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Lekh Ram & Anr vs State Of Delhi on 23 March, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 247/2002
Reserved on: 8th March, 2018
Decided on: 23rd March, 2018

LEKH RAM ANR …..Appellants
Through: Mr. R.N. Mittal, Sr. Adv with
Ms. Inderjeet Sidhu (DHCLSC) and
Mr. Manoj Kumar, Advs

versus

STATE OF DELHI ….Respondent
Through: Ms. Kusum Dhalla, APP for the State
Insp. Arvind Kumar, PS Jaffar Kalan

CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA
JUDGMENT

%
Dr. S. Muralidhar, J.:

1. This appeal is directed against the judgment dated 11 th March 2002 passed
by the learned Additional Sessions Judge, New Delhi in Sessions Case
No.190/1999 arising out of FIR No.93/1999 at Police Station („PS‟) Jaffar
Pur Kalan convicting both the Appellants for the offences under Sections
498A and 304B IPC. The appeal is also directed against the order on
sentence dated 19th March 2002 whereby, for the offence under Section
304B IPC, both the Appellants were sentenced to undergo imprisonment for
life and, for the offence under Section 498A IPC, to undergo imprisonment
for three years and fine of Rs.10,000/- each. Both the sentences were

Crl.A.247/2002 Page 1 of 30
directed to run concurrently.

The charges

2. The Appellant No.1 in this appeal is Lekh Ram (A-1) and Appellant No.2
is his son, Parambir (A-2). Both A-1 and A-2 were charged along with the
co-accused Karan Singh and Darshna (both proclaimed offenders (POs) at
the relevant time) with subjecting Promila (the deceased) between
9th March 1999 and 11th July 1999 to cruelty and thereby committing an
offence punishable under Section 498A read with Section 34 IPC.

3. The second charge was that on 11th July 1999, A-1 and A-2 along with the
aforementioned co-accused subjected Promila to cruelty and harassment in
furtherance of their common intention soon before her death and then
committed her dowry death punishable under Section 304B read with
Section 34 IPC. An alternative charge was that A-1 and A-2 along with the
co-accused committed her murder thereby committing an offence punishable
under Section 302 read with Section 34 IPC.

Background

4. The background facts are that Lekh Ram (A-1) was employed with the
Delhi Police at the relevant time. His son, Parambir (A-2), was looking after
the agricultural activities at Village Karkari. A-2 got married to the deceased
on 9th March 1999.

5. According to the prosecution, whenever the deceased visited her parental
house after marriage, she disclosed to her mother, Satyawati (PW-4), that
she was being beaten by her in-laws and harassed for a Maruti car to be
brought for them. The prosecution case is that on 11th July 1999, Nitin (PW-

Crl.A.247/2002 Page 2 of 30

7), the cousin of the deceased and a nephew of PW-4, had gone to the
matrimonial house of the deceased. The deceased is supposed to have told
PW-7 that A-1, A-2 and her Jeth (Karan Singh) and Jethani (Darshna) were
harassing her and were beating her for not bringing a Maruti car.

6. At around 3:30 pm, PW-7 went to the house of PW-4 and told her about
the complaint made by the deceased. At 8 pm on that very day, PW-4
received a call from Karan Singh stating that the condition of the deceased
was serious and that she should immediately reach Palam where an aunt of
A-2 lived. PW-4 then gathered her relatives and all of them went to Palam in
two cars. They reached around 12:00-12:30 am in the night, i.e. the early
hours of 12th July 1999. There they found Karan Singh standing at the Palam
Chowk. They followed his car to the village and upon reaching there they
found that a Maruti car was standing outside the house of aunt of A-2 and
behind it was a PCR van. When PW-4 opened the door of the Maruti Car,
she found the dead body of her daughter lying in the back seat.

7. At around 12.40 am on 12th July 1999 a message was received at PS
Dwarka that a call had been made by a person stating that the body of his
sister who had died under suspicious circumstances was lying in a Maruti
car in Palam village. On receiving this message Head Constable (HC) Amar
Singh (PW-8) of PS Dwarka along with Constable (Ct.) Bhoop Singh
reached Palam village. There he found the deceased lying dead in the rear
seat of the Maruti car. The car and the body of the deceased were both then
taken to the Dwarka PS. Since the matter related to PS Jafarpur Kalan, a
message was sent to the said PS by wireless. PW-8 stated that when he

Crl.A.247/2002 Page 3 of 30
reached the spot he found the two accused, Karan Singh, and Darshna
present there. He also saw Baljeet (PW-3) the uncle of the deceased, Kulbir
(PW-6) and her grandfather Ganga Ram (PW-5).

8. At around 2:17 am in the morning of 12th July 1999 a message was
received at PS Jafar Pur Kalan from the PCR that in Palam Village in a car,
the sister of the caller was lying dead. The name of the deceased was
disclosed as Promila, daughter of Inderjeet (PW-2), who was married 3-4
years ago to A-2; that at around 8 pm, A-2 had reached his house and found
his wife lying dead under the charpai and when she was taken to the
Janakpuri Hospital, she was declared brought dead and, thereafter, they took
her to his aunt‟s place at Palam Village. The above information was noted
down as DD No.6A (Ex.PW-16/A) and entrusted to S.I. Madan Lal (PW-16)
who was attached to PS Jaffar Pur Kalan.

9. Accompanied by Constable Mukesh Kumar and Constable Anand
Swaroop, PW-16 proceeded to Palam Chowk. He learnt that the dead body
has been removed to PS Dwarka by the police. On reaching there, PW-16
found the dead body in the Maruti car standing at PS Dwarka. Head
Constable Amar Singh (PW-8) gave PW-16 a DD entry and seizure memo
concerning the dead body.

