC was categorical and left it with no option but to follow the procedure under Section 217 Cr PC.

145. The Appellant was permitted to recall some of the PWs and the Appellant himself dropped his request for cross-examining two of the six PWs who had earlier been recalled by him. Adequate opportunity was, therefore, given to the Appellant for the recall and re-examination of witnesses.

146. The net result of the above discussion is that the Court rejects the plea of the Appellant that the trial Court erred in not directing a de novo trial in terms of Section 216 (4) Cr PC after the additional charge was framed pursuant to the order dated 12th August 2014 of the learned Single Judge.

147. The prosecution did not choose to recall any of the PWs after the additional charge was framed. The prosecution, as will be seen presently, thereby took a risk in seeking to prove the additional charge framed against the Appellant, on the basis of the evidence already collected.

No challenge to Appellant’s acquittal under Sections 498A and 304B IPC

148. It is pertinent to note, at this stage, that there is no challenge by the prosecution or the complainant to the acquittal of the Appellant for the offences under Sections 498A and 304BIPC. Therefore, there is no challenge to the following definite findings of the trial Court:

(i) There were improvements and contradictions in the statements of PWs 6 and 20 which could not be brushed aside. (Para 61)

(ii) None of the PWs mention any specific instance of the deceased being given beatings or subjected to cruelty on account of non-fulfilment of demand for dowry. This made the entire story of the prosecution doubtful.

(iii) The prosecution had failed to prove any demand for dowry or harassment or cruelty meted out to the deceased on that account. This finding was recorded after the trial Court discussed the testimonies of PWs 6, 18, and 20 on one hand, and PWs 2 and 5 on the other.

(iv) Until the arrival of PW-20 in India, no grievance was expressed against the accused and “everything developed after that”. Further, there were admissions by the PWs 2 and 5 that PW-20 wanted to gain custody of the daughter of the Appellant and since this was not agreeable to him, “she levelled allegations regarding demand of dowry and cruelty committed to the deceased”.

149. What is, therefore, undeniable is that in its discussion of the evidence which culminated in concluding in para 69 of its judgment that the prosecution had failed to prove the charges against the Appellant under Sections 498A and 304B IPC, the trial Court had, in fact, disbelieved the testimonies of PWs 6, 18, and 20, all of whom sought to make out the case of the Appellant having subjected the deceased to harassment and cruelty in connection with a demand for dowry not only after the marriage but also shortly prior to her death which occurred before the completion of seven years of marriage. Furthermore, this finding of the trial Court which resulted in the acquittal of the Appellant of the offences under Sections 498A and 304B IPC has not been challenged by the State or the complainant.

Nature of death whether homicidal

150. With the additional charge under Section 302 IPC having been framed, it was incumbent upon the prosecution to prove beyond reasonable doubt that the death of the deceased was indeed homicidal. Considering that the case was based on circumstantial evidence, this constituted the central link in the chain.

151. In considering this issue, the trial Court, having examined the conflicting opinions of the two medical boards constituted in this case at different points in time, concluded in para 90 of its judgment that neither could be relied upon to form a definite opinion as to the nature of the death without there being any incriminating evidence. Therefore, the finding of the trial Court that the guilt of the Appellant for commission of the offence punishable under Section 302 IPC had been proved beyond reasonable doubt is based on evidence other than the medical opinions submitted by the two medical boards.

152. Although the aforementioned finding of the trial Court has not been challenged by the prosecution or the complainant, the prosecution places extensive reliance on the medical opinion submitted by the five-member board to urge that the said medical opinion proves that the death was homicidal. In the absence of any challenge to the trial Court‟s finding in that regard, it would not normally be open to the prosecution or the complainant to argue to the contrary. Nevertheless, since the issue is central to this case, this Court proposes to discuss it in some detail.

153. It may be recalled that medical opinions as to the death were rendered at three different points in time in the present case. While the SDM was still seized of the inquest proceedings under Section 176 Cr PC, the first unanimous opinion of the three-member medical board pursuant to the post mortem examination conducted on 11th January 2000 was made available by way of the report submitted on 12th January 2000 and a subsequent opinion as to the nature of death on 18th January 2000. When the post mortem examination was conducted on 11th January 2000, photographs and videos were taken. To recapitulate, the unanimous report was rendered by three members of the board, viz. Dr. R.K. Sharma (PW-22), Dr. L.C. Gupta (PW-

10), and Dr. Alexander Khaka (not examined as he expired during the pendency of the trial) after visiting the scene of crime on 14th January 2000, studying all 24 photographs of the scene submitted to them by the IO, taking into consideration that the deceased was right handed, studying the record of treatment given to the deceased at Virmani Nursing Home prior to her being brought to AIIMS, studying the viscera report dated 18th January 2000 which gave a negative result for common poisons, and considering the facts mentioned in the photocopy of the case diary submitted by the IO.

154. At that stage, what was not submitted to the three-member board was the report of “vaginal swabs, nail clippings, and clothes of the deceased”. However, nothing turned on the non-availability of the report of vaginal swab as the FSL report found no signs of any semen thereon. There was no report on the nail clippings either which would have in any way pointed to the culpability of the Appellant for having committed the murder of the deceased. On the nail clippings themselves (n1 and n2), no foreign material of biological interest could be found. The clothes of the deceased, i.e. g1 (wet jeans pant having numerous dark brown stains), g2 (wet cut dirty full- sleeved cream coloured t-shirt having numerous dark brown stains), g3 (wet cut full-sleeved sweater having numerous brown stains), g4 (wet black colour brassiere), g5 (wet black slacks having some white fungal growth), g6 (wet white ladies‟ underwear having numerous dark brown stains and faint brown stains in the lower middle region), tested positive for traces of human blood. This, in itself, is not surprising considering the deceased had two stab wounds on her abdomen, one of which the three-member board had opined to be fatal.

155. The initial report (Ex.PW-10/A) of the thee-member medical board had the replies to the queries raised by the SDM in his order dated 11th January 2000 (Ex.PW-4/F) regarding number and nature of injuries, the cause of death, and the board‟s opinion as to the nature of death. It was stated that there were two ante mortem injuries (injury Nos.1 and 2) which were fresh in duration before the death and caused by a sharp edged weapon. There was a third ante mortem injury (injury No.3) which was also caused by a sharp edged weapon but the duration of which was more than 48 hours before the time of death. The cause of death was observed to be “haemorrhagic shock caused as a result of ante-mortem injury no.1 which is caused by sharp edged weapon and sufficient to cause death in the ordinary course of nature”. The board reserved its opinion as to whether the death was in fact homicidal or suicidal pending certain clarifications being provided by the SDM, forensic reports being received, and a visit to the crime scene as requested by them. Thereafter, by its report dated 18th January 2000 (Ex.PW-4/JJ), the board submitted its final unanimous opinion to the effect that injury Nos.1 and 2 were “self-inflicted and suicidal in nature”.

156. Almost 14 months later, a letter dated 8th March 2001 was written by PW-30 to the same three-member board raising seven queries pertinent to the death of the deceased. Two of the members of the board, i.e. Dr. Sharma (PW-22) and Dr. Khakha, submitted a joint opinion dated 12th April 2001 (Ex.PW-22/A) reiterating that the “theory of homicide is ruled out as the pattern of injury is self inflicted and suicidal in nature”. In response to Question No.3 as to which of injury Nos.1 and 2 was prior in time, they stated that injury No.2 was the initial “hesitational cut” and was prior to injury No.1 which was opined to be fatal. It is pertinent to note that this was the first time any sort of medical opinion was offered by the board as to which injury was the „hesitational cut‟ and which was fatal.

157. The next question posed to the board was whether injury No.2 (3.5 cm deep) could have been inflicted after injury No.1 (15.5 cm deep). The response was to the effect that the IO had misinterpreted the post mortem findings. It was further clarified that injury No.1 was caused after injury No.2 and that it was possible to inflict a fatal injury after the initial hesitational cut.

158. It appears to this Court that the IO was anticipating these responses when he asked seemingly leading questions such as whether a knife would be the preferred method for committing suicide when there was a loaded revolver available and with the knife being more painful. The two doctors answered that suicide was mostly a matter of impulse and the choice of weapon was dependent on the mental framework of the person committing suicide. They also pointed out that there are many cases on record “where women victims have used this method of committing suicide”. They also clearly stated that the deceased was not in the phase of menstrual period thus reiterating what was observed during the post mortem examination.

159. Dr. Gupta (PW-10) submitted a dissenting opinion dated 30th August 2001 (Ex.PW-10/D) which was by no means categorical. In fact it was vague. Even in his dissent, however, PW-10 concurred with the other two doctors in responding to Question No.3. He stated that “probable scientific speculation may reveal that the injury No.2 as mentioned in PM report was inflicted first then the injury No.1 which was fatal in this case”. As for his opinion on the nature of death, his refrain was that “homicide cannot be ruled out”. Thus, he expressed no categorical opinion that it was in fact a case of homicide and not suicide.

160. Due to the uncertain opinion of PW-10, at the time of filing the charge sheet, the prosecution did not proceed on the basis of the death being homicidal despite noting his opinion that homicide cannot be ruled out. Therefore, the overwhelming medical opinion at that stage was that the death was suicidal and not homicidal.

161. The Court has been taken through the cross-examination of Dr. Sharma (PW-22) wherefrom it emerges that PW-10 did not participate in the deliberations of the board on the queries posed by PW-30. PW-22 stated that although PW-10 was invited to attend, “he did not respond/attend nor did he give any reasons for his non-attendance”. PW-10, in his cross-examination, stated that he did not send his opinion to the other two members of the board and they did not send their joint opinion to him. Notably, he did not dispute that the first time around, he did sign on the post mortem report along with the other two doctors and that it was, therefore, a unanimous report. PW-10 added that his final opinion was submitted to PW-30 pursuant to the latter‟s letter dated 1st May 2001 enclosing the report signed by the other two doctors.

162. The constitution of the subsequent five-member board by the order dated 21st May 2012 of the DHFW, was upheld by the learned Single Judge of this Court by the order dated 12th August 2014 which was in turn affirmed by the Supreme Court. While the Court does not wish to re-examine the circumstances under which the second medical board was constituted, it would be pertinent to note the following admitted facts concerning the functioning of the board as set out in the written note of submissions made by the prosecution:

“a. In the board meeting dated 11.10.2012 (p.743 Vol-IV;

Part of Mark PW37/D-15), the board asked for legible copies of all the material documents, especially, the autopsy report and opinion of the doctors of earlier board. The said letter was received at PS Pandav Nagar on 12.10.2012.

b. Vide letter dated 5.11.2012 (p.736 Vol. IV) copies of FSL report, copies of evidence of doctors, copy of subsequent opinion on weapon of offence and copy of sketch of weapon was send to the Board (p. 736 Vol-IV). c. Next meeting of the board was held on 12.12.2012, whereby they examined the weapon of offence and thereafter only asked for copies of still photographs and videography of the postmortem. (p.738 Vol. IV). d. On 13.12.2012 SI Manish Bhatti moved an application, thereby requesting to supply the photographs/videograph of the scene of crime (p. 23640 of LCR).

e. Vide order dated 13.12.2012, the Ld. Trial Court permitted SI Manish Bhatti to take the photographs of scene of crime and autopsy report. However, the SPP made the submission that there is no videography of scene of crime. (p.428 of LCR).

f. In the meeting dated 09.01.2013, the SHO informed the Board that Hon‟ble High Court has stayed the proceedings of the case and requested the Board not to proceed further. (p.745 Vol. IV).

g. Stay on the proceedings got vacated on 12.08/2014, when the Hon‟ble High Court dismissed the petition filed by the convict. Vide order dated 22.08.2014, the Hon‟ble Apex Court also dismissed the SLP filed by the convict. Thereafter, on 09.10.2014 the Board gave its final opinion.”

