* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: May 06, 2010 Judgment delivered on: July 02, 2010 + CRIMINAL APPEAL NO. 239/97 NET RAM ....APPELLANT Through: Mr. D.C.Mathur, Sr. Advocate with Mr. Mohit Mathur, Advocate Versus THE STATE (DELHI ADMN.) ....RESPONDENT Through: Mr. Pawan Sharma, Standing Counsel WITH CRIMINAL APPEAL NO. 246/97 BAJRANG ....APPELLANT Through: Mr. D.C.Mathur, Sr. Advocate with Mr. Mohit Mathur, Advocate Versus THE STATE (DELHI ADMN.) ....RESPONDENT Through: Mr. Pawan Sharma, Standing Counsel AND CRIMINAL APPEAL NO. 247/97 MALTI DEVI ....APPELLANT Through: Mr. D.C.Mathur, Sr. Advocate with Mr. Mohit Mathur, Advocate Versus THE STATE (DELHI ADMN.) ....RESPONDENT Through: Mr. Pawan Sharma, Standing Counsel CORAM: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not ? Yes Crl.A.Nos.239/97, 246/97 & 247/97 Page 1 of 20 3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J.
1. Above referred appeals are directed against the impugned judgment dated 19.05.1997 in Sessions Case No. 120/95, FIR No. 434/95 P.S. Saraswati Vihar in terms of which the appellants Bajrang, Malti Devi and Net Ram have been convicted on the charges under Sections 498A read with Section 34 IPC and Section 302 IPC read with Section 34 IPC and the consequent order on sentence dated 21.05.1997.
2. Appellant Net Ram in Criminal Appeal No. 239/97 passed away during the pendency of the appeal on 30.01.2008. However, his family members, namely his widow Malti Devi and son Bajrang insisted that his (Net Ram) appeal be decided on merits.
3. Briefly stated, case of the prosecution is that Bimla (hereinafter referred to as „deceased‟) was married to the appellant Bajrang on 19th February, 1995. Appellants Malti Devi and Net Ram are her mother-in-law and father-in-law. On 07th July, 1995 at about 10:10 am, deceased was brought to Jaipur Golden Hospital by the appellant Malti Devi with the “alleged history of having become unwell after consuming tablet „Anacin‟”. She was examined by Dr. Vishal Bhatia (PW20) vide MLC Ex.PW20/A. Her pulse was not palpable, B.P. not recordable, no breath sound was audible and pupils were dilated and fixed. Dr. Vishal Bhatia tried to revive her but his efforts yielded no result and she was declared brought dead.
4. On 08th July, 1995, PW24 Sh. Virender Kumar, SDM, Punjabi Bagh conducted inquest proceedings. He recorded the statement Ex.PW4/A of Sh. Sadhu Ram, father of the deceased, who in his statement refused to believe that his daughter could die after taking „Anacine‟. He however stated that there was no question of any dowry demand or torture of the deceased and that he was not aware of any dowry demand made by the in-laws of the deceased. He requested the SDM to make thorough inquiry into the circumstances of death.
5. SDM Sh. Virender Kumar filled-up inquest form, which is Ex.PW24/B. In Column No. 10 of the form, he described the injuries i.e. “cut marks on dorsum of left hand and a dark brown patch with contusion like appearance on right thigh back”.
6. On 10th July, 1995, Dr. L. T. Ramani (PW25) conducted post- mortem examination of the dead body and prepared his report Ex.PW25/A. He found following injuries on the body of the deceased:
1. Multiple tiny abrasions, some of them linear crescentic like finger nales abrasions on the back of left hand.
2. Two similar lenier crescentic abrasions on the left thenar eminance.
3. Two tiny abrasions of 0.2 c.m. x 0.2 c.m. on the middle of left palm.
4. One recent burn mark triangular in shape with base of the triangular area close to gluteal fold and apex downwards, present on the back of right thigh on its upper part size of the injury was 20 c.m. vertical and 11 c.m. wide at the base. The cuticle was peeled off at lower end. The interior margin showed redish line? Vital reaction. The central part of this burnt area was hard and cutical pealed off on soft touch.
5. Faintly visible redish mark with peeling off the cutical at one point, on the lateral surface of right leg. There was no evidence of vital reaction around the injury. There was no evidence skin rash anywhere on the body.
