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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 26th July, 2019
Judgment pronounced on: 20 November, 2019
+ CRL.A. 549/2013
SALEK RAM ….. Appellant
Through: Mr. K.P. Mavi and Mr. B.P. Mishra,
Advocates
versus
STATE GOVT. OF NCT OF DELHI ORS. ….. Respondents
Through: Ms. Radhika Kolluru, APP for the
State along with SI Arvind Kumar
and Inspector Vipin Sharma, SHO,
P.S. New Usmanpur.
Mr. Ramesh Gupta, Sr. Advocate
with Mr. Bharat Sharma, Advocate
with R-2 to R-7
CORAM:
HON’BLE MR. JUSTICE G.S.SISTANI
HON’BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J.
1. This is an appeal under Section 372 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) against the
judgment dated 22.12.2012 passed by the learned Trial Court in
Sessions Case No. 92/2012, arising out of FIR No.113/2002, Police
Station New Usmanpur, filed by the brother of the deceased by virtue
of which the respondents No.2 to 7 herein stand acquitted for the
offence punishable under Sections 304-B/498-A/406/302/201/34 of
the Indian Penal Code (hereinafter referred to as ‘IPC’).
Crl.A.No.549/2013 Page 1 of 52
2. Before the rival submissions of the learned counsel for the parties can
be considered, we deem it appropriate to notice the case of the
prosecution, which is reproduced as under:
“2. As per the prosecution, the deceased Poonam was
married to accused Pramod S/o Rakam Singh as per Hindu Rites
and ceremonies on 16.02.2002 in which expenses of about 8 to
10 Lakhs were incurred and handsome dowry articles were given
by the side of the girl but on 21.02.2002 when Salek Ram (the
brother of deceased Poonam) alongwith his cousin Jagbir Singh
and Inder Singh came to the matrimonial house of Poonam (the
deceased), they were insulted by the accused persons while
raising demand of Rs. Five Lakhs cash, one Honda City Car and
one Kilo gold and they brought the deceased Poonam to her
parental house. However on 16.03.2002, deceased Poonam was
sent to her matrimonial house but on 18.03.2002 she rang that
she was being beaten by the accused persons while reiterating
their earlier dowry demand on which she was again brought
back to her parental house on 20.03.2002. At that time, the
accused persons had asked the brother of deceased to fulfil their
demands, otherwise her sister would continue to be harassed and
she would continue to be harassed and she would also be
defamed. Then on 03.05.2002, the accused Pramod
telephonically informed Salek Ram that the mother of accused
Pramod (co-accused Rajo) was seriously ill. Then on 04.05.2002
at 7.00 a.m. again accused Pramod gave a phone call to Salek
Ram that his mother was seriously ill and he was coming to take
Poonam back on the same day and at 9.00 a.m., he came to the
house of Salek Ram and took the deceased Poonam from her
parental house at about 10.00 a.m. on the false plea of illness of
his mother but at about 3.30 to 4.00 p.m., a telephonic
information was received at complainant house that “Tumahari
Behan Poonam Ko Mar Diya Hai”. Meanwhile at about 1.21
p.m., an information vide DD No.25B was recorded at PS New
Usmanpur that one person was apprehended near Wazirabad
Road, Puntun Pul while burring a lady in a “pit”. On receipt of
said DD, IO SI Shiv Nath (since retired) alongwith Ct. Ved Pal
reached at Village Gadi Maindu Yamuna Khader Forest near
Puntun Pul, where they met Beat Ct. Anil Mishra, IO SI Rajesh
Sehrawat, Ct. Anil, Ct. Mohd. Nazim and Ct. Ram Pal of Traffic
Police. Three forest officers namely Satbir S/o Jaipal, Satbir S/o
Kishan Lal Satpal were also found present there. TrafficCrl.A.No.549/2013 Page 2 of 52
Police officials produced one person (whose name was
subsequently disclosed as Pramod) before SI Shiv Nath and they
also informed that the injured was already taken to Trauma
Centre, Civil Line by PCR Van. Then while leaving Ct. Anil
Mishra at the spot to preserve the place of incident and accused
Pramod, SI Shiv Nath alongwith Ct. Ved Pal went to Trauma
Centre, Civil Lines, where the MLC of injured lady (aged about
19-20 years) was collected and she was declared brought dead
by the doctors. No eye witness was found at Trauma Centre.
Then he left Ct. Ved Pal at Trauma Centre to look after the dead
body and himself came back to the spot where the statement of
Satbir S/o Jaipal was recorded wherein he made allegations that
the accused Pramod had committed the murder of said lady and
buried her in the pit. The signature of said Satbir was obtained
at point A. Then while making the endorsement on the said
statement, IO prepared rukka, got the instant FIR registered at
PS New Usmanpur while sending the rukka through Ct. Anil
there. The site plan was prepared at the instance of complainant
Satbir S/o Jaipal. Crime Team Officials and photographer were
summoned at the spot. Photographer took the photographs at the
spot from different angles but no finger prints could be lifted by
the Crime Team Officials. At the spot, one spade (Fabra), one
chunni, one pair of sandal, one handkerchief and one belt were
found. They were seized and taken into police possession vide
seizure memos upon which the signatures of accused Pramod
were also obtained alongwith police officials. The accused
Pramod was interrogated and he made confession about the
incident. He was arrested and his personal search was
conducted. Before personal search, formal search of accused
was conducted in which one pair of golden colour tops, one gold
chain, one lady wrist watch make Sonata were recovered from
right side pocket of pant of accused. One sociology book and
cash amount of Rs.47/- were also recovered from the accused.
The detailed disclosure statement was also recorded wherein he
disclosed that all the said articles belonged to his wife Poonam
i.e. deceased lady. At the instance of accused Pramod one two
wheeler scooter bearing registration no.DL7S Q 7634 was
recovered from Puntun Pul Road near Tin Shed. The said
articles including scooter were also seized.”
Crl.A.No.549/2013 Page 3 of 52
3. Since the death of Poonam occurred within seven years of her
marriage, the then SDM P.C. Jain (PW23) was informed about the
occurrence. The Investigating Officer alongwith the respondent
Pramod Kumar seized articles and reached the Police Station where
the respondent Pramod Kumar was confined in lock up and all the
seized articles were deposited in the Malkhana. On 05.05.2002, SDM
recorded the statement of Salek Ram (PW1). The Investigating
Officer alongwith Insp. Anil Kumar and Salek Ram went to GTB
Hospital where inquest documents were prepared by the SDM and
upon his direction; the post-mortem was conducted. Thereafter, the
respondents Manoj, Rakam Singh and Vijay were arrested on
13.05.2002, 19.05.2002 and 21.06.2002 respectively.
4. On 16.02.2004, a charge under Sections 302/201 of IPC plus an
alternate charge under Section 304-B of IPC alongwith Sections
498-A/406/34 of IPC was framed by the learned Trial Court against
respondent No.2/Pramod Kumar. The charge under Sections
304-B/498-A/406/34 of IPC was framed against the other respondents
Manoj Kumar, Rakam Singh, Rajo Devi, Vijay Singh and Seema
Devi. All the respondents pleaded not guilty and claimed to be tried.
The prosecution examined 27 witnesses to prove their case. No
evidence was led by the respondents in their defence. The statements
of all the respondents were recorded under Section 313 of Cr.P.C.
whereby they pleaded innocence and claimed to have been falsely
implicated in the present case by the parents of deceased Poonam. It
is noteworthy to mention that respondent Pramod Kumar did not
dispute his arrest which is evident from his statement under Section
313 of Cr.P.C. more particularly, questions No. 17 and 39 put to him
which read as under:
Crl.A.No.549/2013 Page 4 of 52
“Q.17 It is in evidence against you that PW2 further stated
that belt, handkerchief, one pair of sandal and one phawara
were taken into possession by police vide seizure memo
Ex.PW2/B bearing his signature at point A. You were arrested,
interrogated and your Disclosure Statement was recorded by
the police. What have you to say?
Ans. Factum of arrest is not denied but rest is wrong.
Q.39 It is in evidence against you that PW10 further stated
that you were arrested vide arrest memo Ex.PW2/C and your
personal search was also conducted vide memo Ex.PW2/D and
during interrogation you made the Disclosure Statement
Ex.PW2/E. What have you to say?
Ans. I was apprehended by the police; however, I did not
make the Disclosure Statement Ex.PW2/E.”
5. Mr. Mavi, learned counsel for the appellant submits that the judgment
of the Trial Court is erroneous, bad in law and the Trial Court has
ignored the settled legal position in respect of offence committed
under Section 304-B of IPC. It is contended that the manner in which
the evidence has been considered by the Trial Court is patently illegal
and the judgment has led to grave miscarriage of justice. It is
submitted that the impugned judgment is manifestly unjust and
unreasonable. Mr. Mavi contends that the Trial Court has ignored the
testimonies of PW1, PW2, PW3, PW6, PW9, PW10, PW24 and PW25
and rejected their evidence on the ground that their testimonies
contain discrepancies. Counsel contends that the Trial Court has
failed to consider that the discrepancies, if any, are minor and
irrelevant and do not go to the root of the matter.
6. Mr. Mavi has strongly urged before this Court that it is immaterial that
PW9 supported the case of the prosecution in his examination-in-chief
and subsequently became a hostile witness. He further submits that
Crl.A.No.549/2013 Page 5 of 52
likewise, the case of the prosecution would remain unaffected by the
testimonies of PW2, PW3 and PW4 who did not support the case of
the prosecution, when the guilt of respondent No.2/Pramod Kumar has
been established beyond reasonable doubt through the evidence of
PWs 1, 6, 9, 10, 18, 24 25 and in view of DD No. 25B, the post-
mortem report as well as the fact that respondent No.2 was arrested at
the spot while he was burying his wife.
7. Mr. Mavi contends that the case of the prosecution also stands duly
established by the circumstantial evidence which unerringly points
towards the guilt of respondent Pramod Kuamr. It is also the
contention of the learned counsel for the appellant that the Trial Court
has committed a grave error in not appreciating the testimony of
public witnesses being PW2 and PW3. It is contended that the Trial
Court has developed an imaginary conflict in the statements of the
above mentioned public witnesses and Police witnesses i.e. PWs 2, 3,
10, 12, 25 and 24 while, in fact, there is no conflict in their respective
testimonies. The respondent Pramod Kumar has failed to give any
explanation as to what he was doing in the jungle with the body of his
wife. The evidence of PW18 Lady HC Shashi Bala shows that on the
day of occurrence, she received information from wireless operator of
a person being apprehended who was trying to bury dead body of a
woman.
8. Mr. Mavi has laboured hard to contend that the Trial Court has placed
reliance on a stray statement from the testimonies of PW1 Salek Ram
and PW9 Jagbir Singh for the purposes of rejecting their testimonies.
Counsel contends that in case the statements of PW1 and PW9 are
examined as a whole, it would leave no room for doubt that the
accused persons were continuously harassing Poonam and demanding
Crl.A.No.549/2013 Page 6 of 52
dowry and also gave merciless beatings to her. It is contended that
post the marriage, which was held on 16.02.2002, the accused persons
made a demand on 21.02.2002 of Rs.5 lakhs in cash, one Honda City
car and one kilogram of gold. Poonam had made a phone call on
18.03.2002 and informed PW1 that she was being beaten by the
family members on account of the demands not having been fulfilled.