163. It is beyond contention that this five-member board gave its report on 9th October 2014 – more than fourteen years after the date of the incident – without examining the body or the crime scene. It is interesting to note that in his cross-examination, Dr. Sarvesh Tandon (PW-26), who identified the signatures of Dr. Khakha who was since deceased, stated as under:

“Without seeing the injured/deceased, her clothes that she was wearing at the time of alleged incident, without inspection of the spot, without seeing the offence of weapons, it is not possible for me to give any opinion in this matter. I do not have any personal knowledge about this case.”

164. Another noteworthy aspect is that although the five-member board asked for the photographs and videograph of the earlier post mortem, that was not made available to them before the final opinion was rendered. Dr. Anil Agarwal (PW-37), Chairman of the board, confirmed that the minutes dated 12th December 2012 noted a request made to the IO for providing the photographs. He admitted that he did not have any file, noting, or documents “showing the receipt of the photographs of the victim”. He claimed to have seen the earlier opinion of the three member board which was unanimous as well as the opinion of two members of the board given on 12th April 2001. He also admitted that injury No.3 noted in the post mortem report “is possible while cutting the vegetables”.

165. Specific answers were elicited from him as to which of the documents relevant to the post mortem examination and the earlier medical opinions had been considered by the five-member board. He stated that the board had considered the post mortem report dated 12th April 2000 (Ex.PW-10/A) and noted the direction of the injury Nos.1 and 2 mentioned therein. He also states that he remembered seeing the joint opinion of PW-22 and Dr. Khakha (Ex.PW-22/A) as it was in his file. He states that the board had noted the answer to Question No.3 therein regarding the opinion of the two concurring doctors as to which of the injuries was prior in time. He further admitted to seeing the crime scene report dated 17th January 2000 wherein inter alia it was stated that the knife having fingerprints was taken by the CFSL.

166. In light of the above answers, it is inexplicable that the report of the five-member board makes certain glaring factual errors. The first is its noting that “neither post mortem report nor photographic printouts made available depict path/track taken by two stab wounds on the abdomen”. Secondly, it is also mentioned that “there is no scientific finding mentioned in the post mortem report which can be considered to be the basis of the conclusion as to which injury is inflicted first and which injury in inflicted later on”. In its seventh observation, the board states that there were “no fingerprints detected on the recovered weapon of offence as per the documents made available” when in fact the crime scene report referred to hereinabove clearly mentions that the fingerprints lifted from the knife had been seized by the CFSL. Its next conclusion – that there were no hesitational or tentative cuts around the fatal injury or elsewhere – flew in the face of what was concluded by the two concurring doctors of the earlier board. Even the third member PW-10 did not disagree that there were two cuts.

167. The report of the five-member board contains no specific reasons for the conclusion that the preponderance of evidence in this case points towards “commission of homicide.” The numerous factual errors in the opinion reflect non-application of mind to the relevant materials on the record. A conclusion based on faulty analysis, erroneous or absent facts and with no cogent reasons does not inspire confidence.

168. Further, rather notably, the sixth observation mentioned in the final report of this five-member board was that there were no cuts on the clothes of the deceased. PW-37 was confronted with literature (Mark PW-37/D1&D2) extracted from the 23rd Edition of Modi’s Medical Jurisprudence & Toxicology which is an analysis of the difference between suicidal, homicidal, and accidental wounds. There is a separate discussion on “Hesitation (tentative) Cuts” and it is noted that in the case of suicidal or self-inflicted wounds, hesitational cuts are usually present. Further, it is noted that clothes are not usually found damaged in such cases. Specifically, it is opined that “wounds found on a part of the body ordinarily covered by clothes without corresponding cuts or rents on them are suicidal, as a person who commits suicide exposes his body by opening his clothes and then inflicts wounds”.

169. More pertinently, it appears that PW-37 himself has authored books wherein he has opined that in cases of suicide being committed with a knife, one indication is about the clothes not being cut (Mark PW-37/D5). He states therein that the clothes are not damaged as they are usually removed. He specifically opines therein that stabs to the abdomen would be made by lifting the clothes to visualize the area. It is plain, therefore, that PW-37 too did not entertain a view different from that taken in Modi’s Medical Jurisprudence & Toxicology.

170. Then we have the 5th Edition of the text book on Forensic Medicine and Toxicology by Dr. Krishan Vij wherein, under the section titled „Accident, Suicide, or Homicide‟, he observes as under:

“Suicidal injuries are commonly situated over front of body on easily accessible sites, especially over throat, pericardium abdomen or wrists and rarely found on unusual locations as cannot easily be reached by the victim.

A couple of characteristic features of suicidal stabbing include the following: Firstly, presence of ‘tentative wounds‟ that are superficial and unlikely to penetrate beyond muscular layer. The finding of tentative wounds (hesitation cuts) is a useful observation in helping differentiate suicide from homicide. Indeed, ‘Hesitation marks’ can be considered the ‘trade marks’ of suicide. The name is derived from the fact that cutting/stabbing oneself is painful and the would be suicide frequently makes several half-hearted, superficial cuts/stabs before he/she gathers sufficient courage to unleash the sufficiently forceful stroke, which is able to cause fatal damage. Another basis for hesitation marks may be the subject’s ignorance as to how tough and resistant the tissues are and how much force is needed to produce the fatal injury with the weapon at hand. Secondly, suicides almost always inflict wounds over the uncovered parts of the body. Thus, wounds over the parts of the body that ordinarily remain covered by clothing, without corresponding cuts/rents upon them, are indicative of suicide. This observation is again a potentially useful factor in differentiating suicide from homicide because a homicidally inclined assailant does not ordinarily take time or trouble to expose the site of injury.”

171. Reference is made in the written submissions of the prosecution to the statistics pertaining to the suicides committed by self-inflicted injury and those committed by women. These do not in any manner add to the understanding on how the five member medical board proceeded in the matter. The mere fact that the opinion of the earlier medical board was rendered without taking note of the vaginal swab report and nail clippings and clothes of the victim is also of no consequence at all as has been noted hereinbefore. Even according to the five-member board, there were no visible cuts on the clothes of the deceased. Although it is contended that there is no reason to doubt the opinion rendered by the five member board, this Court finds that it inspires no confidence for the reasons explained hereinabove.

172. Therefore, in view of the evidence of the medical professionals that has been discussed in detail above, and in light of the medical literature placed on record, it is not possible for this Court to accept the plea of the prosecution that the medical evidence in this case unmistakably and conclusively proves that the death was homicidal.

Forensic evidence

173. With the medical evidence not being able to conclusively prove the nature of death to be homicidal, the prosecution has sought to rely extensively on forensic evidence. It is a matter of record that 20 sealed packets were sent to the CFSL containing, among others, samples of bloodstains found on the bed sheets, clothes, threads having brown stains lifted from the bathroom tiles, and threads having brown stains lifted from the bathroom drain. No doubt all of these showed the presence of human blood but this in itself does not advance the case of the prosecution.

174. The prosecution has not been able to explain the chance fingerprints lifted from the crime scene. Dr. G.D. Gupta (PW-17), the Principal Scientific Officer of CFSL at the relevant time, visited the scene of the crime. He noticed chance print Mark Q1 on the bedroom wall but no stains on or near it or near the electric switchboard. The other witness, Dr. S.K. Chadha (PW-21A), stated that chance prints Q2 to Q5 were lifted from the knife. He received from the SDM 10 specific digit fingerprints/palm slips for comparison with the chance prints. In his report dated 24th January 2000 (Ex.PW-4/QQ), it is stated that no matches could be established with the specimen fingerprints of the Appellant. The contents of the report of PW-21A are as under:

“Result of Examination I. The chance print marked as Q.1 is identical with specimen right little finger impression of Smt. Anju Ilyasi marked here as RLS.9 on the slip marked as S.9 (Matching ridge characteristics have been found in their relative positions in questioned and specimen prints. This forms the basis of the opinion that these prints are identical. Eight of them have been marked with projected red lines & along with their detailed description is placed at Annexure 1;

II. The chance print marked as Q.2 and Q.5 are different from specimen prints of Suhabi Ilyasi marked here as S.1 to S.7. (Ridge characteristics present in the questioned fingerprints are not similarly present in their relative positions in the specimen fingerprints. This form the basis of the opinion that these prints are different);

III. a) The chance prints marked as Q.2 is different from specimen prints of Anju Ilyasi marked here as S.8 to S.13. (Ridge characteristics present in the questioned fingerprints are not similarly present in their relative positions in the specimen fingerprints. This forms the basis of the opinion that these prints are different);

b) Specimen left thumb impressions of Smt. Anju Ilyasi does not contain sufficient number of clear ridge characteristics in the relevant area for comparison with chance print marked as Q.5;

IV. Chance prints marked as Q.3 and Q.4 does not contain sufficient number of clear ridge characteristics for comparison.”

175. With there being no matches of the chance prints lifted from the scene of crime with any of the specimen prints of the Appellant, the Court fails to appreciate how the forensic reports can help the case of the prosecution to establish that the death was homicidal.

Section 106 IEA and shifting the burden of proof

176. The entire case of the prosecution is built on first showing that the death was homicidal and then placing the burden upon the accused in terms of Section 106 IEA to explain how the death occurred. Mr. Jain submitted that even without showing that the death was homicidal, resort can be had to Section 106 IEA. He urged that Section 106 IEA is a sui generis provision. He relied upon the decisions in Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681; State of Rajasthan v. Thakur Singh (2014) 12 SCC 211; and Ravirala Laxmaiah v. State of Andhra Pradesh (2013) 9 SCC 283.

177. This Court finds that the above submission in counter-indicated in the following categorical exposition of the law in para 22 of the decision in Trimukh Maroti Kirkan (supra):

“22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh 1972 CriLJ 1317, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra 1992 CriLJ 1545, the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal 1992 CriLJ 3693, the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed thatboth of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran 1999 CriLJ 4552, the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” (emphasis supplied)

178. Therefore, the sine qua non for invoking Section 106 IEA is for the prosecution to show that a crime has been committed and that shortly before the “commission of crime”, the accused and the victim were seen together. In each of the cases referred to in the above passage, the prosecution had succeeded in showing that the death was homicidal.

179. In Ravirala Laxmaiah (supra), the High Court had given a definite finding that the death was homicidal as a result of the medical evidence of one Dr. K. Padmawati and this was concurred with by the Supreme Court. Likewise, in Thakur Singh (supra), which has been extensively referred to by learned Senior Counsel Mr. Jain, the positive finding was that the victim died an unnatural death in the room occupied by her and the accused therein. There were facts “pertaining to the crime” which were known only to the accused therein. Importantly, in para 9 of the judgment of the Supreme Court, one of the basic facts brought on record was deposed to by Dr. Khemchand Saini that the deceased had some injuries on her person “but the cause of her death was asphyxia and strangulation”. There was further finding by the trial Court that there was nothing to suggest that any other person had entered Thakur Singh‟s room and “there was no possibility of anybody else having caused Dhapu Kunwar‟s death by strangulation”. Further, it was noted that the accused therein gave absolutely no explanation in his statement under Section 313 Cr PC as to how his wife had died of asphyxiation inside their room.

