Delayed FIR, majr embellishments in case, prosecution verson shaken accused hubby & co freed !! A Police inspector’s SIL falsely accused & hauled over coals 10 years !!


* Married woman dies due 2 to poisoning
* Sessions court acquits all accused as prosecution story is doubted
* STILL THE STATE goes on appeal & WASTES close to 9 years time, public money and husband’s life !!

By the way "…father of the victim PW2 Hukam Chand is an Inspector in the police force …….. The sequence of events further shows that they chose to implicate the accused persons by improving upon and embellishing their versions from time to time …… "


Long live Indian marriages !!

Important events
***************************
* on 28.5.2005 ASI Ishwar Dutt (PW11) reached AIIMS where the deceased (Hema) was admitted & given treatment.
* The deceased was declared unfit for statement by the doctors.
* On 30.5.2005 at 2.35 pm, information of the death of Hema was received
* Reason of death : poisoning due to aluminium phosphide ingestion
* the accused persons pleaded innocence and claimed that no demand of dowry was ever made by them
* deceased could not conceive and that is why she was in depression and under the influence of that depression, she committed suicide.
* The learned Sessions Judge accordingly found that there existed reasonable doubt about the genesis of the prosecution story due to the embellishments, infirmities and contradictions in the evidence on record going to the root of the matter, which were sufficient to shake the core of the prosecution case.
* The learned Trial Court also found that there was a reasonable possibility of the deceased having committed suicide as she could not conceive on account of which fact she was in depression.
* also deceased has left behind no dying declaration or any suicide note before consuming the tablets of aluminium phosphide
* in the MLC there is no mention of any external injuries on any body part of the deceased !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

Delhi High Court

State vs Naresh & Ors on 10 February, 2014

Author: Reva Khetrapal

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. L.P. NO.367/2012

STATE ….. Petitioner
Through: Mr. Narender Kumar Choudhry, APP.

versus

NARESH & ORS ….. Respondents
Through: Mr. B.S. Rana and Mr. Vijender Bhardwaj, Advocates.

Date of Decision : February 10, 2014

CORAM:
HON’BLE MS. JUSTICE REVA KHETRAPAL
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

REVA KHETRAPAL, J.

CRL. L.P. NO.367/2012

1. Leave granted.

2. Registry shall register and number the Appeal. Crl. A. No._______/2013

1. This Appeal is directed against the judgment of the learned Additional Sessions Judge dated 17.12.2011 in Sessions Case No.82A/2011 acquitting the Respondents Naresh, Suresh, Nirmala, Niyadher Singh and Harnandi for the offences punishable under Section 498A IPC and 304B read with Section 34 IPC. Aggrieved by the aforesaid judgment, the State has preferred the present Appeal.

2. Facts and circumstances giving rise to the Appeal are that on 28.5.2005, on receipt of DD No.14A, ASI Ishwar Dutt (PW11) reached All India Institute of Medical Sciences (AIIMS) where the deceased (Hema) was admitted and was being given treatment. The deceased was declared unfit for statement by the doctors.

3. On 30.5.2005 at 2.35 pm, information of the death of Hema was received in PS Sarojini Nagar and the same was recorded in DD No. 17A (Ex.PW4/A). ASI Ishwar Dutt (PW11) reached AIIMS and informed the SHO and the SDM. The SDM Sh. R. Chopra (PW8) conducted inquest proceedings and sent the dead body for postmortem. ASI Ishwar Dutt (PW11) recorded the statement of Smt. Rajrani (PW3) as Ex. PW3/A in the presence of the SDM Sh. R. Chopra who made endorsement Ex.PW8/C thereon. Thereafter, ASI Ishwar Dutt (PW11) scribed tehrir Ex.PW11/A and got registered FIR No.266/05 – Ex.PW6/A, under Sections 498A/304B/34 IPC. Post- mortem of the dead body of the deceased was conducted and Inspector Ashok Kumar (PW12) who conducted the investigation directed that viscera with sample seal collected by ASI Ishwar Dutt (PW11) be sent for chemical analysis. On receipt of Viscera Analysis Report, the Autopsy Surgeon PW1, Dr.Arvind Kumar gave subsequent opinion that the cause of death in the case was: "Pulmonary edema consequent upon poisoning due to aluminium phosphide ingestion".