10. PW-16 tried contacting the Sub-Divisional Magistrate („SDM‟) and in
the meanwhile, sent the dead body to the mortuary. At around 7:00 pm,
PW-16 was able to speak to the SDM and explain to him the circumstances.
The SDM purportedly asked PW-16 to come at 11:00 am the following day
at his Kapasahera office with the relatives of the deceased. PW-16 then

Crl.A.247/2002 Page 4 of 30
proceeded to Village Karkari and checked the bedroom of the deceased and
took into possession her marriage photograph. The place was also got
photographed.

Post mortem

11. Meanwhile, on 13th July 1999, the post mortem of the deceased was
conducted by Dr. Ashok Jaiswal (PW-1). The alleged history was one of
found dead “in suspicious circumstances” on 11th July 1999 at 8:00 pm with
injuries on the neck. The body was 5‟1″ in height. There were as many as
seven external injuries. As far as the internal examination was concerned,
there was a bruising of strap muscle of neck in front of either side with focal
haemorrhages on both sides trachea and the right sub-mendibular region.
There was a fracture of the right horn of the hyoid bone with blood at
fractured end. An examination of the abdomen and pelvis revealed that the
deceased was carrying a three-and-a-half-month old male foetus.

12. The opinion of PW-1 was that the six abrasion injuries were suggestive
of application of pressure over the neck structure, manual strangulation
while injuries 7 and 8 were defence wounds possibly sustained during the
process of application of pressure over neck. Death was due to asphyxia
consequent upon manual strangulation. It is opined that the pressure of the
neck was sufficient to cause death in the ordinary course of nature. The time
since death was estimated to be about 40 hours.

Statement of PW-4 before the SDM

13. In the meanwhile, the mother of the deceased, PW-4 and the other
relatives reached the SDM‟s office. The SDM then recorded the statements

Crl.A.247/2002 Page 5 of 30
of PW-4 (Ex.PW-4/A). In this statement which was recorded at 1:30 pm on
12th July 1999, she stated that when PW-7 visited her daughter in her
maternal home on 11th July 1999, her daughter disclosed to PW-7 that A-1
and A-2 along with Karan Singh and Darshna were harassing her for a
Maruti car to be brought for them. Even earlier, her daughter had disclosed
to her that she was being harassed by the said people for dowry.

14. At 8:00 pm on the previous day, i.e. 11th July 1999, Karan Singh had
informed her that her daughter‟s condition was serious and that she should
immediately reach to Palam Village. When they went there they found the
dead body of the deceased lying in the rear of a Maruti car and that the
police had already reached there. Thereafter, the dead body along with the
Maruti car was taken to the PS Dwarka. She further stated that after
murdering her daughter, the accused were roaming around with her dead
body in the car without taking her to any hospital.

15. The SDM then asked her for the details about when the marriage had
taken place. She replied stating that the marriage had taken place on
9th March 1999. She further added that when the deceased visited her, she
disclosed that A-1, A-2 and her jeth and jethani were harassing her for
bringing a Maruti Car. She further added that on 20 th June 1999, Karan
Singh had come and threatened her and was in an angry mood. When asked
whether she wanted to say anything, she said she was confident that the four
accused persons had murdered her daughter.

Investigation

16. Thereafter, an FIR was registered. At the mortuary, the particulars

Crl.A.247/2002 Page 6 of 30
handed over to PW-16 were three parcels and one sample seal containing
clothes, viscera and blood samples of the deceased. At around 11:30 pm on
30th July, 1999, A-1 and A-2 were arrested near their house at Village
Karkari Village. However, they could not locate the other two accused, that
is, Karan Singh and his wife Darshna. A-2 is stated to have given a
disclosure statement (Ex.PW-16/G). The investigation was then handed over
by PW-16 to Inspector Rajesh Kumar (PW-12), the Additional SHO of PS
Jafar Pur Kalan.

17. Proceedings under Section 82 and 83 of Cr.P.C. were initiated against
Karan Singh and Darshna. At the end of the investigation, a charge sheet
was filed against A-1, A-2 and the other two absconding accused and vide
order dated 15th March, 2000 charges were framed as noted hereinbefore.
On behalf of the prosecution, 16 witnesses were examined.

Statement of A-1 under Section 313 Cr PC

18. The defence of the accused requires to be referred at some length. In his
statement under Section 313 Cr.P.C., while denying the incriminating
circumstances put against him, A-1 stated that on 11th July 1999, Nitin (PW-

7) had come to give an invitation as Sagai of his sister was to take place on
18th July, 1999. He specifically denied that any of the accused had
pressurized the deceased into bringing a Maruti Car. He claimed that he had
left for his duty at 6:00 pm on 11th July, 1999. He, however, stated that when
he left home for duty, the deceased was alright. At that time Sukhchain,
Babloo @ Naresh and his grand-daughter Laxmi were also at home with the
deceased. He did not know what happened thereafter.

Crl.A.247/2002 Page 7 of 30

19. When asked why A-2 had not taken the deceased to a Government
hospital, A-1 replied “my son must have been told that Nursing home was
better than Govt. hospital”. When asked why they did not inform the police
themselves about the death of the deceased, he replied “we were waiting for
the relatives of Promila to arrival. Thereafter only police would have been
informed”.

20. Question No.34 was whether he could say who had strangulated the
deceased in his house and when and why. His answer was as under:-

“As far as I know Sukh Chain and Naresh had committed this
murder. My grand-daughter had seen them entering the house.
As told to me by my grand-daughter both of them have been
taking rounds of our house till Promila came back from field
and they entered into the house after Promila came back from
the field. It is they who have committed the murder.”