180. Therefore, the prosecution having to first establish the „commission of crime‟ is a sine qua non for the application of Section 106 IEA. In the instant case, without the prosecution proving that that the death was homicidal, the question of invoking Section 106 IEA did not arise. The case of the Appellant is that the deceased stabbed herself with a kitchen knife. He has sought to offer an explanation as to what transpired at the relevant time. On this he has remained consistent throughout his examination under Section 313 Cr PC. Further, the medical evidence supports his plea.

181. This Court, therefore, disagrees with the approach of the trial Court in the present case that there was a burden on the Appellant under Section 106 IEA to give an explanation for the death of his wife. The net result is that one of the key links in the chain of circumstances, i.e. that the death was homicidal, has not been proved by the prosecution. What has come through both in the medical and forensic evidence is only that the death resulted from stab injuries caused by the kitchen knife which was found in the house.

Statements made before the SDM not admissible in evidence

182. In discussing the evidence, the trial Court commenced with examining the statements made by the Appellant to the SDM (PW-4) under Section 176 Cr PC. However, it is the settled legal position that those statements do not constitute evidence. They could not have been relied upon to establish the Appellant‟s guilt. In this context, the following observations of this Court in Mahipal v. State of Delhi 225 (2015) DLT 242, are relevant:

“22. The object and purpose of inquest proceedings is merely to ascertain as to whether a person has died under unnatural circumstances, or if it was an unnatural death and, if so, as to what was the cause of death. Inquest report cannot be treated as primary or substantive evidence. The opinion given in such report cannot be termed as final adjudication of the matter for the simple reason the questions regarding details as to how the deceased was assaulted or as to who had assaulted him or under what circumstances the assault took place are beyond the scope of the inquest proceedings [Madhu @ Madhuranatha & Another v. State of Karnataka, (2014) 12 SCC 419 and Baldeo and another v. State of U.P., 2004 Crl. L.J. 2686].

23. The inquest report, inter alia, also referred to the statements of the various witnesses examined by the SDM in the course of his enquiry, such witnesses including the relatives or neighbours of the victim, some of whom have been examined at the trial by the prosecution leading to the impugned judgement. The sum and substance of the version of the said witnesses before the SDM, however, cannot be relied upon by the prosecution. They are not substantive evidence for purposes of the criminal trial. Such statements, of course, were in the nature of previous statements of the corresponding prosecution witnesses. They could be used for contradicting or discrediting the witnesses during cross-examination in the proceedings before the trial Court. The defence made no such effort during the trial. Without formal record of their respective depositions being brought before the trial Court and without the witnesses being confronted with their previous statements before the SDM, the summary of what they may have said before the SDM during inquest proceedings cannot be read against the appellants. Thus, we exclude from consideration the material on the basis of which the SDM had concluded the inquest proceedings. For similar reasons, the conclusions reached, or the impressions gathered, by the SDM on such material must also be kept out of purview. After all, the purpose of the inquest proceedings was to find the cause of death and not probe as to who were the persons responsible.”

183. In Suresh Rai v. State of Bihar (2000) 4 SCC 84, the Supreme Court observed:

“Learned counsel for the appellants, Mr. U.R. Lalit, contended that the presence of three eye- witnesses, namely, Sheo Deo Rai (P.W.10), Shatrughan Rai (P.W.16) and Ram Narain Rai (P.W.17), at the spot, is doubtful for the reason also that though two of them, namely, Shatrughan Rai (P.W.16) and Ram Narain Rai (P.W.17), are the witnesses of inquest, they did not state the names of the assailants while describing the cause of death in the Inquest Report. This argument cannot be accepted. Under Section 174 read with Section 178 of the Code of Criminal Procedure, Inquest Report is prepared by the Investigating Officer to find out prima facie the nature of injuries and the possible weapon used in causing those injuries as also the possible cause of death. In Podda Narayana vs. State of A.P., AIR 1975 SC 1252, it was held by this Court that the identity of the accused is outside the scope of Inquest Report prepared under Section 174Cr.P.C. In George vs. State of Kerala, (1998) 4 SCC 605, it has been held that the Investigating Officer is not obliged to investigate, at the stage of inquest, or to ascertain as to who were the assailants. This Court has consistently held that Inquest Report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest. (See: Rameshwar Dayal vs. State of U.P., AIR 1978 SC 1558; Khujji @ Surendra Tiwari vs. State of M.P., AIR 1991 SC 1853 and Kuldip Singh vs. State of Punjab, 1992 Crl.L.J. 3592″

184. Thus, the statement of a person during the inquest proceedings who subsequently becomes an accused has to be kept out of the reckoning while discussing the evidence. When the Appellant‟s statement was recorded by the SDM on 11th January 2000, he was not yet an accused. The legal position in this regard is explained in Mahabir Mandal v. State of Bihar (1972) 1 SCC 748 as under:

“46. Coming to the case of Kasim, we find that there is no reliable evidence as may show that Kasim was present at the house of Mahabir on the night of occurrence and took part in the disposal of the dead body of Indira. Reliance was placed by the prosecution upon the statements alleged to have been made by Kasim and Mahadeo accused at the police station in the presence of Baijnath PW after Baijnath had lodged report at the police station. Such statements are legally not admissible in evidence and cannot be used as substantive evidence. According to section 162 of the Code of Criminal Procedure, no statement made by any person to a police officer in the course of an investigation shall be signed by the person making it or used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The only exception to the above rule is mentioned in the proviso to that section. According to the Proviso, when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be used by the accused and with the permission of the court by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act and when any part of such treatment is so used, any part thereof may also be used in the re-examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. The above rule is, however, not applicable to statements falling within the provisions of clause 1 of section 32 of the Indian Evidence Act or to affect the provisions of section 27 of that Act. It is also well established that the bar of inadmissibility operates not only on statements of witnesses but also on those of the accused [see Narayan Swami v. Emperor, (1939) P.C. 47]. Lord Atkin, in that case, while dealing with section 162of the, Code of Criminal Procedure, observed:

“Then follows the Section in question which is drawn in the same general way relating to “any person.” That the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a number of persons none of whom or all of whom may be suspected at the time. The first words of the Section prohibiting the statement if recorded from being signed must apply to all the statements made at the time and must therefore apply to a statement made by a person possibly not then even suspected but eventually accused.”

Reference may also be made to Section 26 of the Indian Evidence Act, according to which no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved against such person. There is nothing in the present case to show that the statements which were made by Kasim and Mahadeo accused on September 18, 1963 at the police station in the presence of Baijnath resulted in the discovery of any incriminating material as may make them admissible under Section 27 of the Indian Evidence Act. As such, the aforesaid statements must be excluded from consideration.”

185. The prosecution‟s repeated attempts to read the statement of the Appellant made to the SDM at the stage of inquest proceedings (referred to in paras 23 to 31 above) and attempt to glean therefrom an admission on his part is, therefore, legally impermissible.

Whether charge of murder proved beyond reasonable doubt

186. The prosecution began by seeking to prove the charges against the Appellant for cruelty and dowry death. It failed in that attempt. The legal presumptions that may have been available to the prosecution as regards the offences under Sections 498 A and 304 B IPCwere, therefore, not available to it in seeking to prove the case against the Appellant for the offence punishable under Section 302 IPC. Unlike Section 304B IPC which shifts the onus upon the accused if the basic ingredients of that offence are proved by the prosecution, in a case involving the offence punishable under Section 302 IPC, the onus continues to remain with the prosecution to prove its case beyond reasonable doubt. In Tapas Kumar Ghosh v. State of West Bengal (2011) 15 SCC 354, it was observed in para 4 as under:

“4. The question raised before us is that having framed an alternative charge under Section 302 of the Indian Penal Code, the Appellant could not have been held to be guilty of an offence under Section 304B IPC inasmuch as the essential ingredients of both the offences are distinct and different. The onus in the case of Section 304B IPC shifts to the accused, unlike under Section 302 IPC where the onus continues to be on the prosecution and it is expected to prove the case beyond any reasonable doubt.”

187. In the present case, after the additional charge was framed by the trial Court in 2014, the prosecution had the option under Section 217 Cr PC to recall the PWs. Having foregone such opportunity, it risked proving the charge under Section 302 IPC against the Appellant on the basis of the same evidence. The prosecution is unlikely to succeed if it seeks to prove a new case on the basis of the same evidence. In Bhagirath v. State of Madhya Pradesh(1976) 1 SCC 20, it was observed as under:

“14. It appears to us that the approach of the courts below in reconstructing a story different from the one responded by the prosecution and then convicting the appellant on that basis was clearly erroneous. It was never the prosecution case that there was a fight or pitched battle between two parties According to the prosecution, the occurrence was only a one-sided affair that P.W. Kashiram was forcibly pulled out and taken from his house by three accused to a distance of 80 feet, and there assaulted. In the F.I.R., Devisingh made no mention whatever of the injuries received by the accused side. At the trial also, the prosecution witnesses brazenly refused to concede that the appellant or his companion Manohar had received any injury at the time occurrence. Contrary to what these prosecution witnesses had stated, the courts have come to the conclusion that these injuries, three of which were incised wounds, were received by the accused side, in the course of a free fight at the hands of the complainant party.”

Evidence of PW-13

188. The trial Court has commented adversely on the conduct of the Appellant during and after the incident; that he did not prevent the deceased from stabbing herself in the first place; that he made no effort to stop the victim from bleeding, to provide her with first aid, to immediately call for help. These inferences of the trial Court appear to be based on surmises and conjectures and not on evidence.

189. The evidence of the PSO (PW-13) who first entered the scene soon after the stabbing had taken place, is relevant in this regard. His evidence, if read carefully, makes it clear that the Appellant opened the door, called him in and asked him to help him with lifting the deceased. PW-13 stated in his examination in chief that the deceased told him that she had made a mistake.

This contradicted the prosecution theory that the Appellant had murdered his wife. It was consistent with the deceased having stabbed herself. PW-13 was not declared hostile by the prosecution. He was also not recalled by the prosecution to explain the above statement of his. Even if the statement of PW-13 in his further cross-examination by the Appellant that the deceased was asking the Appellant to save her life is kept out of the reckoning, the deceased saying that she had committed a mistake supported the theory of suicide. It was urged by Mr. Jain that this statement should be interpreted as the deceased saying that she had made a mistake in marrying the Appellant and not that she had made a mistake in stabbing herself. If the evidence of PW-13 is read as a whole there is no scope for such an interpretation. What comes across is that the deceased regretted her impulsive reaction in stabbing herself.

190. PW-13 was the first person on the scene soon after the deceased was found in an injured condition. He did not seem to think it unnatural that the deceased was in the first instance taken to the Virmani Nursing Home. PW- 13 is clear that the deceased was alive while she was taken from the Virmani Nursing Home to AIIMS. There does not seem to be an unusual delay in any of these steps. There is nothing in the evidence of PW-13 which suggests that the Appellant deliberately delayed seeking medical assistance for the deceased. PW13 and the Appellant were with the deceased throughout. PW- 13 it will be recalled is with the Delhi Police. There was no suggestion by the prosecution that he was helping the Appellant escape guilt.

