State Of Nct Of Delhi vs Rajiv & Anr
2012 Latest Caselaw 4955 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
5

+    CRL.L.P. No.303/2012 & Crl.M.A. no.7782/2012

                                    Date of Decision: 23rd August, 2012


     STATE OF NCT OF DELHI                          ..... Petitioner
                    Through              Mr. Rajesh Mahajan, Adv.

                                    Versus


     RAJIV & ANR                                 ..... Respondents

Through

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL (Oral)

1. The instant petition has been filed under Section 378 of the Code

of Criminal Procedure (Cr.P.C.) praying for leave to appeal against the

judgment dated 30th November, 2011 passed by the learned Additional

Sessions Judge, Dwarka in SC No.24/1/11 titled State Vs. Rajiv & Anr.

arising out of FIR No.36/08 registered by the police station Najafgarh,

Delhi whereby the learned Trial Judge has acquitted the respondents of

commission of offence under Section 498A/34 of the IPC against all the

respondents and a charge under Section 302 of the Indian Penal Code

(IPC) against the respondent no.1.

2. The record of the lower court has been received. The same has

Crl.L.P. No.303/2012 Page No.1 been perused. The learned APP for the State has been heard on the

petition.

3. The case of the prosecution rests on the allegation that the

deceased Rekha was married to the respondent no.1 in July, 1999. In

2002, the deceased had given birth to a female child. It is alleged by

the prosecution that there was a demand of a scooter by the accused

persons particularly by the respondent no.1 and that Rs.30,000/- was

given on this account to him. It is the case of the prosecution that this

amount of Rs.30,000/- was borrowed by the father of the deceased, PW

20-Shri Satya Narain from his relative PW 1 Azad Singh and sent to the

respondent no.1 through his nephew in the year 2007. The second

allegation is that an amount of Rs.1,40,000/- was demanded by the

respondents prior to the death of the deceased which was paid by her

relatives to the accused in the year 2007.

4. So far as the unfortunate incident on 20th January, 2008 is

concerned, it is the case of the prosecution that the deceased was

administered poison by her husband in tea which he had made and

served to her.

5. In support of these allegations, the prosecution had filed the

challan against Rajiv the husband of the deceased, arrayed before us

as respondent no.1; his father Shri Ram Dhan, his mother Smt. Brahmo

Devi (respondent no.2 herein) and another relative Ms. Anita. On the

basis of the material on record, charge was framed under Section

Crl.L.P. No.303/2012 Page No.2 498A/34 IPC against the respondent no.1 and his parents. A further

charge was framed under Section 302 of the IPC against the

respondent no.1, husband. Vide an order dated 28th August, 2009,

Anita was discharged in the case. Shri Ram Dhan, father-in-law of the

deceased died on 4th July, 2011 and proceedings against him abated.

6. The respondents had pleaded not guilty and claimed trial. In

support of the case, the prosecution has examined 23 witnesses in all.

7. We may first examine the case of the prosecution to bring home

the charge under Section 498-A of the IPC.

8. It is trite that to attract the provision of Section 498-A of the IPC,

there must be willful conduct of the husband or any of his relatives 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 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 relating to her to meet

such demand.

9. So far as the two demands are concerned, the prosecution has

relied on the testimony of PW 1 Azad Singh (brother-in-law of the

father of the deceased) who had stated that after the marriage of

deceased, her father-Satya Narain, had visited his house one day and

informed him that her in-laws were harassing her for dowry and he

Crl.L.P. No.303/2012 Page No.3 (Satya Narain) requested for help from him. PW 1 has stated that he

had given Rs.30,000/- to fulfill the demand. In his testimony, the

witness was unable to give any particulars of the date nor did he state

that the accused persons had raised demand of a scooter.

10. PW 20 Shri Satya Narain (the father of the deceased) deposed

that the demand of scooter was made in the year 2007 and that he

had sent the amount of Rs.30,000/- to the respondent no.1 through his

nephew. PW 20, however, does not state anywhere that he had

borrowed this amount from PW 1 Azad Singh.

The mother of the deceased PW 10 Smt. Dhanpati made no

allegation at all that the respondents/accused persons had made a

demand of two wheeler scooter or that an amount of Rs.30,000/- was

borrowed by her husband and sent to the accused Rajiv through his

nephew PW 5 Ashok Kumar. PW 10 was declared hostile by the

prosecution and she was cross-examined by the APP for the State. In

her cross-examination, she admitted the suggestion of the prosecutor

to the effect that such a demand had been made and the amount was

arranged by her husband and sent to the respondent no.1. However,

in her cross-examination by the defence, she testified that the amount

of Rs.30,000/- was borrowed by PW 5 Ashok Kumar from her brother-

in-law and was handed over to accused Rajiv. The witness also stated

that PW 5 Ashok Kumar had not visited their house at that time and

Crl.L.P. No.303/2012 Page No.4 that they had not seen the money borrowed by him.