The mediator was also informed on 19.03.2002 and she was murdered
on 04.05.2002, as the family members of Poonam could not fulfil the
dowry demands.
9. Counsel submits that the findings of the Trial Court that there was no
allegation of specific role of demand against each of the accused,
cannot be sustained in view of the statement of PW1. It is submitted
that the Trial Court has committed a grave error in acquitting all the
accused persons under Sections 498-A/406/304-B/34 IPC. It is
contended that soon after the marriage, the harassment and demand of
dowry had started. The in-laws of Poonam were unhappy with the
articles and money given in dowry, as they claimed that same were
below their expectation. The Trial Court has not examined the
testimonies of PW1 and PW9.
10. It is contended that a case under Section 304-B IPC would be squarely
made out. Mr. Mavi contends that the Trial Court has failed to apply
the law in its right perspective and has committed an error in
acquitting the accused under Section 304-B IPC on the ground that the
deceased was not subjected to cruelty/harassment soon before her
death. Mr. Mavi has contended that the expression ‘soon before her
death’ has not been defined in the IPC, neither in the Evidence Act
and the expression ‘soon before her death’ would depend upon the
facts and circumstances of each case. In the present case, Poonam
Crl.A.No.549/2013 Page 7 of 52
was murdered within 78 days of marriage. While relying on the
statement of PW1, Mr. Mavi contends that there was a constant
demand of dowry till 20.03.2002 and thereafter, the deceased was
forced to go to her parental house on several dates. On 04.05.2002,
Poonam was brought back to her matrimonial home on the ground that
respondent No.7 was seriously ill and on the same day, she was buried
in a pit by the respondent No.2 where he was caught red-handed and
arrested at the spot. Based on the provisions of Section 304-B IPC,
counsel contends that the burden would lie on respondents No.2 to 7
to explain the unnatural death of Poonam, but the Trial Court has not
followed the provisions of law and shifted the burden on the
prosecution. The details for demand of dowry have been extracted in
the testimony of PW1 who has remained firm during the cross-
examination. He is a truthful and reliable witness. The finding
returned by the Trial Court that there was no demand of any kind in
between 18.03.2002 till the date prior to death of Poonam who was
living at her parental home w.e.f. 18.03.2002, cannot be sustained.
11. Mr. Mavi has also strongly urged before this Court that the conclusion
drawn by the Trial Court is absurd having rejected the evidence of
PW10 SI Rajinder Sehrawat, PW12 HC Anil and PW25 Ram Pal on
the ground that they were on traffic duty on the day of the incident and
they did not inform their superior about their absence from the duty
when they were supposed to remain at the spot till late night. The
finding returned by the Trial Court that if a woman was recovered
from a pit at 1.00 p.m. she could not have been transferred to the
hospital within 40 minutes is absurd. The Trial Court completely lost
track of the fact that the persons had rescued a woman who was buried
alive and was unconscious when she was removed from the pit and all
Crl.A.No.549/2013 Page 8 of 52
efforts were made to save her life. It is contended that the judgment
of the Trial Court has resulted in grave miscarriage of justice. The
Trial Court has ignored the settled proposition of law and has failed to
analyse the testimonies of PW1, PW9 and the public witnesses as a
whole and thus, the order of the Trial Court is patently illegal,
unreasonable and absurd.
12. Ms. Radhika Kolluru, learned counsel appearing on behalf of the State
adopts the same argument as raised by the counsel for the complainant
Salek Ram.
13. Per contra, Mr. Ramesh Gupta, learned senior counsel appearing on
behalf of the respondents No. 2 to 7 submits that there is no infirmity
in the judgment passed by the learned Trial Court. Having regard to
the evidence on record, the Trial Court has correctly analysed the
evidence and acquitted the respondents from all the charges. Counsel
submits that the eye witness account of PW2 Satbir Singh son of
Jaipal, PW3 Satbir son of Kishan Pal and PW4 Satpal is not reliable
and trustworthy as they did not support the case of prosecution in their
cross-examination and turned hostile.
14. Learned senior counsel for the respondents submits that the
testimonies of the brothers, PW1 Salek Ram and PW9 Jagbir Singh
(real and cousin brothers), are neither trustworthy nor reliable. The
testimonies are full of improvements and contradictions, thus, it would
be highly unsafe to convict the respondents under Section 304-B/498-
A of IPC. Mr. Gupta further submits that the respondents have been
falsely implicated in the instant case. There was no harassment of the
deceased Poonam much less for the demand of dowry. While relying
on the cross-examination of PW9, being the cousin brother of the
deceased Poonam, learned senior counsel submits that PW9 had
Crl.A.No.549/2013 Page 9 of 52
admitted that there was no demand made by the respondents in his
presence. PW9 also stated that deceased Poonam was brought back
happily to her parental home.
15. Mr. Gupta further submits that the demand sought to be relied upon by
the prosecution is not only vague but also general in nature and it
lacks material particulars. There is not even a single complaint filed
by the family members of Poonam in support of the allegations made
by them. He further submits that all the family members have been
roped in. The demands are exaggerations and, thus, cannot form the
basis of conviction either under Section 498A of IPC and much less
under Section 304B of IPC.
16. It was also submitted by the learned counsel for the respondents that
the information with regard to the death of his sister Poonam was
received by PW1 on 04.05.2002 at about 3.30/4.00 PM and he reached
the Police Station at about 6/6.30 PM and 7.00 PM; however, the
instant case was registered on 05.05.2002. The counsel submits that
there has been gross unexplained delay in registering the FIR, thus,
giving ample opportunity to the family members of Poonam to cook
up exaggerated general allegations without assigning any specific role
to any family member. There is no evidence attributing any specific
demand or specific role assigned to the respondents.
17. In rejoinder, it was contended by Mr. Mavi, learned counsel for the
appellant that it is wrong to say that there was no complaint made by
the family members before PW23 (the then SDM) on the day of
occurrence as it has been recorded in the testimony of PW23 that he
had directed Police officials to produce the relatives of the deceased
on the next day i.e. 05.05.2002 for recording of their statement. With
regard to non-filing of any complaint by the family members of the
Crl.A.No.549/2013 Page 10 of 52
deceased, the counsel submits that it has also come in evidence of
PW9 Jagbir Singh that PW1 Salek Ram had asked PW9 to file a case
against the in-laws of the deceased with regard to the demand of
dowry but he dissuaded him not to file the same and assured that he
would try to resolve the matter. It was contended that in the instant
case rukka was sent within 3 hours of the incident and nobody could
have put pressure on PW2 Satbir Singh. In this background, it was
contended that there was no motive to falsely implicate all the
respondents herein and leave the real culprits scot free.
18. We have heard learned counsels for the parties, considered their rival
submissions, perused the impugned judgment rendered by the learned
Trial Court and also given our thoughtful consideration to the matter.
The case of the prosecution as summarised by the learned Trial Court
reads as under:
“i) The deceased Poonam was married to accused Pramod on
16.02.2002 as per Hindu Rites Customs.
ii) In the marriage handsome dowry was given by the parents
of deceased to the accused Pramod and his family members.
iii) The accused persons were not happy on the pretext that the
marriage was not performed according to their status and they
were harassing the victim and raising dowry demands to the
tune of Rs. Five Lakhs in cash and a Honda City Car.
iii) The brother of deceased Poonam brought her to parental
home on 20.03.2002.
iv) On 04.05.2002, the accused Pramod came to the parental
house of Poonam and took her with him on the false plea that
his mother was ill.
v) On the same day, a telephonic message received at the
house of complainant that the Poonam (the deceased) has been
killed.
Crl.A.No.549/2013 Page 11 of 52
vi) On the same day, the accused Pramod was apprehended
while burying the body of deceased Poonam in a pit.”
19. Before we deal with the rival submissions of the counsel for the
parties, we deem it appropriate to discuss the law on hostile witnesses
as we may note that some of the prosecution witnesses have turned
hostile in their cross-examination and the learned Public Prosecutor
has failed in discharging his duty as he avoided putting any question
to the prosecution witnesses, when law permits him for re-
examination.
20. The law on it is well settled that such portion of the evidence of a
hostile witness can be relied upon which is trustworthy and not as if
the entire evidence of such a witness is to be negated completely. In
the case of Selvaraj vs. State reported at (2015) 2 SCC 662, whereby
the material witnesses though supported the case of prosecution in
their examination-in-chief, however, they turned hostile in their cross-
examination. The Apex Court observed that in cases where the
witnesses take a somersault in their cross-examination, their testimony
requires to be scrutinised with great caution. The relevant para 19
reads as under:
“19. It is settled principle of law that benefit of reasonable
doubt is required to be given to the accused only if the
reasonable doubt emerges out from the evidence on record.
Merely for the reason that the witnesses have turned hostile in
their cross-examination, the testimony in examination-in-chief
cannot be outright discarded provided the same (statement in
examination-in-chief supporting prosecution) is corroborated
from the other evidence on record. In other words, if the court
finds from the two different statements made by the same
accused, only one of the two is believable, and what has been
stated in the cross-examination is false, even if the witnesses
have turned hostile, the conviction can be recorded believing
the testimony given by such witnesses in the examination-in-
Crl.A.No.549/2013 Page 12 of 52
chief. However, such evidence is required to be examined with
great caution.”
(Emphasis Supplied)
21. Section 138 of the Indian Evidence Act reads as under:
“138. Order of examinations: Witnesses shall be first
examined-in-chief, then (if the adverse party so desires) cross-
examined, then (if the party calling him so desires) re-
examined. The examination need not be confined to the facts to
which the witness testified on his examination-in-chief.
Direction of re-examination: The re-examination shall be
directed to the explanation of matters referred to in cross-
examination; and, if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may further
cross-examine upon that matter.”
22. We may profit with the view taken by the High Court of Gujarat in the
case of Laliya Bhadiyabhai Nayka vs. State of Gujarat reported at
2012 SCC Online Guj5091, wherein the Public Prosecutor who
conducted prosecution had not discharged his responsibility as he did
not put any question to the prosecution witnesses who had turned
hostile. The relevant para 18 to 21 read as under:
“18. We are of the view that after having realized that both the
witnesses-PW. 2 and PW. 7 have very cleverly introduced
statements in the cross-examination practically contradicting
in-effect what is stated in the examination-in-chief, the Public
Prosecutor ought to have re-examined both the witnesses on
material aspects. Such omission on the part of the Public
Prosecutor may lead to a very serious miscarriage of justice.
No crime could be allowed to go unpunished. To a certain
extent we also hold the trial Court responsible. It is a settled
law that it is the duty of a Presiding Judge to explore every
avenue open to him in order to discover the truth and to
advance the cause of justice. The trial Judge is invested by
Section 165 of the Evidence Act with the right to put questions
to witnesses. At this stage it would also be profitable to quote
the following observations made by the Supreme Court in theCrl.A.No.549/2013 Page 13 of 52
case of Ram Chander v. State of Haryana, (1981) 3 SCC 191 :
AIR 1981 SC 1036.