Conduct of the Appellant

191. Furthermore, soon after the death of his wife, the Appellant was found uncontrollably weeping by PW-5. The testimonies of PWs 2 and 5 suggest to this Court that the Appellant and the deceased were deeply in love with each other. It must be recalled that the testimonies of PWs 2 and 5 have not been disbelieved by the trial Court. In fact, that evidence was believed and the testimonies of PWs 6, 18, and 20 were disbelieved when the trial Court concluded that the charges against the Appellant under Sections 498A and 304BIPC were not proved by the prosecution.

192. The prosecution‟s reliance on the decision in Ramesh Harijan v. State of U.P. (2012) 5 SCC 777 to contend that the Court should only take note of that part of the statement of PW-13 which was probable and reliable misses the point. That decision pertains to a situation where a portion of the witness‟s statement pointing to the guilt of the accused was found to be an embellishment. Nevertheless, the Court relied on the remainder of the evidence of that witness to return a finding of guilt. In the present case, however, there are no such embellishments pointing to the guilt of the Appellant. Even the initial statement of PW-13 supports the case of the Appellant rather than the prosecution.

193. The testimony of Dr. R.K. Dixit (PW-33) is relied upon in an attempt to demonstrate that the Appellant misled him by hiding the true facts about the deceased having stabbed herself. The Court again does not read much into these statements only for the reason that from Virmani Nursing Home itself a call was made by the Appellant to Dr. Virmani who advised him to take the deceased to AIIMS which the Appellant in fact did. There appears to be no deliberate attempt by the Appellant to somehow delay the treatment of the deceased.

194. The events of 10th January 2000, when carefully analyzed, bear out the defence version of what transpired. Indeed, from the initial statement of PW-18 herself, it appears that the deceased was reluctant to talk to PW-18 and there was a quarrel between her and the Appellant which was getting out of hand. The fact that she was threatening to kill herself with the revolver comes through in the statement of PW-18 herself.

195. The trial Court appears to have ventured into making surmises and conjectures forgetting that it had, earlier in its judgment, discarded the testimonies of PWs 6, 18, and 20 in acquitting the Appellant of the offences under Sections 498A and 304B IPC. In concluding that “the totality of evidence on record does not suggest that the deceased in all probability would have committed suicide”, the trial Court appears to have lost sight of the fact that the case of the prosecution regarding the Appellant having committed murder does not get automatically proved simply because the evidence does not appear to suggest that the deceased had committed suicide. The commission of murder by the Appellant had to be proved by the prosecution through positive evidence.

196. Through suggestions to the PWs themselves, it has been sought to be established by the prosecution that the deceased was upset with the close relationship between Z and the Appellant. This has come through in the Appellant‟s answers in the questions put to him under Section 313 Cr PC.

Clearly the deceased was upset with him in this regard. The trial Court seems to take note of the fact that PW-5 states that the deceased seemed happy and in good spirits when she visited him in the evening of 10th January 2000. However, the question here is not whether she was happy in the company of her father but rather whether she was upset in the company of the Appellant due to her disapproval of his relationship with Z. That a person would behave differently in the company of different people is not unnatural or inexplicable. So it is not necessary that because she was happy in the company of her own family members and friends that would automatically mean that she would be equally happy in the company of her own husband. A number of factors might contribute to a person committing suicide. Further, an irreconcilable problem that a person may have with one person may not necessarily manifest itself before other people. Therefore, merely because the deceased was found to be in good spirits around two hours prior to the incident would not rule out the possibility of her committing suicide by stabbing herself as a result of her quarrel with the Appellant which has been spoken to by PW-18. The precise circumstances that led to the said decision of the deceased might be difficult to explain but surmises and conjectures cannot substitute proof.

197. The trial Court has relied on the prior and subsequent conduct of the Appellant in finding him guilty. As for his conduct during the incident, this Court is of the opinion that it would be too much to expect him to have stopped her from stabbing herself suddenly. In fact, it should be recalled that he did in fact prevent her from turning the revolver on herself. Even after the act, the deceased seems to have stated that she committed a mistake. The said statement of the deceased has been interpreted by the trial Court as her lamenting the fact that she had “married the accused and had to face consequence in the form that the accused stabbed her”. This constitutes a stretching of evidence to the point of incredulity with no such suggestion coming from the side of the prosecution.

198. The other alleged conduct of the Appellant prior to the incident, i.e. obtaining an illegal passport and a fake university degree, do not seem to be issues over which the deceased and the Appellant had a quarrel. It was, however, urged on behalf of the prosecution that the motive for the crime stood established by way of the evidence showing that the Appellant‟s name did not feature in the records of Jamia Milia Islamia for the period during which he is supposed to have earned a degree in M.A.(Social Work) and further, that he had two passports. However, merely these facts are of little consequence to the prosecution case unless it is shown that they were the cause for the rift between the deceased and the Appellant. This does not emerge from the evidence led by the prosecution. The quarrel was projected as a result of the closeness between the Appellant and Z, which in any event was unable to be established by the prosecution by credible evidence.

PW-20 an unreliable witness

199. In any case, the above-stated suggestions only seem to have emerged from the testimony of PW-20, a witness disbelieved by the trial Court itself as unreliable and untruthful. In fact, the repeated and heavy reliance placed upon her testimony by the complainant in the written submissions is of little use with no challenge being laid to the above conclusion of the trial Court that she was an unreliable witness.

200. On the evidence of PW-20, the most serious and material improvement made by her was in adding to the words allegedly spoken over the phone by the deceased to her on 10th January 2000. It will be recalled that according to PW-20 she called the deceased but the phone was picked up by the Appellant who told her, “Didi, Bullu ka to dimag kharab ho gaya hai”. According to PW-20, at this stage, the deceased snatched the phone from the Appellant and said, “Didi, take me away or he is going to kill me”. These additional words “or he is going to kill me” were not mentioned by PW-20 when she sent in her typed statement to the SDM. This emerges in her cross- examination on 8th January 2010 as under:

“Q. I put it to you that in your typed complaint and the cross examination done by SDM during inquest you simply mentioned about Anju saying “Didi take me away” and not the words “or he is going to kill me.”

A. It is correct.”

201. The trial court appears to have completely missed this important and material improvement by PW-20 which makes her an unreliable witness. It also makes her an untruthful witness because her typed statement to the SDM was given on 16th March 2000, a month after her arrival in India. There was sufficient time for her to have been able to recall what was spoken on the phone on 10th January 2000. PW-20 also made reckless allegations about the illicit affairs of the Appellant. This is evident from the following answer given by her in her cross-examination:

“Q. I put it to you that you have made scandalous and libellous statement on oath In your deposition before this Court attributing illicit relations between (Y) first and later on with X, her (Y‟s) daughter ?

A. I did not imply an illicit relationship between Y and the accused. But its true statement with regards to X and the accused.

Q. Did you provide any proof of illicit relationship between X and accused either to SDM, police or any other authority. Can you provide any proof regarding this relationship to this Court?

A. I did not provide any proof to any authority, SDM or police. No, I cannot provide any proof even today to this Court.”

202. What also emerged in the cross-examination of PW-20 is her being engaged in other litigation with the Appellant over the custody of his daughter. This emerged in the following exchange during the cross- examination of PW-20:

“Q. Are you aware that the accused filed a habeas corpus petition in the High Court of Delhi to frustrate your efforts to take his daughter Aaliya away forcibly?

A. Yes I am aware.

I am aware that Aaliya was restored to the accused and till date she is with the accused. It is correct that my mother had filed a petition seeking custody of Aaliya in a Guardian and Ward Court, Delhi.

Q. Is it fact that you and your mother failed to get the custody of daughter Aaliya at every fora including the Hon’ble Supreme Court of India?

A. The Supreme Court sent the case to the concerned Court.

The case is subjudice before the Court of Sh. Vidhya Prakash.”

203. PW-20, being a sister of the deceased, was not only a related witness but also an interested witness. Although such witness need not on that score be disbelieved, the settled legal position is that the testimony of such witness has to be carefully scrutinised by the trial Court. In Ram Bharosey v. State of U.P. AIR 1954 SC 704, the Supreme Court explained that a close relative of the deceased does not automatically become an interested witness. It was stated that “an interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice.” The evidence of an interested witness cannot be thrown overboard, but has to be examined carefully before acceptance.

204. In Raju Balachandran v. State of Tamil Nadu (2012) 12 SCC 701 after reviewing the case law till then, the Supreme Court explained the legal position thus:

“33. For the time being, we are concerned with four categories of witnesses – a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.”

205. In the present case, PW-20 was obviously an interested witness. She was plainly interested in securing the conviction of the Appellant. It is on her statement that the case came to be registered and investigated. Her testimony as an interested witness does not satisfy the test of truthfulness and reliability on the parameters set by the law as explained by the Supreme Court. The trial Court, therefore, erred in relying on her testimony to return a finding of guilt of the Appellant.

Test of circumstantial evidence

206. The law relating to circumstantial evidence, as explained in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, requires the following standard to be met by the prosecution:

“151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. xxxxx

159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal’s case (supra) where this Court observed thus:

„Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

207. It was further explained in Sharad Birdhichand Sarda (supra) that where, from the evidence, two conclusions are possible the one favouring the accused must be preferred. In the present case the medical evidence does not conclusively prove that it is a case of homicide. Thus an important link in the chain of circumstances has not been proved by the prosecution. The further links in the chain as delineated by the trial Court have in fact not been proved. The forensic evidence does not link the accused to the killing of the deceased in the manner suggested by the prosecution. The motive for the crime too has not been established.

Summary of conclusions

208. To summarise the conclusions of this Court:

(i) The trial Court held that the testimonies of PWs 6, 18, and 20, to the effect that the Appellant had subjected the deceased to harassment and cruelty in connection with a demand for dowry not only after the marriage but also shortly prior to her death, were not believable. The said finding which resulted in the acquittal of the Appellant of the offences under Sections 498A and 304B IPC has not been challenged by the State or the complainant.

(ii) The report of the five-member medical board contains no specific reasons for the conclusion that the preponderance of evidence in this case points towards “commission of homicide.” The numerous factual errors in the opinion reflect non-application of mind to the relevant materials on the record. A conclusion based on faulty analysis, erroneous or absent facts and with no cogent reasons does not inspire confidence.

(iii) In view of the evidence of the medical professionals who comprised the first medical board and in light of the medical literature, this Court rejects the plea of the prosecution that the medical evidence unmistakably and conclusively proves that the death was homicidal.

(iv) With there being no matches of the chance prints lifted from the scene of crime with any of the specimen prints of the Appellant, the forensic evidence too fails to establish that the death was homicidal.

(v) Without the prosecution first proving the „commission of crime‟ the question of shifting the burden to the Appellant under Section 106 IEA to explain how the death occurred, does not arise.

(vi) One of the key links in the chain of circumstances, i.e. that the death was homicidal, has not been proved by the prosecution. What has come through both in the medical and forensic evidence is only that the death resulted from stab injuries caused by the kitchen knife which was found in the house.

(vii) The prosecution‟s repeated attempts to read the statement of the Appellant made to the SDM at the stage of inquest proceedings under Section 176 Cr PC and attempt to glean therefrom an admission on his part is legally impermissible.

(viii) The evidence of the Appellant‟s PSO (PW-13) who first entered the scene soon after the stabbing had taken place makes it clear that the Appellant opened the door, called him in and asked him to help him with lifting the deceased. The unchallenged testimony of PW-13 that the deceased told him that she committed a mistake contradicts the prosecution theory that the Appellant murdered his wife. Even if the statement of PW-13 in his further cross-examination by the Appellant that the deceased was asking the Appellant to save her life is kept out of the reckoning, the deceased saying that she had committed a mistake supported the theory of suicide. What comes across is that the deceased regretted her impulsive reaction in stabbing herself.

