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Sandeep @ Sunny @ Rohit & Anr. vs The State (Govt Of Nct Of Delhi) on 24 October, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 606/2018
SANDEEP @ SUNNY @ ROHIT ANR. ….. Appellants
Through Mohd. Ahmed with Mr.Amit Vohra,
Advocates.
versus
THE STATE (GOVT OF NCT OF DELHI) ….. Respondent
Through Ms.Aashaa Tiwari, APP for the State
with SI Sumit, PS Aman Vihar.
AND
+ CRL.L.P. 260/2018
STATE (GOVT. OF NCT OF DELHI) ….. Petitioner
Through Ms.Aashaa Tiwari, APP for the State
with SI Sumit, PS Aman Vihar.
versus

SANDEEP @ SUNNY @ ROHIT ANR. ….. Respondents
Through Mohd. Ahmed with Mr.Amit Vohra,
Advocates.
Reserved on : 11th October, 2019
% Date of Decision: 24th October, 2019
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT

MANMOHAN, J:

1. While Crl.A.606/2018 has been filed by appellant-convict Sandeep @
Sunny @ Rohit (husband of the deceased) and appellant-convict Deepak
(brother-in-law of the deceased) challenging the judgment dated 31st
January, 2018 passed by the Additional Sessions Judge-04, North-West

CRL. A.606/2018 Crl.L.P.260/2018 Page 1 of 23
District, Rohini Courts, Delhi in Case No.52035/2016 arising out of FIR
No.6/2011 registered with Police Station Aman Vihar convicting them under
Sections 304B/Section34 IPC and sentencing them to rigorous imprisonment for ten
years with fine of Rs. 15,000/- , as well as under Sections 498A/Section34 IPC for
which they were sentenced to rigorous imprisonment for three years with
fine of Rs. 5,000/-; Crl. L.P. 260/2018 has been filed by the State, against
the same judgment challenging the acquittal of the appellant-convicts under
Section 302 IPC.

CASE OF THE PROSECUTION

2. The case of the prosecution in brief is that appellant-convict Sandeep
had married Anju (deceased) on 13th December 2010 and that on 10th
January 2011 i.e. within a month of her marriage, she was found dead at her
matrimonial home. The FIR bearing No. 6/2011 under Sections 302, Section304B
and Section34 of the IPC was registered with Police Station Aman Vihar. After the
investigation, the appellant-convicts were arrested on 5th April, 2013 and a
charge sheet under Sections 302, Section304B, Section498A and Section34 of the IPC was filed
against them.

FINDING OF THE TRIAL COURT

3. The Trial Court convicted the appellant-convicts under Section 304B
IPC relying upon Sections 106 and Section113B Indian Evidence Act, 1872.
However, Trial Court acquitted the appellant-convicts under Section 302
IPC on account of absence of direct evidence. The relevant portion of the
trial court judgment is reproduced hereinbelow:-

“68. Coming now to the applicability of the Sectionsection 106 of the
Indian Evidence Act, 1872, I may state that the burden in the

CRL. A.606/2018 Crl.L.P.260/2018 Page 2 of 23
aforesaid facts and circumstances of the case squarely shifts
upon the accused persons to explain why the deceased died in the
matrimonial house particularly when DW 5 sister of the deceased
had deposed in defence evidence that on 10.01.2011 she along
with her mother and sister remained in the house throughout the
day and no outsider had entered in the house on that day. Then
it was the duty of the accused person to explain why the deceased
died unnatural death……

xxx xxx xxx

70. No doubt, in a criminal trial the burden of proving its case
rests squarely upon the prosecution so as to prove the guilt of the
accused beyond shadows of all reasonable doubts, but Section
106 Indian Evidence Act, 1872 is an exception to the said
general rule. It applies to all those facts which are exclusively
to the knowledge of the accused, or it will be
extremely difficult for the prosecution to prove those facts. No
doubt, accused is not supposed to prove innocence beyond all
reasonable doubts, but what is required of him is to bring out a
preponderance of probability. But here in the present case in the
statement recorded under Section 313 Cr.P.C, nothing has been
brought on record by them regarding their uninterrupted phone
calls for considerable period particularly on the day of incident,
when the deceased was strangulated and murdered.

The accused persons has failed to raise any
probability of their innocence and they are not
involved in commission of crime. The plea of alibi raised by the
accused persons has not been satisfied beyond all probabilities.
It is easy for a person in Delhi to reach from one place to other
within a hour and the case of the accused is not of that, they were
far away from Delhi and it was not possible for them to reach at
house on the day of incident. Rather, both the accused
were in Delhi and there is no evidence of time of leaving their
house in the morning.