“2. The adversary system of trial being what it is, there is
an unfortunate tendency for a judge presiding over a trial
to assume the role of a referee or an umpire and to allow
the trial to develop into a contest between the prosecution
and the defence with the inevitable distortions flowing
from combative and competitive elements entering the
trial procedure. If a Criminal Court is to be an effective
instrument in dispensing justice, the presiding Judge must
cease to be a spectator and a mere recording machine.
He must become a participant in the trial by evincing
intelligent active interest by putting questions to
witnesses in order to ascertain the truth. As one of us had
occasion to say in the past:–
“Every Criminal trial is a voyage of discovery in which
truth is the quest. It is the duty of a presiding Judge to
explore every avenue open to him in order to discover the
truth and to advance the cause of justice. For that
purpose he is expressly invested by Section 165 of the
Evidence Act with the right to put questions to witnesses.
Indeed the right to put given to a Judge is so wide that he
may ask any question he pleases, in any form, at any time,
of any witness, or of the parties about any fact, relevant
or irrelevant. Section 172(2) of the Code of Criminal
Procedure enables the Court to send for the policediaries
in a case and use them to aid it in the trial. The record of
the proceeding of the perused by the Sections Judge to
further aid him in the trial”. (Sessions Judge, Nellore v.
Intna Ramana Reddy, ILR (1972) Andh Pra 683).
3. With such wide powers the Court must actively
participate in the trial to elicit the truth and to protect the
week and the innocent. It must, of course, not assume the
role of a prosecutor in putting questions. The functions of
the Counsel, particularly those of the Public Prosecutor,
are not to be usurped by the judge, by descending into the
arena, as it were. Any questions put by the judge must be
so as not to frighten, coerce, confuse or intimidate the
witnesses. The danger inherent in a judge adopting a
much too stern an attitude towards witnesses has been
explained by Lord Justice Birkett:–
Crl.A.No.549/2013 Page 14 of 52
“People accustomed to the procedure of the Court are
likely to be over-awed or frightened, or confused or
distressed when under the ordeal of prolonged
questioning from the presiding judge. Moreover, when
the questioning takes on a sarcastic or ironic tone as it is
apt to do, or when it takes on a hostile note as is
sometimes almost inevitable, the danger is not only that
witnesses will be unable to present the evidence as they
may wish, but the parties may begin to think, quite
wrongly it may be, that the judge is not holding the scales
of justice quite eventually”. Extracted by Lord Denning
in Jones v. National Coal Board. ((1957) 2 All ER 155)
19. In Jones v. National Coal Board Lord Justice Denning
observed:
“The Judge’s part in all this is to hearken to the evidence, only
himself asking questions of witnesses when it is necessary to
clear up any point that has been overlooked or left obscure; to
see that the Advocates behave themselves seemly and keep to
the rules laid down by law; to exclude irrelevancies and
discourage repetition; to make sure by wise intervention that
he follows the points that the Advocates are making and can
assess their worth; and at the end to make up his mind where
the truth lies. If he goes beyond this, he drops the mantle of the
Judge and assumes the role of an Advocate; and the change
does not become him well.
We may go further than Lord Denning and say that it is the
duty of a judge to discover the truth and for that purpose he
may “ask any questions, in any form, at any time, of any
witness or of the parties, about any fact, relevant or
irrelevant” (Sec. 165, Evidence Act). But this he must do,
without unduly trespassing upon the functions of the public
prosecutor and the defence Counsel, without any hint of
partisanship and without appearing to frighten or bully
witnesses. He must take the prosecution and the defence with
him. The Court the prosecution and the defence must work as
a team whose goal is justice, a team whose captain is the
judge. The Judge, like the conductor of a choir, must, by force
of personality, induce his team to work in harmony; subdue the
raucous encourage the timid, conspire with the young, flatter
the old.”
Crl.A.No.549/2013 Page 15 of 52
20. It is no doubt true that Section 225 of the Criminal
Procedure Code specifically speaks for the trial to be
conducted by the prosecutor, but if the Court finds that the
public prosecutor is not properly discharging the duty to be
performed by him, nothing prevents the Court from exercising
its power to ensure that proper evidence is placed before the
Court and no mischief is played by the prosecutor which may
frustrate the basic principles that the real offender must be
punished and the innocent person must be acquitted….
21. It appears that in accepting the evidence of the eye
witnesses PW2 Nitaben and PW7 Sadiyabhai against the
accused appellant, the learned Sessions Judge has been guided
by the consideration that the maxim ‘falsus in uno, falsus in
omnibus’ is not applicable and that an evidence of an eye
witness who has made an untrue statement in some respect can
be accepted as regards rest of what he states and that there is
no valid ground for discarding the statement of the two eye
witnesses PW2 and PW7 that the accused inflicted injuries on
the chest region of the deceased. In our opinion, the learned
Sessions Judge was right in accepting the evidence of PW2
Nitaben and PW7 Sadiyabhai as the basis of the accused
appellant’s conviction. The maxim quoted above is not
applicable to India where codified rules of evidence exist and
it is open to a Court to accept a part of the evidence of an eye
witness while rejecting the rest of it. This principle on which
the Court so acts is not that though a witness has deliberately
made some false statement, he may yet be considered to be a
truthful witness as regards some other statements. The Court,
however, acts on the principle that certain statements of such a
witness being corroborated by the probabilities of the case and
other reliable evidence appear to be true and should,
therefore, be accepted. A Court may again consider a part of
the evidence of a witness to be not free from doubts and may
think it unsafe to rely on it. But, the rejection of such a
statement of a witness does not necessarily destroy the value of
his other statements.”
(Emphasis Supplied)
Crl.A.No.549/2013 Page 16 of 52
23. In the case of State vs Sanjeev Nanda reported at (2012) 8 SCC 450,
the Hon’ble Supreme Court had discussed the plight of witnesses
turning hostile in the criminal matters and also discussed the possible
reasons for the same. The relevant para 99-101 read as under:
“99. Witness turning hostile is a major disturbing factor faced
by the criminal courts in India. Reasons are many for the
witnesses turning hostile, but of late, we see, especially in high
profile cases, there is a regularity in the witnesses turning
hostile, either due to monetary consideration or by other
tempting offers which undermine the entire criminal justice
system and people carry the impression that the mighty and
powerful can always get away from the clutches of law,
thereby eroding people’s faith in the system.
100. This Court in State of U.P. v. Ramesh Prasad Misra
(1996) 10 SCC 360 held that it is equally settled law that the
evidence of a hostile witness could not be totally rejected, if
spoken in favour of the prosecution or the accused, but it can
be subjected to closest scrutiny and that portion of the
evidence which is consistent with the case of the prosecution
or defence may be accepted. In K. Anbazhagan v. Supt. of
Police (2004) 3 SCC 767, this Court held that if a court finds
that in the process the credit of the witness has not been
completely shaken, it may after reading and considering the
evidence of the witness as a whole, with due caution, accept, in
the light of the evidence on the record that part of his
testimony which it finds to be creditworthy and act upon it.
This is exactly what was done in the instant case by both the
trial court and the High Court and they found the accused
guilty.
101. We cannot, however, close our eyes to the disturbing fact
in the instant case where even the injured witness, who was
present on the spot, turned hostile. This Court in Manu
Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 and in Zahira
Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374
had highlighted the glaring defects in the system like non-
recording of the statements correctly by the police and the
retraction of the statements by the prosecution witness due to
intimidation, inducement and other methods of manipulation.
Crl.A.No.549/2013 Page 17 of 52
Courts, however, cannot shut their eyes to the reality. If a
witness becomes hostile to subvert the judicial process, the
court shall not stand as a mute spectator and every effort
should be made to bring home the truth. Criminal justice
system cannot be overturned by those gullible witnesses who
act under pressure, inducement or intimidation. Further,
Section 193 IPC imposes punishment for giving false evidence
but is seldom invoked.”
(Emphasis Supplied)
24. The first question which arises for our consideration is as to whether
the Trial Court after considering all the material evidence on record
rightly acquitted all the respondents for the offences punishable under
Sections 304-B/498-A/406/34 of IPC?
25. To decide this issue, it would be necessary to discuss the testimonies
of some of the material witnesses in detail.
26. PW1 Salek Ram (brother of the deceased) testified in his examination-
in-chief that the marriage between the respondent Pramod Kumar and
his younger sister Poonam was solemnised on 16.02.2002. He further
testified that the marriage was performed according to Hindu rites and
customs. A maruti 800-car, a T.V. of make LG, a washing Machine of
make Whirlpool, one refrigerator, sofa-set, Godrej Almirah, one
double-bed, one box of Godrej, 50 tolas of gold, one and a half kg of
silver, 69 clothes for the family, Rs. 1,71,000/-, Rs.21,000/- in cash
for lagan, Rs.51,000/- cash on roka and Rs.11,000/- in cash in chitthi,
50 pair of clothes, one dinner set, 151 utensils and other necessary
articles were given in the marriage. One gold chain and one gold ring
were also given to the husband of the deceased (Pramod Kumar). On
the eve of Dashyari (the custom of bringing the newly wedded bride
from her in-laws house to the parental house) i.e. on 21.02.2002, PW1
alongwith Jagbir Singh (PW9) and Inder (both were sons of hisCrl.A.No.549/2013 Page 18 of 52
uncles) had gone to the in-laws of Poonam. PW1 met with Rajo
(mother-in-law of Poonam), Rakam Singh (father-in-law of Poonam),
Manoj (jeth), Seema (jethani) and Minto (devar) and all of them
complained that the marriage had not been performed as per their
status and had made a demand of rupees five lakhs in cash, one Honda
City car and one kg of gold. After the demand was made, PW1 along
with other persons had called Vijay Singh (uncle of Pramod Kumar)
whereupon he also joined all the accused persons by saying that they
had to fulfil the demand so made by the aforementioned accused
persons. As a result of this, they brought his sister to their house in the
evening. On reaching the house, his sister cried and told that she was
being harassed by her mother-in-law, father-in-law, jeth-jethani, devar
and husband for not fulfilling the demand and if the said demand was
not fulfilled, she would be continued to be harassed in the same way.
On 16.03.2002, Pramod Kumar alongwith his father Rakam Singh and
jeth came to his house and took his sister Poonam to their house. On
18.03.2002, his sister Poonam gave a phone call to PW1 and
complained while crying that she was being beaten by all the members
of her in-laws family and was told that unless a demand of Rs.five
lakhs, a Honda city car and one kg gold was fulfilled, they would
continuously beat her and she would be dragged from their house. On
19.03.2002, PW1 met the mediator of the marriage namely Baleshwar
in this regard and narrated the entire incident to him. Baleshwar
talked to the accused persons and told PW1 that the accused persons
wanted their demand to be fulfilled. On 20.03.2002, PW1 went to the
house of his sister at Gamari Village where he called all the members
of her in-laws family namely Rajo, Rakam Singh, Seema, Manoj and
Pramod Kumar and he told them that he had married his sister as perCrl.A.No.549/2013 Page 19 of 52
his capacity and asked the reason for the harassment given to her. On
hearing this, they replied that either PW1 must fulfill their demand or
they would defame his sister in such a manner that they no longer
would be able to show their face within the community. The accused
persons again reiterated that untill the demand of a Honda City car,
five lakh rupees and 1 kg gold would get fulfilled, they would
continue the harassment. After this, PW1 brought his sister back to
their home. On 03.05.2002, PW1 received a phone call from the
respondent Pramod Kumar that his mother was seriously ill. On
04.05.2002 at 7.00 AM, PW1 again received a phone call from
Pramod Kumar that his mother was seriously ill and he was coming to
bring Poonam back and should keep her ready. Thereafter, Pramod
Kumar came at about 9 AM and after having breakfast, he left his
house at about 10 AM alongwith Poonam. Thereafter, at about 3.30 or
4.00 P.M. they received a phone call informing ‘Tumhari Behan
Poonam Ko Mar Diya Hai’. PW1 claimed that Pramod Kumar,
Rakam Singh, Rajo, Manoj, Seema, Minto and Vijay Singh (uncle of
Pramod Kumar) were responsible for the murder of his sister as they
had demanded dowry and since such demand could not be fulfilled,
his sister had been killed by them. The statement of PW1 was
recorded by then SDM Seelampur on 05.05.2002 which was proved
by him as Ex. PW1/A. Police had also recorded the statement of PW1
wherein he disclosed the entire incident as deposed in Court.