21. When asked whether he had anything else to say, A-1 stated as under:-

“There was no dispute or quarrel between my family and family
of Promila prior to 11th July. I had received information about
Promila when I was on duty. My daughter‟s Dewar had come
to me and informed me that something has happened to Promila
and she had been taken to Nursing home and he told me to
reach home at earliest. I came home after seeking permission.”

Statement of A-2 under Section 313 Cr PC

22. Turning now to A-2, while he too denied many of the incriminating
circumstances, Question No.36 was whether he had anything to say about
PW-7 having come to meet the deceased at her matrimonial home on 11 th
July 1999. A-2 stated as under:

“It is incorrect that he had come to meet Promila. He had come
to invite me and I accompanied him to his Bua‟s house at

Crl.A.247/2002 Page 8 of 30
Ghuman Hera and then I left him at Najafgarh. He had stayed
for about 5-10 minutes”

23. A-2 admitted as correct that on 11th July, 1999 at around 8:30 pm, PW-
10 had seen A-2 bring the deceased in his hands in an almost unconscious
condition and that A-2 asked PW-10 to bring a car. A-2 stated “It is correct
that I had asked for a car but I had asked it from Krishan brother of
Vajinder. I put Promila in the car along with me and my Tai Bhani and my
bhabhi Darshana accompanied me. Vajinder was driving the car.”

24. A-2 also admitted as correct that he had gone to four nursing homes
including the Gupta Nursing Home and Khanna Nursing Home and that his
father A-1 had come on his own to the house of the aunt of A-2 and that
Mukesh, the younger brother of Karan Singh had informed A-1. He also
agreed that Baljeet (PW-3), the uncle of the deceased, PW-4 and the grand-
father of the deceased and an aunt of PW-3 had come to the Palam Village
and had found the deceased lying in the rear seat of the Maruti car.

25. When asked why he did not tell anything to the relatives of the deceased
as to what happened to her, A-2 said “I did not tell because I myself was not
knowing as to what had happened to her.” A-2 also admitted as correct that
the accused had not informed the police about the death of the deceased and
that the phone call was made from the house of the son of his aunt.

26. A-2 was specifically asked about having taken her to various nursing
homes. A-2 stated “I do not know what has happened to her in my home
necessitating her removal to Nursing home. However some neighbour had
told me that I should remove her to Nursing home immediately.” When

Crl.A.247/2002 Page 9 of 30
asked why he did not take her to a Government Hospital, A-2 stated that it
was because “they are not good hospital and they did not treat the people.”
On his not informing the police, he stated “I did not know as to what had
happened to Promila, so I had not given information to the police.”

27. When asked whether he had anything else to say, A-2 stated as under:

“I was coming from fields to my house at about 6.40 pm when
Promila met me on the way. She was carrying cow-dung and
was going to the field. She told me that my father had left for
duty. When I reached home my niece was playing in the house.
I untied the buffalo and took them for bathing and water. My
Bhabhi was already bathing the buffalo as I tied my buffalos
there. I gave bath to buffalo after my bhabhi finished and then
came back at home at about 8 or 8:15 pm I tied buffalo and
when went to the room the T.V. was on high volume. When I
went inside the room I found Promila lying on the floor. When I
shook her she did not speak. She had about 15 days back suffer
a hysterical attack. I went to my bhabi house running. My
bhabhi accompanied me. 2-4 women were standing in the Gali
including my Tai. On their enquiry my Bhabhi told that
something had happened to Promila. My Tai also accompanied
us and they advised that Promila should to taken some doctor.
In the meantime one Madan a compounder living in our village
came. He felt the pulse of Promila, and advised that Promila
should be taken to Nursing home immediately. In the meantime
my brother Karan Singh came there. He went in search of car
but could not find it. In the meantime I saw Krishan and told
him to bring a car.”

Defence evidence

28. On behalf of the defence, five witnesses were examined. Phool Singh
(DW-1) had a shop at the crossing in the village from where DTC and
Private buses went towards Najafgarh and Bijwasan. A-1 would come to his
shop on a scooter leave it there and then take the bus to go to work. A-1

Crl.A.247/2002 Page 10 of 30
was, in fact, attached to Zebra-17 PCR Van in which A-1 went from the
South-West Zone to Palam. According to PW-1, even on 11th July, 1999, A-
1 came on his scooter to his shop. His cross-examination by the APP did not
shake his basic testimony that even on 11 th July, 1999, A-1 had left his
scooter at the shop and then proceeded to work on a bus.

29. DW-2 was Jai Karan who spoke about meeting A-1 between 6:30 and
7:00 pm on the scooter at bus stop in the village. DW-2 was coming from
the fields from the opposite direction and when he inquired from A-1 as to
where he was going, A-1 replied that he was going on duty and thereafter
continued on the scooter towards the bus stop. In his cross-examination,
DW-2 stated that he had gone to the local PS but they had asked him to
approach the Court.

30. Surjan was examined as DW-3. He stated that on the day of the incident,
he heard the sound of Scooter starting and asked his grandson who it was.
He was told by his son that it was A-1 going on his duty. DW-3 claimed that
he saw the deceased going towards the fields at around 6-6:30 pm. He
noticed her coming back from the fields with a Tasala full of sand and that
she was going back to her house at around 6-6:30 pm.

31. Laxmi (DW-4) is the daughter of Karan Singh and was around 12 years
at the time of her examination. In her examination-in-chief she inter alia
stated as under:-

“On the date of incident my grandfather Lakh Ram was on
duty. He had left the house between 6:30 and 7:00 pm. When
he left the house I was with my aunt deceased. When my
grandfather left their house at that time two boys had come in
Crl.A.247/2002 Page 11 of 30
our house to take cassette since they had told this fact to my
grandfather Lekh Ram. When my grandfather left they were at
home. I was told by my grandfather to remain with my Aunt
(deceased) since my uncle was in the field for giving watering
the field. My Chachi told me that she had prepared rice and I
should eat rice. After serving my rice my Chachi went for
throwing cow dung and those two boys also left with my
Chachi. Thereafter my chachi came after about 15-20 minutes,
and those two boys also came along with her. During the
absence of my Chachi I was at house of my Chachi.”