71. In the prosecution evidence it is already deposed by the
witnesses that accused persons have harassed the
deceased in connection with demand of dowry and as
the marriage was performed on 13.12.2010 and the death of the

CRL. A.606/2018 Crl.L.P.260/2018 Page 3 of 23
deceased has been caused within one month from the date of
marriage. The prosecution witnesses has particularly deposed
regarding the demand of dowry, in the shape of share from the
Malka Ganj property, where the deceased and her sisters were
having share of one room and deceased before her death was
asked to sell the property.

xxxx xxxx xxxx xxxx

73. Apart from the facts discussed above, I deem it
appropriate to discuss the conduct of accused persons also
before coming to the conclusion. As it is established on record
by the prosecution witnesses, particularly PW 1 that
she received a telephonic message from the sister of accused in
the night at around 11:00 PM on 10.01.2011 regarding the
illness of the deceased. No efforts has been made by them to took
the deceased to a Doctor at the earliest. Even no message to the
Police had been given in the 100 number at the night. The
Police has been informed in the morning at around 08:00 AM on
11.01.2011. The DW 5 has deposed that they remained in the
house throughout a day and they were aware that the
deceased was not feeling well. No such well being of the
deceased was asked by the accused persons or their family
members in the day time. All these facts shows the negligent
conduct of the accused and their family members qua
the deceased. It is also necessary to mention here that as it is
clear from the record that at the initial stage accused persons
has not been arrested by the Police and they have
been arrested only after two and half year after
recording the evidence by the PW 19. There were no efforts on
the part of the accused persons to move any kind of application
before higher ups regarding the investigation when the wife of
the accused had died in unnatural circumstances and when it
was opined by the Doctor that it was a murder and the death was
caused due to strangulation and there were abrasion around the
neck. They were silent throughout the period and did not made
any efforts to know the reality or truth regarding the death of
deceased Anju. This also casts a doubt on their role.

CRL. A.606/2018 Crl.L.P.260/2018 Page 4 of 23

74. ……. Though, there is no direct evidence to establish on
record by the prosecution that the deceased has been
murdered by the accused persons. Therefore, in absence
of any direct evidence regarding strangulation and causing
death of deceased Anju therefore, they can not be convicted for
the offence under Section 302 IPC.

75. However, there is sufficient material available on
record which has been proved and corroborated by the
prosecution witnesses by leading oral and medical evidence.
Therefore, I am of the considered opinion that prosecution has
been able to prove the case against the accused
persons beyond any reasonable doubt and there was a
rebuttable presumption under Section 114 B of Evidence Act as
well as under Section 304 B IPC, which is not being rebutted by
the accused persons. The death of deceased has been caused in
unnatural manner within seven years of her marriage
as provided under Section 304 B IPC and here the death has
been cause within one month of the marriage and there
are allegations of demand of dowry and harassment on account
of demand of dowry. Therefore, I am of the considered opinion
that the accused persons had committed the offence
punishable under Section 498 A/304 B/34 SectionIPC. Let they be heard
on the quantum of sentence.”

ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICTS

4. Mr. Mohd. Ahmed, learned counsel for the appellant-convicts stated
that the marriage between the deceased and appellant-convict Sandeep was a
love marriage. He stated that they had married each other earlier but at the
request of family members of the deceased, they underwent the ritual of
marriage in a dharamshala on 13th December, 2010. He further stated that
no cruelty was inflicted upon the deceased as there was no demand for
dowry by the appellant-convicts and that she was comfortable in her
matrimonial home.

CRL. A.606/2018 Crl.L.P.260/2018 Page 5 of 23

5. He contended that even the statements made by the sister of the
deceased, Kusum (PW-1) and their uncle, Ganesh Lal (PW-2) to the SDM
(PW-24) on the day after the death of the deceased i.e 11th January 2011 did
not contain any allegations of demand for dowry and the same was
corroborated by the testimony of the SDM (PW-24). He emphasised that as
there was no allegation against the appellant-convicts they were not arrested
for more than two years after the death of the deceased.

6. Learned counsel for the appellant-convicts contended that the
allegations with regard to demand for dowry by the appellant-convicts were
for the first time made in vague statements to the SDM (PW-19) by two
other sisters of the deceased – Pinky (PW-3) and Rakhi (PW-4), nearly two
years after the death of the deceased. He pointed out that the sisters of the
deceased while getting their statements recorded under Section 161 Cr.P.C.,
added a new allegation that on 1st January, 2011 when they had gone to the
matrimonial house of the deceased, she had informed them that there was a
dowry demand with regard to her share in her ancestral one room house and
consequently, the appellant-convicts were arrested.

7. He emphasized that the conduct of the two sisters of the deceased was
strange and unnatural inasmuch as they had not recorded their statements for
two years and when their statement was subsequently recorded by the SDM,
they had failed to mention the incident of 1st January, 2011. He relied upon
the judgment of this Court in Shyam Lal Gupta Vs. State and Ors., 2013
(137) DRJ 141. The relevant portion of the said judgment is reproduced
hereinbelow:-

“8. We have noted that on the next day i.e. 16th August, 1999,
the appellant made statement to SDM (Ex.PW9/A) and in his

CRL. A.606/2018 Crl.L.P.260/2018 Page 6 of 23
statement he has stated that it was an accident only and he did
not raise any suspicion. He did not disclose about harassment or
demand of dowry of Rs. 10 lakhs or cruelty to his daughter. Even
if it is assumed that the appellant was under the shock of death of
his daughter or that appellant came to know about demand of Rs.
10 lakhs after cremation of his daughter, as alleged by him in his
statement in the Court, he should have made statement
immediately or within one or two days thereafter or should have
given some complaint in writing to the police or SDM. It is only
for the first time on 22nd September, 1999 (after about 37 days of
incident) that the appellant and his wife Suman Gupta made
statement to SDM and made allegations regarding harassment
and demand of dowry.