27. In his cross-examination, PW1 stated that the marriage of his sister
was solemnised with great pomp and show and both the parties had
completed all the rituals with happiness. At the time of marriage, there
was no complaint from either side. It was further stated that his sister
was studying at the time of marriage and was in B.A. final year. The
Crl.A.No.549/2013 Page 20 of 52
sister of PW1 used to go to Badal Pur to take her exams. PW1
admitted that the centre of her examination was at Mir Bhoj Degree
College. The distance between the village of PW1 and Mir Bhoj
Degree College was about 7 k.m. The sister of PW1 used to go to take
her examination alongwith other girls but PW1 did not know the name
of those girls or their fathers or the village from which they hailed.
PW1 denied the suggestion that he was not having any interactive
terms with his family including his sister. The distance between his
village to Badal Pur is 15 minutes motorable distance. PW1 stated that
at the time of the incident, he was residing at house No.1/10408,
Mohan Park, Navin Shadara, Delhi. PW1 denied that they gave Rs.
11,000/- with the lagan chithi (Ex.PW1/DBX). However, it was
voluntarily stated that they gave Rs. 21,000/- in cash alongwith lagan
chithi. PW1 admitted that at the time of marriage of his sister, the list
of dowry articles was prepared. The list of dowry articles was shown
to PW1 in the Trial Court but it was not identified by him for the
reason that the said list was photocopy of the original. PW1 further
stated that he brought her sister to parental house and the reason of the
same was not her examination but harassment given to her by her in-
laws. PW1 further denied that the deceased was not taken by him on
20.03.2002 but she was brought to his place by Rakam Singh for her
examination of B.A. Final year which was fixed for 21.03.2002. PW1
stated that on the fateful day, he reached the police station at about
6.00-6.30 and 7.00 PM and before he could reach, the other family
members had already reached police station. The family members did
not complain against the in-laws of his sister for any demand of
dowry, harassment and torturing till he reached the police station. On
04.05.2002, PW1 did not lodge any complaint against the in-laws of
Crl.A.No.549/2013 Page 21 of 52
his sister. However, it was lodged by him on 05.05.2002 and the
reason of the same was voluntarily explained by PW1 as he was being
told that the SHO of the area had gone on round in the area. PW1
further denied that SI Shiv Nath Tyagi (PW26) asked for his statement
and he refused the same as they did not have any grievance against the
in-laws of his sister. In the later part of his cross-examination, PW1
stated that he did not remember as to whether he had told to the police
in his statement about the fact that on 19.03.2004, PW1 met the
mediator Baleshwar who talked to the accused persons and told PW1
that the demand of the respondents was persistent. However, on
confrontation the said fact was not found mentioned in his statement
Ex.PW1/A and Ex.PW1/DLX which were recorded under Section 161
and 164 of Cr.P.C. PW1 further stated that his statement was recorded
by then SDM of the area, however, the statement of his
brother/parents was not recorded. PW1 denied that on 18.03.2002, his
sister Poonam did not make a phone call and she did not cry for being
beaten by the entire members of her in-laws. PW1 further denied the
suggestion that Poonam had not complained on telephone that unless
the demand of Rs. five lakhs in cash, a Honda city car and one
kilogram of Gold would be met, she would be beaten and would be
thrown out of her matrimonial house.
28. PW9 Jagbir Singh (cousin of the deceased) deposed in his
examination-in-chief that the marriage between Poonam (deceased)
and the respondent Pramod Kumar was solemnised on 16.02.2002. In
her marriage, they had given a Maruti-800 car, Rs.1,71,000/- in cash,
50 tolas of gold, T.V., refrigerator, washing machine and other
household articles. They spent about 8-10 lakhs on her marriage. On
21.02.2002, PW9 alongwith his cousins Salek Ram (PW1/complainant
Crl.A.No.549/2013 Page 22 of 52
herein) and Inder had gone to the house of the in-laws of his sister for
taking her back to their house. It was further deposed by PW9 that
Rakam Singh (father-in-law), Manoj (Jeth), Rajo (mother-in-law),
Seema (Jethani), Mintu (dever), Pramod Kumar (husband of the
deceased Poonam) demanded dowry from them. All the
aforementioned accused persons (the respondents herein) complained
that they had not performed marriage as per their wishes. After the
demand was made by the respondents, PW9 and PW1 called Vijay
Singh (uncle of Pramod Kumar) who also told them that they had to
fulfill their demand. On hearing this, they brought Poonam back to
their house. Poonam told her father that she was not treated well at the
house of her in-laws and was being tortured by her in laws as
mentioned above. On 16.03.2002, Rakam Singh, Manoj and Pramod
Kumar came to their village for taking Poonam and they had sent
Poonam with them. On 18.03.2002, Salek Ram (PW1) came to him
and told that the in-laws of Poonam were beating her as she had not
brought the demanded articles. Salek Ram also informed PW9 that
Poonam had called him and informed about the harassment and the
demand so made. On 20.03.2002, Salek Ram brought back Poonam
from her in-laws house. Salek Ram asked PW9 to file a case against
her in-laws with regard to the dowry demand made by the in-laws of
Poonam but PW9 advised him not to file the case against them as he
would try to talk to them. PW9 made a call to Rakam Singh and asked
him as to why they had not told about their demands prior to the
marriage of Poonam. On 03.05.2002, which was again clarified by
PW9 that on 04.05.2002, Poonam received a telephone call of her
husband while she was going to her college whereby he called her
near Patwari Bagh (Ghaziabad) for strolling and also told her that his
Crl.A.No.549/2013 Page 23 of 52
mother was ill and hospitalised and they had to go to see his mother.
However, Poonam had not gone to the Patwari Bagh. The respondent
Pramod Kumar then came to the parental home of Poonam. The
parents of Poonam sent her with Pramod Kumar and Pramod Kumar
told them that he would drop her back to the house in the evening after
meeting his mother. Thereafter, Poonam did not return back to their
house. Whenever PW9 talked on telephone with the in-laws of
Poonam, as on some occasions, he had also received telephone calls
from her in-laws; they used to ask him to fulfil the demand. It was
further deposed by PW9 that in the intervening night of 04.05.2002
and 05.05.2002 at about 12 night, when PW9 came back to his house,
he came to know that Poonam had been murdered. PW9 had identified
the dead body of Poonam in the mortuary of GTB Hospital. PW9
further deposed that Poonam used to make complaint against her
father-in-law, mother-in-law Lajoo, Manoj (jeth), Seema (jethani),
Mintoo (devar) and Vijay Pal.
29. In his cross-examination, PW9 stated that there was no demand from
the accused persons before the marriage or at the time of marriage or
even at the time of vidai of Poonam. PW9 admitted that he was
present at all the three occasions. PW9 alongwith two other persons
went to the house of the in-laws of Poonam after five days of her
marriage. PW9 had admitted that Poonam was brought back happily.
The respondent Rakam Singh demanded Rs.5 lakhs in cash, a Honda
City car and one kilogram of gold which was disclosed by Poonam
after reaching her parental home. PW9 again stated that he did not
remember as to when the demand so made by the respondent Rakam
Singh was disclosed to him by Poonam. PW9 further stated that he
had no knowledge as to whether there were any differences between
Crl.A.No.549/2013 Page 24 of 52
both the parties till the second arrival of the deceased Poonam at her
in-laws house. PW9 came to know about the differences between the
parties after 2-3 days of second arrival of Poonam at her matrimonial
home. All the above said facts were disclosed to him by his cousin
brother Salek Ram (PW1). PW9 did not call for any panchayat or
made any complaint to any authority including police. However, it
was voluntarily explained by PW9 that he talked with the respondent
Rakam Singh. PW9 did not know as to whether the respondent Vijay
Singh was residing separately from the respondent Rakam Singh or
not. PW9 also stated that they did not make any complaint to any
police station in Delhi or Uttar Pradesh about the harassment and
torture to Poonam. Poonam remained at her parental home for the
period between 18.03.2002 to one day prior to her death which might
be 3/4 day of May, 2002. A telephone call was received by Salek Ram
(PW1) prior to one day of his taking her back to the matrimonial
home. PW9 stated that on 22.02.2002, he alongwith Salek Ram,
Govind Singh and Inder met Poonam at the house of Govind Singh.
Thereafter, PW9 met the deceased Poonam 5-6 times before her death.
The deceased Poonam had made complaints against her in-laws on
22.02.2002 and thereafter. However, there was no report/complaint
was made to the police by them.
30. Coming first to the acquittal of the respondents under Section 304-B
of IPC, the Trial Court while acquitting the respondents under Section
304-B made the following observations, the relevant para 14 reads as
under:
“14. In the case in hand although it is not in dispute that the
death of deceased Poonam took place within the period of 7
years from her marriage with accused Pramod. Further it is
also not in dispute that her death was an unnatural death
which was caused by the injury sustained by her on the backCrl.A.No.549/2013 Page 25 of 52
portion of her head but the third essential requirement that
“soon before her death” she was subjected to cruelty or
harassment by the accused persons for or in connection with
any demand for dowry is not established in the present set of
circumstances. PW-9 Jagbir has clearly stated in his
deposition that on 21.02.2002 there was no demand of any
kind and with effect from 18.03.2002 till a day prior to her
death, Poonam was living at her parental house. Further, it
has come on record from his testimony that Poonam lived at
her parental home on account of her examination w.e.f.
18.03.2002. Even PW-1 Salek Ram has conceded in his cross-
examination that Poonam was brought back happily. Further
PW-9 has deposed that in his presence that there was no
demand from accused side either before marriage or at the
time of Vidai and he was present on all the three occasions. He
also stated that they did not make any complaint at any police
station at Delhi or U.P. regarding harassment of torture on
account of dowry against the in laws of Poonam. The corollary
of aforesaid finding is that accused persons cannot be
convicted U/s 304B IPC too.”