4. On 30.5.2005, Sh. Hukam Chand (PW2), father of the deceased, gave his statement Ex.PW2/A in his own writing to the SDM, Sh. R. Chopra (PW8).

5. On 2.6.2005, Ms. Karuna (PW7), cousin of the deceased and Smt. Rajrani (PW3), mother of the deceased gave their written statements Ex.PW8/D and Ex.PW3/B respectively to the SDM.

6. The accused persons were arrested and their personal search was conducted. The disclosure statement of accused Naresh was recorded as Ex.PW11/E.

7. On completion of investigation, chargesheet was filed against all the accused persons for offences under Sections 498A/304B/34 IPC.

8. On 6.2.2007, charge for offences punishable under the aforesaid Sections was framed against the accused persons by the learned Sessions Court to which the accused pleaded not guilty and claimed trial.

9. In order to connect the accused with the offences charged, the prosecution examined 16 witnesses. Out of these witnesses, Shri Hukam Chand (PW2), Smt. Rajrani (PW3), Ms. Karuna (PW7) and Shri Pradeep Kumar (PW10) are the material witnesses. The evidence of the remaining witnesses is formal in nature.

10. The statements of all the accused persons were recorded under Section 313 Cr.P.C., in the course of which all the incriminating material in evidence was put to the accused persons. While denying the incriminating material against them, the accused persons pleaded innocence and claimed that no demand of dowry was ever made by them at any point of time during the lifetime of the deceased nor was the deceased harassed by any of them during her lifetime. Accused also stated that despite being treated, the deceased could not conceive and that is why she was in depression and under the influence of that depression, she committed suicide.

11. After appreciation of the evidence adduced by the prosecution, the learned Additional Sessions Judge found the accused not guilty. In the impugned judgment, reference was specifically made by the learned Trial Court to the inconsistencies and contradictory versions of the material witnesses, namely, PWs 2, 3, 7 and 10 with regard to the alleged ill-treatment of the deceased and demands for dowry made by the accused, the introduction of „coloured versions? of the prosecution witnesses and the concoction of facts belatedly made under legal advise by the material witnesses. The learned Sessions Judge accordingly found that there existed reasonable doubt about the genesis of the prosecution story due to the embellishments, infirmities and contradictions in the evidence on record going to the root of the matter, which were sufficient to shake the core of the prosecution case. The learned Trial Court also found that there was a reasonable possibility of the deceased having committed suicide as she could not conceive on account of which fact she was in depression.