9. Further, the appellant has not alleged that any demand was
made from him rather Suman Gupta (PW-12) has deposed that
Satpal, uncle of Rajesh Gupta, his mother Pushpa Devi and
Suman (sister-in-law) used to demand dowry from the deceased
Geeta. PW-12 has deposed that after three days of marriage, her
daughter came to her house and disclosed that she was being
harassed and money was being demanded. It is pertinent to note
that no specific allegations are made against the respondents or
any other relatives of the husband and the allegations are
general in nature and an attempt to implicate all the members of
the family of the husband. Even if that be the case, this witness
also did not lodge any complaint in this regard. The allegation is
made belatedly and after the death of Geeta. It is apparent after
cremation of Geeta, differences for some reason had cropped up.
It is also relevant to note that no complaint regarding
harassment, cruelty or demand of dowry was lodged by the
deceased Geeta during her marital life or shortly thereafter.

10. It is also pertinent to note that at no point in time, in his
statement before the SDM on 22th September, 1999 exhibited as
Ex.PW9/B and his statement under Section 161 Cr. P.C.
recorded on 15th October, 1999, the appellant had stated the
factum that the husband of the deceased had kept the
suitcase/attaichi behind the seat of the deceased and only in his

CRL. A.606/2018 Crl.L.P.260/2018 Page 7 of 23
statement under Section 161 Cr. P.C. recorded on 13th January,
2000, approximately 4-½ months after the date of accident, he
had mentioned that husband of deceased had deliberately
removed the said suit case from the dickey and kept it behind the
deceased’s seat as a result of which the seat did not recline at the
time of the accident. This allegation of the appellant is an
afterthought and cannot be taken as a valid ground to impute any
deliberate intention on Rajesh Gupta to cause the death of the
deceased. The trial Court after elaborate analysis of the
testimonies has reached a considered conclusion that the
deceased Geeta lost her life in a car accident and it is not a case
under Section 304B IPC. The contention of the appellant is
farfetched and a mere hunch.”

8. He submitted that the statutory presumption for dowry death under
Section 304B IPC cannot be drawn against the appellant-convicts as there
was no demand for dowry and no cogent evidence on record to prove that
the deceased was subjected to cruelty soon before her death.

9. Learned counsel for the appellant-convicts also stated that the
appellant-convicts were not present at their house at the time of death of the
deceased as they were in their office. He stated that the said fact was proved
by the Call Detail Record of both the appellant-convicts and the testimonies
of their employers i.e. Hitesh Sahni (DW-1) and Hari Ram (DW-3) as well
as Rohit Goyal (DW-2) who was the co-worker of the appellant-convict
Sandeep.

10. He also pointed out that though the CDR of both the appellant-
convicts was available with the investigating officer, yet the same was not
brought on record. He submitted that the said act of the investigating officer
amounted to withholding best evidence which was in favour of the
appellant-convicts. In support of his submission, he relied upon the Supreme

CRL. A.606/2018 Crl.L.P.260/2018 Page 8 of 23
Court judgment in Tomaso Bruno and Anr. Vs. State of U.P. (2015) 7 SCC
178, wherein it has been held as under:-

“25. The production of scientific and electronic evidence in
court as contemplated under Section 65-B of the Evidence Act is
of great help to the investigating agency and also to the
prosecution. The relevance of electronic evidence is also
evident in the light of SectionMohd. Ajmal Amir Kasab v. State of
Maharashtra [(2012) 9 SCC 1 : (2012) 3 SCC (Cri) 481] ,
wherein production of transcripts of internet transactions
helped the prosecution case a great deal in proving the guilt of
the accused. Similarly, in SectionState (NCT of Delhi) v. Navjot
Sandhu [(2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , the links
between the slain terrorists and the masterminds of the attack
were established only through phone call transcripts obtained
from the mobile service providers

26. The trial court in its judgment held that non-collection of
CCTV footage, incomplete site plan, non-inclusion of all
records and sim details of mobile phones seized from the
accused are instances of faulty investigation and the same
would not affect the prosecution case. Non-production of CCTV
footage, non-collection of call records (details) and sim details
of mobile phones seized from the accused cannot be said to be
mere instances of faulty investigation but amount to withholding
of best evidence. It is not the case of the prosecution that CCTV
footage could not be lifted or a CD copy could not be made.

xxx xxx xxx

28. ……Notwithstanding the fact that the burden lies upon the
accused to establish the defence plea of alibi in the facts and
circumstances of the case, in our view, the prosecution in
possession of the best evidence, CCTV footage ought to have
produced the same. In our considered view, it is a fit case to
draw an adverse inference against the prosecution under
Section 114 Illustration (g) of the SectionEvidence Act that the
prosecution withheld the same as it would be unfavourable to
them had it been produced.”