This testimony of PW 10 is in contradiction to evidence of PW 1

Azad Singh as well as that of PW 20 Satya Narain.

11. We find that the learned Trial Court has carefully examined the

evidence on this allegation and has noted that PW 5 Ashok Kumar has

neither stated that the amount of Rs.30,000/- was taken by him from

PW 1 Azad Singh nor that he was given the amount by PW 20 Satya

Narain. He also did not make any statement that he had given an

amount of Rs.30,000/- to the respondent no.1 at the instance of PW 20

Satya Narain or that the deceased was harassed by his in-laws since

after one month of his marriage. Several material contradictions in the

testimonies of the witness on the allegation of the demand,

arrangement of the amount as well as the manner of its payment have

been noticed. While PW 11 brother of the deceased stated that she

was being harassed within one and a half months of marriage, her

father PW 20 stated that the demand for the scooter was made only in

2007. The learned trial court has, therefore, rightly disbelieved the

allegation that there was a demand of scooter or the payment of the

amount of Rs.30,000/-.

12. The second allegation with regard to demands leveled against

the respondents is that of the demand of Rs.1,40,000/- by the

respondent No.1. On this issue, PW 10-the mother of the deceased has

testified that this amount was demanded by the respondent no.1 four

Crl.L.P. No.303/2012 Page No.5 or five months prior to the death of the deceased and that such

amount was paid to them by her elder son Jai Bhagwan to PW 20

(father of the deceased). But PW 20 Shri Satya Narain has deposed

that he withdrew the said amount from his bank account in the month

of July, 2007 and had handed over the amount of Rs.1,40,000/- to the

respondent no.1 in his house. PW 20 makes no reference to a

payment by Jai Bhagwan. The prosecution has also proved on the

other hand the bank statement of Satbir Singh in Allahabad Bank in

Rohad Branch, Jhajjar, Haryana reflecting a withdrawal of an amount

of Rs.1,40,000/- on 17th December, 2007.

On the same issue, the brother of the deceased PW 11 Harish

Chander has testified that the accused person made a demand of

Rs.1,50,000/- which amount was arranged by his brother Jai Bhagwan

and withdrawn from his bank account in the Allahabad Bank, Rohad

Branch, District Jhajjar, Haryana. PW 11 has further stated that this

amount was given to the accused 15/20 days before the death of his

sister.

13. The above narration would clearly show that there was a

contradiction not only with regard to the person who had made a

demand but also of the amount demanded. The evidence of the

mother (PW 10) and brother (PW 11) of the deceased are in material

contradiction to the evidence of her father (PW 20) so far as the

arrangement of the amount and the manner of payment is concerned.

Crl.L.P. No.303/2012 Page No.6 The learned Trial Judge has also noticed that none of the witnesses has

testified that the deceased was harassed by the accused persons on

the issue of such a demand. It has also been observed by the learned

Trial Judge that PW 20 Satya Narain-father of the deceased had stated

that such demand was raised by the respondent no.1 for starting some

business and held that therefore there was no dowry demand. The

witnesses give no date of either the payment of the amount. Their

testimony contradicts each other in manner of arrangement of the

amount as well as its payment. Casting doubt, therefore, over the

amount of the withdrawal, from the bank being payment to the

respondents.

14. As noticed above, in the instant case, the prosecution submits

that there is no credible evidence to prove on record that the

respondents had made any demand or that there was such willful

conduct or harassment which could drive her to commit suicide or was

likely to cause any grave injury or danger to life, limb or health on

account of unlawful demand of dowry or on account of non-fulfilment

of such a demand. The findings of the learned Trial Judge are based

on evidence and sound reasoning.

15. So far as the allegation of harassment is concerned, whereas PW

11 Harish Chander, brother of the deceased stated that her

harassment commenced after one and a half months of the marriage,

PW 20 Satya Narain father of the deceased stated that the demand of

Crl.L.P. No.303/2012 Page No.7 scooter was raised only in the year 2007 and no allegation has been

made for the period prior thereto. PW 10 mother of the deceased is

silent on this issue. In this background, the conclusion of the learned

Trial Judge to the effect that the deceased was being harassed by the

accused persons on account of non-fulfilment of the demands, was not

established by a cogent evidence, cannot be faulted.

