Delhi District Court
1/56 St. vs . Udai Narayan Yadav & Others on 9 May, 2014
IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL SESSIONS JUDGE5, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No. 12/14 ID No. 02403R0080442009 FIR No. 285/08 PS. Vasant Kunj U/s. 498A/304B/34 IPC State Versus 1. Udai Narayan Yadav s/o. Sh. Ram Bahadur Yadav r/o. VPO Itharwa Tarauni Via Sakari PS Behera District Darbhanga, Bihar. 2. Suraj Narayan s/o. Sh. Ram Bahadur Yadav r/o. 301, Sona Raj Complex, Nehru Nagar Patna. 3. Indu Bharti w/o. Suraj Narayan, r/o. 301, Sona Raj Complex, Nehru Nagar Patna. 4. Ram Bahadur Yadav s/o. Shri Siya Ram Yadav r/o. VPO - Tharwa Tarauni Via Sakari PS Behera, Distt. Darbhanga 1/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Bihar 5. Ram Sundari Devi w/o. Shri Ram Bahadur Yadav r/o. VOP Tharwa Tarauni via Sakari PS Behera, District Darbhanga Bihar Date of Institution : 02.09.08 Final arguments heard on : 29.04.14 Judgment pronounced on : 09.05.14 Final Order : Convicted JUDGMENT
Accused Udai Narayan Yadav, Suraj Narayan, Indu Bharti, Ram Bahadur Yadav and Ram Sundri Devi have been prosecuted and have faced trial u/s. 498A/304B/34 IPC. Case of prosecution emanating from the charge sheet may be briefly stated as under :
1. On 03.06.08 SI Pradeep Rawat posted at PS Vasant Kunj received DD No. 40A. After receipt of the said DD, SI Pradeep Rawat along with Ct. Manoj reached H. No. 138A/9, Village Kishangarh, Vasant Kunj, New Delhi. Door of house was closed from inside and PCR staff was present at the spot. Since, there was no response from inside, the door of house was broken and it was found that a young woman has hanged herself from fan with chunni and had died. Name of 2/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 the lady was known as Sudhashree aged 26 years, wife of Udai Narayan Yadav. Husband of deceased namely Udai Narayan Yadav was found at the spot. Inquiries revealed that marriage between Udai Narayan Yadav and deceased was solemnized on 09.02.07. The deadbody of deceased Sudhashree was sent to Safdarjung Hospital Mortuary. SHO PS Vasant Kunj was informed of the incident and crime team with photographer were called at the spot. No suicide note was found at the spot. The concerned SDM was apprised of the situation who instructed SI Pradeep Rawat to inform the parents of deceased who were living in Patna about the death of their daughter. Accordingly, SI Pradeep Rawat informed the parents of deceased about the death of their daughter.
Father of deceased and his relative Shambu Prasad relative came to Delhi on 04.06.08 who were presented by SI Pradeep Rawat before the Executive Magistrate, Old Terminal Tax Building, Kapashera, New Delhi. The SDM recorded the statement of Shri Bihari Prasad and conducted the proceedings u/s. 176 Cr.PC. Shri Bihari Prasad, father of deceased, told the SDM that deceased was his daughter and was married with accused Udai Narayan Yadav on 09.02.07 at Patna, that all the accused persons started harassing the deceased for dowry after 15 days of marriage, that accused Ram Bahadur Yadav, father in law of deceased, was residing with his elder son Suraj Narayan at Patna, that accused Suraj Narayan, Ram Bahadur Yadav, Udai Narayan Yadav, Ram Sundri and Indu Bharti, used to taunt the deceased for bringing 3/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 less dowry, that Shri Bihari Prasad came to Delhi on 29.05.08 as his soninlaw accused Udai Narayan Yadav wanted some financial help, that he left for Patna on 02.06.08, that when he was in train, he received a telephonic call from his soninlaw, who told him that since Bihari Prasad has left Delhi without giving anything to accused Udai Narayan Yadav, Bihari Prasad will have to face consequence, that on 03.06.08 in the night at about 9.10 pm, he received call from SI Pradeep Rawat informing him that his daughter has hanged herself. Shri Bihari Prasad in his statement given to SDM stated that accused Udai Narayan Yadav, Suray Narayan, Indu Bharti, Ram Bahadur Yadav and Ram Sundri Devi, are responsible for the death of his death. Thereafter, the SDM, directed SHO PS Vasant Kunj to take stringent action against accused persons under appropriate provisions of law. Accordingly, FIR u/s. 498A/304B/34 IPC registered. Statement of witnesses were recorded u/s. 161 Cr.PC. Postmortem report of deceased was obtained and the concerned doctor opined that cause of death is Asphyxia due to antemortem hanging. After completion of investigation, final report u/s. 173 Cr.PC was filed in the Court. Charges u/s. 498A/304B/34 IPC were framed against all the accused persons vide order dt. 16.01.10. All the accused persons pleaded not guilty and claimed trial.