CRL. A.606/2018 Crl.L.P.260/2018 Page 9 of 23

ARGUMENTS ON BEHALF OF THE APP FOR STATE

11. Per contra, Ms. Aasha Tiwari, learned APP for the State contended
that as per the Post Mortem Report (Ex. PW 12/A) the cause of death of the
deceased was „asphyxia consequent to obstruction of the airway by
strangulation of the neck‟ and Dr. Manoj Dhingra, (PW-12) who conducted
the post mortem on the body of the deceased had opined that “the injuries on
the neck were sufficient to cause death in the ordinary course of nature”.
She pointed out that as per the Post Mortem Report, all the injuries on the
body of the deceased were ante mortem in nature and fresh in duration. She
also stated that as per the subsequent opinion on the Post Mortem Report,
the injuries were not self inflicted and there was least likelihood of the
deceased strangulating herself.

12. Learned APP for the State further stated that the dead body of the
deceased was found in her matrimonial house itself and the sister of the
appellant-convicts, Seema (DW-5) had deposed that on the day the deceased
had died, she along with her mother and sister remained in the house
throughout the day and no outsider had entered the house. She contended
that in view of the aforesaid, the burden was on the appellant-convicts to
explain how the death of the deceased had happened and they had failed to
discharge the said burden. She submitted that even though it is the duty of
the prosecution to prove its case, Section 106 of Indian Evidence Act, 1872
was an exception to the said rule and in view of the same, the appellant-
convicts should have disclosed facts that were exclusively in their
knowledge and explained how the deceased had died an unnatural death.

13. She emphasised that the death of the deceased had taken place within
one month of her marriage and that the sisters of the deceased Pinky (PW-3)

CRL. A.606/2018 Crl.L.P.260/2018 Page 10 of 23
and Rakhi (PW-4) had deposed that the appellant-convicts had harassed the
deceased in connection with a demand for dowry. She pointed out that they
had deposed that the demand for dowry was specifically in regard to the
deceased’s share in the ancestral property situated in Malkaganj and that the
deceased before her death was asked to sell the property.

14. Learned APP for the State contended that the plea of alibi raised by
appellant-convicts had not been satisfied beyond all probabilities. She stated
that appellant-convicts had failed to show that they were not involved in the
commission of the crime. She pointed out that it was not the appellant-
convicts’ case that they were far away from Delhi and that it was not
possible for them to reach their house on the day of the incident. She
emphasised that both the appellant-convicts were in Delhi and it is very easy
for a person in Delhi to reach from one place to another within an hour and
that there was no evidence of the time on which the appellant-convicts had
left their house in the morning on the date of the incident.

15. Learned APP for the State also stated that as per the evidence on
record, a telephone call was made to the sister of the deceased Kusum
(PW-1) at about 11 pm on 10th January, 2011 to inform her that the deceased
was not waking up. She pointed out that the appellant-convicts had not made
any efforts to take the deceased to a doctor or call the police and the first call
to the police was made at 8 am on 11th January, 2011 by the uncle of the
deceased. She emphasized that all the aforementioned facts show the
negligent conduct of the appellant-convicts and their family members
towards the deceased.

16. Learned APP for the State submitted that it could not be held as a rule
of universal application that the testimony of the prosecution witnesses

CRL. A.606/2018 Crl.L.P.260/2018 Page 11 of 23
becomes unreliable merely because there had been a delay in recording their
statements under Section 161 Cr.P.C. In support of her submission, she
relied upon the judgment of the Supreme Court in SectionV.K. Mishra Anr. v.
State of Uttarakhand Anr., (2015) 9 SCC 588, wherein it has been held
as under:-

“18. Section 145 of the Evidence Act reads as under:

“145.Cross-examination as to previous statements in writing.–
A witness may be cross-examined as to previous statements
made by him in writing or reduced into writing, and relevant to
matters in question, without such writing being shown to him,
or being proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be proved, be
called to those parts of it which are to be used for the purpose
of contradicting him.”

19. Under Section 145 of the Evidence Act when it is intended to
contradict the witness by his previous statement reduced into
writing, the attention of such witness must be called to those
parts of it which are to be used for the purpose of contradicting
him, before the writing can be used. While recording the
deposition of a witness, it becomes the duty of the trial court to
ensure that the part of the police statement with which it is
intended to contradict the witness is brought to the notice of the
witness in his cross-examination. The attention of witness is
drawn to that part and this must reflect in his cross-examination
by reproducing it. If the witness admits the part intended to
contradict him, it stands proved and there is no need to further
proof of contradiction and it will be read while appreciating the
evidence. If he denies having made that part of the statement,
his attention must be drawn to that statement and must be
mentioned in the deposition. By this process the contradiction is
merely brought on record, but it is yet to be proved. Thereafter
when investigating officer is examined in the court, his attention
should be drawn to the passage marked for the purpose of
contradiction, it will then be proved in the deposition of the