32. DW-4 continued as under:-

“After my Chachi came back and those two boys also came
back. My Chachi told me to go to my home and I went to my
home and she told me that if I told about them then she would
beat me. It was around 8:15 pm at that time. In my
neighbourhood one, Tayee (aunt) she had told me to bring
vegetable and I went to vegetable. After some time my Chacha
crying Bhabhi Bhabhi Promila is unconscious. Then my mother
went to house of my Chachi. Thereafter I do not know
anything. My statement was recorded after two months, which
I had signed Ex. DW4/A bears my signatures at Point A.”

33. In her cross-examination by the learned APP, she stated as under:-

“Our house where we live separately is quite far off from house
of my Chacha. It takes 5-10 minutes in reaching there and we
were living there for 9-10 months prior to the incident. Now I
am living with by Bua. I do not know where my parents are. I
have not seen them for last three years. We are five brothers
and sisters. Two are younger to me and two are elder to me.
The one younger to me stays with me and next one stays with
my other Bua. I am student of VI class. I do not know the name
of school. It is in village Mahipal Pur. While I was living in
Village Karkari then also I was going to school. It was Nagar
Nigam Primary School. I took admission in Mahipal Pur School
in V Class and now I am in VI class. I took admission about—
years ago. The house no. of my Bua 1995 I do not know name

Crl.A.247/2002 Page 12 of 30
of my Bua It takes about half-an-hour from my Bua‟s house to
the __My elder brother lives with some other relatives. I do not
know where he lives. My sister had left the school. I had
started studying in V Class when this incident took place in
Village Kharkhari Rond. My school timing was from 8 to 1 or 9
to 2 pm. It was Sunday on the date of incident. I had come
alone to my Chacha‟s house in the evening. When I went there
apart from my grandfather and Chachi no one else was there.”

34. In answer to the Court question, she added as under:-

“The two boys who had come had said Namaste etc. to my
Dada Lekh Ram. Thereafter, after enquiry my Dada (Lekh
Ram) had told Chachi as to why they had come. My Chachi
told that they had come to take cassette. My dada thereafter had
stayed only for 3-4 minutes since I went out to ply outside. I do
not know what he said to my Chachi. I had started playing with
other children of Mohalla. I cannot tell the names of the
children with whom I was playing. I played only for 3-4
minutes then came back. When I came back after playing after
3-4 minutes my dada was still at home. I had not seen those two
persons prior to that day. Nor I had seen them at any time after
that day. My dada was also not knowing them when he had
talked to them. They had told my dada that one was from
Ghumanhera and other was from Dichaun. My aunt had served
them tea. My aunt left for throwing cow dung within 5-10
minutes of my dada‟s leaving the house. When my grandfather
left them my aunt had put water on gas for preparing tea. I do
not know whether only those two persons took tea or my aunt
took tea. I was served meals at that very place where those two
persons had taken tea. It had taken hardly 6-7 minutes in
preparation of tea and taking of tea by/those persons. I was still
taking rice when Chachi had left with those two persons. I do
not know whether my Chachi had searched for the cassette or
not nor my Chachi had said that she would search for the
cassette.”

35. The further question and answers during her cross-examination was as

Crl.A.247/2002 Page 13 of 30
under:-

“Q: When your aunt left the house after how much time she
came back.

Ans: The witness first stated 15 minutes, then thought and
stated it must have taken half an hour.

I cannot say that if one has to start from house of my Chachi
then to go our house in the plot then pick up Gobar and then go
to fields for throwing Gobar wash and come back it will take
one hour.

Ans: I cannot say.

My aunt (Chachi) had come back to house around 7:30 pm. I do
not remember when she had left. I do not know on what
conveyance, cycle, scooter those boys had come, as no vehicles
can stand in the Gali. Those boys had stayed for half an hour
after they had come back with Chachi from the field. At that
time I was at that very home with Chachi and both two boys.
They did not speak for half an hour and just keep on sitting and
watching T.V. I do not know which play was going on T.V.
My Chachi was also watching TV and nobody talked with
anybody. Since I had heard when they talked to my dada about
the place where from they had come I did not ask them
anything. Neither those two boys asked me anything about the
Class in which I study. My Chachi did not search for any
cassette during half an hour. Neither my statement Ex. PW4/A
was read over to me nor I had myself read this statement. Police
told me to sign the statement and I signed this statement. My
father had come back from his duty at between 9:30 and 9 pm.
When I had reached the house from house of my Chachi, my
father had not come back when my chachi had come to my
house stating that his wife was unconscious even at that time
my father had not come back. I did not go to house of my
Chachi after hearing this news. Nobody restrained me from
going there as mummy already gone there. None of my brother
sister had gone there. I do not know if anybody from my

Crl.A.247/2002 Page 14 of 30
neighbourhood had gone there.”

36. In her further cross-examination, she added as under:-

“It is wrong to say that my chachi had not given rice to me nor
she threatened me that she would beat me if I told anything
about the boys to anyone. It is wrong that I made statement in
the court at the instance of accd. Persons at their tutoring. It is
wrong that earlier also I had made statement to the police us
tutored.”

37. At this stage, it requires to be noticed that Karan Singh and Darshna
were subsequently tried separately and both of them were acquitted by the
trial Court by a judgment dated 7th April, 2010.