(ix) Further PW-13 makes it clear that the deceased was alive while she was taken from the Virmani Nursing Home to AIIMS. There is nothing in his evidence which suggests that the Appellant deliberately delayed seeking medical assistance for the deceased. PW13 and the Appellant were with the deceased throughout. PW-13 is with the Delhi Police and there was no suggestion by the prosecution that he was helping the Appellant escape guilt.

(x) As far as the post-incident conduct of the Appellant is concerned, PW-5 (the father of the deceased) found him uncontrollably weeping at the AIIMS. The testimonies of the brother (PW-2) and father of the deceased show that the Appellant and the deceased were deeply in love with each other. The testimonies of PWs 2 and 5 have not been disbelieved by the trial Court. On the other hand the testimonies of PWs 6, 18, and 20 were disbelieved by it when it concluded that the charges against the Appellant under Sections 498A and 304B IPC were not proved by the prosecution.

(xi) Merely because the deceased was found to be in good spirits around two hours prior to the incident would not rule out the possibility of her committing suicide by stabbing herself as a result of her quarrel with the Appellant which has been spoken to by PW-18. The precise circumstances that led to the said decision of the deceased might be difficult to explain but surmises and conjectures cannot substitute proof.

(xii) The allegations that the Appellant obtained an illegal passport and a fake university degree were not in any event issues over which the deceased and the Appellant had a quarrel. The quarrel was projected as a result of the closeness between the Appellant and Z, which in any event was unable to be established by the prosecution by credible evidence.

(xiii) It appears that PW-20 may have had an interest in securing the conviction of the Appellant. It is on her statement that the case came to be registered and investigated. Her testimony as an interested witness does not satisfy the test of truthfulness and reliability on the parameters set by the law as explained by the Supreme Court.

The gap between ‘may be true’ and ‘must be true’

209. The trial Court in this case based its conclusion not on unimpeachable evidence that pointed to the guilt of the Appellant, but on suspicion. It was observed by the Supreme Court in Datar Singh v. State of Punjab (1975) 4 SCC 272:

“3. It is often difficult for Courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crimp, of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution closes to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole super-structure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case.

4. ….. Suspicion, however, grave, cannot be a satisfactory basis for convicting an accused person.”

210. In Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, the Supreme Court made the following observations when considering a case based on circumstantial evidence:

“Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between ‘may be true’ and ‘must be true’. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively.”

211. This was reiterated in Jose @ Pappachan v. The Sub-Inspector of Police, Koyilandy(2016) 10 SCC 519 in the following words:

“53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of “may be true” but has to essentially elevate it to the grade of “must be true”. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.”

Conclusion

212. For all of the aforementioned reasons, the Court holds that the prosecution has failed to prove the guilt of the Appellant for the offence under Section 302 IPC.

213. The appeal is allowed. The impugned judgment and the order on sentence of the trial Court are set aside. The application is disposed of.

214. The Appellant will be released forthwith unless wanted in some other case. The Appellant will fulfil the requirements of Section 437A Cr PC to the satisfaction of the trial Court at the earliest.

215. The trial Court record be returned forthwith along with a certified copy of this judgment.

S. MURALIDHAR, J.

VINOD GOEL, J.

OCTOBER 5, 2018 rd/tr/mw

 

Karnataka High Court
State Of Karnataka vs Dr. H.A. Ramaswamy And Others on 12 February, 1996
Equivalent citations: 1996 (1) ALT Cri 635, ILR 1996 KAR 1107, 1996 (2) KarLJ 1
Author: Venkataraman
Bench: B Sangalad, S Venkataraman

JUDGMENT Venkataraman, J.

1. On the basis of a chargesheet filed by the C.O.D., the learned Sessions Judge had framed charges under Sections 498A306 and 304B of the I.P.C. against the husband, father-in-law and mother-in-law of one Shashikala who died on 7-11-1987 by committing suicide in the house of the accused persons. The first accused is the husband, the second and third accused are the father-in-law and mother-in-law of deceased Shashikala.

2. The prosecution case in brief is to the following effect. The deceased was the daughter of one T. B. Mruthyunjaya who was working as an executive engineer in Madhya Pradesh. A proposal for the marriage of Shashikala with the first accused, who is a doctor, came from the aunt of the deceased. In about December, 1982 the girl was taken to the house of the accused and at that time A2 and A3 demanded dowry of Rs. 25,000/- as also gold ornaments of 45 sovereign and other household articles. They also wanted the marriage to be performed at the cost of the bride’s father. The parents of the deceased after negotiations agreed to give the dowry sought for by A2 and A3. By the end of January, 1983 betrothal was performed in the house of Bride’s father at Bangalore and at that time bride’s father paid Rs. 25,000/- in cash to A2. The marriage of the deceased with A-1 was performed on 6th May, 1983 at Bangalore. At the time of the marriage gold ornaments weighing 45 sovereign, silver vessels, household articles, furniture, etc. were given to A1 and A2. Thereafter the deceased went to live with A1 who is a registered medical practitioner at Tiptur. The newly married couple lived happily for about 3 months. Thereafter the deceased was complaining to P.W. 1, her elder brother, as well as to P.W. 2, Shanthamma, her mother, that the accused were not satisfied with the dowry given and that they were ill-treating her. She used to complain that A1 was ill-treating her saying that if he had married some other doctor girl she would have got sufficient dowry. Though the parents of the deceased requested the accused to lookafter the deceased well the attitude of the accused had not changed. The first accused wanted to shift to Bangalore and the deceased told her parents and P.W. 1 that A1 wanted a portion of their house in Bangalore. As that house was not big P.Ws. 1 and 2 did not agree. When the father of the deceased died in October, 1985 the accused was asking the deceased to get money from her parental house as they must have received money after the death of her father. On account of the ill-treatment that was being given by the accused P.W. 1 along with his other relatives approached P.W. 16, Chandrashekariah, who was the sitting M.L.A. from Tiptur to advice the accused to treat the deceased well. P.W. 16 and P.W. 1 and others went to the house of the accused and P.W. 16 advised the accused to look after his wife well. After that Panchayath Shashikala who was staying at Bangalore was taken back to the house of the accused. The deceased had once taken poison and at that time A1 had got her treated in the Government hospital by giving false name. Inspite of the Panchayat first accused continued ill-treating the deceased. On 6-11-1987 P.W. 2 received a telephone call from the deceased and she informed P.W. 2 that her harassment and ill-treatment had increased and that she i.e. P.W. 2 must send some one to take her back. Accordingly P.W. 2 sent P.W. 1 to Tiptur to the house of the accused. The deceased told P.W. 1 that she cannot tolerate the ill-treatment and harassment by the accused. The first accused’s brother told P.W. 1 that they would advise A1 to look after the deceased well and as such P.W. 1 came back. On 7-11-1987 morning Shashikala committed suicide by hanging herself from a beam in the ceiling. At about 2.15 p.m. one Nagaraj of Tiptur had telephoned the sister of the deceased about the deceased being serious. Subsequently P.W. 1 through his friend got the information that Shashikala had died. Thereafter P.W. 1 and P.W. 2 along with others went to Tiptur. Some persons there were talking that the deceased had left a chit and that it was with A1. Though A1 first stated that he did not know anything about it when that matter was brought to the notice of the police who arrived there at their instance. A1 produced a chit, Ex. P3, from his pocket. That chit was written in Hindi and it was in the hand writing of the deceased. As that chit referred to a diary in which she had written as to went she wanted to die, the police searched the premises and found Ex. P4 diary which contained certain writing in the hand writing of the deceased. The same was seized by the police. Thereafter P.W. 1 lodged a complaint. After investigation the police filed the charge sheet.

3. The accused have admitted the marriage of Shashikala with A1, The rest of the prosecution case about demand or acceptance of dowry or the ill-treatment of the deceased has been denied. The fact that the deceased committed suicide had also been admitted.

4. The learned Session Judge, after appreciation of the evidence, has held that charges under Sections 306 and 304BIPC had not been established. He has therefore acquitted the accused of those charges. However, he has convicted all the accused of the charge under Section 498-AI.P.C. and sentenced them to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 1,000/- each in default to undergo further rigorous imprisonment for 9 months. The firm accused has also been convicted of the offences under Section 202I.P.C. and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for 45 days.

5. The State has filed Criminal Appeal 357/92 challenging the acquittal of the accused of the offences under Sections 306 and 304BI.P.C. The accused have filed the appeal in Criminal Appeal No. 222/92 challenging their conviction.

6. The learned Government Pleader has contended that the evidence on record shows that the accused were ill-treating the deceased on the ground that the dowry paid was insufficient and something more had to be given, that the learned Sessions Judge was not justified in not accepting the evidence of close relatives in this regard. He further contended that when once the learned Sessions Judge found that the accused had treated the deceased with cruelty as to make them liable for punishment under Section 498AI.P.C. he ought to have held that the charge under Section 306I.P.C. had also been proved in view of the undisputed fact that the death had taken place within 7 years from the date of the marriage and in view of the presumption under Section 113A of the Indian Evidence Act.

6(a). The learned counsel for the respondents while supporting the finding of the learned Sessions Judge that the prosecution case that the accused were illtreating the deceased in connection with or on account of the dowry had not been established, challenged the finding of the trial Court that the accused had treated the deceased with such cruelty as to drive an ordinary woman to commit suicide. He referred to the entries in the diary made by the deceased herself to point out that this was a case where the deceased on account of mental disparity between herself and her husband felt frustrated with life and decided to commit suicide and that there was absolutely nothing in that diary to show that A1 treated her with any cruelty. He further pointed out that there was absolutely nothing in the diary to show that A2 and A3 had at any time ill-treated her. He submitted that the deceased appeared to be hypersensitive and she felt unhappy because some of her dreams and aspirations could not be realised and she appeared to have been mentally upset and that she had committed suicide not on account of any cruel treatment by the accused but due to her mental weakness. He further contended that Ex. P4 cannot be made the sole basis to hold that cruelty is proved. He also pointed out the evidence of P.W. 16 to contend that the deceased felt agitated on trivial matters.

7. Now it is not disputed that Shashikala committed suicide within 7 years from the date of her marriage. Though some evidence has been adduced with regard to payment of dowry of Rs. 25,000/- and 45 sovereign of gold ornaments and acceptance of the same prior to and at the time of the marriage on 6-5-1983, the accused are not prosecuted for offences under Sections 3 and 4 of the Dowry Prohibition Act obviously because even before the amendment of Section 7 of the said Act the complaint for those offences had become barred by time under old Section 7 of the Act. Even before the trial Court the prosecutor who contended that a charge under Section 304B also should be framed, though the chargesheet had been filed for the offences only under Sections 498A and 306I.P.C. had not contended that any charge under Section 3 or 4 of the Dowry Prohibition Act had to be framed. Even here the learned Government Pleader did not dispute that the period of limitation for filing a complaint in respect of those offences had expired even before the amendment of Section 7and as such charges under those sections were not preferred. As such it is not necessary to consider the evidence in that regard in great detail. The trial Court has also not gone into that part of the evidence.

8. The main points that arise for determination in these appeals are :

(1) Whether the prosecution has established that the accused subjected Shashikala to such cruelty or harassment as is referred to in Section 498AI.P.C. for or in connection with any demand for dowry.