12. We have scrutinized the evidence on record and considered the rival submissions made by learned counsel for the parties. At the outset, we note a glaring feature in this case which throws considerable suspicion on the prosecution version and which was pressed into service by Mr. B.S. Rana, learned counsel for the Respondents with all vehemence at his command. Mr. Rana contends that there was an inordinate delay in the registration of the First Information Report. There is no dispute as to the fact that PW2 and PW3, the parents of the deceased, as also PW7, the cousin of the deceased, and PW10, the uncle of the deceased were present in AIIMS when the deceased was admitted there on 28.5.2005. There is also no dispute to the fact that the father of the deceased PW2 Hukam Chand is an Inspector in the Delhi Police and PW7 Ms. Karuna and PW10 Shri Pradeep Kumar are both Head Constables in the Delhi Police and had knowledge of the requirement of prompt reporting of all offences to the authorities including the police and the SDM at the earliest possible point of time. Yet, not only on 28.5.2005 but also on 29.5.2005 and even on 30.5.2005 till the deceased expired at 2.35 pm on 30.5.2005, it was not found fit by any of the prosecution witnesses to complain to the authorities about the harassment being meted out to the deceased by her husband and in- laws. The learned counsel for the Respondents, Mr. Rana contends that there is an inherent improbability in such conduct of the near and dear ones of the deceased, for which no explanation has been rendered by the prosecution, let alone a plausible one. In such circumstances, the likelihood of the Respondents having been falsely implicated cannot be ruled out. [This becomes all the more significant in the light of the fact that the deceased has left behind no dying declaration or any suicide note before consuming the tablets of aluminium phosphide.] After her admission to AIIMS, she was declared unfit for statement as is apparent from the endorsements made by the concerned doctor on the application of the Investigating Officer, one of which endorsements was recorded at 11.15 a.m. on 28.5.2005, i.e., soon after the admission of the victim in the hospital at 10.05 a.m., then again at 5.00 p.m. on 28.5.2005 as well as on the following day, i.e., on 29.5.2005 (Ex.PW5/B) similar endorsements were recorded. Thus, we do not have the advantage of having before us the version of the victim herself nor is there any other writing placed on record by the victim during her lifetime complaining about harassment or demands for dowry made by her husband and in-laws.

13. Mr. Rana has also drawn our attention to the fact that in the MLC of the deceased (Hema) dated 28.5.2005, annexed as Mark A1 with the chargesheet, the arrival time at AIIMS is mentioned as 10.01 a.m. and there is also mention of the name of Mrs. Sushma, resident of 162, Humayupur, New Delhi as the name of the relative or friend accompanying her, which address is the same as the address at which the victim was residing with the accused persons. Therefore, it can safely be assumed that said Mrs. Sushma was a member of the family. Yet, said Mrs. Sushma was neither joined in the investigation nor cited or examined as a prosecution witness.

14. Yet another aspect of the case which deserves to be noted is that in the MLC there is no mention of any external injuries on any body part of the deceased. There is also no mention of the deceased being unconscious at that time. Even in the postmortem report (Ex.PW1/A), there is no mention of any fresh external injury seen over the body of the deceased except intravenous canula injection marks seen over left and right cubital region with slight bluish extravassation of blood in surrounding tissue.

15. Mr. Narender Kumar Choudhry, learned Additional Public Prosecutor strongly contended that the learned Trial Court had patently erred in appreciating the evidence of PW2, PW3, PW7 and PW10 and the impugned judgment suffers from the vice of the perversity. Mr. Choudhry has taken us through the testimonies of the aforesaid witnesses, who are stated to be the material witnesses for bringing home the guilt of the Respondents/accused persons.

16. Mr. Hukam Chand (PW2), father of the victim, deposed that sufficient articles were given in dowry in the marriage of his daughter. Yet, after marriage, the accused persons used to comment that nothing was given in the marriage and taunt about why a car had not been given in dowry in place of motorcycle. When his daughter Hema visited her parental home for the second time after the marriage, she conveyed demand of ` 51,000/- alongwith a gold bracelet on behalf of the accused persons. When she left after this visit for her matrimonial home, she was given clothes and other articles worth ` 60,000/-. However, accused persons kept on harassing his daughter on account of dowry. He further deposed that in August, 2002 his younger brother Pradeep (PW10) had visited Hema and met accused persons. On his visit, Pradeep (PW10) was told by Hema that accused persons used to give her beatings on account of dowry. On this occasion, the accused persons sent Hema (the deceased) along with her brother Pradeep (PW10) back to their parental house where she remained for about one year.

