State Vs. Shyam Singh and Ors. FIR No: 216/10 IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE-01, DWARKA COURTS, DELHI SC NO: 82/12 State Vs. Shyam Singh and Ors. Date of institution of case : 15.10.2012 Date on which order reserved : 07.02.2013 Date on which order pronounced : 14.02.2013 ORDER ON CHARGE 1.
Vide this order, I shall deal with the plea of the accused seeking discharge for the offence u/s 498A/304B/306/34 Indian Penal Code, 1860 (hereinafter referred to as IPC).
2. The brief facts which are relevant for deciding the plea of accused persons is that on 28.10.2010, a call was received vide DD no. 22A at PS Palam Village regarding quarrel and a suicide committed by one lady. Thereafter, the police reached at the spot i.e. RZ-24B/1, Gali No.2, Indira Park, Palam Colony, New Delhi within the jurisdiction of PS Palam Village where deceased Babli @ Varsha was lying dead on the ground floor of the house with blue colour ligature mark on her neck and one pink coloured chunni was lying near her dead body. On inquiry, it was revealed that deceased Babli @ Varsha had committed suicide in her room situated at the first floor of above mentioned house. Since, death had taken place within seven years of marriage, information was given to Executive Magistrate Sh.R.S.Rana and the dead body was sent to Deen Dayal Upadhyay. On 29.10.2010, the investigating officer went to mortuary of Deen Dayal Upadhyay hospital where the mother and brother of deceased were also present along with their relatives . At the mortuary, Sh.R.S.Rana, Executive Magistrate had conducted inquest proceedings u/s 174 Cr.P.C. and statement of Smt.Santosh, mother of deceased and Sh.Krishan, brother of deceased were recorded. Thereafter, on the direction of Sh.R.S.Rana, Executive Magistrate, FIR No. 216/10 was registered u/s 498A, 306 IPC at PS Palam Village and the matter was taken up for investigation.
3. During the investigation, investigating officer collected the post mortem report of deceased Babli from Deen Dayal Upadhyay Hosptial and as per the same, Doctor had opined the cause of death as asphyxia due to ante mortem ligature hanging. The investigating officer obtained the opinion of doctor with regard to chunni which was allegedly used in the commission of suicide. The doctor opined that produced material i.e.chunni as quite consistent to produce ligature mark on the neck of deceased. Thereafter, on 17.03.2011, on the directions of Ld.MM, Section 304B was added in this case. Thereafter, supplementary statement of Smt.Santosh, mother of deceased and Sh.Krishan, brother of deceased were recorded u/s 161 Cr.P.C. Based upon the investigation, all accused were charge sheeted for the offence u/s 304B, 498A, 306/34 IPC.
4. I have heard ld.Addl.PP for state and Sh.Mukesh Sharma, counsel for accused persons. I have also carefully perused the charge sheet as well as the complaint case attached with the charge sheet.
5. It was contended by the counsel for accused persons that in the initial statement recorded by SDM of Smt.Santosh, mother of deceased and Sh.Krishan, brother of deceased on 29.10.2010, no allegations were made against any of the accused persons with regard to demand of dowry or treating the deceased with cruelty by the accused persons immediately prior to her death. It was further submitted that as per statement of Smt.Santosh and Sh.Krishan, they have only expressed suspicion that accused Shyam Singh, father in law of deceased might have committed the murder of deceased. It is further submitted that statement of Smt.Santosh, Sh.Krishan, Sh.Inderpal and Sh. Uday Ram recorded u/s 161Cr.P.C. on 11.05.2011 and 20.08.2012 are contrary to the statements given by Smt.Santosh and Sh.Krishan before the SDM, Najafgarh on 29.10.2010 and in the light of contradictory statements, charge cannot be framed against accused persons u/s 498A, 304B, 306 IPC. In support of his contention, he has relied upon the judgment of the Hon’ble High Court of Delhi reported as Sunil Bansal Vs. The State of Delhi, 2007 (2) JCC 1415.