38. HC Naresh Kumar was examined as DW-5. This witness, as already
noticed, was attached to the Zebra 17 PCR Van of South-West Zone. He
stated that on 11th July, 1999, he gave charge of the Zebra 17 PCR Van to A-

1. He brought the original register which had the relevant entry (Ex.DW-
5/A). This witness was not seriously challenged by the APP.

39. Mr. P.K. Bhardwaj, Deputy Director, Ministry of Home Affairs was next
examined as DW-6. He brought with him the report sent by the Joint
Commissioner of Police on 21st September, 1999. This was on the basis of a
complaint given by A-1 to the Commissioner of Police (Ex.DW-6/B).
Constable Krishan Kumar (DW-7) verified that he had accompanied A-1 in
the PCR Van to Palam. Vijay Kumar, Welder in the DTC (DW-5), it should
have read as DW-8 but was wrongly typed DW-5. This witness brought with
him the attendance and salary record of PW-2. This showed that PW-2 was
very much in the rolls of the DTC from June, 1999 to June, 2000.

Crl.A.247/2002 Page 15 of 30

Impugned judgment of the trial Court

40. In the impugned judgment, the learned trial Court came to the following
conclusions:

(i) The deceased must have been killed around 6-6:30 pm in the house of
the A-1 and A-2. The accused persons must have spent around 1 and
half hours in taking the body of the deceased to different places and
finally to Palam Village.

(ii) A deliberate attempt had been made to mislead the police by stating
that the deceased had been married to A-2 3-4 years ago when she had
been married only four months ago.

(iii) The investigating officer („IO‟) had not bothered to collect evidence
from the house where the deceased was killed in Karkari.

(iv) It was surprising that A-2 who had taken his wife to various nursing
homes did not inform the police in time about the incident.

(v) A-2 had deliberately removed the body of the deceased from
Kharkhari Rond to Palam in a car so that the entire attention was on
dead body of Promila in Palam Village.

(vi) The IO did not bother to go to the house of the accused in Kharkhari
Road and did not collect further evidence about involvement of this
accused in this crime. It seems that a kind of sympathy was working
in the mind of IO for accused persons since Lekh Ram (A-1) was in
police.

(vii) The trial Court referred to the inquiry into the complaint made by A-2
and the DCP. After inquiry, it came to the conclusion that DW-4
(Laxmi) was a tutored witness. The two boys Sukhchain Babloo @
Naresh had not come to the house of the accused but came only on

Crl.A.247/2002 Page 16 of 30
17th November, 1999 at around 5:30 pm

(viii) The entire conduct of A-1 and A-2 made it abundantly clear that after
killing the deceased for their greed of dowry wanted to hush up the
matter and wanted to mislead the investigation.

(ix) In all the three defence witnesses, it was attempted to give the time of
return of deceased between 6 to 6:30 pm. The post mortem report
nevertheless showed that death had taken place either at 7:30 pm itself
or even two hours earlier.

(x) The deceased was killed inside the house when both A-1 and A-2
were present. A-1 asked the A-2 to take the body of the deceased to
nursing homes although she was already dead. This was to confuse
the timing of the killing of the deceased. The only reason of their not
taking the deceased to the Government Hospital immediately was to
confuse the timing of the killing and show that A-1 was on duty.

(xi) The testimonies of PWs 3, 4 and 5 were about their reaching Palam
Village after hearing the news of Promila having been strangulated.
The trial Court concluded that since there were several injuries on the
body of the deceased, she obviously put up a struggle. Consequently,
both accused were held guilty of the aforementioned offences and
sentenced in the manner indicated hereinabove.

Offence under Section 304 B IPC

41. One of the first issues to be addressed is whether it can be said that the
prosecution has proved beyond reasonable doubt whether soon before her
death, the deceased was subjected to cruelty. There is a common ingredient
in both Section 498A IPC and Section 304B IPC. Section 304B (1) lists out

Crl.A.247/2002 Page 17 of 30
the following conditions that are required to be fulfilled for the offences of
„dowry death‟:-

(i) The death of the women should occur otherwise then under normal
circumstances,

(ii) It should be within seven years of her marriage and

(iii) It has to be shown that soon before her death, she was subjected to
cruelty or harassment by her husband or any relative of her husband,

(iv) Was in connection with any demand for dowry.

42. As far as Section 498A is concerned, it has to be shown that the
deceased woman was subjected by the husband or the relative of the
husband to cruelty. The explanation to Section 498A defines cruelty under
Clause (b) as “harassment of the women whether 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 related to her to meet such demand”.

43. In the present case, the post mortem report confirms that death was by
strangulation and, therefore, it was under unnatural circumstances. The
death occurred within four months of the marriage. Therefore, the condition
of death having occurred within 7 years of marriage is also fulfilled.

44. The third and most important ingredient is that she should have been
subjected to cruel harassment „soon before her death‟. The period of four
months itself being soon after her marriage, it can be safely concluded that
period as such should satisfy the requirements of soon before her death.

Crl.A.247/2002 Page 18 of 30

45. The only question, therefore, that remains as far as Section 304B IPC is
concerned, is whether she was subject to cruelty or harassment by A2, that
is, her husband and his family members which in this case is A-1.

46. At this juncture, it should be noticed that the presumption that is
attracted for the purpose of Section 113B of the Indian Evidence Act („IEA‟)
also requires the prosecution to first show that soon before her death, the
deceased was subjected to cruelty or harassment for or in connection with
any demand for dowry. Only if this condition is satisfied, will there be a
presumption that the person who has subjected her to such cruelty or
harassment has caused the dowry death.

47. The evidence in relation to cruelty and harassment of the deceased has
come through two witnesses, i.e. her mother (PW-4) and her cousin brother
(PW-7).