On 18th July, 2003, he alongwith other relatives visited the house of accused persons and in that meeting the accused persons promised to mend their behaviour and thereafter Naresh (husband of Hema) took Hema to her matrimonial home on 20.7.2003. On 23.5.2005, Hema was sent to attend the marriage of the daughter of her father?s brother by the accused persons on the condition that a demand of ` 20,000/- will be met by her family. However, that much amount could not be arranged by her family and she was sent with PW10 Pradeep (her paternal uncle) to her matrimonial home, with a sum of ` 5,000/-. On 28.5.2005, he (PW2) received a call from ASI Ishwar Dutt (PW11) from PS Sarojini Nagar informing him that Hema was admitted at AIIMS Hospital.

17. PW2 Shri Hukam Chand was confronted with his statement made before the SDM (Ex.PW2/A) in respect of the demand of ` 51,000/- along with gold bracelet as no such fact had been stated by him to the SDM. He was also confronted with his statement Ex.PW2/A before the SDM in respect of his assertion that when his daughter left after her visit for her matrimonial home, she was given clothes and other articles worth ` 60,000/-, where it was not so stated by him. Even for the allegation made by him that his younger brother Pradeep (PW10) visited Hema and met accused persons at their house and on this visit Pradeep was told by Hema that accused persons used to give her beatings on account of demand of dowry, he was confronted with his statement made before the SDM as no such fact had been mentioned therein. He was also confronted with his statement recorded before the SDM that on 18.7.2003, he alongwith his other relatives visited the house of the accused persons and in that meeting accused persons promised to mend their behavior and thereafter accused Naresh took Hema to her matrimonial home on 20.7.2003, as he had not stated all these facts before the SDM. He was further confronted with his statement before the SDM that on 23.5.2005 there was a marriage of the daughter of his brother which was not attended by any of the accused persons, but instead Hema was sent with the condition that the demand of Rs.20,000/- would be met by her parents and that on the next day of the marriage his brother Pradeep (PW10) had gone to the matrimonial home of Hema, as none of these facts were narrated by him before the SDM.

18. We advert next to the statement of PW3 Rajrani, the mother of the victim, on whose statement the First Information Report (Ex.PW6/A) was registered after the death of the victim. Rajrani (PW3) deposed that her daughter Hema had got married with accused Naresh in the month of February, 2002 and had come back on 18.2.2002 first time from her matrimonial home and started weeping. She (Hema/deceased) told her that the accused persons were harassing her on account of money and they used to comment "tere baap ne kya diya hain, aise kangle hamare palle pad gaye". However, she (Rajrani) pacified her and sent her back to her matrimonial home. Thereafter, a fresh demand was made by the accused persons of bracelet and ` 60,000/- in cash. Upon this, they (Hema?s parents) visited her matrimonial home and accused persons promised that such things will not happen again. However, harassment of her daughter for dowry continued and her sister-in- law (jethani), her mother-in-law, her husband and her brother-in- law (jeth) gave her beatings. She (PW3) further deposed that her brother-in-law Pradeep (PW10) also visited Hema and she also wept before him telling him that accused persons did not give her anything to eat and used to lock the phone. However, her brother-in-law (PW10) brought back Hema from the house of the accused and thereafter, she stayed at their house for about one year. Thereafter, they (parents of Hema) sent their relatives to the accused persons? house and finally Hema was taken in, but behaviour of the accused persons remained the same. Hema visited her parental house on the occasion of the marriage of the daughter of her (PW3?s) jeth and on that occasion she demanded a sum of ` 20,000/- in order to give the same to the accused persons. She was not having that much money but a sum of ` 5,000/- was given to her. On one occasion, Hema was also given beatings by accused persons when she (PW3, mother of Hema) alongwith her husband and son visited Hema. Later the accused persons promised that such things will not happen again. However, harassment of Hema continued. PW3 then deposed that on 28.5.2005 she received a call from the police that her daughter was admitted at AIIMS. PW3 further stated that Hema died on 30.5.2005. The statement of PW3 was recorded by the SDM Ex.PW3/A. Subsequently, another statement of PW3 was also recorded being Ex.PW3/B