(2) Whether the accused or any of them guilty of the offences punishable under Section 304B or 306, I.P.C.

(3) Whether the conviction of the accused for the offence under Section 498AI.P.C. calls for interference.

(4) Whether the conviction of the first accused for offence under Section 202I.P.C. can be sustained.

9 Before we consider the evidence and the rival contentions it would be better to refer to and analyse the legal provisions touching the offences charged against the accused.

10. Section 498AI.P.C. makes the husband of a woman or his relative liable for punishment if he or she subjects the woman to cruelty. What is cruelty for purpose of Section 498A is explained in the explanation as hereunder :

“(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

To attract clause (a) the conduct must be wilful and such conduct must be of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life of the woman. “Wilful conduct” necessarily implies that the conduct is deliberate or intentional. That conduct must be sufficient to drive an ordinary woman in Indian set up to commit suicide or to cause grave injury or danger to life of the woman. In Gurbachan Singh v. Satpal Singh(1990 SCC (Crl.) 151 : (1990 Cri LJ 562) the Supreme Court has held that constant dowry demands from a newly wedded wife and consequent taunts, ill-treatment, cruel behaviour and torture and insinuation that she was carrying an illegitimate child are the grave and serious provocotions enough for an ordinary woman in the Indian set up to commit suicide. This shows that the cruelty must be such as to provocate an ordinary woman in the Indian set up to commit suicide and that the cruelty had to be judged from that angle and not from the angle of a woman who is hypersentive or is depressed due to various other factors and has got a suicidal tendency.

11. In Veerulu v. State of Andhra Pradesh (sic) the Andhra Pradesh High Court has held that the term “wilful conduct” is explicit in character and reflects the intention of the legislature that mens rea is an essential ingrediant of the offence.

12. To attract clause (b) of the explanation to Section 498A, there must be harassment with a view to coerce her or her relative to meet any unlawful demand for property or valuable security or on account of refusal to meet such demand. In New Webster’s Dictionary the meaning of the word “harass” is given as “harry, ex, to disturb or bother continuously with worries, cares or the like, to pester”. As such to make out harassment there must be evidence to show that the woman was pestered or harried in connection with the demand for dowry or on account of its refusal.

13. Section 306 makes a person who abets the commission of suicide punishable. If the person committing suicide is a married woman whose marriage had taken place within 7 years prior to her death then Section 113A of the Evidence Act provides for a presumption as hereunder :

“113A. Presumption as to abetment of suicide by a married woman – When the question is whether the commission of suicide by a woman had ben abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation. – For the purposes of this section, ‘cruelty’ shall have the same meaning as in Section 498A of the Indian Penal Code.”

To attract the above presumption the woman should have committed suicide within 7 years of her marriage and the husband or his relative who is charged must be shown to have subjected her to such cruelty as is mentioned in S. 498A.

14. Under Section 304BI.P.C. a new offence known as ‘dowry death’ has been constituted. To constitute this offence the following ingredients must be established, (1) The death of woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstances.

(2) Death must have taken place within 7 years of her marriage.

(3) Soon before her death she must have been subjected to cruelty or harassment by her husband or relative of her husband.

(4) Such cruelty or harassment must have been for or in connection with any demand for dowry as defined under Section 2 of the Dowry Prohibition Act.

15. In Shanthi v. State of Haryana (1991 SCC (Crl.) 191) : (1991 Cri LJ 1713) it has been held that suicide is covered under the clause “death otherwise than under natural circumstances” appearing in Section 304B. It has further been held that cruelty for purpose of Section 304B has the same meaning as could be gathered from the Explanation to Section 498A.

16. Section 113B of the Indian Evidence Act makes provision for a presumption as to dowry death and it reads as hereunder :

“113-B. Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation. – For the purpose of this section, ‘dowry death’ shall have the same meaning as in Section 304B of Indian Penal Code (45 of 1860).”

To attract the presumption it must be established that soon before her death a woman had been subjected to cruelty or harassment in connection with any demand for dowry. If that fact is established then there would be scope for a presumption that death was dowry death even though there may not be any clear evidence regarding cause of death. If there is evidence regarding death by burns or other unnatural causes including suicide or bodily injuries within 7 years of marriage of the woman, then there is no presumption that she had been subjected to cruelty in connection with dowry by her husband or his relative. Cruelty for or in connection with dowry soon before her death will have to be established as a fact. In a case where death is shown to be of the type referred to in Section 304B, then there would not be any need to have recourse to the presumption, as cruelty of the type referred to in that Section will have to be proved even to attract the presumption. Another point to be noted is cruelty for or in connection with dowry must be shown ‘soon’ before the death. It is not sufficient if cruelty of the type referred to in the Section at some point of time much prior to the death is proved.

17. A girl after marriage goes to live with her husband and his people in a totally new atmosphere. There might be lot of change in the way of life to which she is used to and to the one in her husband’s place. Before a marriage can succeed there must be mental compatibility and mutual understanding and an attitude of give and take between the spouses and the close relatives of the husband. The marriage undergoes lot of stress and strain in the first few years. Emotions, sentiments and attitudes may make or mar a marriage. For various causes a married woman in Indian set up may find it difficult to continue the married life or to come out of it for social and other reasons and may in a weak moment decide to end her life. As such, law, while trying to strengthen the hands of the prosecution in cases of dowry death or abetment to suicide of a married woman within 7 years of marriage provided for some presumption to be drawn, has scrupulously not permitted any presumption to be drawn on the question of cruelty, which is one of the ingredients of the dowry death. Cruelty must be established as any other fact.

18. The Supreme Court in State of Punjab v. Iqbal Singh (1991 SCC (Crl.) 513) : (1991 Cri LJ 1897) has observed as hereunder with regard to the legislative intent in making provisions for presumption under Sections 113A and 113B :

“The legislative intent is clear to curb the menace of dowry death, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113A and 113B in the Evidence Act tried to strengthen prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage.”

19. The learned Government Pleader referred to the decision in Kundula Bala Subrahmanyam (1993 SCC (Crl.) 655) with regard to the role of Courts in dealing with cases of dowry death. The Supreme Court has observed as hereunder :

“The role of Courts, under the circumstances assumes greater importance and it is expected that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The Courts are expected to be sensitive in cases involving crime against woman.”

In State (Delhi Administration) v. Laxman Kumar the Supreme Court has expressed its agreement with the following opinion of the Delhi High Court :

“The Courts cannot allow an emotional and sentimental feeling to come into the judicial pronouncements. Once sentimental and emotional feelings are allowed to enter the judicial mind, the judge is bound to view the evidence with a bias and in that case, the conclusion may also be biased resulting in some cases in great injustice. The cases have to be decided strictly on evidence how so ever cruel or horrifying the crime may be. All possible chances of innocent man being convicted have to be ruled out.”

The Supreme Court has also noted that it cannot be gainsaid that the Court must proceed to discharge its duties uninfluenced by any extraneous considerations.

20. Bearing in mind the above legal position we have to consider the evidence on record to find out whether the charges against the accused have been established. The fact that Shashikala committed suicide within 7 years of her marriage is not disputed. We have to see whether the accused had subjected Shashikala soon before her death to such type of cruelty as to drive an ordinary woman to commit suicide and whether the cruelty ro harassment was for or in connection with dowry. If both facts are established then offence under Section 304Bmust be held to have been made out, as the deceased had committed suicide within 7 years of her marriage. If only cruelty of the type mentioned in Section 498A is proved without proving that such cruelty was for or in connection with dowry, then the presumption under Section 113A of the Evidence Act would be attracted and offence under Section 306I.P.C. must be held to have been made out. The learned Sessions Judge having held that the offence under Section 498AI.P.C. had been made out against the accused erred in holding that offence under Section 306I.P.C. is not made out, without referring to the presumption under Section 113A of the Evidence Act.

21. Though there is some evidence that prior to the marriage A2 and A3 had demanded some dowry and had also received the same, there is no direct evidence of the accused actually demanding or desiring further dowry after the marriage. The evidence in this regard to only that of close relatives of the deceased who state that the deceased Shashikala used to tell them that the accused were not satisfied with what was given at the time of marriage. Even this evidence is vague as it does not disclose as to who among the accused actually expressed to dowry given was less. Neither P.W. 1, brother of the deceased, nor P.W. 2, the mother of the deceased, states that any of the accused had in their presence asked for anything by way of dowry or had expressed dissatisfaction with what was given. In fact their evidence would show that whatever was sought for by A2 and A3 when the marriage was finalised was given. As such the question of the accused expressing that the dowry given was less does not arise. P.W. 1 has stated in his evidence that deceased used to say that A1 was telling that if he had married a doctor girl he would have got sufficient dowry and more money, that his sister was telling that the accused were ill-treating and harassing her for dowry, that she also told that A1 wanted to shift to Bangalore and wanted a portion in their house and that they did not agree to it. He further states that after his father passed away in September 1985, in October the deceased told her mother that the accused were asking her to bring dowry out of the amount received on account of her father’s death.

22. P.W. 2, the mother of the deceased, has stated that that her daughter was telling them that A1 wanted to open a clinic in Bangalore and he wanted accommodation separately and that he was claiming a share in the house. She further states that when her husband retired in 1984 A1 was asking Shashikala to bring money out of retirement benefits to open a clinic or nursing home at Bangalore and also to provide a car. While according to P.W. 1 the deceased informed about the first accused wanting her to bring money out of the amount received by them on account of their father’s death. P.W. 2’s evidence is that after retirement of her husband A1 wanted money from the retirement benefits. Admittedly when her statement was recorded by the police at Tiptur P.W. 2 did not mention before the police about this demand of A1 conveyed through the deceased. She also states that the deceased was telling that A1 wanted to open a clinic at Bangalore and he wanted accommodation separately and as such he was claiming a share in the house. P.W. 2 also states that the deceased told her that the accused were teasing her stating that if A1 had married a doctor there would have been income from both and that she was not earning anything and was of no use.

23. P.W. 3, who is maternal uncle as well as the brother-in-law of the deceased, has stated that the deceased used to tell them that she was being ill-treated by the accused, on the ground of getting less dowry. P.W. 4, sister of the deceased, has also made a similar statement and she further stated that in November, 1983 she, her husband and others had gone to the house of the accused in her husband’s car that 10 days later the deceased informed her that the first accused was telling that her parents had given car to P.W. 4 and that she should go and ask that she should be given a car or money to buy a car.

24. P.W. 6, Maruthisha, who is the uncle of the deceased has stated that Shashikala had told him during his visit that she was being ill-treated by the accused for more dowry by comparing her to the other sisters.

25. It will be seen that the evidence about the deceased telling her mother and others about the accused complaining regarding the dowry given or about his wanting a share in the house to open a clinic or a car being given, pertains to the period before the deceased was left in the house of P.W. 2 in October 1985. What is the value to be given to the oral evidence of these witnesses, who are all close relatives of the deceased and who are naturally nurturing a grievance against the accused, as they think that the accused are responsible for the deceased committing suicide. In Sharad Birdhichand Sarda v. State of Maharashtra the Supreme Court has made the following remarks with regard to the assessment of the evidence of close relatives in such cases :

“Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.”