CRL. A.606/2018 Crl.L.P.260/2018 Page 12 of 23
investigating officer who again by referring to the police
statement will depose about the witness having made that
statement. The process again involves referring to the police
statement and culling out that part with which the maker of the
statement was intended to be contradicted. If the witness was
not confronted with that part of the statement with which the
defence wanted to contradict him, then the court cannot suo
motu make use of statements to police not proved in compliance
with Section 145 of the Evidence Act that is, by drawing
attention to the parts intended for contradiction.

xxx xxx xxx xxx

24. Contentions urged assailing credibility of PW 2 do not merit
acceptance. PW 2 in his evidence had clearly stated that he had
come to Dehradun from Tehri on 7-8-1997 and was in his
parents house till 3.00 p.m. on 10-8-1997 when he left for the
hotel. PW 2 clearly explained the reason for his stay at hotel
stating that distance of his father’s house from Dehradun bus
stand is 4-5 km and as he wanted to settle the matter with the
in-laws of his sister Archana about their additional demand of
dowry for Rs 5,00,000, he left his home to the hotel with his
luggage at 3.00 o’clock perhaps to settle the matter with in-laws
of Archana and in order to save time to take the bus on the
night of 10-8-1997, PW 2 might have stayed in the hotel at
Dehradun. In his evidence, PW 2 clearly stated that he had
taken permission to be away from Tehri from 7-8-1997 to 10-8-
1997 and that he took leave from 11-8-1997 for three-four days
to go to Bombay in connection with his wife’s treatment in
Bombay. PW 2’s evidence that he met Archana at their parental
home on 9-8-1997 and that Archana informed him about the
demand of Rs 5,00,000 and cruelty meted out to her and that he
proceeded to the house of the appellants to settle the dispute
amicably is quite natural and inspires confidence. PW 2 acted
like a loving brother and probably he did not want to give
tension to his old parents and on seeing the urgency of the
matter, went to the appellants’ house to convince them. By
perusal of evidence of PW 2, it is seen that he remained
consistent throughout his cross-examination and nothing

CRL. A.606/2018 Crl.L.P.260/2018 Page 13 of 23
substantial was elicited to discredit his version. Merely because
PW 2 has not produced documents showing the permission
granted to him to be away from the headquarters Tehri from 7-
8-1997 to 10-8-1997, version of PW 2 cannot be doubted. The
reasons stated by PW 2 for his stay in hotel is quite convincing
and the contention assailing the credibility of PW 2 was rightly
rejected by the trial court and the High Court.

25. It has been further contended on behalf of the appellants
that there was delay in recording the statement of PW 2 by the
investigating officer and therefore his evidence should be
viewed with suspicion, especially when he did not disclose
about the alleged dowry demand before he left for Dehradun or
till his statement was recorded by the police. In this context as
pointed out earlier, PW 2 went to Mumbai for treatment of his
wife and on 14-8-1997 he was informed about the death of
Archana and on the next day he returned to Delhi by air and
from Delhi he reached Dehradun by taxi. In his evidence PW 2
stated that the police being busy in the programme of Ms
Mayawati, the then Chief Minister of Uttar Pradesh on 17-8-
1997, the police did not examine and record his statement and it
was only on 18-8-1997 that his statement was recorded by the
investigating officer. Considering the evidence of PW 2, it
cannot be said that the prosecution was deliberately taking time
with a view to concoct a false case and decide about the shape
to be given to the case. It is pertinent to point out that on the
delayed examination of PW 2, no question was put to the
investigating officer (PW 14) by the defence. Had such question
been put to PW 14, he would have certainly explained the
reason for not examining PW 2 from 15-8-1997 to 17-8-1997.
Having not done so, the appellants are not right in contending
that there was delay in recording the statement of PW 2.”

19. Learned APP vehemently denied that the prosecution had withheld
the best evidence. She referred to the testimonies of the investigating officer
Insp. Vijender Pal (PW-28) and Israr Babu (DW-6). The relevant portions
of the said testimonies are reproduced hereinbelow:-

CRL. A.606/2018 Crl.L.P.260/2018 Page 14 of 23

A) Testimony of Insp. Vijender Pal (PW-28)
“……I had made efforts to collect the CDR of mobile of accused
Sandeep but as more than one year had already elapsed,
therefore, the said record was not available. This information
was also furnished to me by the service provider through email.
I do not remember now the name of service provider. I had
send the said request to service provider through E-mail, copies
of said e-mails were not made part of record…..”

B) Testimony of Israr Babu (DW-6)
“X X X X by Shri P.K. Samadhiya, Ld. Addl. PP for the State.

“It is correct that we can generate the CDR of any phone
only of preceding one year only as per DOPT guidelines. It is
correct that the updated Cell ID chart Ex.DW6/G may not be
the same which was applicable and prevalent in the year 2010
and 2011. I was able to retrieve the CDR Ex.DW6/A and
Ex.DW6/D after about 5-6 years because the same must have
been generated initially on the request of any investing
agency…..”