7. On 10th July, 1995, PW2 Mamta Devi, sister-in-law of the deceased visited P.S. Saraswati Vihar in the evening and lodged report Ex.PW2/A. In the report, she stated that an amount of nearly four lakhs were spent on the marriage of Bimla (deceased). After the marriage, when Bimla visited her father‟s house, she told Mamta (PW2) that her husband and in-laws taunted her for not bringing a Maruti Car in dowry though it was promised. PW2 advised her to keep her in-laws in good humour by her behaviour and explained that it was not possible to arrange for a Maruti Car at that stage. Thereafter, the deceased visited her parents‟ home on two or three occasions and on each visit, she was given costly gifts. The deceased last visited her parental home about 20 days before her death and complained of harassment at the hands of her in-laws. She told that her husband and in-laws had asked her not to return without a Maruti Car. PW2 Mamta consoled her and advised her not to say anything to the others as her mother was not maintaining good health. When the appellant Bajrang came to take the deceased along with him, he was assured that a Maruti Car would be arranged within two to four months. In this backdrop, PW2 Mamta suspected that the appellants had committed murder of Bimla.
8. On the basis of the report Ex.PW2/A, formal FIR was registered and appellants were arrested. On 16th July, 1995, dowry articles detailed in list Ex.PW1/A were recovered and returned to the parents of the deceased. On completion of investigation, the appellants were sent for trial.
9. The appellants were charged by learned Additional Sessions Judge for the offence punishable under Section 302 IPC read with Section 34 IPC and in the alternative, for the offence punishable under Section 304B IPC read with Section 34 IPC. They were also charged for the offence under Section 498A IPC read with Section 34 IPC. The appellants pleaded not guilty to the charges and claimed to be tried.
10. In order to bring home the guilt of the appellants, prosecution has examined 26 witnesses. Learned Additional Sessions Judge in the impugned judgment has observed that out of them PW8 Dr. Ashok Ansari, PW9 Naresh Kumar, PW10 Jagdish, PW11 Ramesh Bhardwaj, PW12 Kailash Devi, PW13 Dr. Mahinder Singh, PW14 Vijay Sharma, PW18 Prahalad Singh and PW19 Nirmal Kaur tend to defeat the case of prosecution. Learned Additional Sessions Judge did not find their testimony reliable. PW2 Mamta Devi, PW3 Lakhi Ram, PW4 Sadhu Ram, PW6 Kasturi Devi and PW7 Mohan Lal, relations of the deceased on the paternal side have supported the case of prosecution. They have deposed regarding the marriage and harassment caused to the deceased.
11. PW2 Mamta Devi is the maker of the FIR. She lodged the report Ex.PW2/A. In her testimony in the court, she has reiterated the facts stated in the report Ex.PW2/A.
12. PW3 Lakhi Ram is the brother of the deceased and husband of PW2 Mamta Devi. He has testified that his wife Mamta had told him about the demand of Maruti Car made by the appellants. He claimed that on 07th July, 1995 at about 11:00 am, he received a telephone call from the appellant Bajrang Kumar that his sister Bimla (deceased) was ill. On receiving the message, he came to Delhi along with his mother and younger brother Sanjay. When he found that his sister Bimla had died, he left for Nepal to bring his wife because she was conversant with all the facts.
13. PW4 Sadhu Ram is the father of the deceased. He testified that on 08th July, 1995, he joined the inquest proceedings and the SDM recorded his statement Ex.PW4/A wherein he requested the SDM to make thorough inquiry into the circumstances of the death. PW6 Kasturi Devi is the mother of the deceased and she stated that her daughter was married to the appellant Bajrang on 19th February, 1995. She categorically stated that no demand for dowry was made and nothing happened in her presence.
14. PW7 Mohan Lal is another brother of the deceased. He claimed in his testimony that he had seen injury mark of electric iron on the back of thigh of the deceased besides some scratches on her body in mortuary.
15. PW24 Sh. Virender Kumar is the then SDM of Punjabi Bagh, who conducted inquest proceedings on 08th July, 1995. He has proved the inquest form filled-up by him Ex.PW24/B. He stated that he observed cut marks on the dorsum of left hand and dark brown patch with contusion like appearance on the right thigh (back) of the deceased. He claimed that the said brown patch was triangular in shape.