6. It was also contended by the counsel for accused persons that even charge cannot be framed against accused Shyam Singh because both Smt.Santosh and Sh.Krishan in their statements before the SDM on 29.10.2010 had expressed suspicion on accused Shyam Singh in committing murder of deceased Babli. However, in the light of post mortem report, even accused Shyam Singh requires to be discharged as doctors have opined the cause of death as asphyxia due to ante mortem ligature hanging and the manner of the death was suicidal. Therefore, there is no material even against accused Shyam Singh of having committed murder of deceased Babli. Accordingly, a prayer was made that all accused persons be discharged for the offences u/s 498A, 304B, 306/34 IPC.
7. On the other hand, ld.Addl.PP has submitted that in the statement recorded u/s 161 Cr.P.C. of Smt.Santosh and Sh.Krishan on 11.05.2011, there is prima facie material on record to frame charge against accused persons to have committed the offence u/s 498A, 304B and306/34 IPC. It is further submitted by the Ld.Addl.PP that in the complaint made to the Commissioner of police on 03.11.2010 it was specifically mentioned by Smt.Santosh, mother of deceased that her thumb impressions have been taken on some blank papers and she came to know only when she received the copy of FIR that all accused persons except accused Shyam Singh were not named in the FIR based upon her statement.
Accordingly, Ld.Addl.PP has strongly opposed the plea of discharge of accused persons and has prayed for framing of appropriate charge against accused persons.
8. I have given my careful consideration to the rival contentions made by Ld.Addl.PP for state and counsel for accused persons.
9. The law with regard to discharge of accused in criminal trial can be succinctly summarised as follows by referring to following judgments of Supreme Court:
(i) Sajjan Kumar Vs. CBI Criminal Appeal of 2010 (Arising out of SLP NO. 6374/10 date of Judgment 20.09.2010)
(ii) Union of India Vs. Prafulla Kumar samal (1979)3 SCC4
(iii)Dilawar Balu Kurane Vs. State of Maharashtra(2002) 2 SCC
(a) The court while considering the question of framing the charge under the Criminal procedure Code has undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(b) Where the materials placed before the court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
SC NO: 82/12 5/16 State Vs. Shyam Singh and Ors. FIR No: 216/10
c) The court can not act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there can not be a roving enquiry into the pros and cons of the matter and weigh the evidence as if court was conducting a trial.
(d) The Court is required to be evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence.
(e) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused.
10.Now, let us see whether there is prima facie material or grave suspicion against the accused persons to frame charge against accused persons u/s 498A/304B/306/34 IPC.
11.Deceased Babli had expired on 28.10.2010. Immediately thereafter, statement of her mother Smt.Santosh and her brother Sh.Krishan was recorded before the Executive Magistrate Sh.R.S.Rana on 29.10.2010. In the statement, Smt.Santosh and Sh.Krishan have only alleged of an altercation that used to take place between deceased’s husband i.e. accused Bharat and father in law and mother in law, namely accused Shyam Singh and SC NO: 82/12 6/16 State Vs. Shyam Singh and Ors. accused Babli with regard to money. It is further alleged in the statement that on 24.10.2010, deceased had met her mother in the market and had made a complaint regarding cantankerous behaviour of his father in law accused Shyam Singh. It was further stated by Smt.Santosh that on 27.10.2010 i.e. immediately prior to the death of deceased, accused Bharat had come to her house and he told Smt.Santosh that his father was planning to get married his brother and was demanding money from accused Bharat. However, no money was demanded by the accused Bharat from Smt.Santosh. Thereafter, on 28.10.2010, Smt. Santosh was informed on telephone regarding the death of deceased. It is further submitted by Smt.Santosh in her statement that initially when she reached the house of accused Bharat, she was told that deceased had fallen down from the roof but since she observed that she was not having any injuries, thereafter, she was apprised that she had committed suicide by hanging. Thereafter, Smt.Santosh had expressed suspicion that her deceased daughter might have been murdered by her father in law i.e.accused Shyam Singh.