20. Learned APP for the State lastly submitted that if the prosecution case
had been established by the evidence adduced and if the said evidence was
credible, any failure or omission on part of the investigating officer cannot
adversely affect the prosecution case. She stated that illegality or defect in
investigation cannot have any impact unless serious prejudice had been
caused to the appellant-convict. In support of her submission, she relied
upon the judgment of the Supreme Court in SectionRam Bali vs. State of Uttar
Pradesh (2004) 10 SCC 598. The relevant portion of the same is reproduced
hereinbelow:-

“12. The investigation was also stated to be defective since the
gun was not sent for forensic test. In the case of a defective

CRL. A.606/2018 Crl.L.P.260/2018 Page 15 of 23
investigation the court has to be circumspect in evaluating the
evidence. But it would not be right in acquitting an accused
person solely on account of the defect; to do so would
tantamount to playing into the hands of the investigating officer
if the investigation is designedly defective. (SectionSee Karnel
Singh v. State of M.P. )”

COURT‟S REASONING
IN VIEW OF TESTIMONIES OF THE SDM (PW-24) (WHO IS AN
INDEPENDENT WITNESS) UNCLE GANESH LAL (PW-2), AUNT
PHOOLWATI (PW-13) AND SISTER KUSUM (PW-1), (WITH WHOM THE
DECEASED HAD STAYED FROM 06TH JANUARY, 2011 TILL 09TH
JANUARY, 2011), THIS COURT IS OF THE OPINION THAT THE
TESTIMONIES OF TWO OTHER SISTERS I.E. PINKY (PW-3) AND
RAKHI (PW-4) ARE CONTRARY TO THE EVIDENCE ON RECORD,
UNCORROBORATED AND AN AFTERTHOUGHT. ACCORDINGLY,
THE TESTIMONIES OF PINKY (PW-3) AND RAKHI (PW-4) CANNOT BE
RELIED UPON. CONSEQUENTLY, STATUTORY PRESUMPTION FOR
DOWRY DEATH UNDER SECTION 304B SectionIPC CANNOT BE DRAWN
AGAINST THE APPELLANT-CONVICTS. ALSO, AS THE FACTUM OF
CRUELTY HAS NOT BEEN PROVED, THE OFFENCE UNDER SECTION
498A SectionIPC HAS NOT BEEN MADE OUT.

21. Having heard learned counsel for the parties and having perused the
evidence on record, this Court is of the view that the entire case of the
prosecution regarding dowry demand and cruelty is based upon the
testimonies of Pinky (PW-3) and Rakhi (PW-4) i.e. the sisters of the
deceased and no other evidence has been brought on record to prove the said
allegations. However, the testimonies of Pinky (PW-3) and Rakhi (PW-4) do
not inspire confidence inasmuch as they are not corroborated. In fact, other
relatives of the deceased, namely, sister Kusum (PW-1), uncle Ganesh Lal
(PW-2) and aunt Phoolwati (PW-13) have deposed to the contrary inasmuch
as they have not mentioned any demand for dowry by the appellant-

CRL. A.606/2018 Crl.L.P.260/2018 Page 16 of 23

convicts. The relevant portions of the testimonies of sister Kusum (PW-1),
uncle Ganesh Lal (PW-2) and aunt Phoolwati (PW-13) of the deceased are
reproduced hereinbelow:-

A) Testimony of Sister Kusum (PW-1)
“….In the said marriage solemnized on 13.12.10, there was no
demand of any dowry from the side of the accused persons. We
had given dowry articles i.e. one pair of gold Jhumki (ear rings),
one gold ring, one gold chain and one pair payal (silver) on our
own will as per our status in the marriage of Anju……..During
her stay at my matrimonial home from 06.01.11 till 09.01.11 my
sister Anju did not make any complaint to me regarding the
accused persons or regarding any ill treatment at matrimonial
home. Vol. Anju was feeling lethargic (sust) at that time…….Pinki
and Rakhi did not inform me anything regarding any wrong
doing on part of the accused persons against Anju during the
stay of Anju at my home from 06.01.11 to 09.01.11. I do not
remember whether my sisters Pinki and Rakhi had told me
anything till 09.01.11 regarding any ill treatment given to Anju
by the accused persons or regarding any demand of dowry by the
accused persons. I and Tai Ji enquired from Anju as to why she
was „sust‟ from 06.01.11 to 09.01.11, however, she replied
sasural main sab kuch theek thak hai……”

B) Testimony of Uncle Ganesh Lal (PW-2)
“…….At the time of marriage, no demand of dowry was made
from me by accused Rohit @ Sunny @ Sandeep or any of his
family member…….