16. The finding in the judgment of the learned Trial Judge to the

effect that the prosecution had failed to lead evidence to bring home

charge under Section 498-A and therefore under Section 304-B of the

IPC, therefore, is unassailable.

17. It is now necessary to examine the charge under Section 302 of

the IPC for which the respondent no.1 stood trial. PW 11 Harish

Chander, brother of the deceased has claimed that he had received a

phone call from his sister Rekha that she had been poisoned by her

husband whereupon he proceeded to her matrimonial house along with

PW 5 Ashok Kumar and removed her from her house to the hospital

where she was declared brought dead. It is inexplicable that PW 11

Harish Chander did not lodge any report with the police with regard to

the alleged telephone call received by him or the death of his sister.

Instead, a typed written complaint was lodged only the next day i.e.

21st January, 2008. The defence had urged at great length that this was

lodged more than twenty four hours after the incident. No explanation

has been tendered for the delay.

Crl.L.P. No.303/2012 Page No.8

18. So far as the incident on 20th January, 2009 is concerned, Mr.

Rajesh Mahajan, learned Additional Standing Counsel for the State has

submitted that the learned Trial Judge has disbelieved the statement

by PW 11 Harish Chander to the effect that the deceased had given

any call to him. In this regard, the learned Trial Judge had found

contradiction in his first statement recorded by the police of PW 11 at

Police Station Bahadurgarh, District Jhajjar, Haryana which is Exh.PW

22/B-1 dated 20th January, 2008 and the formal complaint dated 21st

January, 2008 whereupon the FIR was registered. In the initial

complaint, Exh.PW 22/B-1, PW 11 stated that his sister had called him

and told that her husband had given her poison and asked him to come

fast. No mention is made therein with regard to the presence of the

daughter of the deceased at the time of poison being administered in

the finding of any poisonous substance or other at the spot. There is

no allegation of dowry harassment in Exh.PW 22/B-1. The prosecution

also did not bring Exh.PW 22/B-1 on record and the same was brought

on record only during the cross-examination of PW 22. The learned

Judge has noted that the prosecution has failed to connect the phone

calls. In his written complaint Exh.PW 11/A, PW 11 Harish Chander has

attributed a statement allegedly made by the respondent no.1 while

escaping as related by the deceased in her phone call.

Crl.L.P. No.303/2012 Page No.9

19. The learned Trial Judge had noticed that there was material

improvement over the statement made under Section 161 of the

Cr.P.C. on 22nd January, 2008.

20. So far as the poisoning of the deceased is concerned, the

prosecution has claimed that the daughter of the deceased PW 9 Nishu

had witnessed the incident. The statement of this child was recorded

for the first time on 22nd January, 2008. We have been taken through

the testimony of PW 9 Nishu by Mr. Rajesh Mahajan, learned Additional

Standing Counsel. At the time of her examination, the child was eight

years of age and the child appeared to be staying with the parents of

the deceased. In her examination-in-chief, she stated that her father

used to give beating to her mother Rekha whenever her mother asked

money for clothes. So far as the incident in question is concerned, the

child had stated that her father had given poison in tea to her mother.

The witness was unable to tell the month or the year of incident. In

her cross-examination, the child stated that food in the house was

always prepared by her mother. She categorically stated that on the

fateful day, the tea was also prepared by her mother. PW 9 Nishu

unambiguously stated that the tea was served to her father by her

mother and that her mother had taken tea on her own while a cup of

milk was served to the child by her mother. In this background, there

is no evidence to the effect that the respondent no.1 had administered

poison in tea to the deceased Rekha.

Crl.L.P. No.303/2012 Page No.10

21. A cloud is cast on the statement attributed to the deceased by

PW 11 Harish Chander from the other evidence which has been

brought on record. The evidence brought on record shows that it was

not a single call from the house of the deceased to the phone of the

PW 11 Harish Chander. On the contrary, two calls were received on

the landline number 65850427 installed in the house of the deceased

from the mobile number of PW 11 Harish Chander at 10:02:53 hours

and 10:03:53 hours which lasted for 39 and 25 seconds respectively.

Thereafter, there are also two phone calls made from the said

landline number to PW 11 Harish Chander 's phone number which are

of the duration of 25 seconds and 9 seconds respectively at 9:33:58

hours and 09.35:31 hours.

No evidence has been led by the prosecution as to what was the

nature of these calls and who had made or attended these calls at the

house of the deceased. According to PW 11 Harish Chander, the

deceased had told him at 9:00 a.m. that her husband had run away

after giving her poison. It is the case of the prosecution that parents of

the respondent no.1 had left the house on previous evening.