12.Sh.Krishan has also stated that there used to take place quarrel between accused Bharat and his parents with regard to money. However, he has not alleged that accused persons used to harass her deceased sister for the purpose of dowry. Sh.Krishan had further stated before the Executive Magistrate that even accused Bharat had expressed suspicion with regard to death of deceased over his parents. Therefore, if both the statements of Smt.Santosh and Sh.Krishan, who happens to be mother and brother of deceased respectively, are read in conjunction then these statements no where reflect that deceased Babli was in any way treated with cruelty for the purpose of dowry soon before her death. From the statement of Smt.Santosh and Sh.Krishan given to the Executive Magistrate on 29.10.2010, the only fact which has come on record is that a consistent quarrel used to take place between accused Bharat, who was husband of deceased and his parents with regard to money transactions. Smt.Santosh has been categorical in her statement recorded on 29.10.2010 that accused Bharat never used to demand any money from her. Therefore, from the above mentioned statements of Smt.Santosh and Sh.Krishan, it cannot be inferred that just because accused Bharat used to fight with his parents with regard to money transactions, it was done with the objective of harassing the deceased for the purpose of dowry. Therefore, from the aforesaid statement of Smt.Santosh and Sh.Krishan recorded on 29.10.2010 before the Executive Magistrate, no offence u/s304B/498A/306/34 IPC is made out against any of the accused persons.
13.However, from the statement of Smt.Santosh and Sh.Krishan recorded on 29.10.2010 before the Executive Magistrate, both had expressed suspicion upon deceased’s father in law and mother in law of having committed the murder of deceased Babli. The perusal of charge sheet reflects that there is no material on record to show that death of deceased was homicidal in nature. On the contrary as per post mortem report dated 29.10.2010, the cause of death of deceased Babli was asphyxia due to ante mortem ligature hanging and the manner of death was suicidal. Further, in the post mortem report, no injuries were observed on the body of the deceased. Even Smt.Santosh in her statement dated 29.10.2010 has corroborated the post mortem report with regard to absence of injuries on the person of deceased.
14.As per the charge sheet, a chunni which was found lying near the deceased was seized in this case and opinion was sought from the doctors with regard to ligature mark present on the neck of the deceased. Thereafter, on 23.03.2011, the doctor had opined after examining the produced material i.e.chunni that it was quite consistent to produce ligature mark on the neck of the deceased.
15. Apart from the post mortem report and the opinion of the doctor with regard to ligature mark and the injuries on the neck of deceased, there is statement of two eye witnesses recorded u/s 161 Cr.P.C. who had seen the deceased hanging from ceiling fan from her chunni. In the statement recorded u/s 161 Cr.P.C.of Smt.Shyamo and Smt.Phoolwati on 01.11.2010, both have stated that on 28.10.2010 on hearing the commotion, they had reached the first floor of house bearing no. RZ-24B/1 Indira Park, wherein deceased was found hanging from chunni with ceiling fan and thereafter, with the help of accused Babli, they had brought down the body of deceased. Therefore, from the ocular evidence as well as the medical evidence which has come on record, there is nothing to suggest that death of deceased was homicidal in nature. On the contrary, from the post mortem report and statement of eye witnesses Smt.Shyamo and Smt.Phoolwati, it is established that deceased had in fact committed suicide by hanging from a ceiling fan. Therefore, the apprehension of Smt.Santosh and Sh.Krishan that father in law of deceased Shyam Singh had committed the murder of deceased, is without any basis and on that basis, no charge for the offence of murder can be framed against Shyam Singh.