2. Thereafter, trial commenced and prosecution examined 19 witnesses in support of its case. Statements of all the accused persons were recorded u/s. 313 Cr.PC. No defence witness was examined. I have 4/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 heard Learned Public Prosecutor for the State assisted by Mr. Sudhir Nagar, Advocate for complainant, Mr. L.K. Upadhyay, Advocate for accused Udai Narayan Yadav, Mr. S. C. Buttan, Advocate for accused Suraj Narayan and Indu Bharti as well as Mr. Mahinder Saini, Advocate for accused Ram Bahadur Yadav and Ram Sundri Devi and given my thoughtful consideration to the rival submissions.
3. Learned Public Prosecutor for the State assisted by Mr. Sudhir Nagar, learned counsel for complainant, argued that all the ingredients of section 498A/304B/34 IPC have been proved in this case beyond reasonable doubt. Learned Public Prosecutor for the State argued that death of deceased occurred in the house of accused Udai Narayan Yadav and it was an unnatural death. It was argued by learned Public Prosecutor for State that it was an unnatural death and accused Udai Narayan Yadav has not been able to explain the circumstances leading to death of the deceased. Learned Public Prosecutor for the State referred to section 106 Evidence Act, in this regard. Learned Public Prosecutor for the State submitted that different suggestions were given to different prosecution witnesses regarding the cause of death of deceased. Learned Public Prosecutor for the State argued that there is no major contradiction in the statement recorded by SDM, statements u/s. 161 Cr.PC and the depositions of material witnesses recorded before this Court. Learned Public Prosecutor for the State assisted by ld. Counsel for complainant further argued that telephonic conversation 5/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 between PW 1 Bihari Prasad and deceased just before her death falls within the definition of dying declaration and can be used again accused persons u/s. 32 of Evidence Act. It was submitted that these telephonic calls are mentioned even in the statement given by Shri Bihari Prasad to SDM and in the statement of PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad recorded u/s. 161 Cr.PC.
4. Mr. S. C. Buttan, ld. Counsel for accused Suraj Narayan and Indu Bharti argued that a girl under torture will not secure 75% marks in B.Ed examination after marriage, that PW 1 gave evasive answer regarding his visit to Delhi by train on 29.05.08, that accused Udai Narayan Yadav would not have demanded Rs. 5 lacs from the deceased when deceased was already having Rs. 3 lacs, that there is unexplained delay in registration of FIR, that there was no complaint of dowry till Dushera i.e, October 2008, that major contradictions and improvement in the depositions of PW 1 over his statement given to SDM cannot be ignored, that call details record of calls made by PW 1 Shri Bihari Prasad from Railway Station to his daughter or accused Udai Narayan Yadav, has not come on record, that PW 1 gave no clear or straight forward answer to question no. 4 put by the SDM, that police did not find any evidence corroborating the testimony of PW 1 about torture of deceased at Patna, that accused Udai Narayan Yadav was seen by PW 1 in Police Station in custody on 04.06.08 i.e, before his arrest and police has not been able to explain as to how he was taken into custody before 6/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 formal arrest, that there are no specific allegations against accused Suraj Narayan and Indu Bharti, that statement of PW 1 recorded by SDM is inadmissible in evidence since the concerned SDM could not be examined in the Court because of his unfortunate death, that marks of injuries shown to Shri Shambhu, PW 7, were not shown to the parents of deceased, that PW 13 Sidharth was not declared hostile by prosecution nor did learned Public Prosecutor for the State chose to re examine PW 13 Sidharth, that the alleged harassment on account of dowry was not reported by deceased to PW 13 Sidharth who was like her brother (dharambhai).
5. Mr. Mahinder Saini, learned Counsel for accused Ram Bahadur Yadav and Ram Sundri Devi argued that Patna was not the only place where accused Ram Bahadur Yadav and Ram Sundri Devi were living, that accused Ram Bahadur Yadav at the time of marriage was employed at Calcutta and after retirement stayed at Darbhanga, Bihar and hence these two persons cannot be said to be the beneficiary of any dowry, that demand of Rs. 5 lacs for purchase of flat on the part of accused persons is not a demand of dowry under Dowry Prohibition Act, that PW 1 has not specified as to which accused persons were demanding dowry from the deceased, that Satyanarayan Katha held at the house of PW 1, one month after the marriage where accused Udai Narayan Yadav and deceased were happy, that no call details record of the calls made by deceased to PW 1 about the harassment of deceased by 7/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 accused Ram Bahadur Yadav and Ram Sundri Devi on 10.05.14 have been placed on record, no investigation conducted nor any evidence was adduced to the effect that accused Ram Babadur Yadav and Ram Sundri Devi visited accused Udai Narayan Yadav on 29.05.08, that there was no need for the IO to record the statement of complainant u/s. 161 Cr.PC when his statement has already been recorded by the SDM, that prosecution has not explained as to why the statement of PW 1 was not recorded by SDM on 04.06.08 itself.