Thereafter, as per the case of the prosecution, there was none at the

house of the deceased after 9.00 a.m. So far as her daughter is

concerned, she would have been about six years of age and makes no

reference to any phone calls at all.

Crl.L.P. No.303/2012 Page No.11

22. The prosecution has placed reliance on the recovery of three

packets of Sulphas in the house of the deceased. However, as per the

evidence on record and deposition of PW 22 SI Jogender Kumar, these

packets were in original sealed condition and were exhibited as Exh.P-

3. No opened packet was recovered. Therefore, this seizure would

also not impact the adjudication of the case.

23. The defence has suggested that the deceased was depressed as

one of her brothers Shri Jai Bhagwan whom she was deeply attached,

had been shot dead.

24. PW 22 has deposed that he had visited the house of the

deceased on 20th January, 2008 and had seized a mess tin in which the

tea had been prepared and contained a milk like liquid, one spoon, a

steel glass which appeared to have been used for milk; a white cup

with a design of flower which appeared to have been used for serving

the tea; tea sieve, steel bowl containing tea leaves from the courtyard.

The seizure memo in this regard has been exhibited as Exh.PW 14/B.

The same was also sent to the forensic science laboratory for chemical

examination. PW 14 Constable Dharamvir also lifted a sample of vomit

and a mess tin containing milky while liquid from the courtyard of the

premises vide exh.PW 14/A on the 20th January, 2008.

The FSL Report dated 14th March, 2008 shows that the items

seized were one metallic pan having some brown coloured dried

material; one metallic tumbler having some dirty stains; one printed

Crl.L.P. No.303/2012 Page No.12 white coloured cup having some brown coloured dried material; one

metallic bowl having some brown coloured dried material; one red

coloured plastic sieve having some brown dried material, one spoon

having some dirty stains milky white colour powder in a plastic bottle

with green lid and parcel no.4 consisted of dirty colour liquid in a glass

vial.

25. The case of the prosecution appears to be that the deceased was

administered poison or Sulphas in tea prepared by and given to her by

the respondent no.1. In this regard, PW 2 Dr. Parvinder Singh who had

conducted the post-mortem on the dead body of the deceased,

testified in his cross-examination that only a Forensic Science

Laboratory expert could tell whether the poison found in the body of

the deceased was mixed up with the food, tea or any other substance.

The forensic laboratory report Exh.PW 19/A has reported that Exh. 1B -

the pieces of viscera i.e. pieces of liver, spleen and kidney and Exh. IC

i.e. cherry red colour liquid were found to contain "Aluminum

Phosphide".

26. The FSL report therefore does not support the prosecution that

there was any poison in the vessels in the tea which was consumed by

the deceased.

27. No evidence was led by the prosecution of the forensic expert

with regard to the manner in which the poison was administered to the

deceased. The prosecution also failed to send any samples of milk or

Crl.L.P. No.303/2012 Page No.13 tea from the spot to the laboratory for testing. No finger print was

lifted from the spot to prove the presence of the accused at the spot

when the tea was allegedly prepared and consumed by the deceased.

28. In this background, the learned Trial Judge has held that the

prosecution has failed to establish that the respondent no.1

administered poison to the deceased. As per Exh.PW 19/A, no metallic

poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids,

barbiturates, tranquilizers and insecticides could be detected on any of

the utensils used for or containing tea.

29. The above discussion would show that a wholly implausible case

that the respondent no.1 administered poisonous tea in the presence

of his daughter, has been set up in the instant case. There is no legal

evidence of any dispute between the parties either on the fateful day

or immediately proceeding the same. There is also no evidence on

record of use of any force, violence or compulsion in administering the

poisoned tea. It is difficult to accept the proposition laid before the

court that any wife would consume poisoned tea when handed over to

her by her husband without protest or objection in the presence of

their daughter.

The findings of the learned Trial Judge and conclusion that the

prosecution has failed to bring home the charge under Section

302/304-B IPC against the respondent no.1 are based on a sound

evaluation of the evidence produced on record and is based on well

Crl.L.P. No.303/2012 Page No.14 settled principles of law. The same has not been faulted on any legally

tenable grounds.

30. In the light of the above discussion, we see no merit in this

petition which is hereby dismissed.

(GITA MITTAL) JUDGE

(J.R. MIDHA) JUDGE AUGUST 23, 2012 aa-f

Crl.L.P. No.303/2012 Page No.15