26. In the present case there is material to indicate that these witnesses are capable of exaggeration and making allegations which are not the truth. P.W. 1 in his evidence states that on 6-11-1987 when he went to Tiptur in pursuance of the telephone call made by the deceased Shashikala she started weeping and she told that she cannot tolerate the harassment by the accused that when he inquired A1 he abused him, that when he wanted to take Shashikala with him A1’s elder brother told him that he would advice A1 to look after Shashikala well and that he would take the responsibility and declined to send her with him. But in Ex. P2, the complaint lodged by him, P.W. 1 has clearly stated that when he went to Tiptur to the house of the accused at 9 p.m. and inquired with them both husband and wife told him that they were alright, that A1’s brother was also there and that he left that place at about 12 mid-night and reached Bangalore. This shows that the evidence that he has now given about the deceased telling him that she is unable to tolerate the ill-treatment and wanted him to take her, etc. is a subsequent improvement. P.W. 2 in her evidence asserts that at the time of the marriage the accused wanted gold ornaments to be given to A3 and not to Shashikala. But in her statement during investigation she has stated that the gold ornaments were required to be given to Shashikala. P.W. 3 states that at the time of the marriage his father-in-law gave 45 sovereign gold ornaments to the second accused. Admittedly he has stated before police that the gold ornaments were given to Shashikala. P.W. 4 states that her parents gave gold ornaments to A2 and A3; here again she admits that before police she stated that the ornaments were given to Shashikala. This shows that the witnesses for obvious reasons somehow want to implicate accused persons and they are prone to exaggerate things and distort facts. As such it would not be safe to rely entirely on their evidence about what the deceased told them with regard to the demands of A1. Admittedly the deceased has written many letters to her parents after marriage. In fact the prosecution has produced two letters Exs. P5 and P6 written by the deceased and P.W. 1 admits that in those letters the deceased has not written anything about the accused wanting any dowry or she being ill-treated in that connection. P.W. 1 has admitted that Shashikala had written letters to her father. According to him in those letters she had stated that she was ill-treated for the sake of dowry and that however they did not have those letters. Here again this witness is not telling the truth, can be made out from his statement during investigation as per Ex. D1(a) to the effect that because of fear of her husband and parents-in-law Shashikala had not written about her ill-treatment in her letters. This shows that though the deceased had written letters to her parents, at no time she had complained of her husband or the parents-in-law ill-treating her on account of or in connection with dowry.

27. Accused has produced the letters he had written to Shashikala when she was in ther parents house. They are marked as Exs. D4 to D7 and they have been written in the year 1984-85. They are inland letters bearing postal seal. In none of those letters A1 has suggested to the deceased to get anything from her father’s place nor has he complained of the dowry given to him being less.

28. It is the case of the prosecution that the deceased had been left in P.W. 2’s house in October 1985 and after the intervention of P.W. 16. Chandrashekariah, who was the local MLA at Tiptur, the accused agreed to take back the deceased and look after her. A Panchayat is stated to have been held in that connection. P.Ws. 1, 3 and 6 are stated to have approached P.W. 16 to intervene and advice the accused. The evidence of P.W. 16 shows that P.W. 1 and his relatives requested him to settle the dispute between these spouses. P.W. 16 does not state that P.Ws. 1, 3 and 6 informed him that the accused were ill-treating the deceased on account of or in connection with the dowry. If really the deceased was being ill-treated on account of or in connection with the dowry, certainly P.W. 16 would have been informed about the cause for the rift between the husband and wife.

29. Admittedly the deceased had written about certain incidents in her life and about the cause for her committing suicide in Ex. P4 diary. Nowhere in Ex. P4 the deceased has mentioned that after her marriage the accused or any of them was complaining that the dowry given was not sufficient or that any of them wanted her to bring any money or article from her parent’s house or that in that connection she was subjected to any ill-treatment. It will be later seen that the cause given by the deceased for the rift is quite different.

30. The learned Government Pleader pointed out that in one portion of Ex. P4 the deceased has mentioned that after marriage she realised that her husband likes and loves not herself but her money and that he had fascination not for her but for her money. This obviously has reference to the sum of Rs. 25,000/- which is stated to have been paid to A1 at the time of the marriage. In fact there is a reference to this in the Hindi writing as “muje diye gaye” which has been left out in the Kannada translation. But there is no reference to her husband demanding any share in the house of Bangalore or wanting her to get money from her parents for a car. In Ex. P3 the deceased has specifically mentioned that she recorded certain events in her life in the diary and she has asked her brother to read, if he feels like it. If really the accused were ill-treating or harassing her on account of or in connection with the dowry she would certainly not have failed to mention the same in that diary. Hence the learned Sessions Judge was right in not attaching much importance to the oral evidence of the close relatives of the decewased with regard to what the deceased is alleged to have told them. We agree with the finding of the trial Court that the offence under Section 304B has not been established.

31. The next point to be considered is whether the accused had subjected the deceased to such cruelty as would have driven an ordinary woman to commit suicide. P.W. 1 has tried to make it appear that within 3 or 4 months after the marriage the ill-treatment started and the relationship between A1 and the deceased was not good. But in Ex. P2, the complaint, he has specifically stated that “since two years the husband and wife were not in good relation”. This shows that from about 1985 the relationship between husband and wife had been strained. It is possible that even earlier there might have been some minor differences, but the relationship appears to have been strained very much from about October, 1985. Though P.Ws. 1 and 2 state that the deceased was complaining of ill-treatment, they have not stated as to what was the actual ill-treatment given by the accused and which accused actually did what. P.W. 2 has stated in his evidence that when the deceased was pregnant and she had come to their house to attend the marriage of her brother, A1 who had also come, did not attend the marriage and that on that night Shashikala came out from the bed room with the hue and cry and that on enquiry she told that A1 tried to throttle her. According to A1 he did not attend the marriage as the bridegroom who saw him did not invite him to the marriage and that his wife was upset in that regard and that later he requested his father-in-law to pardon him for not attending the marriage. Admittedly at that time P.W. 2 was living along with P.W. 3 who is also her brother and first son-in-law. P.W. 3 does not speak of any such incident in his evidence. Even P.W. 1 has not spoken about it. The evidence of P.Ws. 1 and 2 no doubt shows that on 6-11-1987 the deceased had made a trunk call to P.W. 2 and wanted her to send someone to bring her and that P.W. 1 accordingly went to the house of the accused. But when P.W. 1 went there both A1 and the deceased informed P.W. 1 that they were alright and P.W. 1 had to come back as disclosed in Ex. P2. It will be seen from the writings in the diary that the deceased must have been highly emotional and impulsive. There must have been some exchange of words between the deceased and some of the accused and she has immediately telephoned to her mother, but by the time P.W. 1 went there she appears to have cooled down. The prosecution has examined P.Ws. 8 and 10 to prove that there was some incident on the night of 5-11-1987. P.W. 8, Janardhana, who was a tenant in the portion of the house of the accused has stated that on the night of 5/6-11-1987 at about 9 or 9.15 p.m. he heard “voice in high tone” from the house of the accused, that one person was shouting and another was quarrelling and that he cannot tell whose voice it was. In his statement before police he has stated that he heard the people talking loudly in the house of the accused. P.W. 10 who along with her husband was living opposite to the house of the accused, has stated in her evidence that often A1 and Shashikala had quarrels but she does not know the reasons and that on 5-11-1987 she heard (shouting) of Shashikala. She admits that on 5th or 6th November, 1987 A2 and A3 were not present and even on 7th they were not present in the house. She states that she heard the hue and cry of Shashikala for about a minute and that on 6-11-1987 when she saw Shashikala, she did not talk to her under the impression that there was nothing important and they were alright.

32. The evidence of these two witnesses would show that on the night of 5-11-1987 there was some quarrel and it was Shashikala who was shouting. That quarrel took place only for one or two minutes and on the next day morning Shashikala was normal and P.W. 10 did not even think it necessary to inquire her about the cause for her shouting on the previous night. This evidence does not show that the first accused had done anything which could be considered as an act of cruelty. In fact the deceased has made an entry in the diary on 7-11-1987. There is no reference to any incident on the night of 5-11-1987.

33. The most important document on which the prosecution has relied is Ex. P4, diary. The learned counsel for the accused submitted that the writing in the diary would not be admissible as a dying declaration and that at any rate those writings do not disclose cruelty of the type referred to in Section 498-AI.P.C. In Sharad Birdhichand Sarda’s case (1984 Cri LJ 1735) the Supreme Court dealing with the scope of Section 32(1) of the Indian Evidence Act has held as hereunder :

“(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect the Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dry formula or universal application so as to be confined in a strait jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a final of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

(3) The second part of Clause 1 of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32, does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relavant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tel-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”

As such in view of the above decision it cannot be said that the writing made by the deceased in the diary are inadmissible. Some of the portions which indicate the cause for the differences between A1 and the deceased and as to what was the grievance of the deceased against A1 are as hereunder :

“Life has become a dried up tree, a kite let loose and a blank page. I am not useful for any work. No one can get benefit from me ….

I have become a riddle for myself. I do not mind if no one understands me – but if my husband himself does not understand me then what is the use of living ….. He never tried to understand what I am in reality.

I desired to be a skilled house wife, a good life partner and an ideal mother after marriage but I did not succeed in anything.

I am feeling that day by day I am moving farther from husband. I tried to know the reason but I failed. On account of this I used to get irritated. I used to get angry at my flower like daughter without any reason.

When my husband moved farther from me I felt humiliated and for that reason the abundant love I had for my husband converted into hatred. Now our vehicle of life started shaking. But I am pulling on out of fear of society. If one wheel of vehicle moves towards north and another wheel moves towards south what could be the condition of the vehicles. Similar is our position.

In the eyes of world we are husband and wife but in reality we are very far from that relationship.

My every dream is shattered into pieces. Possibly his heart has become a stone – definitely his heart has not melted …..

I do not remember the correct date the incident which took place in Oct. 1985 … He desired that I should go away once and not return at all any time. This way he started giving trouble mentally.

If I do this it is wrong if I do that it is wrong – listening to radio is wrong seeing TV or cinema is wrong. If I talk to anyone it is wrong, talking or writing in Hindi is wrong. All my talks appeared to be wrong to him ….. If I say something he would say unnecessary expenditure. To whom should I tell my mental agony when my husband is not with me, whom else can I consider as mine ….

Though I have understood him why has he not understood me. After marriage I have not spent a day without shedding tears. His special quality is that though he sees me shedding tears he behaves as he has not seen it. My tears may make him happy. He has not inquired about my health even one day. If I am happy he feels sad. He wants me to live in grief. He wants that I should sever my connections with all my relatives …..

If I say east he would say west. I do not know how God brought us having such opposte natures together. When I feel very sultry he feels chill. When my stomach is full he feels hungry. When there is such conflicting nature in us how can we become one …

We are mentally far away from each other …

After marriage none of my aspirations has been fulfilled. After marriage what I learnt was that my husband loved not me but my money (the money that was given to me). He had fascination not for me but for the money ….

I, who had not wept for 20 years, wept fully during the past 4 years but he did not desire to understand me even one day. In his opinion I and my daughter are unnecessary expenditure. He feels happy if I am humiliated and unhappy. But my life appears like a dark well. I am not seeing any way to come out of this. When he has gone so far away from me how can I continue to live ….

Now out talks are limited. If we talk it ends in quarrel. From his talks and conduct I feel that he definitely does not like me. Though for appearance we are husband and wife we are strangers to one another ….

After marriage I have realised that our desires and aspirations are completely different. I did not like the birth of Anu so early but he desired. I like the name ‘Anu’ very much but he did not like it. Whatever he likes I do not like ….

Day by day we are moving farther. Possibly he does not even like to see my face ….