31. The Hon’ble Supreme Court in the case of Kans Raj v State of
Punjab, reported at (2000) 5 SCC 207 has laid down the following
ingredients which need to be proved against the accused persons
before they can be convicted under Section 304-B of IPC:
a. The death of a woman must be caused by burns or bodily injury
or had occurred otherwise than under normal circumstances;
b. Such death should have occurred within 7 years of her marriage;
c. The deceased was subjected to cruelty or harassment by her
husband or by any relative of her husband;
d. Such cruelty or harassment should be for or in connection with
the demand of dowry; and
e. To such cruelty or harassment the deceased should have been
subjected soon before her death.
32. To convict a person under Section 304-B of IPC, the most essential
aspect which needs to be proved is that the cruelty or harassment for
Crl.A.No.549/2013 Page 26 of 52
bringing insufficient dowry must be ‘soon before her death’. Now the
question which arises for consideration is as to what period may be
considered as soon before her death.
33. The Hon’ble Supreme Court in Satvir Singh v. State of Punjab,
reported at (2001) 8 SCC 633 while discussing the scope of the
expression ‘soon before her death’ held as under:
“22. It is not enough that harassment or cruelty was caused to
the woman with a demand for dowry at some time, if Section
304-B is to be invoked. But it should have happened “soon
before her death”. The said phrase, no doubt, is an elastic
expression and can refer to a period either immediately before
her death or within a few days or even a few weeks before it.
But the proximity to her death is the pivot indicated by that
expression. The legislative object in providing such a radius of
time by employing the words “soon before her death” is to
emphasise the idea that her death should, in all probabilities,
have been the aftermath of such cruelty or harassment. In
other words, there should be a perceptible nexus between her
death and the dowry-related harassment or cruelty inflicted on
her. If the interval elapsed between the infliction of such
harassment or cruelty and her death is wide the court would
be in a position to gauge that in all probabilities the
harassment or cruelty would not have been the immediate
cause of her death. It is hence for the court to decide, on the
facts and circumstances of each case, whether the said interval
in that particular case was sufficient to snuff its cord from the
concept “soon before her death.”
(Emphasis supplied)
34. The Hon’ble Supreme Court in Kaliyaperumal v. State of T.N.
reported at (2004) 9 SCC 157 while dealing with the expression ‘soon
before her death’ held as under:
“5. A conjoint reading of Section 113-B of the Evidence Act
and Section 304-B IPC shows that there must be material to
Crl.A.No.549/2013 Page 27 of 52
show that soon before her death the victim was subjected to
cruelty or harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to bring it
within the purview of the “death occurring otherwise than in
normal circumstances”. The expression “soon before” is very
relevant where Section 113-B of the Evidence Act and Section
304-B IPC are pressed into service. The prosecution is obliged
to show that soon before the occurrence there was cruelty or
harassment and only in that case presumption operates.
Evidence in that regard has to be led in by the prosecution.
“Soon before” is a relative term and it would depend upon the
circumstances of each case and no straitjacket formula can be
laid down as to what would constitute a period of soon before
the occurrence. It would be hazardous to indicate any fixed
period, and that brings in the importance of a proximity test
both for the proof of an offence of dowry death as well as for
raising a presumption under Section 113-B of the Evidence
Act. The expression “soon before her death” used in the
substantive Section 304-B IPC and Section 113-B of the
Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression “soon
before” is not defined. A reference to the expression “soon
before” used in Section 114 Illustration (a) of the Evidence
Act is relevant. It lays down that a court may presume that a
man who is in the possession of goods soon after the theft, is
either the thief who has received the goods knowing them to be
stolen, unless he can account for his possession. The
determination of the period which can come within the term
“soon before” is left to be determined by the courts, depending
upon facts and circumstances of each case. Suffice, however,
to indicate that the expression “soon before” would normally
imply that the interval should not be much between the cruelty
or harassment concerned and the death in question. There
must be existence of a proximate and live link between the
effect of cruelty based on dowry demand and the death
concerned. If the alleged incident of cruelty is remote in time
and has become stale enough not to disturb the mentalCrl.A.No.549/2013 Page 28 of 52
equilibrium of the woman concerned, it would be of no
consequence.”
(Emphasis Supplied)
35. In the case of Sher Singh vs. State of Haryana reported at (2015) 3
SCC 724, the Hon’ble Supreme Court held that the use of word
“shown” instead of “proved” in Section 304-B of IPC indicates that
the onus cast on the prosecution would stand satisfied on the anvil of a
mere preponderance of probability. In other words, “shown” will have
to be read up to mean “proved” but only to the extent of
preponderance of probability. It was further held that the word
“deemed” used in the Section 304-B of IPC is to be read down to
require an accused to prove his innocence, but beyond reasonable
doubt. The “deemed” culpability of the accused leaving no room for
the accused to prove innocence was, accordingly, read down to a
strong “presumption” of his culpability. The accused is required to
rebut this presumption by proving his innocence. The same view was
reiterated in the case of Ramakant Mishra v. State of U.P. reported at
(2015) 8 SCC 299.
36. It is a settled principle of law that in the cases where the prosecution
show that ‘soon before her death’ the deceased was subjected to
cruelty or harassment by the husband or in-laws in connection with
demand for dowry, the presumption under Section 113-B of the
Evidence Act would be attracted and the Court shall presume that
such person who had subjected the woman to cruelty or harassment in
connection with any demand for dowry shall be presumed to have
caused the dowry death. Thereafter, the burden is on the accused
persons to rebut the said presumption which arises in such cases.
Crl.A.No.549/2013 Page 29 of 52
37. Now we proceed to analyse whether ‘soon before her death’ there was
a demand for dowry by the respondents which had a live and
proximate link to her death. A careful analysis of the testimonies on
record would show that the deceased was married to the respondent
No.2/Pramod Kumar on 16.02.2002. PW1 brother of the deceased has
testified that on 21.02.2002 i.e. soon after the marriage, he and PW9
had gone to the in-laws of the deceased and all i.e. mother-in-law,
father-in-law, brother-in-law (jeth), sister-in-law (jethani) and Mintoo
(devar) had complained that the marriage had not been performed as
per their status and a demand was made. This evidence does not
repose confidence for the reason that it is extremely general in nature
and it seems that the attempt of the witnesses was to rope each and
every member of the family and incidentally, nothing has been
attributed to the husband. Further, as per the testimony of PW1, on the
same day in the evening, he brought his sister home and she had
complained that she was being harassed by mother-in-law, father-in-
law, Jeth, Jethani, Devar and husband for not fulfilling the demand.
On 16.03.2002, husband, his father, his brother came to the house of
the deceased and took her back. Again on 18.03.2002, the deceased
had complained to PW1 on telephone that she was being beaten by all
the members of her in-laws family. Again, she was brought back to
the parental home on 20.03.2002 where she stayed upto 03.05.2002.
There is nothing on record to show that between March and May,
2002 that either there was no interaction between the parties or any
situation which should have led to the death of the deceased. It is also
the case of the prosecution that on 03.05.2002, PW1 received a phone
call from her husband/Pramod Kumar that her mother was seriously ill
and on the next morning, he came and took the deceased with him.
Crl.A.No.549/2013 Page 30 of 52
The sequence of events as they unfold would show that there was no
interaction between the parties between March and May, 2002 and the
deceased agreed to go alone with the husband and her family members
agreed to send her on receipt of one phone call. Thus, in our view, the
live link between the sequence of phone calls in the months of
February and March, 2002 has snapped and therefore, the Trial Court
has rightly acquitted the respondents under Section 304-B of IPC.
Accordingly, we find that there is no infirmity in the acquittal
recorded by the Trial Court against all the respondents under Section
304-B of IPC.
38. Coming next to the acquittal of all the respondents under Section 498-
A and Section 406 of IPC, the following observations were made by
the Trial Court which read as under:
“To establish its case U/s 406 498A IPC, the prosecution
has produced PW-1 Salek Ram and PW-9 Jagbir (the brother
and cousin of deceased respectively) but unfortunately the
case of the prosecution does not stand proved at all for the
reasons firstly that it is not specifically stated that any
particular articles were entrusted to which of the accused
persons on being demanded. Further no deposition has come
on record, which attributes any specific demand or specific
role assigned to the accused persons nor any particular word
of demand uttered by accused persons. From the careful
scrutiny of the testimonies of PW-1 and PW-9, it does not
establish that the deceased was subjected to the cruelty of
grave nature and continuously or persistently or at least in
close proximity of time of lodging of complaint. Admittedly,
there was no complaint lodged against the accused persons
prior to the date of incident. It is strange that despite having
reached in evening of 04.05.2002, no statement was got
recorded by PW-1 and his relatives to the IO in respect of
dowry harassment and dowry demand. Even otherwise no
complaint prior to death has ever been lodged to any authority
by the complainant his relatives and deceased also cast doubt
on the veracity of allegations levelled by complainant and his
relatives against the accused persons.
Crl.A.No.549/2013 Page 31 of 52
From the mere perusal of the testimony of PW-1 Salek Ram
and PW-9 Jagbir Singh, it is abundant clear that no specific
role have been attributed to any of the accused in specific in
respect of alleged demand. Further their testimonies do not
inspire confidence as PW-1 Salek Ram resides at 1/10408,
Mohan Park, Naveen Shahdara, Delhi, whereas the parents of
the said witness resides at Village Chheja, District Ghaziabad,
U.P. and Poonam neither resided at Delhi nor studying in
Delhi, rather, she studied from the village and was a student at
the time of marriage. In his deposition, PW-1 Salek Ram has
conceded that at the time of marriage there was no complaint
from any side. His sister Poonam was studying at the time of
marriage in B.A. final and was studying from college Village
Badal Pur. PW-9 Jagbir although in his examination-in-chief,
has deposed that he and PW-1 Salek Ram had gone to bring
back Poonam on 21.02.2002 and in their presence, the
demand of Honda City car, Rs.Five Lakhs and one kg gold was
made by the accused persons but in cross-examination he also
deposed that in his presence there was no demand from
accused side either before the marriage or at the time of
marriage or even at the time of vidai of Poonam. He claimed
that he remained present at all aforesaid three occasions. He
confirmed that Poonam was brought back happily. He has no
knowledge whether there were any differences between both
the parties till the second arrival of deceased Poonam in her in
laws house. He came to know about the differences after two
three days of second arrival of Poonam at her matrimonial
home. The said fact was told to him by cousin brother Salek
Ram in Mohan Park, Shahdara. He further deposed that they
did not make any complaint to any police station in Delhi or
U.P. about harassment and torture given to her. Poonam
resided at her parental home since 18.03.2002 to one day
prior to her death. It might be 3rd or 4th day of May, 2002.
Further the testimony of PW-1 Salek Ram categorically
mentioning therein date on which he was complained or
demanded dowry stands disproved from the deposition of PW-
9 Jagbir, who has clearly mentioned that on 21.02.2002 there
was no demand of any kind and with effect from 18.03.2002 till
a day prior to death Poonam was living at her parental house.