16.Now, the question arises is whether on the basis of complaint given to the commissioner of police dated 03.11.2010, charge can be framed against accused persons or not. Although in the complaint dated 03.11.2010, Smt.Santosh has stated that police had obtained her thumb impressions on blank papers and had not recorded her true statement with intention to save accused persons but if the said statement of Smt.Santosh is believed then necessary inference which has to be drawn in this case is police officials in collusion with Sh.R.S.Rana, Executive Magistrate had manipulated the statement recorded on 29.10.2010.
SC NO: 82/12 10/16 State Vs. Shyam Singh and Ors. FIR No: 216/10
17.In the opinion of this court, this is highly improbable that Executive Magistrate will act in collusion with police in preparing a wrong statement of Smt.Santosh dated 29.10.2010. Further, the statement of Smt.Santosh has been recorded by Sh.R.S.Rana, Executive Magistrate on 29.10.2010 and this fact is also mentioned in the FIR. Smt.Santosh has no where stated in her complaint dated 03.11.2010 that she has not given any statement before Sh.R.S.Rana, the Executive Magistrate. Therefore, Smt.Santosh has in a way admitted of having given her statement to the Executive Magistrate on 29.10.2010.
18.Yet another fact which makes this court believe that statement of Smt.Santosh and Sh.Krishan was recorded on 29.10.2010 by Sh.R.S.Rana, the Executive Magistrate, is the fact that Smt.Santosh and Sh.Krishan, both have nowhere disputed that statement of Sh.Krishan was not recorded on 29.10.2010 or signature of Sh.Krishan was obtained on some blank papers. Therefore, if Smt.Santosh and Sh.Krishan had admitted that statement of Sh.Krishan was recorded on 29.10.2010 then there is no reason to doubt the statement recorded of Smt.Santosh on 29.10.2010 by Sh.R.S.Rana, Executive Magistrate. Therefore, prima facie, there is material on record to show that whatever statement was given by Smt.Santosh and Sh.Krishan before Sh.R.S.Rana, Executive Magistrate, the same was recorded on SC NO: 82/12 11/16 State Vs. Shyam Singh and Ors.
FIR No: 216/10 29.10.2010.
19. Now, in the complaint dated 03.11.2010, Smt.Santosh has made allegations against accused persons with regard to demand of dowry and harassing the deceased for the purpose of dowry. Even in her statement u/s 161 Cr.P.C. recorded on 11.05.2011, Smt.Santosh has alleged that her deceased daughter has been killed for non-payment of dowry of Rs.30,000/-. It is further alleged by her that on 24.10.2010, deceased had met her in the market and had told her that in case the amount is not paid, then accused will kill her. Further, in the statement of Sh.Krishan recorded u/s 161 Cr.P.C. on 11.05.2011, he has not made any specific allegations that deceased was being harassed for the purpose of not bringing Rs.30,000/- as was alleged by her mother Smt.Santosh. He has only made vague allegations that deceased was being harassed by accused persons for bringing insufficient dowry. Although statement of Smt.Santosh and Sh.Krishan, recorded u/s 161 Cr.P.C. on 11.05.2011 and the complaint of Smt.Santosh dated 03.11.2010 contain the allegations that deceased was being harassed for the purpose of dowry but still on the basis of complaint and statement u/s 161 Cr.P.C., no charge can be framed in the light of judgment of the Hon’ble High Court of Delhi delivered in Sunil Bansal’s case (supra) relied upon by the accused.
SC NO: 82/12 12/16 State Vs. Shyam Singh and Ors. FIR No: 216/10
20.The reasons for the same are, firstly, the complaint dated 03.11.2010 of Smt.Santosh and statement u/s 161 Cr.P.C. recorded on 11.05.2011 are contradictory to the statement of Smt.Santosh and Sh.Krishan given before Executive Magistrate on 29.10.2010. Secondly, the reason given by Smt.Santosh in her complaint dated 03.11.2010 that her thumb impressions were taken on blank papers, is not believable as discussed hereinabove. Thirdly, Smt.Santosh has not mentioned as to under what circumstances, she had put her thumb impressions on blank papers and whether the statement given before the Executive Magistrate on 29.10.2010 was under some kind of compulsion or threat.