I am feeling lonely in this life and I would like to go near Anna – possibly by going there I may be relieved from all these conflicts. Of late I do not like to live, eat or do anything. Just like eating and sleeping is necessary, for me weeping has also become necessary …..

He possibly thinks that to even think of me is shameful. If I am in the kitchen when he returns from clinic he would not come towards the kitchen till I myself come out. He is not interested in knowing what I was doing inside. Possibly he desires to be away from me more. Slowly my mind is being spoilt … I am losing my ability to think or know ….. If the situation continues like this it may not require much time for me to become insane ….

If he abuses me I will not be disappointed. I feel disappointed and unhappy because he stays far away from me and without talking to me I am hungry for love – why are they all hating me.

I have begun to hate my life – I have no enthusiasm in life, no desire and there is no new life. Instead of leading such a life I feel it is better to die …..

Slowly we are running farther from each other. Why I am a source for his aversion ? Why he is not happy with me ? What else does he require ? My love has not melted him even a little ….

In this house I do not have the authority to feed the guests even once. If any one from my parental house comes they consider it appropriate to humiliate them or not to talk to them ….

Even after five years of marriage even on one occasion he has not brought any article sought for by Anu. Now-a-days he does not even take us out. Going to and coming from clinic is his job. My work is within 4 walls of the house. When he does not like anything about me what is the use of living. We are being together on account of fear of society. Our minds are broken and are tired. Being near we are far away from one another. We two only know this ….

Probably I am suffering from mental ailment. If he talks to me with love, I feel that he has some work to be done and as such he is enacting drama. I feel disgusted with myself. Every time I feel like dying ….

In my mind I have only hatred for him and nothing else. His mind is as black as his body is white … He only wants my body but not my mind. He may agree even if he gets some others body instead of mine. He does not bother about what my mind thinks and that it desires. If he gets my entire body that is sufficient ….

He is very proud of his beauty and ashamed of my ugliness. I did not have even one quality which can make him happy. I am unable to understand what deficiency is in me. I did not become a successful house wife or an ideal mother nor am I happy ….

When he does not like me why does he not remove me from his life and why does he not become free and why does he not liberate me. Why he is giving scope for me to grieve and die ……

I want to die by hanging and my husband and parents-in-law are responsible for it.”

34. A reading of the writings in the dairy would show that the deceased had been frustrated in life as none of the dreams and aspirations which she had, could be realised after marriage. The evidence shows that she studied in her father’s place at Madhya Pradesh and became a graduate in Hindi. Her father was an executive engineer who was having a car and she was living very comfortably. P.W. 2 admits that because she was the last child they showed more affection to her than to the other children. She appears to have been pampered. She appears to have been an idealistic girl and highly sensitive and emotional and parents-in-law in a town and she must have found it difficult to adjust to the new way of life in a small town amongst her parents-in-law who were still strangers to her. The first accused appears to be most unromantic and calculative. It is seen that he has written a letter to his wife in one portion of one inland letter and in another portion of the same letter he has written to his father-in-law. In none of the letters which he has written to the deceased there is any expression of endearment or love. He has written those letters just as one writes to any relative giving some information. He is a type who does not seem to know to conduct himself with his wife and as to how to win the heart of his spouse. The diary discloses that the temperaments of the deceased and the first accused were quite opposite. The evidence shows that the deceased knew painting and embroidery and that she could not take up that hobby after the marriage as the accused considered it to be unnecessary expenditure. But it must me remembered that the first accused had just started practice and in one of his letters to the deceased he has mentioned that his practice is dull and he has to be in clinic throughout and he has hoped that it may pick up later. It is possible that when the deceased wanted to spend on her hobby, A1 thought that it would be unnecessary expenditure. It has come out in the evidence of P.Ws. 1 and 2 that the deceased was complaining that the first accused was not taking her out of walks nor was he taking her to movies. The first accused who have set up private practice in a rural area appears to have devoted himself more to the profession possibly because he wanted to build up his career and the deceased has felt that she is neglected.

35. On account of mental incompatibility difference must have arisen between the couple on trivial matters. There must have been some quarrels now and then. As A1’s parents were living with them the deceased might not have had the freedom in the household affairs which she must have aspired for and because of the elderly people at home there must have been many restraints. The elderly people might not have liked the type of music or pictures she wanted to hear or see and they might have asked her not to put on such music or TV shows. The deceased who must have been used to do as she pleased in her father’s house, appears to have felt offended and humiliated. The accused may be conservative and might have not approved of her mixing or talking freely with outsiders. The married life which she dreamt of must have been quite different from the one which she had and she appears to have been frustrated and quite unhappy. It is possible that the first accused has not tried to understand her feelings and assure her of his love towards her and give the psychological and mental support and security which every newly married girl needs. She had to give birth to a child within about a year after marriage though she did not want a child so early.

35(a). In September 1985 the father of the deceased died. She appears to have been attached to her father and his death appears to have added to her depression. It is in this state of mind she appears to have made an attempt at suicide by talking some tablets. The doctor, P.W. 9, who examined her when she was admitted in Tiptur Hospital has stated that the first accused brought her to the hospital with a complaint of stomach pain and vomitting and that she treated her. She has no doubt said that she treated Shashikala for acute gastritis and she did not make out symptoms of consumption of poison. Her evidence shows that the first accused took her away from the hospital even before she had formally discharged her. The diary, Ex. P4 refers to the incident of October 1985 and the deceased has also stated that she had gone very close to death. P.W. 10 who resides in the house opposite to the house of the accused states that she and some others had got Shashikala admitted to hospital on coming to know that she had taken some tablets. It is probable that the deceased in the wake of her father’s death being depressed has tried to commit suicide by taking some tablets. This attempted suicide on her part must have been the cause for A1 to take her mother’s house and leaving her there in October, 1985. It is not unnatural for A1 to have been scared to live with his wife who had a tendency to commit suicide. He has therefore not tried to take back his wife. However, on the intervention of P.W. 16, who was local MLA, the accused agreed to take the deceased back. It is significant to note that P.W. 16 has stated in his evidence that there were minor differences between the first accused and the deceased and that he told them not to magnify them and spoil their life. P.W. 1 also admits that P.W. 16 advised first accused and his sister that on trivial matters they should not quarrel and that they must live in harmony and peace.

36. Though the deceased went to live with the accused in pursuance of intervention of PW 16 and others, her husband appears to have remained aloof. After that attempted suicide on the part of the deceased the chasm between the couple appears to have gradually widened. As repeatedly stated by the deceased in the diary though they were husband and wife for outside world they had become strangers to one another. The diary also shows that the deceased had developed a hatred towards her husband. She herself has stated that even if her husband were to talk affectionately she was taking it to be a drama. She must have become highly irritable and she herself has confessed that for no reason she used to abuse the child. On account of frustration which had set in, she was prone to finding fault in her husband and his people. Even on the nigh of 5-11-1987 the shouting heard by PW 10 was that of the deceased and not of the accused. It is in this depressed state the deceased has not been able to resist the tendency to commit suicide.

37. In the letter written by the deceased on 7-11-87 itself prior to committing suicide, which is addressed to her sister-in-law, she has stated that though she i.e., sister-in-law would have kept her in her house, in the eyes of society a girl who once goes to her husband’s house should leave that house only after her death, that her husband had continued in the same state and that she has not been able to tolerate all that. It would appear that she did not want to go back to her brother’s place and seek dissolution of marriage. In the diary she has observed that the first accused was not considering dissolution of the marriage and giving liberty to her. Hence she appears to have decided to commit suicide.

38. The material on record no doubt shows that the deceased was unhappy. But the cause for this unhappiness was the failure of the first accused in understanding her feelings and not showing love and affection for which she was yearning as well as the incompatibility of their likes and dislikes. It is said that there is no greater disparity in marriage than unsuitability of mind and purpose. The marriage appears to have broken down and the deceased did not see any possibility of retrieving it. She appears to have been mentally depressed during that period and she has felt that the only way left to her was to die. Though the conduct of A-1 might not have been that of an ideal husband and he might have failed in his duty to provide love and mental security to his wife, the material on record does not show that he is guilty of such wilful cruelty as to drive an ordinary woman in Indian set up to commit suicide. Section 498-A is not intended to punish those husbands whose wives undergo mental suffering and unhappiness largely due to incompatibility of temperament and attitude.

39. So far as A-2 and A-3 are concerned though in the diary the deceased states that they are also responsible for her suicide, there is absolutely nothing in the diary to show that they in any way harassed her or treated her with cruelty. All that is written in the diary pertains to A-1. If the deceased has stated in what manner A-2 and A-3 ill-treated her or subjected her to cruelty that statement could be taken into consideration. But without stating as to how A-2 and A-3 were responsible for her committing suicide, if the deceased simply holds them responsible, the Court cannot on that basis convict them for the offence under S. 498-A. In the present case there is absolutely no evidence to indicate that A-2 and A-3 subjected the deceased to any cruelty.

40. The learned Sessions Judge has not taken into consideration the entries in the diary as a whole and he has picked up one sentence here and one sentence there to hold that the accused had treated the deceased with cruelty. He has not noted that nowhere there is any allegation of cruelty against A-2 and A-3. The grievance of the deceased has been mostly about the indifference of A-1 towards her. The learned Sesssions Judge has not analysed the entire evidence in the light of the entries in the diary to find out whether cruelty of the type referred to under S. 498-AIPC had been made out.

41. On the material on record we are unable to sustain the conviction of the accused for the offence under S. 498-A.

42. It is seen that no charge under S. 202I.P.C. has been framed against A-1. The learned Sessions Judge has convicted A-1 for the offence under that section mainly on the basis of the decision in Bhagawan Swarup v. State of Rajasthan, 1991 (3) Crimes 284; (1991 Cri LJ 3123). On the facts of that case the Supreme Court found that the accused who fully well knew that the deceased had died, informed a witness that the deceased was in a serious condition and that he had also not disclosed the fact of death to one other witness and that when the brother of the deceased came to the house the accused wanted the body to be cremated. It is purely on those facts the Supreme Court has held that the offence under S. 202 I.P.C. is made out. In the present case admittedly some one, who telephoned PWs 1 and 2 and informed them that Shashikala was serious and asked them to come to Tiptur. The evidence of PW 8 shows that when the first accused found his wife hanging he broke down. His parents were not there and only the child was with him. Obviously in that condition he himself could not have gone out to give information either to PWs 1 and 2 or to the police. He states that he requested one person to convey the information to PWs 1 and 2. PW 8 in his statement before police has stated that A-1 gave one telephone number and requested him to give information to the brother and mother of the deceased. Possibly the person who gave information to PWs 1 and 2, in order to avoid they being shocked, has told them that Shashikala was serious. It is not the case of the prosecution that A-1 had made any attempts to cremate the body in a hurry. He has waited till PWs 1 and 2 and others arrived. Though A-1 himself might not have given information to the police the evidence of PW 1 shows that even before he could secure Ex. P3, chit, from the accused the police had come there. The complaint has been lodged subsequently. As such some one must have given information to the police. On the facts of this case it cannot be said that A-1 had committed an offence under S. 202I.P.C. without even a charge being framed in that regard.

43. For the above reasons Cr.A. 357/92 is dismissed and Cr.A. 222/92 is allowed setting aside the judgment of the trial Court convicting the appellants of the offence under S. 498-AI.P.C. and convicting the first accused for an offence under S. 202I.P.C. and acquitting the appellants of even those charges.

44. Order accordingly.