Evidence of PW-7

48. The Court would first like to discuss the evidence of PW-7, since it is he
who met the deceased on the date of her death. It is seen that statement of
Nitin (PW-7) under Section 161 Cr.P.C. was recorded only on 14 th July,
1999 whereas he was there throughout. By this time, the statement of PW-4
had already been recorded by the SDM. The challenge to the statement of
Nitin by the accused is that he had come there not as a casual visitor but to
invite her in-laws for the Sagai ceremony of his sister.

49. However, in his cross-examination Nitin denied this. His statement was
“I had gone on 11.07.1999 to house of my sister in the day, in order to meet

Crl.A.247/2002 Page 19 of 30
her. I had no other work.” He denied that anyone had left him at the bus
stop from Promila‟s house. He stated “I have two real sisters. None of these
two sisters were married prior to 11.07.1999 nor their Sagai had taken place.
One of my sister‟s Sagai had taken about 2-3 months back on 19th. The
talks of Sagai of that sister were not going on during those days. It is
incorrect to say that I had gone to invite Promila for the Sagai ceremony. I
had gone to her just to meet her. It is incorrect that on 11.07.1999, I had
accompanied Paramvir to the house of Bablu”.

50. This is totally contradicted by PW-4 herself when she states in her cross-
examination that “It is correct that Nitin had gone to invite Promila on the
Sagai ceremony of Baljit‟s daughter. Sagai had to take place at our own
house as entire family is a joint family and therefore there was no question
of giving me invitation however Sagai not taken place because before Sagai
could take place, Promila was killed on 11.07.99 on the day when Nitin had
gone to extend the invitation of Sagai. Bablu is my nephew. He is also
called Naresh. (Naresh is my husband‟s sister son). I do not know if on
11.07.99 Nitin and Paramvir had gone to Ghumanhera. Paramvir had not
come to our house on that day.”

51. These are entirely contradictory versions coming from two PWs. It is
interesting that the depositions of both PWs7 and 10 were recorded on the
same day, that is, 15th March, 2001. This throws serious doubts on what
actually transpired when Nitin went to meet Promila on 11th July, 1999. The
entire story of the demand for the Maruti Car and deceased being subjected
to harassment at the hands of the accused on 11 th July, 1999 has been spoken

Crl.A.247/2002 Page 20 of 30
to only by Nitin.

52. The denial by PW-7 that he was not dropped by anyone is contradicted
by what A-2 himself states in the following words
“On that day I had started water pump in my field. I had come at my
house at about 10 am for taking meal. When Nitin came, Nitin invited
me and Promila on 18th to attend sagai ceremony of his sister. He
talked to my father also. He took tea etc. and then told me to leave
him at his bua‟s house. After leaving Nitin at Najafgarh I went to my
field and again started the water pump. My father went to field at
about 4-4:30 pm. After telling me that I should bring buffalo etc. at
home as he went to house as he has to go to duty.”

53. There is an aspect of the testimony of PW-7 which makes him an
untrustworthy witness. He went to great lengths to deny that a sagai
ceremony of his sister was taking place and he had gone to the matrimonial
house of the deceased to extend an invite for that ceremony. It is clear from
the evidence of PW-4 that it is for the above purpose he went to the
matrimonial house of the deceased.

Evidence of PW-4

54. If the evidence of PW-7 is kept out of reckoning then we only have the
testimony/evidence of PW-4 herself. In her examination-in-chief, she says
that after marriage, the deceased used to visit her house and state that she
was being harassed by her husband, A-2 and father-in-law, A-1 as well as
Jeth, Karan Singh and Jethani, Darshna “for bringing a Maruti Car from her
parents”. She further states that whenever she came home, the deceased
used to tell PW-4 that she was beaten by her in-laws and harassed for a
Maruti Car. The statement of PW-4 was not recorded till 1:30 pm by the
SDM on the following day, that is, 12th July, 1999. This was despite the fact

Crl.A.247/2002 Page 21 of 30
that the police had already been made aware of the death of the deceased at
12:30 am and all of them were available for their statements to be recorded.
The delay in this context in recording the statement and registering the FIR
is indeed significant.

55. The delay in registering the FIR might not be fatal if the circumstances
are otherwise not suspicious. But in the context in which the PWs have
spoken about the deceased being subjected to harassment, this delay
assumes significance. In her cross-examination, PW-4 states that there was a
middle man in the marriage of the deceased, that is, Ghisa Ram who was
father-in-law of the nand of PW-4. PW-4 states that she had told the said
Ghisa Ram about the demand of Maruti Car yet Ghisa Ram was never
examined as a prosecution witness.

56. There were several improvements made by PW-4 in the Court which
were confronted to her by showing her the statement made to the SDM
(Ex.PW-4/A). What she had not mentioned to the SDM, which she had
spoken to in the Court were as follows:-

(a) That deceased was subjected to beatings,
(b) That Nitin had come to her after meeting Promila about 3 or 3:30 pm
when in fact such time was not recorded,
(c) That Nitin had told her about the accused beating the deceased. What

was told by Nitin to her only that they were harassing her.

(d) About A-1 telling her that they had finished off the deceased and that
the police could not harm him.

(e) That the PCR people did not allow her to make a call to the police

Crl.A.247/2002 Page 22 of 30
from the PCR Van.

(f) She mentioned that her husband, Inderjeet (PW-2) had taken sanyas,
that is, he had renounced the world even prior to the marriage of the
deceased.

57. In light of the above improvements and inconsistencies, the Court is not
entirely satisfied that it‟s safe to draw a conclusion as to the guilt of A-1 and
A-2 on the basis of the above evidence of PW-4. She is a related witness and
her testimony requires careful scrutiny. In other words PW-4 does not give
an assurance to the Court that she is truthful and reliable.