21. Apart from this, the investigating officer had recorded the statements of PW Udai Ram and PW Inderpal, who also happens to be relatives of deceased’s father. As per statement of PW Udai Ram, he has leveled allegations that on the second day of marriage of deceased with accused Bharat Singh on 15.02.2006, deceased had told her family members in his presence regarding the ill treatment being done to her on account of bringing motorcycle instead of a car in dowry. After three days of deceased’s marriage, accused Bharat alongwith his father and brother Chander had again come to the house of deceased and had quarreled with regard to non-giving of car in dowry. Thereafter, he was given Rs.50,000/- and thereafter, deceased was taken by him to her matrimonial house. PW Udai Ram has further stated that during the last three years on three-four occasions, deceased Babli had told him that accused and his family members used to fight with her for bringing insufficient dowry whereas in the statement of PW Inderpal, apart from what PW Udai Ram has stated, he has also stated that about 1-1/2 years after the marriage of deceased, he had gone to her in laws place where deceased had told him regarding ill treatment being done to her by her in laws for bringing insufficient dowry. About one month thereafter, deceased was again left at her parental house and thereafter, he had given Rs.10,000/- to accused Bharat Singh and deceased was again taken back to her matrimonial house. Lastly, PW Inderpal has stated that in the last 3-4 years, deceased had told him that on 3-4 occasions, accused persons used to harass her for bringing insufficient dowry. From the statement of PW Udai Ram and PW Inderpal, what has come on record is that deceased was being harassed for the purpose of dowry immediately after the marriage or at the most 1-1/2 years of her marriage. The deceased had got married with the accused Bharat Singh on 15.02.2006. Therefore, as per allegations made by PW Udai Ram and PW Inderpal, deceased was harassed for dowry till the end of 2007. These allegations themselves are quite remote in the point of time from the death of deceased which took place on 28.10.2010 and on these basis, no charge can be framed u/s 304B IPC.
SC NO: 82/12 14/16 State Vs. Shyam Singh and Ors. FIR No: 216/10
22.Further, with regard to allegations of PW Udai Ram and PW Inderpal that during the past 3-4 years, deceased on 3-4 occasions had told them regarding she being harassed on account of insufficient dowry, no charge can be framed as firstly, no such allegations were made by close relatives of deceased i.e. her mother Smt.Santosh and her brother Sh.Krishan in their statements before the Executive Magistrate and secondly, their names have not been mentioned as witnesses in the complaint dated 03.11.2010 made by Smt.Santosh. Therefore, on the basis of statement of PW Udai Ram and PW Inderpal, there exists no grave suspicion that deceased was harassed soon before her death for the purpose of bringing insufficient dowry by accused persons.
23. From the aforesaid discussion, in the light of existence of two contradictory statements of Smt.Santosh and Sh.Krishan, wherein in the first statement recorded before Executive Magistrate on 29.10.2010, they had exonerated all accused persons from the purview of dowry death whereas in the complaint dated 03.11.2010 and statement u/s 161 Cr.P.C. recorded on 11.05.2011, they have implicated all accused persons for harassing her daughter for bringing insufficient dowry, it cannot be stated that there exists grave suspicion against accused persons of having committed the offence u/s 498A/304B/306/34 IPC.
SC NO: 82/12 15/16 State Vs. Shyam Singh and Ors. FIR No: 216/10
24.Even otherwise from the statement, two views are possible, therefore, view favouring the accused has to be accepted. In the facts, plea of accused persons is accepted. They are discharged for the offence 498A/304B/306/34 IPC. Personal bond/surety bond, if any stand discharged. File be consigned to record room.
Announced in the open court (Vikas Dhull) Dated: 14.02.2013 ASJ-01/Dwarka/Delhi SC NO: 82/12 16/16