16. PW25 Dr. L.T.Ramani conducted post-mortem examination on 10th July, 1995. He proved his report Ex.PW25/A. According to him, the death had occurred three days earlier due to cardio-respiratory failure consequent to electrocution. He claimed that he confirmed his opinion regarding cause of death after taking into account CFSL report on 23rd February, 1995.
17. PW26 Inspector Manohar Singh is the Investigating Officer. He seized the electric press Ex.P1 on 1st September, 1995. He however, admitted in his cross-examination that he did not check if the electric press was leaking. He stated that Section 302 IPC was added after the receipt of the post-mortem examination report.
18. The appellants when examined under Section 313 Cr.P.C. denied that anyone of them ever made a demand of Maruti Car as alleged by the prosecution. They also challenged the authenticity of the post-mortem report. They claimed that the case has been fabricated against them in collusion with Dr. L.T.Ramani (PW25).
19. The appellant Net Ram took a plea of alibi. He examined DW1 Hari Pal from Wazirabad Depot, DTC to show that on 07 th July, 1995, he joined duty at 05:00 am and left his duty at 10:50 am after submitting an application for short leave. Photocopy of the application is Ex.DW1/A. As per the application, Net Ram had applied for short leave on the ground that he had suddenly developed chest pain.
20. On perusal of the impugned judgment, it transpires that the learned Additional Sessions Judge has found the appellants guilty of offence under Section 498A/34 IPC on the basis of testimony of PW2 and PW3 and also found them guilty under Section 302 IPC read withSection 34 IPC on the strength of following incriminating circumstances:
“(i) The death of Bimla was a result of violence and the accused have not offered any explanation for the injury found on the back of her right thigh.
(ii) The death occurred in the late hours of night and the accused made attempt to mislead the court about the actual time of death.
(iii) Net Ram must have been present at home when Bimla died and he went thereafter to join duty.
(iv) The accused remained silent about the death of Bimla for about five hours and it was only at 9.00 a.m. that she was brought down stairs.
(v) The accused circulated a false story that Bimla had become unwell after taking anacin tablet.
(vi) The accused created false evidence to show that Bimla was alive at 9.00 a.m”.
21. Learned Sh. Dinesh Mathur, Senior Counsel appearing for the appellants has submitted that the impugned judgment is full of contradictions and it is the result of the conjectures and surmises. Expanding on the argument, learned Senior Counsel took us through Para 14 of the impugned judgment, which reads thus:
“It would be seen that PW4 Sadhu Ram, the father of deceased Bimla was the first person to make statement during inquest on 8.7.95. The statement is Ex. PW 4/A. It makes no reference to the demand of a maruti car. Rather Sadhu Ram states that there was no dowry demand or harassment. The story of dowry demand was put up for the first time on 10.7.1995 at about 8.55 p.m. The prosecution explains that Sadhu Ram had not been told about harassment and dowry demands because he was not keeping good health. The deceased used to confide in her Bhabi Mamta and therefore the report was lodged only after Mamta had arrived from Nepal on 10.7.95. This explanation of delay does not stand the test of judicial scrutiny. When Mamta and her husband Lakhi Ram were examine during investigation, they did not state to the IO that Mamta was in Nepal at the time of occurrence. Thus they have made an improvement in court by saying that Mamta had gone to Nepal to see her parents. Even otherwise, Mamta has stated that her parents had gone with her to Nepal from Delhi. If the parents were in Delhi, there could be no occasion for a visit to Nepal. Then Mamta says that her father stayed back in Nepal, while PW 3 Lakhi Ram says that his father-in-law had attended the cremation of Bimla at Delhi. Further Mamta says that on return to Delhi from Nepal she had first gone to Rohtak by taxi and then came to mortuary. Her husband Lakhi Ram contradicts here and does not say anything about going to Rohtak on 10.7.95. Thus on examination of the statements of PW2 Mamta and PW 3 Lakhi Ram I feel that they have not truly disclosed the reason for delay in FIR”.