58. It has been rightly pointed out by Mr. R.N. Mittal, learned Senior
Counsel appearing for the accused that the other witnesses did not mention
about PW-4 telling them that the deceased was being subjected to
harassment by the accused. Vijender (PW-10) mentioned that A-2 was on
visiting terms. Baljeet (PW-3) stated that when the deceased used to come to
his house after marriage, she used to say that she was being harassed for
dowry. He was, confronted with his previous statement where it was not
recorded that she had told him about the demand of Maruti Car. Again in the
case of this witness, his statement under Section 161 Cr PC was recorded
only on 14th July, 1999. There is merit in the contention of learned Senior
Counsel for the accused that if indeed there was harassment of the deceased
for dowry, some complaint ought to have been made by PWs 3 and 4.

59. The Court has been shown the record of the trial that separately took
place qua the two absconding accused, that is, Karan Singh and Darshana
which ended in their acquittal. There, PW-4 has deposed as PW-9. Her

Crl.A.247/2002 Page 23 of 30
statement there is “My daughter is married with Paramvir on 09.03.1999 as
per Hindu rites and ceremonies. She remained happily in her matrimonial
house for about 4 months and then started complaining that her husband,
father-in-law, jeth and jethani used to harass her for demand of Maruti Car.
She used to tell her that in case the car is not given, he would be married
again.” In that trial, Kulvir Singh was examined as PW-10 where he said,
“the factum of harassment and torture of the deceased was not discussed or
brought to my knowledge.” In the circumstances, the question arises
whether the allegations made qua these two accused are specific enough to
constitute harassment soon before the marriage.

60. It is argued by Mr. Mittal that the allegation as to harassment had to be
specific. In this context, reference may be made first to the decision in
Salamat Ali v. State of Bihar AIR 1995 SC 1863 where it was held that
there had to be clear and cogent evidence of harassment and not mere vague
allegations. Again in Surinder Kaur v. State of Haryana AIR 2004 SC 1747
the Supreme Court held that if the allegations were not specific, but general
in nature, the accused would be entitled to the benefit of doubt. In Sunil
Dutt Sharma v. State (Govt. of NCT of Delhi) (2014) 4 SCC 375 the
presumption in the context of Section 304B IPC was explained as under:

“So long there is credible evidence of cruelty occasioned by
demand(s) for dowry, any unnatural death of a woman within
seven years of her marriage makes the husband or a relative of
the husband of such woman liable for the offence of “dowry
death” under Section 304-B though there may not be any direct
involvement of the husband or such relative with the death in
question. In a situation where commission of an offence is held
to be proved by means of a legal presumption the circumstances
surrounding the crime to determine the presence of aggravating

Crl.A.247/2002 Page 24 of 30
circumstances (crime test) may not be readily forthcoming
unlike a case where there is evidence of overt criminal acts
establishing the direct involvement of the accused with the
crime to enable the Court to come to specific conclusions with
regard to the barbarous or depraved nature of the crime
committed.”

61. In light of the above legal position, and applying it to the facts on hand,
the Court is not satisfied that the prosecution has been able to prove that
soon before her death, the deceased was subjected to harassment and cruelty
by A-1 and A-2. The only instance to show harassment is the demand for a
Maruti car. But we have only the self serving statements of PWs 3 and 4 in
this regard. No witness actually talks of this demand for a Maruti car except
PW-4 and that too by saying that PW-7 told her about it. But then the
evidence of PW-7 himself is of doubtful veracity. PW-4 too does not inspire
confidence. Further, as rightly pointed out by Mr. Mittal, the allegations for
the purpose of harassment for dowry have to be specific. Here they are
general and sweeping. If they had been so severe that would have strained
the relations between the families. In those circumstances, it appears
unlikely that PW-7 would be going to the matrimonial house of the deceased
to invite them for his sister‟s sagai. The Court is therefore of the view that
the prosecution has not been able to prove beyond reasonable doubt the key
ingredient of both Sections 498 A and 304 B IPC viz., that soon before her
death the deceased was subjected to cruelty and harassment by A-1 and A-2.

Rebuttable presumption

62. For invoking the presumption under Section 113B, IEA which is
rebuttable, the prosecution has to show in the first place that soon before her

Crl.A.247/2002 Page 25 of 30
death the deceased was subjected to harassment and cruelty. Even if one
were to go by the depositions of PWs 3 and 4 for the purpose of attracting
the presumption under Section 113 B IEA, this was a case where the
accused have sought to rebut the presumption. The accused have in the first
place relied upon a complaint given by A-1 on 25th August, 1999 to the
Commissioner of Police which is fairly elaborate. Inter alia it was stated in
this complaint that there were two persons who were seen by A-1 roaming in
the area even as he left for duty at 6:30 pm to attend to his office at 8:00 pm
at Vasant Kunj, one was Babloo @ Naresh and the other was Sukhchain. It
was stated that the fact that A-1 had left the house before the occurrence
could be verified by examining his grand-daughter Laxmi who was present
with the deceased shortly before the crime. He pointed out that the deceased
had asked Laxmi, the minor child to go to her house and not to disclose
about the presence of the two persons who were with the deceased.
According to Lekh Ram, these two persons could have only been Babloo
and Sukhchain.