Further from the evidence of PW-9 Jagbir, it has come onCrl.A.No.549/2013 Page 32 of 52
record that Poonam lived at her parental home on account of
her examination w.e.f. 18.03.2002. Moreover, the conduct of
PW-1 Salek Ram seems highly unnatural as despite of the fact
that the information regarding the death of Poonam was
received on 04.05.2002 at about 3.3-4.00 pm and he was very
well present in village and he reached at police station at
about 6/6.30 pm and 7 pm but neither he nor his other family
members, who had reached in the police station prior to him
made any complaint against the in laws of his deceased sister
regarding demand of dowry, harassment/torture on
04.05.2002, rather, he lodged the complaint/report on
05.05.2002. PW-26 SI Shivnath has also clearly deposed that
“he had informed family members of Poonam on the same day
i.e. 04.05.2002 regarding the occurrence but family members
of Poonam namely Tilak Ram, Gobind Singh, Jagbir and other
relatives reached at PS Usmanpur on 05.05.2002 at about 9
am.”
39. The Hon’ble Supreme Court in the case of Girdhar Shankar Tawade
v. State of Maharashtra, reported at (2002) 5 SCC 177, while laying
down the essential ingredients to be fulfilled before convicting a
person under Section 498-A of IPC, it was held as under:
“3. The basic purport of the statutory provision is to avoid
“cruelty” which stands defined by attributing a specific
statutory meaning attached thereto as noticed hereinbefore.
Two specific instances have been taken note of in order to
ascribe a meaning to the word “cruelty” as is expressed by the
legislatures: whereas Explanation (a) involves three specific
situations viz. (i) to drive the woman to commit suicide or (ii)
to cause grave injury or (iii) danger to life, limb or health,
both mental and physical, and thus involving a physical
torture or atrocity, in Explanation (b) there is absence of
physical injury but the legislature thought it fit to include only
coercive harassment which obviously as the legislative intent
expressed is equally heinous to match the physical injury:
whereas one is patent, the other one is latent but equally
serious in terms of the provisions of the statute since the sameCrl.A.No.549/2013 Page 33 of 52
would also embrace the attributes of “cruelty” in terms of
Section 498-A.”
(Emphasis Supplied)
40. In the case of Bansi Lal v State of Haryana reported at (2011) 11
SCC 359, the Hon’ble Supreme Court laid down the scope of the word
‘cruelty’ as used in the Section 498-A of IPC and held as under:
“17. While considering the case under Section 498-A, (Sic
Section 304-B) cruelty has to be proved during the close
proximity of time of death and it should be continuous and
such continuous harassment, physical or mental, by the
accused should make life of the deceased miserable which may
force her to commit suicide….”
41. The undisputed facts of the present case are that the marriage between
the deceased Poonam and the respondent Pramod Kumar was
solemnized on 16.02.2002 and the deceased had died within 78 days
of her marriage. Applying the law laid down in the aforesaid
judgments to the facts and circumstances of the present case, we find
that there were no specific instances of cruelty suffered by the
deceased at the hands of her in-laws which were continuous and there
was no live link between the demand so made by them and the death
of Poonam. The evidence of PW1 is contradictory to the evidence of
PW9 and there is no clarity as to whether deceased Poonam was
subjected to physical abuse on various occasions and a demand was
made to the family members of the deceased by all the respondents. In
our view, the Trial Court has rightly applied the principles enunciated
in the aforementioned judgments to the facts of the present case and
analysed the evidence in correct perspective. Thus, we find that there
is no infirmity in the acquittal recorded by the Trial Court under
Section 498-A and Section 406 of IPC.
Crl.A.No.549/2013 Page 34 of 52
42. The next question which arises for our consideration is as to whether
the Trial Court has rightly acquitted respondent Pramod Kumar under
Section 302 read with Section 201 of IPC which was the main charge
framed against him.
43. In this regard, the following observations were made by the Trial
Court while acquitting him. The relevant part reads as under:
“Although PW-2 Satbir S/o Jaipal initially had supported the
story of prosecution during his examination-in-chief while
deposing on the line of prosecution but during cross-
examination of the said witness, the alleged incriminating
testimony against the accused persons stood shattered as he
was made to depose the facts as mentioned in his examination-
in-chief under threat and pressure as the same is evident from
the cross-examination of the said witness, who had during his
cross-examination has categorically stated that neither any
dead body was recovered in his presence nor he is the eye
witnesses of the spot. PW-2 deposed that:-
“I was compelled and pressurized to make any statement
according to IO whatever he had already written in
Ex.PW2/A as he had threatened me that I will lose my
job. Whatever tutored by the IO, I deposed before the
Court under the pressure of the I.O. The seized articles
were identified by me at the instance of the IO as the IO
had already tutored me that no other articles of any other
case will be shown except this case. Whatever shown to
me I had to reply in positive so at his instance I identified
the same.”
It is pertinent to mention here that the said witness was not re-
examined by Ld. Addl. PP, therefore, the entire examination-
in-chief of the said witness stands nullified from his cross-
examination.
Further PW-3 Satbir S/o Kishan Lal (an another independent
eye witness) has at all not supported the story of prosecution
and the said was declared hostile and the entire incriminating
evidence was put by Ld. APP to the said witness during cross-
examination but nothing incriminating could be milch out fromCrl.A.No.549/2013 Page 35 of 52
his deposition, rather, the said witness has deposed in favour
of accused Pramod, thereby establishing his innocence.
Similarly, PW-4 Satpal S/o Nathu Lal, the third independent
public witness of the spot, has also not supported the story of
prosecution and the witness was also declared hostile and the
entire incriminating evidence put by the said witness in the
favour of the suspect during his cross-examination by Ld. APP
was denied by the said witness, thereby he also established the
innocence of the accused.”
44. From above, it is evident that the Trial Court disbelieved the evidence
of PW2, PW3 and PW4 for the reasons extracted hereinabove. In the
facts of the given case, we are of the view that the Public Prosecutor
has failed to discharge his duty diligently and did not re-examine the
witnesses as per the mandate of Section 138 of the Indian Evidence
Act. Undoubtedly, the very purpose of re-examination of the witness
is to explain the facts which have been stated in cross-examination.
45. It is the case of the prosecution against respondent Pramod Kumar that
in the early morning of 04.05.2002, the respondent Pramod Kumar
came to the house of the complainant Salek Ram to pick the deceased
to enable her to look after his mother. Thereafter, it was respondent
Pramod Kumar who was apprehended while burying her in the pit.
The failure to give any explanation on the part of the respondent
Pramod Kumar points towards his guilt. It is further the case of the
prosecution that the respondent Pramod Kumar had killed his wife
Poonam and thereafter while disposing off her body, he was caught
red handed by the three gardeners of the Forest Department i.e. PW2,
3 and 4.
46. In this backdrop, it would be necessary to discuss evidence of PW2,
PW3 and PW4.
Crl.A.No.549/2013 Page 36 of 52
47. The prime independent witness of the prosecution is PW2 Satbir
Singh son of Jaipal Singh, who was working as a labourer in the
Forest Department. He has testified in his examination-in-chief that on
04.05.2002 at around 4.30 PM, he was on duty in the forest area of
Garhi Mandu, Yamuna Khadar. PW2 had seen the respondent Pramod
Kumar burying the dead body of a lady in the pit. On inquiry, the dead
body was found to be of the wife of the respondent Pramod. The
respondent Pramod Kumar was identified by PW2 in Court. PW2
called the police officials i.e. Traffic police officials from Wazirabad
circle, who in turn informed the PCR and the local police. PCR
reached the spot and took the dead body to the hospital. At that time,
Satpal (PW4) and Satbir son of Kishan Lal (PW3), were also on duty
and accompanied him. Police reached the spot and his statement
(Ex.PW2/A) was recorded by the police. One belt, a handkerchief, one
pair of sandle and a spade were taken into possession by the police
vide seizure memo, Ex.PW2/B. The respondent Pramod Kumar was
interrogated and arrested. PW2 claimed that he had apprehended the
respondent Pramod Kumar while he was burying a dead body. He had
not seen respondent Pramod Kumar before the present incident. Satpal
(PW4) was sent to call the police. The respondent Pramod Kumar was
handed over to the police. Police had seized a two wheeler scooter,
one book, one chain and ear tops. One ladies wrist watch of make
Sonata which was of yellow colour was also recovered from the
respondent Pramod Kumar. It was admitted by PW2 that the
respondent Pramod Kumar had brought Poonam on his scooter which
was seized by the Police officials. The said scooter was identified by
PW2 in Court. The respondent Pramod Kumar was identified by PW2
Crl.A.No.549/2013 Page 37 of 52
in Court as the person who was apprehended by him while respondent
Pramod Kumar was burying the dead body.
48. In his cross-examination, PW2 stated that on 04.05.2002, he was
working as a gardener. The security guards were also posted in the
forest area. On the same day, PW2 and other two persons alongwith
few guards were taken to the Police Station. It is important to mention
that PW2 had turned hostile and did not support the case of
prosecution. PW2 stated that he did not see any place where any
human dead body was recovered. PW2 denied that the statement
Ex.PW2/A was given by him to the police. The Investigating Officer
had recorded the same on his own. It was stated by PW2 that he was
not aware as to the contents of all memos which bear his signatures
and it was voluntarily explained that the Police had obtained his
signatures on some papers in the police station. PW2 stated that on
02.08.2006, his statement (Ex.PW2/DA) was also recorded in the
Juvenile Justice Board, Kinsgsway camp, Delhi whereby PW2 had
denied the facts mentioned in his statement Ex.PW2/A, as per which,
on 04.05.2002 at about 12.45 PM, he was present alongwith Satbir son
of Kishan Lal (PW3) and Sat Pal (PW4) was at his duty in Forest
Area, Garhi Mando and on reaching the eastern side of the Forest area,
they saw one person putting mud with a spade in one pit or that on
suspicion they went near him and started inquiring him. We have
found that PW2 took a somersault in his cross-examination and had
deposed contrary to his examination-in-chief and did not support the
case of prosecution.
49. Another independent witness, PW3 Satbir son of Kishan Lal testified
in his examination-in-chief that on 04.05.2002, he was posted as a
Gardener in the Forest Department Garhi Mando, Shahdara. On
Crl.A.No.549/2013 Page 38 of 52
04.05.2002 at about 4.30 PM, he alongwith Satbir son of Jai Pal Singh
(PW2) and Satpal (PW4) who used to work with him in the Forest
Department, were coming to their office from field after finishing
their work. On the way near Pantoon Pul, a police jeep met and
stopped them and asked as to whether any murder had taken place or
not and when they replied in negative telling that they had no
knowledge, they were taken to police station New Usmanpur by
police officials, where they were kept for 3-4 hours and then after
noting down their particulars (i.e. names and addresses) they were set
free. PW3 claimed that he had not seen anything. It was further
deposed by PW3 that he had neither seen any person digging pit nor
any dead body of a woman in that pit. They had not apprehended any
public person near the pit. PW3 claimed that they had not called any
police official in the forest area.
50. In his cross-examination, PW3 Satbir stated that Satbir son of Jai Pal
(PW2) and Satpal (PW4) were with him on duty on that day. They
remained in custody of the police till the release of PW3. It was
further stated by PW3 that PW2 did not leave them on that day. Their
duty was for gardening only and there were forest guards for the
security of the forest. Some guards were also taken to the Police
Station on that day. All of them were compelled to be the witness of
the occurrence by the police. PW3 refused as he had not seen any
occurrence. PW2 had agreed to make his statement according to the
police officials under their influence. The statement of PW3 was
proved by him as Ex.PW3/DA1 which was recorded in the juvenile
court. On 02.08.06 PW2, Satpal (PW4) went to the Juvenile court and
gave their statement in the Court. On that day, the Investigating
Officer Shiv Nath Tyagi was with them. On that day, all of them were
Crl.A.No.549/2013 Page 39 of 52
compelled to make their statement according to the Investigating
Officer. However, PW3 did not agree to it and made his true and
voluntary statement to the Court. Reading of the evidence of PW3
shows that on 04.05.02, he was on duty and admits the presence of
Satbir son of Jaipal Singh (PW2) and Satpal (PW4), the entire day.