Learned Senior Counsel submitted that once the Trial Court, on analysis of evidence, came to the conclusion that the explanation given by PW2 and PW3 for the reason for delay in filing FIR was untrue, he ought to have rejected their testimony as unreliable, particularly when PW4 Sadhu Ram and PW6 Kasturi Devi, parents of the deceased have not supported the prosecution case regarding dowry demand and harassment or cruel treatment meted out to the deceased by her in-laws. Thus, he has strongly urged that charge under Section 498Aread with Section 34 IPC is not made out.
22. The learned Additional Sessions Judge has dealt with this issue in Para 15 of the impugned judgment in following manner:-
“Ld. Counsel for the accused contends that delayed FIR has vitiated the prosecution story. Reliance has been placed on 46 (1992) DLT 506 Narayani Devi v/s State and 1996 (1) Crimes 153 State of Haryana Vs. Rajinder. In both cases delay in FIR was held to be fatal. The facts of those cases were, however, a little different. In those cases the person who made FIR was present at the time of inquest also and at that stage he gave a clean chit to the accused. It was therefore held that the complainant should have come out with the story of harassment at the very first opportunity. In the present case neither PW 2 Mamta nor PW 3 Lakhi Ram was present at the time of inquest. The clean chit was given by the father of the deceased girl. It is quite possible that he was not aware of the dowry demand. PW 2 Mamta and PW 3 Lakhi Ram have both stated that their parents were not keeping good health and so the demand made by the accused persons was not disclosed to them. PW 4 Sadhu Ram himself states that he had under gone surgery and that there were post operative complications. Although he said in the first instance that dowry demand had not been made, he expressed disbelief of the story circulated by the accused persons that Bimla had become unwell after taking Anacin. On 9th July when he saw abrasions near the pinna of his daughter, he expressed suspicion but the SDM pacified him. Sadhu Ram and his family must have been in a state of shock and daze to hear about the death of Bimla. They may not have been able to understand the reason at first and that may have been the reason why they did not create a fuss. When the injury on the gluteal fold was seen for the first time during post mortem, they may have decided at that stage to prosecute the accused persons”.
23. We are unable to agree with the rationale of the above approach adopted by the learned Additional Sessions Judge. The basis of the above finding is that it was possible that PW4 Sadhu Ram was not aware of the dowry demand when his statement Ex.PW4/B was recorded during inquest proceedings and that both PW2 Mamta Devi and PW3 Lakhi Ram have stated that their parents were not keeping good health so the demand made by the appellants was not disclosed to them. Admittedly, the deceased died within five years of her marriage. PW3 Lakhi Ram has testified that 15-20 days after the marriage of the deceased, he was told by his wife that the deceased was being harassed by in-laws in connection with their demand for a Maruti Car. He has also stated in his cross-examination that on the receipt of the telephone call from his brother-in-law Bajrang (appellant), he along with his mother, brother Sanjay and two friends came to Delhi and went to the house of the appellants. From there, they went to Jaipur Golden Hospital and found that Bimla has died and her dead body was still in the hospital. He has also stated in the cross-examination that on the same night, he left for Nepal to fetch his wife and before leaving for Nepal, he had told his brother Mohan Lal that he was going to Nepal because everything was within the knowledge of his wife Mamta (PW2). This evidence, if read as a whole, gives an impression that PW3 Lakhi Ram was aware of the dowry demand and harassment caused to the deceased, despite of that, he did not inform either the police or his family members about the same and left for Nepal. This conduct of PW3 is highly unnatural to make his testimony suspect. Otherwise also, if at all, there was a dowry demand and harassment, under the natural course of human conduct, the deceased was expected to tell her parents about it. The parents admittedly have not supported this allegation. Therefore, we find it unsafe to rely upon the testimony of PW2 Mamta and PW3 Lakhi Ram regarding the dowry demand and harassment for the reason that they have not come out clean in respect of their explanation regarding delay in filing of FIR. Thus, we find it difficult to sustain the conviction of the appellants under Section 498AIPC read with Section 34 IPC.
24. Coming to the charge of murder punishable under Section 302 IPC read with Section 34IPC. On perusal of the impugned judgment, it transpires that the main factor which found favour with the learned Additional Sessions Judge to hold the appellants guilty of murder of the deceased is his assumption that the deceased died in the late hours of the night or in the early hours of the morning whereas the appellants created false evidence to show that the deceased Bimla was alive at 09:00/09:30 am in the morning and that the appellants circulated a false story that the deceased got unwell after taking an „Anacine‟ tablet.
