State (NCT of Delhi-II) v. Suresh

3. After completion of the investigation, the accused was charged with committing the crime; he denied any guilt and claimed trial. The prosecution relied I on the testimony of 13 witnesses, and also on several material exhibits. After considering all of thes_e, and the parties' submissions, the Trial Court concluded that the evidence led was insufficient to convict the accused; he was therefore, acquitted of all charges.

4. The Additional Public Prosecutor argued that the Trial Court fell into error in concluding that the prosecution had not been able to establish the accused's guilt ' beyond reasonable doubt. In this regard it was submitted that the deceased expired within seyen years of her marriage, in her matrimonial home and the circumstances of her death were highly unnatural. Having regard to these facts, the accused owed an explanation as to the manner and circumstances of his wife's death, by virtue of Section 113-B of the Indian Evidence Act. The accused was unable to explain how the death occmTed. The APP contented that disclosure of facts, during the course. of investigation even if recorded by supplementary statement would not in any manner detract from eyewitnesses account if it was otherwise probable. In this regard it was submitted that the deceased's relatives, particularly her parents were so traumatised that many important and material facts could not be mentioned by them to the Sub-divisional Magistrate, when the latter recorded the statement at the time of the occuiTence, i.e., when their daughter died. The Trial Court however fell into error in holding that these later and subsequent statements amounted to improvement of material facts, thus injecting uncertainty and untrustworthiness to such witnesses' depositions during the trial. It was argued that the Trial Court should have seen that even though the deceased went back to apparent alone for some time, nevertheless at the time of death, she was in her matrimonial home. Moreover, the Post-Mortem report revealed external and internal injuries which Crl.L.P.269/2011 Page 3 could not be explained by the accused, even when he was afforded an occasion to do so, under Section 313 Criminal Procedure Code.

5. By the impugned judgment, the Trial Court noticed that so far as the demand for dowry was concerned, the prosecution evidence was conflicting. PW-1 Sh. Ram Dass in his evidence deposed that whenever his daughter used to go· to their house she used to complain that Suresh used to demand a motorcycle, and she was beaten by him; he however did not state those facts to the SDM, since he was disturbed. Similarly, PW-10 Smt. Ram Katori Devi the mother of the deceased in cross-examination stated that due to shock, she could not tell about the demand for motorcycle, to the SDM. The Trial Court noticed that she also made an improvement in her testimony, when she stated that she had told the SDM that accused Suresh had threatened to kill her daught~r and would go to jail in case his demand of motorcycle was not fulfilled; she was confronted with her previous statement Ex. PW-8/A, where that fact was not mentioned.

6. We have noticed (as the Trial Court did, in its judgment) that in the statements of PW-1 and his wife PW-10 Ex. PW-1/A and Ex. PW-8/A) dated 28.06.2006 i.e., immediately after the incident there was not even a whisper about any demand for dowry or harassment consequent ~o it; neither was there a mention of a demand for a motorcycle. The witnesses's explanation that they were traumatised, is reasonable. Yet what the Trial Court found disturbing was that the statements of both the witnesses were identically worded. The court held and we fully agree with this view- that ((It is difficult believe that both ofthem missed.this important allegations regarding the conduct ofthe accused Suresh with regard to demand ofdowry being demanded from them, which resulted in the death oftheir daughter." The deceased's brother PW-6, had mentioned her (his sister's) illtreatment by his brother-in-law, on account of insufficient dowry being given to Crl.L.P.269/2011 Page 4 her. ·He deposed that this was recorded by the SDM. However that was not the case and his testimony was an improvement from th,e previous statement recorded during the investigation which merely identified the dead body (Ex. PW-6/A). The Trial Court noticed, significantly, that when the request for inquest was made ~Ex. PW-8/C) at the time of conducting inquest proceedings of the deceased, PW-6 Ravinder was present. Therefore, it reasoned that his statement would have been recorded, about insufficient dowry, and harassment, if indeed it had been made. The Trial Comt fmther held that: "28. Further, manner in which the SDM had recorded the statements ofthe witnesses also does not inspire any confidence, as PW-8 Vijay Dogra the concerned SDM had admitted in his cross examination that he had not recorded the statewtent of Ram Dass and Ram Katori Devi and the same were recorded on his instructions. }fe also admitted that at the time of recording the statements of Ram Dass and Ram Katori Devi, their son Ravinder was also present. lle did not recorded the statement ofRavinder and both the state1nents were recorded by some constable and he does not remember the name of the constable, and he also admitted that it was correct that statement of Ram Dass and Ram Katori Devi were same, though, he denied the suggestion that the written statements ofRam Dass and Ram Katori were produced before him by the police officials and he had signed the s~me and directed the SIIO to register the case.

29. This testimony of SDM that the statements were recorded by some constable are contradicted by the testimony of the initial !0 PW 11 Sf Bhagwat Prasad, who had admitted in his cross examination that he was scriber ofEx. PW 6/A, Ex. PW1/B, Ex. PW 7/A, Ex. PW11/B. EX PW 1/A and bx. PW 8/A. Ex.