19. In her cross-examination, PW3 Smt. Rajrani was confronted with her statement Ex.PW3/A recorded before the SDM with regard to the demand of ` 60,000/- and bracelet where it was not so recorded. She was also confronted with her statement recorded before the SDM that Pradeep (PW10) had visited Hema and Hema had wept before him telling him that the accused persons did not give her anything to eat and used to lock the phone. To be noted that this finds mention in her subsequent statement Ex.PW3/B dated 02.06.2005. To be also noted that the SDM Shri R. Chopra (PW8) in his testimony categorically stated that on the said date, i.e., on 02.06.2005 Smt. Karuna (PW7) and Smt. Rajrani (PW3) gave him their "already written statements" which were signed by them before him (Ex.PW3/B and Ex.PW8/D). In cross-examination, PW8 (the SDM) further clarified that on 2.6.2005 Smt. Karuna and Smt. Rajrani had come to his office and they gave him their written statements which they had signed before him.

20. It is deemed appropriate at this stage to reproduce the relevant part of the cross-examination of PW3 Smt. Rajrani to enable proper appreciation of her evidence:-

"It is correct that I had not stated in my statement dated 30.05.2005 to the SDM regarding the demand of Rs.60,000/- and a bracelet. It is correct that I had not stated in my statement dated 30.05.2005 to the SDM regarding the visit of Pradeep at the matrimonial home of my daughter and regarding the fact that she wept before Pradeep and stated that her in-laws are not even giving her food to eat. I had stated before the SDM that Pradeep had brought my daughter from her in-laws house to my house. It is correct that I had not stated in my statement dated 30.05.2005 to the SDM regarding that my daughter demanded Rs.20,000/- in order to give the same to accused persons. I do not remember if I had stated to the SDM in my statement dated 30.05.2005 that on one occasion Hema was also given beatings by accused persons when I along with my husband and son visited her. Confronted with the statement Ex.PW3/A, where it is not so recorded. It is wrong to suggest that accused persons had never gave any beatings to my daughter Hema and so I did not state this fact before the SDM on 30.05.2005. I do not remember if I stated to the SDM in my statement dated 30.05.2005 that accused persons had promised that such things will not happen again. Confronted with the statement Ex.PW3/A, where it is not so recorded. It is wrong to suggest that my daughter was not beaten by the accused persons so I did not state these facts before the SDM on 30.05.2005. I do not remember if I stated to the SDM in my statement dated 30.05.2005 that when I visited AIIMS Hospital my daughter told me that she was being poisoned by the accused persons. Confronted with the statement Ex.PW3/A, where it is not so recorded. I do not remember if I stated to the SDM in my statement dated 30.05.2005 that my daughter told me that accused persons also got her stomach washed at Mahindra Hospital prior to her admission to AIIMS Hospital. Confronted with the statement Ex.PW3/A, where it is not so recorded."

21. As regards PW7 Ms. Karuna, this witness in her testimony stated that on 23.5.2005, Hema had come to attend the marriage of her younger sister Shabnam and Hema told her that she was still not living well with her husband and her in-laws, i.e., mother-in-law, father-in- law, jeth and jethani, who were harassing her and were demanding more money from her parents, like ` 5,000/- and ` 10,000/-. She (Hema) further told her (PW7) that she was beaten up by her husband Naresh and by her mother-in-law about 20/25 days earlier and her parents had also gone to her in-laws house in this regard and thereafter she was being harassed more by her husband and in-laws. With regard to the incident, she (PW7) first stated that when she went to see Hema in the hospital on 28.5.2005, she came to know that Hema was made to eat "some medicine", but subsequently stated that she had come to know that Hema had consumed some medicine of her own. Yet again, she stated that Hema was made to eat medicine. In the course of her (PW7) cross-examination, however, she admitted that she did not tell the facts narrated by her in her examination-in-chief to any person including the parents of Hema. She also did not give any statement to the police or SDM on 28.5.2005 when she went to see Hema at the AIIMS Hospital. She denied the suggestion that she had brought her statement Ex.PW8/D already written by her from her house to the office of the SDM (it may be noted that as per the SDM, the statement was brought to him at his office in writing and only signed in his presence).