25. The basis for the aforesaid conclusion that the deceased died in the late hours of night or in the early hours of the morning is the post-mortem report Ex.PW25/A, wherein the Autopsy Surgeon has recorded that he found four ounces of digested food in the stomach of the deceased. The learned Additional Sessions Judge, taking note of said medical evidence, has referred to 5th Edition of Text Book of Medical Jurisprudence and Toxicology by Dr. C.K.Parikh and observed thus:
“Dr. C.K. Parikh observes at page 175 of the 5th Edition of the Textbook of Medical Jurisprudence and Toxicology that the site and state of digestion of the contents of the stomach may be of value in fixing the hour of death in relation to the last meal. He further observes that if on autopsy one finds that the stomach is full, it would suggest that the victim died within two hours of taking the last meal if food was distinguishable and four hours if food was not distinguishable. He also observes that the bulk of meal leaves the stomach within two hours and the stomach is emptied in 4 to 6 hours. In the present case 4 oz of digested food was found in the stomach. This means that the stomach had not been emptied. In other words the last meal was taken less than six hours before death. Six hours is the maximum time for emptying of stomach and therefore even if I presume that Bimla had taken very heavy diet, I cannot escape the conclusion that she died within six hours after taking the meals and before defection. The quantity of digested food in the stomach indicated that it was not breakfast but a regular meal. So there can be no doubt that Bimla died in the late hours of night or in the early hours of morning. The prosecution witnesses who state that Bimla was alive at 8.00 a.m. or later have all tried to mislead the court about the actual time of death”.
26. From the above, it is apparent that the learned Additional Sessions Judge has concluded that Bimla (deceased) died in the late hours of the night or in the early hours of the morning on the assumption that the food consumed by the deceased before her death could not have been the breakfast. This assumption of learned Additional Sessions Judge is without any foundation. Otherwise also, if it is assumed for the sake of argument that the deceased after her dinner had not consumed any food, then also, the time of her death cannot be fixed on the basis of quantity of digested/undigested food found in the stomach of the deceased unless the time of taking of dinner is known. There is no evidence on record to show as to at what time the deceased took food. Therefore, we find no cogent basis for the conclusion of learned Additional Sessions Judge that the deceased must have died in the late hours of night or in the early hours of the morning and she was not alive at 08:00 am or later, as stated by the prosecution‟s own witnesses namely PW8 Dr. Ashok Ansari, PW9 Naresh Kumar, PW10 Jagdish, PW11 Ramesh Bhardwaj, PW13 Dr. Mahinder Singh and PW18 Prahalad, who have testified that they had seen Bimla (deceased) alive between 09:00 am to 10:00 am.
27. If for the sake of argument, it is assumed that the deceased died in the late hours of the night or early hours in the morning as concluded by the learned Additional Sessions Judge, then the time of death should be somewhere around 05:00 or 06:00 am or may be earlier. As per the MLC of the deceased Ex.PW20/A prepared at Jaipur Golden Hospital, the deceased was brought to the hospital by her mother-in-law Malti Devi at 10:10 am. This would imply that the deceased reached Jaipur Golden Hospital more than four hours after her death. If that was so, by that time, taking into consideration that it was summer season, ordinarily onset of rigour mortis would have started. PW20 Dr. Vishal Bhati, who purportedly attended to the deceased, has recorded in the MLC that he tried to resuscitate the patient by giving cardiac massage but she could not be revived. If the deceased was dead for the last four hours, it is highly improbable that a qualified doctor at a specialized hospital like Jaipur Golden Hospital would have tried to revive the patient by cardiac massage etc. This circumstance also negatives the presumption that the deceased died in late hours of the night or early hours of the morning.
28. On perusal of the record, it transpires that PW8 Dr. Ashok Ansari, PW9 Naresh Kumar, PW10 Jagdish, PW11 Ramesh Bhardwaj, PW13 Dr. Mahinder Singh and PW18 Prahalad, who are the prosecution witnesses are categoric that they saw the deceased alive during the period between 09:00 to 10:00 am. Learned Trial Court has disbelieved them on the basis of medical record i.e. post- mortem report Ex.PW25/A. He has not given any other reason forfinding these witnesses unreliable. In view of the our discussion above, the time of death of the deceased is not firmly established, therefore, we find that the learned Trial Judge has gone wrong in disbelieving the abovesaid six witnesses, who have no reason to depose falsely in favour of the appellants.