51. PW4 Satpal in his examination-in-chief testified that on the 4th day in
the year 2002, he did not remember the month, he alongwith Satbir
son of Jaipal (PW2) and another Satbir son of Kishan Lal (PW3) were
on duty at the Garhi Mandu Forest Department. It was further testified
by PW4 that at about 4:30 pm, they were going to their office after
finishing their duty when 2-3 police officials came from the side of
Pontun Pul and asked them as to whether any murder had been
committed. They brought them to the Police Station and interrogated
them. It was told by them that no murder had been committed in their
presence and that they did not know about any murder. The Police
officials kept them in the Police Station upto 10:30 PM and noted
down their addresses. Thereafter, PW4 returned to his house. As PW4
did not support the case of prosecution, learned APP for the State
cross-examined him whereby PW4 admitted that on 04.05.2002, he
was on duty with his colleagues. He denied that on that day at about
12:15 pm, he alongwith PW2 and PW3 were present near Tin Shed of
Forest Department or that in the meantime a boy whose name they
came to know as Pramod Kumar came there alongwith a girl on two
wheeler scooter from Wazirabad road side or that the respondent
Pramod Kumar had parked his scooter near Pontun Pul tin shed or that
the boy and girl had gone towards Garhi Mandu village while talking
but they did not notice them. PW4 deposed that he did not narrate the
facts to the police. However, he was confronted with his statement to
Crl.A.No.549/2013 Page 40 of 52
the police (Ex.PW4/A) wherein it was so recorded. PW4 denied that at
about 12:45 pm when they had gone to the eastern side of Pontun Pul,
they found that a person was filling a pit with earth or that on
suspicion, they had gone there and found that the respondent Pramod
Kumar had come with a girl on scooter, who was filling the pit or that
he had also noticed leg of a woman in the pit or that when he asked
the respondent Pramod Kumar, he tried to run away or that PW4 had
apprehended him. PW4 deposed that he did not state these facts to the
police. However, PW4 was confronted with his statement (Ex.PW4/A)
wherein it was so recorded.
52. Besides the above public witnesses, the other formal witnesses
including PW10 SI Rajinder Sehrawat, who was posted as Zonal
Officer in Traffic Circle, Seelampur testified in his examination-in-
chief that on 04.05.2002 at about 1.00 PM, when he was present at
Wazirabad road, near Yamuna Bridge alongwith Const. Mohd. Nazim,
Const. Anil Kumar (PW6) and Const. Ram Pal (PW25), one employee
of Forest Department namely Satpal (PW4) came to him and told that
they had caught one person who was present in the forest area and was
in the process of burying one lady ‘ek aadmi ko pakad rakha hai jo
gaddeh mein phawre se mitti dal kar ek aurat ko daba raha hai’.
Thereafter, PW10 alongwith his staff reached the spot. Satpal (PW4)
led them up to the pit. PW10 found the employees of the Forest
Department were removing the earth from the pit. They removed an
unconscious woman aged about 19/20 years from the pit. PW10
informed the PCR officials who had removed the woman to the
Trauma Centre. The woman was declared as brought dead. The
respondent Pramod Kumar was apprehended by Forest employees and
was handed over to the SHO of the area. The articles including chain,
Crl.A.No.549/2013 Page 41 of 52
pair of ear tops, a ladies wrist watch of make Sonata, one book of
Social Studies were seized from the possession of the respondent
Pramod Kumar. SI Shiv Nath (PW26) recorded the statement of Satbir
and on the basis of his statement, the instant case was registered. One
spade, one handkerchief, one brown colour belt, one pair sandal and
one dupatta lying near the pit were seized and taken into possession.
The respondent Pramod Kumar was arrested and his disclosure
statement was recorded. PW10 duly identified the respondent Pramod
Kumar in Court.
53. The criminal machinery was set into motion vide DD No. 25B
(Ex.PW18/A) which was recorded on 04.05.2002 at PS New
Usmanpur. On the fateful day, at 1.21 PM, PW18 Lady HC Shashi
Bala received an information from wireless operator that one person
had been apprehended at Wazirabad road near Pontun Pul, Delhi who
was trying to bury dead body of a woman after burying a pit. The said
DD was marked to SI Shiv Nath Tyagi (PW26) for further proceeding.
54. PW24 ASI Nepal Singh deposed that on 04.05.2002, he was posted on
PCR vehicle Baker 43 and at about 01.20 pm, they were present at
Sonia Vihar Pushta where on receipt of a call from PCR Control
Room, they reached at Yamuna Khader near Pontun Pul, where one
traffic police Zonal Officer, one traffic constable and two officials
from forest department were present. They took one lady aged about
20-21 years old in an unconscious condition in a PCR vehicle and
PW24 immediately took her to Trauma Centre, Matcalfe Road, where
she was declared as brought dead by the doctor.
55. PW6 Const. Anil Kumar testified that on 04.05.2002 at about 1.30
PM, while he was on patrolling, PW6 found three labourers from
Forest Department alongwith one Zonal Officer and three constables,
Crl.A.No.549/2013 Page 42 of 52
who had apprehended the respondent Pramod Kumar, who was duly
identified by him in Court. PCR Van had removed the dead body of
the girl to Trauma Centre. Thereafter, SI Shivnath Tyagi (PW26)
reached the spot, and from there PW26 went to the Trauma Centre and
PW6 stayed at the spot. PW26 came back at the spot and handed over
the rukka to him at about 3.45 pm for registration of the FIR and after
registration of the FIR, PW6 came back at the spot at about 5/5.15
pm, and handed over copy of the FIR and rukka in original to the
Investigating Officer. PW6 also identified the scooter bearing
No.DL7SQA 7635 on which the respondent Pramod Kumar had
brought the girl at the spot. The said scooter was taken into possession
vide seizure memo Ex.PW6/A.
56. PW25 Const. Ram Pal testified that on 04.05.2002, he was posted in
the Traffic, Seelampur Circle. On the fateful day, he was posted at
Wazirabad Bridge point alongwith SI Rajender Sehrawat (PW10),
Const. Mohd. Nazim and Const. Anil Kumar (PW6) of Traffic. At
about 12.30-12.45 PM, one person whose name he later came to know
as Satpal (PW4), an official of Forest Department came to them and
informed them that one person was burying one another person at
Yamuna Khadar. PW25 alongwith PW10, PW6 and Const. Mohd.
Nazim reached the spot and saw that two persons namely Satbir son of
Kishan Lal (PW3) and Satbir Singh son of Jaipal Singh (PW2) were
found holding one person (the respondent Pramod Kumar) and they
saw the legs of one person in the pit. After removing the soil, they
found dead body of one lady aged about 19-20 years old. The
information was flashed by SI Rajender Sehrawat (PW10). The PCR
reached the spot after 10-15 minutes. Const. Mohd. Nazim and PW10
took the body of the lady in the PCR vehicle and moved it to Trauma
Crl.A.No.549/2013 Page 43 of 52
Centre. One spade, one belt, one handkerchief, one dupatta and one
pair of sandals were found lying near the spot. The local Police
reached the spot after some time. PW25 duly identified the respondent
Pramod Kumar in Court.
57. PW12 HC Anil Kumar deposed on the similar lines as deposed by
PW25. On 04.05.2002, he was posted alongwith SI Rajender Sehrawat
(PW10), Const. Mohd. Nazim and Const. Ram Pal (PW25) in Traffic
Circle, Seelampur. At about 1.00 PM, an employee of Forest
Department, whose name he came to know as Satpal (PW4) came to
meet him and informed that a boy was found burying a woman in a
pit. On reaching the spot, he apprehended the respondent Pramod
Kumar. The PCR van took the woman to the hospital. SI Sehrawat
(PW10) also reached the spot. One spade, one pair of ladies sandals,
one dupatta, one handkerchief, and one belt were found lying at the
spot. At about 01.30 PM or so, local police reached the spot.
58. PW26 SI (Retd.) Shiv Nath testified in his examination-in-chief that
on 04.05.2002 at about 1:21 PM, he was posted as SI at Police Station,
New Usmanpur. He received a DD No.25-B which was proved as Ex.
PW18/A with regard to the apprehension of one person near
Wazirabad Road, Pontun Pul, who was found burying a lady in a pit.
On receipt of said DD, PW26 alongwith HC Ved Pal (PW20) reached
at Village Gadi Mandu, Yamuna Khadar Forest, Near Pontun Pul,
where PW26 met Const. Anil Kumar (PW6), SI Rajender Sehrawat
(PW10), HC Anil (PW12), Const. Mohd. Nazim, Const. Ram Pal
(PW25) and forest officials namely Satbir Singh (PW2) and Satbir
(PW3). On reaching the spot, the traffic police officials produced one
person namely Pramod Kumar (the respondent herein) before him and
they informed that the injured lady was already taken to the Trauma
Crl.A.No.549/2013 Page 44 of 52
Centre by PCR van. Thereafter, PW26 alongwith HC Ved Pal left for
Trauma Centre and left Const. Anil there to preserve the spot. On
reaching the Trauma Centre, PW26 collected the MLC of the injured
lady, who was declared as brought dead. Thereafter, PW26 returned to
the spot after leaving HC Ved Pal at the Trauma Centre. The
statement of Satbir Singh (PW2) was recorded by PW26 which was
proved as Ex. PW2/A whereby it was stated by PW2 that the
respondent Pramod Kumar had committed the murder of above said
lady and was trying to bury her in the pit. PW26 made an endorsement
on the rukka which was proved as Ex.PW26/A and the same was sent
to PS New Usmanpur for the registration of FIR through Const. Anil.
The site plan (Ex. PW26/B) was prepared at the instance of PW2. The
crime team also reached the spot but no finger prints were found there.
At the spot, PW26 found one spade, one chunni, one pair of sandals,
one handkerchief and one belt. In the meanwhile, Const. Anil (PW26)
reached the spot and handed over the copy of FIR and rukka in
original to him for further investigation. PW26 interrogated the
respondent Pramod Kumar whereby he confessed about the incident.
The respondent Pramod Kumar was arrested by him vide arrest memo
Ex.PW2/C and his personal search was conducted by him vide memo
Ex.PW2/D. PW26 further deposed that after conducting personal
search of the respondent Pramod Kumar, one pair of golden colour
tops, one chain golden in colour and one ladies wrist watch of make
sonata were recovered from the right pocket of the pant and one book
of sociology from his back was recovered. The respondent Pramod
Kumar had disclosed to him that all the aforementioned articles
belonged to the deceased. Besides aforementioned articles, Rupees
47/- were also found from the possession of the respondent Pramod
Crl.A.No.549/2013 Page 45 of 52
Kumar. PW26 also deposed that the respondent Pramod Kumar was
interrogated by him and his disclosure statement Ex. PW2/C was
recorded. At the instance of the respondent Pramod Kumar, one two
wheeler scooter bearing No. DL7SQ7635 was also recovered from
Pontun road, near Tin shed and it was seized by him vide memo Ex.