22. PW10 Shri Pradeep Kumar (uncle of the deceased) deposed that on the next day after her marriage, when Hema returned to her parents? house, she informed that she was made to hear a lot of bad things on account of dowry given in the marriage by her husband and other family members. Later on, after about 1-2 months of marriage, his brother Shri Hukam Chand (PW2) informed him that the in-laws of Hema were again harassing her for dowry. Thereafter about 5-6 months from the date of marriage, he (PW10) along with his brothers Shri Hukam Chand (PW2), Shri Narayan Singh and two or three more relatives had gone to the house of accused persons to talk to them regarding harassment of Hema and were assured that they would not give any further chance of any complaint in future. In the year 2003, he (PW10) had taken articles meant for „Teej? festival to the matrimonial house of Hema, when she told him that her husband, mother-in-law, father-in-law, jeth and jethani had beaten her for bringing insufficient dowry, after which he (PW10) took her back to his brother?s house at Timar Pur. After some days, his brother told him that Naresh (husband of Hema) had come and had taken her back after tendering unconditional apology. On 28.5.2005, he received a call from his brother (PW2 Hukam Chand) that Hema was admitted in the ICU at AIIMS. In cross-examination, he admitted that he did not know the date, month and year when his brother told him about the harassment to Hema or when he had gone with his relatives to the matrimonial home of Hema. He also did not remember the date, month and year when he took „Teej? to Hema?s matrimonial home.

23. A careful analysis of the testimonies of the prosecution witnesses unequivocally establishes that although PW2, PW3, PW7 and PW10 were informed about the incident on 28 th May, 2005 and promptly reached AIIMS Hospital where the victim was admitted in ICU, they did not lodge any complaint with the police or the SDM till after the death of the victim on 30.5.2005. This despite the fact that the father of the victim PW2 Hukam Chand admittedly is an Inspector in the police force while PW7 Ms. Karuna and PW10 Pradeep Kumar are Head Constables and are thus fully aware of the fact that prompt reporting of the incident was required. No explanation has been given by them as to why they chose to remain silent till the victim breathed her last. The sequence of events further shows that they chose to implicate the accused persons by improving upon and embellishing their versions from time to time. For instance, the story that the accused persons had conveyed a demand of ` 51,000/- along with the gold bracelet does not find mention in the initial statement given by PW3 Rajrani before the SDM nor it finds mention in the statement made by PW2 Hukam Chand before the SDM and is quite obviously an afterthought. Then again, PW2 Hukam Chand categorically stated that to meet the said demand they had given clothes and other articles to the victim worth ` 60,000/-, which fact too was not stated by him in his statement recorded before the SDM nor it finds mention in the statement of his wife PW3 Rajrani. PW3 Rajrani has also given three different versions – one before the SDM recorded on 30th May, 2005 (Ex.PW3/A), the other in her written statement given in the office of the SDM (Ex.PW3/B) and the third before the Court. All three versions fall foul of each other. Significantly, she nowhere deposed that PW7 Ms. Karuna had told her (PW3) that the victim had told her (PW7) that her in-laws were harassing her for demand for dowry when she came to attend the marriage in the family on 23rd May, 2005. So far as PW7 is concerned, she did not give a statement before the SDM even on 30.5.2005. Rather, she gave her written statement in the office of the SDM much later, i.e., on 2nd June, 2005 and appears to us to have been introduced as a prosecution witness as an afterthought. The same applies with equal force to PW10 Shri Pradeep Kumar, who neither gave his statement before the police nor before the SDM on 30th May, 2005 and has given his statement for the first time in the office of the SDM on 2nd June, 2005.