63. This complaint was inquired into by the Joint Commissioner of Police,
Southern Range, Delhi who submitted a report dated 21 st September, 1999.
In the said report, he states inter alia, notes:

“Two boys, namely, Naresh and Sukhchain have also been examined
and local inquiries made revealed that the two young boys were seen
only asking address of Lekh Ram around 5:30 pm on 17.11.1999 (it
ought to be as 11.07.1999) stating that the deceased was their cousin
sister. They had gone to her house in the presence of Lekh Ram to
collect the photo album of the marriage of Naresh Kumar @ Babloo
Pehlwan. They left only after 10-15 minutes leaving behind Lekh
Ram and Promila, the deceased at their house. They did not notice
anything adverse during this visit and did not suspect anything. The

Crl.A.247/2002 Page 26 of 30
allegation that minor grand-daughter of accused Lekh Ram was
examined during investigation is not true as parents of the minor girl
named Laxmi are reportedly absconding along with the children and
proceedings under Section 81 and 82 are initiated against them.
Though Sh.Jai Karan, nephew of Lekh Ram produced Laxmi during
the vigilance inquiry who made her statement supporting a part of
Lekh Ram‟s statement, but she was found a tutored witness to save
her parents and grand-father.”

64. The report concluded by stating that A-1 had filed the complaint “to
build up his defence. They have found no any substance in his
allegation/piece. From autopsy report there is a clear case of murder and
there is a pressing dowry demand also.”

65. The above report actually bears out the main thrust of the complaint viz.,
at around 5.30 pm there was a visit by Babloo and Sukhchain to the
matrimonial house of the deceased. This could not have been brushed aside
as a false plea. The non-examination of these two persons by the prosecution
raises grave doubts since they could have provided the vital link in the chain
of circumstances. They may have thrown light on the prevailing atmosphere
at the matrimonial house of the deceased since this was around the time of
her unnatural death. This was in fact the time immediately before her death.
The post mortem report shows that the death would have occurred any time
between 5:30 pm and 7:30 pm. The prosecution has no answer for this lapse.

66. It is in the above context that the evidence of DW-4 assumes
significance. Her cross-examination has been referred to earlier. She appears
to have withstood it and has stuck by her version of the events. Her
testimony to the effect that she saw Babloo and Sukhchain at the house of

Crl.A.247/2002 Page 27 of 30
her chacha A-1 at around 5.30 pm introduces a different element into the
narrative. This required a deeper investigation by the police.

67. Then we have the other defence witnesses who have shown that Lekh
Ram in fact left his house at around 6:30 pm to reach his place of work at
Vasant Kunj at 8 pm. It cannot be said that A-1 has made no effort to prove
his alibi. The presence of A-2 at the home prior to 8 pm has also not been
proved convincingly by the prosecution. The defence evidence and to some
extent even the prosecution evidence shows that A-2 probably did not return
from the field till 8 pm. He was shown holding the body of the deceased
soon after 8 pm as spoken to by PW-10 and PW-11. The Court is not
entirely convinced that the prosecution has been able to eliminate the
possibility of someone else being present in the house, other than A-1 and
A-2, at around the time of death of the deceased.

68. The fact that the deceased was taken to several hospitals does raise some
questions about the conduct of A-2. But he appears to have a reasonable
explanation why he chose to go to private nursing homes instead of a
government hospital.

69. As far as the impugned judgment of the trial Court is concerned, it is
seen that there is hardly any discussion of the defence evidence and the
impact it has on the case of the prosecution. Also the untrustworthy nature
of the evidence of PWs 4 and 7 has been overlooked. Further, the trial Court
paid no attention to the alternative charge under Section 302/34 IPC.

70. The result of the above discussion is that the prosecution having failed to

Crl.A.247/2002 Page 28 of 30
prove beyond reasonable doubt that soon before her death, the deceased was
subject to cruelty and harassment by the two accused, they are acquitted of
the offences under Sections 498 A and 304 B IPC.

Alternative charge under Section 302 IPC

71. The question that next arises is whether the evidence on record is
sufficient to bring home the guilt of the accused for the offence under
Section 302/34 IPC? Although the alternate charge for the above offence
was framed by the trial Court, the investigation in the present case was not
conducted on those lines at all. Further, even the evidence led by the
prosecution was only towards proving the main charges under Sections 498
A and 304 B IPC and not for the alternative charge under Section 302/34
IPC.

72. The option of remanding the case to the trial Court for a fresh trial on the
alternate charge does not appeal to this Court. In the first place, the incident
in question occurred nearly two decades ago. Secondly, the prosecution has
not been able to gather evidence to prove the entire chain of circumstances
as has been noted hereinbefore. Thirdly, as far as A-2 is concerned, he has
already served more than 9 years and 8 months in prison. As far as A-1 is
concerned, he was in custody for more than 5 years even on 11 th March,
2005. Ultimately, he was granted bail after completing imprisonment of
around 6 years on 26th October, 2005. He is stated to be now well over 80
years old. In the circumstances, to send the case back for a fresh trial on the
alternate charge would not be in the interests of justice.

73. In Vijay Pal Singh v. State of Uttarakhand (2014) 15 SCC 163 the

Crl.A.247/2002 Page 29 of 30
Supreme Court on the facts of that case had to examine whether the High
Court after finding that the accused had murdered the deceased was justified
in convicting them only for the offence under Section 304 B IPC. It was
observed: “though this case could have been dealt with under Section 302 of
IPC, at this distance of time and in view of the lack of evidence on the chain
of circumstances, it will not be proper for this Court to proceed
under Section 302 of IPC for enhancement of punishment.”

Conclusion

74. The Appellants are acquitted of the offences under Sections 498 A and
304 B IPC. The impugned judgment and order on sentence of the trial court
are hereby set aside. The bail bonds and surety bonds of the two Appellants
stand discharged. Both Appellants will fulfil the requirements of Section
437A Cr PC to the satisfaction of the trial Court at the earliest.

75. The appeal is accordingly allowed. The trial court record be returned
forthwith together with a certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

MARCH 23, 2018
‘anb’

Crl.A.247/2002 Page 30 of 30

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