PW6/A.
59. PW23 P.C. Jain (the then SDM of the area) deposed that on
04.05.2002, he received an information from the Police Station New
Usmanpur, Delhi about the death of a lady namely Poonam. The
relatives of the deceased were brought before him on 05.05.2002 for
recording of their statements. On 05.05.2002, one Salek Ram (PW1)
was brought before him and his statement was recorded, which was
proved as Ex. PW1/A. Thereafter, PW23 went to the GTB Hospital
and completed the Inquest Proceedings of the deceased Poonam. The
post-mortem of the deceased Poonam was conducted at his request.
After the post mortem examination, the dead body of Poonam was
handed over to SI Shiv Nath (PW26) for necessary action.
60. Undoubtedly, it is a settled principle of law that the statement of a
police officer can be relied upon and can form the basis of conviction
when it is reliable, trustworthy and preferably corroborated by other
evidence on record. The presumption that every person acts honestly
applies as much in favour of a police official as any other person.
There is no rule of law which lays down that no conviction can be
recorded on the testimony of police officials even if such evidence is
otherwise reliable and trustworthy. The rule of prudence requires a
careful scrutiny of their evidence. But, if the court is convinced that
what was stated by a police witness has a ring of truth, conviction can
be based on such evidence.
Crl.A.No.549/2013 Page 46 of 52
61. After reading the evidence of formal witnesses being PW10 SI
Rajinder Sehrawat, PW6 Const. Anil, PW12 HC Anil and PW26 SI
(Retd.) Shiv Nath, we are of the considered view that the Trial Court
misdirected itself by disbelieving their evidence on the ground that
they were not able to identify the informer Satbir Singh (PW2) and
Satpal (PW4) in the group photograph which was shown to them after
a period of 5-6 years of the incident. It may be noted that PW6 and
PW10 had expressly deposed that they could identify Satpal (PW4)
and Satbir Singh (PW2) if they were produced in Court, but the Trial
Court did not consider the same. It is relevant to mention that PW2
Satbir was produced in Court after 5 years of the incident and he
supported the case of the prosecution in his examination-in-chief
which was recorded on 01.01.2007. The cross-examination of PW2
was allowed to drag and after 10 months i.e. on 06.10.2007, after PW2
had retired and he was won over by the respondents.
62. The presence of the respondent Pramod Kumar at the spot cannot be
doubted and stands fully established in view of the testimonies of
PW2 Satbir Singh, PW3 Satbir, and PW4 Satpal alongwith the
testimonies of the formal witnesses including PW10 SI Rajinder
Sehrawat, PW6 Const. Anil Kumar, PW13 Insp. Anil Kumar, PW24
ASI Nepal Singh, PW25 Const. Ram Pal and PW26 SI (Retd.) Shiv
Nath. The reading of their testimonies show that the respondent
Pramod Kumar was caught at the spot while he was digging a pit and
trying to bury Poonam. The deceased Poonam was taken to the
hospital by the PCR officials however, she was declared as brought
dead.
Medical Evidence:
Crl.A.No.549/2013 Page 47 of 52
63. PW14 Dr. Satender Kumar, CMO, Sushruta Trauma Centre testified
that on 04.05.2002, he was posted as a Medical Officer in the
aforementioned Centre, where ASI Nepal Singh (PW24) of PCR
brought one unknown female aged 20 years old for medical
examination. He conducted her medical examination vide MLC No.
29277 which was proved by him as Ex.PW14/A. PW14 deposed that
the said patient was in unconscious state and PCR official told him
that some person had buried the patient in sand. After local
examination, PW14 found one lacerated wound size approximately 10
cm x 8 cm on right occipito parieto temporal region of skull and the
patient was declared as brought dead. In his cross-examination, PW14
stated that only one injury was noticed by him that could have been
possible if a person fell down upon a hard object or surface. PW14
could not opine with regard to the weapon used in the infliction of the
injury to the patient.
64. PW15 Dr. S.K. Verma conducted post-mortem examination of the
deceased on 05.05.2002. His detailed report was proved as
Ex.PW15/A wherein the following ante-mortem injuries were found
on the body of the deceased:
“i) Reddish contusions three in numbers of size 0.5 cm in
diameter present over under surface of lower lip in the middle
below the incisor teeth and two cm Posterior to the lip line.
ii) A small reddish contusions 0.6 cm in diameter present on
right side front of neck, 1 cm to the right of mid line and 2.5
cm above the medial end of right clavicle. Another contusion
with similar features was placed 4 cm below and right of the
above mentioned contusion.
iii) A scalp deep lacerated wound with irregular and ragged
margins of size 10 x 6 cm placed 10 cm above right mastoid
and 15 cm from right orbital margin in parietal region of skull
with a depressed communitted (undisplaced) fracture of size 4Crl.A.No.549/2013 Page 48 of 52
x 3.5 cm. Blood was present around the wound and on the
back of neck and chest. Scalp hairs shaven around and over
the wounds.”
65. PW15 opined that the cause of death of Poonam was shock due to
head injury which was caused by the blunt force impact and was
sufficient to cause death in the ordinary course of nature. Time since
death was opined as one day prior to the autopsy of Poonam.
66. It is evident from the post-mortem report of the deceased Poonam that
she sustained a scalp deep lacerated wound of size 10 x 6 cm in the
parietal region of skull. It was opined by PW15 that the cause of death
was shock due to head injury which was caused by the blunt force
impact and was sufficient to cause death in the ordinary course of
nature. Poonam was in lawful custody of her husband (respondent
Pramod Kumar) and had gone to her matrimonial home on the fateful
day. By a deeming fiction in law, the onus shifts on to the respondent
Pramod Kumar to prove as to how the deceased had died. The
respondent Pramod Kumar did not care to explain as to how the death
of his wife had occurred when she was picked by him on the same day
of the incident from her parental home. Mere denial cannot be treated
to be the discharge of onus. Onus has to be discharged by leading
proper and cogent evidence. In the given circumstances of the instant
case, we expect from the respondent Pramod Kumar to explain as to
how and why his wife had died, as well as his conduct subsequent to
the death of the deceased Poonam shows that he was found burying
the dead body of Poonam in the Forest area of Garhi Mandu. The
explanation rendered by all the respondents in their statement under
Section 313 of Cr.P.C. is not convincing. All the respondents had
made similar statement. Thus, the respondent Pramod Kumar had
Crl.A.No.549/2013 Page 49 of 52
failed to discharge the onus to rebut the presumption arising out of
Section 113-B of the Indian Evidence Act.
67. As far as the delay in registration of FIR is concerned, the counsel for
the respondents submits that there has been gross unexplained delay in
the registration of FIR, thus, giving ample opportunity to the family
members of Poonam to cook up the exaggerated general allegations.
From the evidence on record, it has emerged that the information with
regard to the death of Poonam was received by PW1 on 04.05.2002 at
about 3.30/4.00 PM and rukka was sent within 3 hours of the incident
but FIR was registered on 05.05.2002. We are of the view that FIR
being lodged on the day next after the incident i.e. 05.05.2002 did not
constitute inordinate delay categorising the FIR as an afterthought or
as contrived. As the complainant along with the family members were
shocked by the loss of Poonam, which could be a reason for the delay
in registration of the present case.
68. In the case of Ramesh Harijan vs. State of U.P. reported at (2012) 5
SCC 777, it was held by the Hon’ble Supreme Court that it is only in
exceptional cases where there are compelling circumstances and the
judgment in appeal found to be perverse, the appellate Court can
interfere with the order of the acquittal. The relevant para 20 reads as
under:
“20. The law of interfering with the judgment of acquittal is
well settled. It is to the effect that only in exceptional cases
where there are compelling circumstances and the judgment in
appeal is found to be perverse, the appellate court can
interfere with the order of the acquittal.
“20. … The appellate court should bear in mind the
presumption of innocence of the accused and further that
the trial court’s acquittal bolsters the presumption of his
innocence. Interference in a routine manner where theCrl.A.No.549/2013 Page 50 of 52
other view is possible should be avoided, unless there are
good reasons for interference.”
(Emphasis Supplied)
69. Similar observations were made by the Apex Court in the case of
Girja Prasad vs. State of M.P. reported at (2007) 7 SCC 625, the
relevant para 28 reads as under:
“28. Regarding setting aside acquittal by the High Court, the
learned counsel for the appellant relied upon Kunju Mohd. v.
State of Kerala (2004) 9 SCC 193, Kashiram v. State of M.P.
(2002) 1 SCC 71 and Meena v. State of Maharashtra (2000) 5
SCC 21. In our opinion, the law is well settled. An appeal
against acquittal is also an appeal under the Code and an
appellate court has every power to reappreciate, review and
reconsider the evidence as a whole before it. It is, no doubt,
true that there is presumption of innocence in favour of the
accused and that presumption is reinforced by an order of
acquittal recorded by the trial court. But that is not the end of
the matter. It is for the appellate court to keep in view the
relevant principles of law, to reappreciate and reweigh the
evidence as a whole and to come to its own conclusion on such
evidence in consonance with the principles of criminal
jurisprudence.”
(Emphasis Supplied)
70. In the light of the view taken in the case of Laliya Bhadiyabhai
Nayka’s case (supra), wherein the Public Prosecutor ought to re-
examine the prosecution witnesses on the material aspects when they
turned hostile and similarly, in the instant case, the Public Prosecutor
did not re-examine the prosecution witnesses, when they took a
complete somersault in their cross-examination, we are of the view
that such omission on the part of the Public Prosecutor only amounts
to lapse on his part and does not affect the case of the prosecution,
when corroborated with other evidence available on record. In view of
the settled principles laid down by the Apex Court extracted
Crl.A.No.549/2013 Page 51 of 52
hereinabove, we rely upon the evidence of PW2 Satbir Singh, PW3
Satbir and PW4 Satpal as due to their prompt assistance the case
would not have seen the light of the day and set the criminal
machinery into motion. The Trial Court has erred in acquitting the
respondent Pramod Kumar on the ground that the material witnesses
had turned hostile and did not support the case of prosecution. We are
of the view that their evidence remains admissible in the trial and
there is no legal bar to base a conviction upon their testimonies which
is also corroborated by other reliable evidence. We are unable to
accept the view taken by the Trial Court. The prosecution has proved
its case beyond reasonable doubt against respondent Pramod Kumar.
Thus, respondent Pramod Kumar stands convicted for the offence
punishable under Sections 302 read with 201 of IPC for the reasons
discussed above and the acquittal recorded by the Trial Court against
him is set aside.
71. Accordingly, the appeal filed by the complainant Salek Ram against
respondent Pramod Kumar is allowed while the appeal filed against all
other respondents stand dismissed. The respondent Pramod Kumar
would be heard on sentence on 26.11.2019, when Pramod Kumar shall
be produced, if arrested, in the Court, otherwise convict Pramod
Kumar shall remain present in Court.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
NOVEMBER 20, 2019
//
Crl.A.No.549/2013 Page 52 of 52