24. The learned Trial Judge in the impugned judgment has disbelieved the statements of the prosecution witnesses and has given detailed reasoning for the same, which is not being repeated by us in order to avoid prolixity. Suffice it to state that the improvements, embellishments and concoctions made by the material prosecution witnesses after due deliberation have rendered the entire prosecution case doubtful.

25. It is trite that general and vague allegations of dowry demands and beatings given to the deceased without detailing specific instances, vague and inconsistent statements of interested witnesses such as parents, brothers and sisters of the deceased, bald statements made by prosecution witnesses which fall short of evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, and improved versions of statements made by prosecution witnesses for the first time in Court disclosing things not disclosed during investigation, are liable to be viewed with suspicion and the presumption of dowry death cannot be raised therefrom, and the accused cannot be convicted on the strength of such statements [see Jagdish & Ors. vs. State, 2010 (28.5.2005) JCC 943; Sunil Bajaj vs. State of M.P., AIR 2001 SC 3020; Nepal Singh vs. State of Haryana, AIR 2009 SC 2913 and Durga Prashad & Anr. vs. State of M.P., 2010 (3) JCC 1852].

26. In the case of Sham Lal vs. State of Haryana, 1997 Crl.L.J. 1927, it was held that when after resolving of disputes the wife is taken back to the nuptial home and there is no evidence that she was treated with cruelty or harassment in the context of dowry during the period between her being taken back to the nuptial home and her tragic end, the presumption of dowry death cannot be raised and accused cannot be convicted under Section 304B IPC. We are noting this law laid down by the Supreme Court for the reason that none of the prosecution witnesses have deposed that the deceased was treated with cruelty on account of dowry "soon before" her death except PW7 Ms. Karuna, the cousin sister of the deceased, who, as we have noted above, gave her statement for the first time to the SDM in written form on 2nd June, 2005 to the effect that she had met the deceased at a wedding where the deceased had disclosed to her that she was being harassed by her in-laws for dowry. This witness, however, admitted that she did not communicate this information even to the mother of the deceased nor the mother of the deceased has professed knowledge of the same. The improbability of this when the mother of the deceased and PW7 Ms. Karuna were together not only at the wedding but also at AIIMS Hospital where the deceased was admitted renders the testimony of this witness unworthy of credence.

27. In the case of Naraini Devi vs. State, DRJ 1992 22, which is a case identical to the present one immediately after the death of the victim, the brothers of the deceased and her mother reached the spot and when they reached there the police officials were already present but none of them made any complaint or report to the police officer about the harassment by the accused or their persistent demand of dowry which led to the incident. The Supreme Court opined that the long and unexplained delay in recording of the FIR casts grave doubt on the credibility and truthfulness of the prosecution version.

28. Reference may also be made to the judgment of the Supreme Court in Thulia Kali v. The State of Tamil Nadu, 1972 CAR 280 (SC), where the Supreme Court observed that in a criminal case FIR is a very vital document and very often delay in lodging the FIR results in embellishment which is a creature of afterthought. The relevant headnote is as under:-

"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or connected story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."

29. As stated above, in the present case no explanation has been given for the delay in lodging in the FIR, let alone a satisfactory one. Even otherwise, even if the prosecution story is believed in its entirety and the improved versions are also believed, it was only on her first and second visit to her parental home that demand for dowry was made, which was nowhere near the date of her death. There is not even an allegation that there was any demand for dowry "soon before" the death.

30. To conclude, we are of the considered opinion that in the instant case there has not only been considerable delay in the lodging of the FIR but there have been major improvements/embellishments in the prosecution case, which cannot be brushed aside for the reason that the substratum of the prosecution version has been shaken. We thus hold that the Respondents have been rightly given the benefit of doubt and uphold the impugned judgment of the Trial Court. Resultantly, the Appeal fails and is dismissed.

REVA KHETRAPAL JUDGE
PRATIBHA RANI JUDGE
February 10, 2014
km

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s