29. Learned counsel for the State has argued that even if it is assumed that deceased Bimla was alive in the morning at around 09:00 am onwards, then also it remains unexplained as to why the appellants circulated a false story of the deceased having become unwell after taking „Anacine‟ tablet. In support of this contention, he has drawn our attention to the CFSL report dated 13 th December, 1995 indicating that the viscera of the deceased on examination gave negative results for the presence of analgesic drug which rules out any possibility of the deceased having consumed „Anacine‟ tablet. Another factor which went against the appellants during trial is the presence of burn injury with a press on the back of right thigh of the deceased, which has not been explained by the appellants in their statements under Section 313 Cr.P.C. The learned Additional Sessions Judge has come to the conclusion that the aforesaid injury has been caused deliberately by someone. The basis for this conclusion is the site of the injury and also the fact that no corresponding burn marks were found on the clothes of the deceased. Learned counsel for the appellants has submitted that the aforesaid burn injury could be accidental also which might have been caused because of the deceased accidentally sitting on the hot press. He contended that if a hot press comes in contact with the body of a person through a cloth, then also a possibility cannot be ruled out that because of heat, cloth may not burn but the person may sustain the burn injury. We find substance in this contention. Otherwise also, this circumstance alone is too weak a circumstance to find the appellants guilty for murder of the deceased.
30. Another circumstance relied upon by the learned Additional Sessions Judge is that the appellants had circulated a false story that the deceased had become unwell after taking „Anacine‟ tablet, which story, as per the prosecution is belied by the CFSL report dated 13th February, 1995 given under the signatures of Sh. K. P. Satapathy, Senior Chemical Examiner, CFSL wherein, it is recorded that the viscera, on chemical examination, gave negative result for the presence of analgesic. Learned counsel for the State has submitted that the aforesaid report negatives the story of consumption of „Anacine‟ by the deceased and this circumstance points towards the complicity of the appellants in the murder of the deceased.
31. Above argument is of no avail to the prosecution because of the reason that the prosecution has failed to examine the linked witnesses to establish that the viscera of the deceased reached CFSL untampered for examination. As per the CFSL report available on the record the wooden box purportedly containing viscera and sample seal pertaining to this case was received in the office of Director cum Chemical Examiner, CFSL, Calcutta on 28 th August, 1995. PW17, Head Constable Bodh Raj who was moharir malkhana, P.S. Saraswati VIhar at the relevant time has stated that on 26 th August 1995 piece in wooden box containing viscera of the deceased along with sample seal to CFSL Calcutta vide RC No. 202/21/95 through Constable Naresh Kumar who purportedly carrying the viscera to CFSL have not been examined to prove that the sample in question was not tampered with while it was in his custody. In absence of this link evidence we do not find it safe to rely upon the CFSL report available on record which has not even tendered in evidence by the prosecution.
32. In view of the discussion above, we find that prosecution has not been able to firmly establish either circumstance No. (i) and circumstance No. (ii). We may note that circumstance No. (iii), (iv) and (vi) are dependent upon circumstance No. (ii). Therefore, in view of the discussion above, those three circumstances also are not firmly established. Thus, we are left with only circumstance No. (v), which is not firmly established and which by itself, is not sufficient to lead to an irrefutable conclusion that the deceased had been killed by the appellants in furtherance of their common intention, particularly when the motive for commission of crime is not established. Thus, we find it difficult to sustain the conviction of the appellants under Section 302/34 IPC also.
33. The result of above discussion is that the prosecution has failed to establish the guilt of the appellants on both the counts. We, therefore, set aside the impugned judgment of conviction of the appellants and consequent order on sentence and acquit the appellants, giving them benefit of doubt.
34. The appellants are on bail. Their bail-cum-sureties are discharged.
35. The appeals are disposed of accordingly.
AJIT BHARIHOKE, J.
JULY 02, 2010 A.K. SIKRI, J. akb