Q. When Anju visited your house after her marriage, did you feel
that Anju was in any trouble / problem?

Ans. Yes, I observed that she was lazy (sust thi)
On this, I asked my niece that is she having any problem to
which she replied that she is living comfortably at her
matrimonial home……”

C) Testimony of Aunt Phoolwati (PW-13)
“……….When Anju came to my house after 4-5 days of her

CRL. A.606/2018 Crl.L.P.260/2018 Page 17 of 23
marriage she did not tell me that any cruelty being committed
upon her in respect of demand of dowry in her matrimonial home
as to sell out the parental home and give the share to them.

My niece Anju did not tell me that on 1.1.2011, her
sisters Pinki and Rakhi went to her matrimonial home for giving
new year wishes. (Vol. Nobody went to house of Anju after her
marriage). Anju had not told me that on the said new year day,
Sunny and Deepak had threatened Pinki and Rakhi to kill Anju if
money after selling the parental house is not given to them as
dowry. It is correct that I had/have cordial relations with all
sisters namely Anju, Pinki and Rakhi and they used to share their
happiness and sorrow with me.

Till 14.1.2011, when my statement was recorded by the
IO, Pinki and Rakhi did not tell me about the incident that took
place on new year day at matrimonial house of Anju. I met Pinki
and Rakhi, after the marriage of Anju, on the day of death of
Anju. Pinki and Rakhi used to talk me on telephone. (Vol. I do
not remember whether they had called me before the death of
Anju.) After 14.1.2011 till today, Pinki and Rakhi had not told
me that accused persons were demanding money after selling
share of deceased in her parental house……”

(emphasis supplied)

22. In fact, perusal of the paper book reveals that on 11th January, 2011
the SDM (PW-24) had recorded the statements of sister of the deceased,
Kusum (PW-1) and uncle Ganesh Lal (PW-2) and they had not mentioned
about the demand for dowry. The SDM (PW-24) had also asked other
relatives to come forward to make statements, but no one including Pinky
(PW-3) and Rakhi (PW-4) came forward. The relevant portion of the
testimony of the SDM (PW-24) is reproduced hereinbelow:-

“XXXX by Shri Mohd. Ahmad, Ld. Counsel for both the accused.
………….I did not tell that I will record only the statements of
Kusum and Ganesh Lal. No one else including any other sister
of deceased volunteered to get her statement recorded before me.
Neither any complaint was given to me by any relative of the

CRL. A.606/2018 Crl.L.P.260/2018 Page 18 of 23
deceased nor any request was made for recording their
statements…..”

(emphasis supplied)

23. Further, as per the testimonies of Pinky (PW-3) and Rakhi (PW-4),
they got to know about the demand for dowry when they had visited the
matrimonial house of the deceased on 01st January, 2011. However, they
have admittedly not mentioned the said incident even in their statement
recorded before the SDM (PW-19) on 24th January, 2013 nearly two years
after the death of the deceased.

24. The judgment in V.K. Mishra Anr. (supra) has no application to the
facts of the present case, as the witness therein had duly explained why the
delay had occurred. However, the witnesses in the present case have failed
to give any reasonable explanation for the inordinate delay of two years in
getting their statements recorded. Apart from making bald statements that
the police officials had refused to record their statements, which is contrary
to the deposition of SDM (PW-24) in Court, the said witnesses have not
placed any material on record, in the form of a written complaint etc. to
support their claim.

25. Consequently, in view of the aforesaid testimony of the SDM(PW-24)
who is an independent witness as well as the testimonies of uncle Ganesh
Lal (PW-2), aunt Phoolwati (PW-13) and sister Kusum (PW-1), with whom
the deceased had stayed from 06th January, 2011 till 09th January, 2011, this
Court is of the opinion that the testimonies of two other sister i.e. Pinky
(PW-3) and Rakhi (PW-4) are contrary to the evidence on record,
uncorroborated and an afterthought. Accordingly, the testimonies of Pinky
(PW-3) and Rakhi (PW-4) cannot be relied upon.

CRL. A.606/2018 Crl.L.P.260/2018 Page 19 of 23

26. Further, the prosecution has failed to prove that the deceased was
subjected to cruelty by the appellant-convicts or that they had made
demands for dowry soon before the death of the deceased or at any time
prior. Consequently, statutory presumption for dowry death under Section
304B IPC cannot be drawn against the appellant-convicts. This Court finds
that the offence under Section 304B IPC has not been made out in the
present case. Also, as the factum of cruelty has not been proved, the offence
under Section 498A IPC has not been made out.

THE APPELLANT-CONVICTS HAVE PROVED BEYOND DOUBT THE
PLEA OF ALIBI BY LEADING EVIDENCE THAT THEY WERE NOT
PRESENT AT THEIR HOUSE DURING THE TIME OF DEATH OF THE
DECEASED. CONSEQUENTLY, SECTION 106 OF THE INDIAN
EVIDENCE ACT, 1872 IS NOT APPLICABLE TO THE PRESENT CASE.