PW IIA is the statement offather ofdeceased and Ex. PW8/A is the statement ofSmt. Ram Katori mother ofthe deceased, who has appeared as PW 10. This shows that the aforesaid statements had been got recorded by the SDM in a most pwfunct manner, as they very purpose of getting the statements recorded, through SDM was to ensure independent, investigation is carried out in such cases ofalleged dowry death, so that the police should not be able to fudge the investigations. Consequently, this act ofSDM in getting the statements recorded through the police officials and Crl.L.P.269/2011 Page 5 that too by the initial 10, who was interested in the investigations(s) ofthe present case, is not proper and PW 11 SI Bhagwat Prasad has also admitted in his cross-examination that he had not told the SDM that dictation with regard to recording ofstatement ofRam Katori Devi PW 10, should not be given to him, as he was deputed to investigate DD No. 16A. lie also stated that briefhistory was reduced into writing after recording the. statement ofRam Katon· and Ram Dass. In the said brief history Ex. P. W 11/B there is no mention regarding, recording ofstatements ofRam Katori PW 10 and Ram Dass PW 1, and that Ravinder PW 6 S/o Ram Dass, was also present at the time of recording of the statements of his parents. fie stated that SDM had also recorded the staten'lent of Ravinder, but in the same breach he later on stated that he does not remember whether his statement was recorded or not. These facts cumulatively establish that the alfegations made by the PW 1 Ram Dass, PW 6 Ravinder and PW 10 Ram Katori with regard to demand of dowry and consequent harassment meted out by the accused in relation to the demand ofdow1y are an after though, if the said allegations were indeed true, then what stopped the afore relatives ofthe deceasedfi~om recording their statement in this regard, as discussed above. There is not a single whisper in the statement ofPW[1] Ram Dass and PW 10 Ram Katori Devi, with regard to demand ofdowry and consequent harassment by the accused in relation to that for not meeting the demand of dowry by them. Despite the presence of PW 6 Ravinder before the SDM, which has been admitted by the SDM and also by the initial 10 Sl Bhagwat Prasad (PWJJ), which is also proved by the documentary evidence, as discussed above, yet no statement of his was recorded by the SDM immediately, which would have been the best evidence in this case, to prove the demand ofdowry. The later statement recorded by the police U/s 161 Cr.

30. Since to make out a case Uls 498A !PC, the prosecution had to prove either one, that there was a reasonable nexus between the cruelty and suicide or second, that the harassment of the deceased was with a view to coerce her or any person re!ated to her to meet the unlawful demand ofany property or valuable security or was on account offailure by her or any person related to her to meet the said demand. "

7. So far as the charge of murder was concerned, the post-mortem examination revealed that the stomach of the deceased contained traces of insecticide poisoning in the form of organo sulphate; the initial report stated that the cause of death was due to such poisoning. However in a later report, it was stated that the body also.. showed cerebral damage produced by blunt force impact independently and collectively sufficient to cause death in the ordinary course of nature. The doctor's subsequent opinion was Ex. PW 3/B. The prosecution had urged before the Trial Court that since the accused admitted that he was present in the premises at the time of death, he owed an explanation and that since he did not offer any reasonable explanation, it must be presumed that he was guilty of committing murder. The accused, on the other hand urged that the cause of death was insecticide poisoning, the deceased for reasons known to her consumed the deaqly substance which led to her demise. It is urgent that having regard to the totality of Crl.L.P.269/2011 Page 7 circumstances, since she fell down, the cause for the injury on her head was apparent. The Trial Court observed this:

34. In this case, the accused in his statement Uls 313 Cr. PC has taken a defence that he has innocent and was falsely implicated in this case and on

27. 06. 06 i.e. the date of incident, he had taken dinner fi"om the hotel and came back to his house and when in the morning he woke up, he found his wife vomiting, thereafte4r he went to the doctor Rajender, who was residing in Narela and told about the condition of his wife, but he stated that he would not be able to accompany him, therefore, he went to another doctor, who after diagnosing his wife told him that his wife was dead. ·

35. Though, the aforesaid defence enunciated in the statement of the accused Uls 313 Cr. P. C. has not been proved by the accused, as no witness has been brought in the witness box namely Dr. Rajender or any other doctor who could depose that on 27.06.06 the accused had visited hiln complaining about the illness of his wife or that the accused had come to hiln stating that his 'wife was not well. Jlowever, it is settled proposition of law that the prosecution has to prove its case beyond all shadows ofdoubt, and it is enough for the accused to probablise his defence, and if on the probative scale the accused is able to show that his defence was having high probative value then accused is liable to be acquitted.

36. The postmortem report discussed above proved by PW[3] Dr. Upender Kishore supports two hypothesis, one is that either the deceased and accused had quarreled with each other and there therecifier accused caused the injuries on her head and thereafter the deceased in a fit of rage consumed insecticide, as it is almost impossible/difficult for anyone to administer such a pungent smelling insecticide to any person against her will and consumption ofsuch insecticide is inconsistent with the finding of homicide and is consistent with the finding of suicide. Further, as per postmortem report Ex. PW 3/A, no undigested.food or material was found in the stomach of the deceased and stomach was only found to contain a yellowish liquid wzeasuring 200 Ml. Consequently, the same rules out, the administration ofthe insecticide mixed in some sweet substance orfood. The second hypothesis which arises fi·om the postmortem report is, that the deceased had consumed insecticide after a quarrel with the accused or otherwise, and thereafter she accidently sustained injury due to falling, as autopsy expert PW 3 Dr. Upender Kishore has also stated in his crossexamination that the said injury was possible by striking against the hard Crl.L.P.269/2011 Page 8 I;o wall or falling on the floor, as after taking such insecticide/ poison, ones looses sensorium, and experiences disorientation and vertigo.

37. In any case, no external injury in the shape of hameotoma was.observed on the scalp/ head ofthe deceased, consequently, the head injury sustained by the deceased to have been caused by some weapon is ruled out, as ifshe would have been hit by some weapon on the head, then there would have been a definite external injury on the head.

38. In this case,· in view of the aforesaid analysis of the report of the autopsy surgeon and that of chem.ical examiner, as discussed above, two views arise and it is settled law that it two views are possible from the appreciation/ analysis ofevidence, then one which is found favourable to the accused has to be preferred, in the present case, the prosecution has failed to execute this second hypothesis of the innocence of the accused and displace it by some positive evidence regarding the culpability of the accused having caused the death ofthe deceased Angoori Devi. "