27. In any event, the case of the prosecution is that the time of death of
the deceased was about 3 pm on 10th January, 2011. However, the appellant-
convicts have proved by leading defence evidence that they were not present
at their house during those hours. The CDR exhibited by Israr Babu (DW-6)
of both the appellant-convicts and the testimonies of Hitesh Sahni (DW-1),
Rohit Goyal (DW-2) and Hari Ram (DW-3) prove that the appellant-
convicts were not at their residence on 10th January, 2011 at the time of the
incident. The relevant portion of the testimonies of Hitesh Sahni (DW-1)
and Rohit Goyal (DW-2) are reproduced hereinbelow:-

A) Testimony of Hitesh Sahni (DW-1)
” xxx xxx xxx

On 10.01.2010, I had sent accused Sandeep with my
other employee Rohit Goel to pick up some property
documents from Mindray Medicals which is based in Netaji
Subhash Place, New Delhi. After taking those documents,

CRL. A.606/2018 Crl.L.P.260/2018 Page 20 of 23
both of my aforesaid employees delivered the same documents
to Sh. Harvinder Singh, property broker in Bhera Enclave,
New Delhi on my instructions. They had thereafter returned
back to our office in Connaught Place. In the evening at about
7:00 pm, I had received a call from the accused Sandeep in a
very shocking state. He requested me to start for my home
immediately or he may be relieved as he has an emergency at
his home. Since our work of the day had almost finished, we
immediately packed up and started for home in the car being
driven by Sandeep. On leaving us at our home in Paschim
Vihar, Sandeep had immediately left for his home on his bike
which he had parked outside my house. Throughout our return
journey of about 45 minutes, Sandeep made some calls and
also received few calls and therefore almost kept on talking on
his mobile phone. We could assess that there was some
serious issue in his family for which reason, I could not stop
him from talking on mobile while driving otherwise I would
have stopped him.”

B) Testimony of Rohit Goyal (DW-2)
xxx xxx xxx

……I do not remember as to from which time to which time
accused Sandeep remained with me on 10.01.2011 but he was
with me in afternoon hours and he departed in the evening…..”

(emphasis supplied)

28. Therefore, the plea of alibi has been proved beyond all doubt.

29. Further, the judgment in Ram Bali (supra) has no relevance to the
present case as the appellant-convicts have not been acquitted on account of
defective investigation.

30. This Court also finds it strange that the Trial Court had acquitted the
appellant-convicts under Section 302 IPC holding that there was no direct
evidence, yet it had relied upon Sections 106 and Section113B of the Indian
Evidence Act, 1872 for convicting the appellant-convicts under Section

CRL. A.606/2018 Crl.L.P.260/2018 Page 21 of 23
304B SectionIPC. As the appellant-convicts were not present in their house at the
time of the incident, Section 106 of the Indian Evidence Act, 1872 cannot
apply to the present case. Consequently, the Trial Court was wrong in
concluding that Section 106 of the Indian Evidence Act, 1872 would be
applicable against the appellant-convicts.

31. Even though the conduct of the appellant-convicts had been negligent
inasmuch as that they had neither informed the police nor called a doctor to
examine the deceased, yet the same is not sufficient to prove that they had
murdered the deceased. The prosecution has to stand on its own legs to
prove its case and cannot rely upon the weakness of the defence. It is settled
law that mere suspicion, however strong, cannot be a substitute for legal
proof. The Apex Court in SectionAshish Batham vs. State of M.P (2002) 7 SCC
317 has held us under:-

“8. Realities or truth apart, the fundamental and basic
presumption in the administration of criminal law and justice
delivery system is the innocence of the alleged accused and till
the charges are proved beyond reasonable doubt on the basis of
clear, cogent, credible or unimpeachable evidence, the question
of indicting or punishing an accused does not arise, merely
carried away by the heinous nature of the crime or the
gruesome manner in which it was found to have been
committed. Mere suspicion, however strong or probable it may
be is no effective substitute for the legal proof required to
substantiate the charge of commission of a crime and graver the
charge is, greater should be the standard of proof required.
Courts dealing with criminal cases at least should constantly
remember that there is a long mental distance between “may be
true” and “must be true” and this basic and golden rule only
helps to maintain the vital distinction between “conjectures”
and “sure conclusions” to be arrived at on the touchstone of a
dispassionate judicial scrutiny based upon a complete and

CRL. A.606/2018 Crl.L.P.260/2018 Page 22 of 23
comprehensive appreciation of all features of the case as well
as quality and credibility of the evidence brought on record.”

(emphasis supplied)

32. Keeping in view the aforesaid facts and mandate of law, the
prosecution has not been able to prove its case beyond reasonable doubt and
the appellant-convicts are entitled to benefit of doubt.

33. Accordingly, Crl. A 606/2018 is allowed and the impugned judgment
of conviction and order on sentence are set aside. The appellant-convicts are
acquitted for the offences punishable under Sections 498A, Section304B and Section34
IPC and are directed to be released forthwith. The appellant-convicts shall
comply with the requirements of Section 437A Cr.P.C. within two weeks.

34. Crl. L.P. 260/2018 being bereft of merit, is dismissed.

35. Trial court record be sent back along with a copy of the judgment.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
OCTOBER 24, 2019
rn

CRL. A.606/2018 Crl.L.P.260/2018 Page 23 of 23

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