6. Mr. L. K. Upadhyay, learned Counsel for accused Udai Narayan Yadav argued that no ingredients of section 304B IPC are made out from the statement given by PW 1 to the SDM, that prosecution has not explained as to how the signatures of PW 1 Bihari Prasad appeared on Ex. PW8/A when he was not in Delhi at the time of preparation of this document, that PW 1 Bihari Prasad has been shown as witness to the arrest memo Udai Narayan Yadav Ex.PW/1F, while in cross examination, PW 1 deposed that he did not sign any document regarding the arrest of accused Udai Narayan Yadav and hence the arrest memo is a fabricated document, that accused Udai Narayan Yadav never needed a car and if he needed the house why will he purchase car, that prosecution has not explained as to why the deceased Sudhashree did not complain about harassment meted out to her by accused persons to Sidharth, Manoj and Abhey Kumar.
Charge under section 498A/304B/34 IPC against accused 8/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Suraj Narayan, Indu Bharti, Ram Bahadur Yadav and Ram Sundri Devi.
7. Section 498A IPC lays down as under :
" Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - for the purpose of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Section 304B IPC is also reproduced herein as under :
" Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand 9/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this subsection, 'dowry' shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 or 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than sever years but which may extend to imprisonment for life."
8. Consequence of cruelty which are likely to drive a woman to commit suicide or cause grievous injury or danger to life, limb or health whether mental or physical of woman is required to be established in order to bring him the allegation of section 498A IPC. Cruelty has been defined in the explanation for the purpose of section 498A IPC.
9. PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambu Prasad are the material witnesses in this case. PW 1 Shri Bihari Prasad deposed that Sudhashree (deceased) was his daughter and was married to Udai Narayan Yadav on 09.02.07 at his residence at Patna. PW 1 further deposed that after the marriage his daughter started living at her inlaws house at Nehru Nagar, Patna, where accused Suraj Narayan, his wife Indu Bharti, father in law Ram Bahadur Yadav and mother in law Ram Sundri Devi were staying in the same house. PW 1 further deposed that after about 15 days of marriage 10/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 when his daughter came to his house, she informed PW 1 that she was being harassed in her inlaws house and she was being taunted and tortured by them and they were were saying that they have received very less dowry in the marriage. PW 1 further deposed that deceased informed him that accused Ram Bahadur Yadav, Ram Sundri Devi, Suray Narayan and Indu Bharti were asking for more dowry i.e, money for buying house in Delhi. PW 1 further deposed that accused Udai Narayan used to be instigated by his brother Suraj Narayan, his wife Indu Bharti and even Ram Bahadur Yadav and Ram Sundri Devi used to harass his daughter. PW 1 further deposed that on 10.05.08 he had received a telephonic call from his daughter Sudhashree informing him that Ram Bahadur Yadav, Ram Sundri Devi, Suraj Narayan and Indu Bharti has come to Delhi at the residence of Udai Narayan Yadav and they had been harassing and beating the deceased for not fulfilling the demand of Rs. 5 lacs. PW 1 further deposed that telephone was thereafter taken over by accused Udai Narayan Yadav who threatened him that he will kill the deceased or will give her divorce in case his demand is not fulfilled.
10. PW 2 Smt. Urmila Prasad is the mother of deceased (Sudhashree) and deposed that her daughter was married to Udai Narayan Yadav in the year 2007 at her residence at Patna. PW 2 Smt. Urmila Prasad further deposed that her daughter went to stay at her in law's house at Patna at Sona Raj Apartments. PW 2 deposed that 15 11/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 days after the marriage, deceased came to her parent's house and informed that she was being harassed by her husband and her inlaws Ram Bahadur Yadav, Ram Sundri Devi, Suraj Narayan and Indu Bharti for bringing insufficient dowry. PW 2 further deposed that these accused persons were demanding Rs. 5 lacs as dowry for buying an apartment in Delhi. PW 2 further deposed that when she came to her daughter's house at Delhi, her daughter informed PW 2 that Udai Narayan Yadav is being instigated by remaining accused persons through telephonic conversation to harass the deceased for bringing more dowry. PW 2 was allowed to be cross examined by learned Public Prosecutor for State and deposed that her daughter was beaten up by accused persons while staying in Patna at her inlaws house.
11. PW 7 Shri Shambu Prasad who is a friend of PW 1, deposed that 1015 days after marriage of deceased Sudhashree with accused Udai Narayan Yadav, he came to know that family members of Udai Narayan Yadav i.e, Ram Bahadur Yadav, Ram Sundri, Suraj Narayan and Indu Bharti, were harassing Sudhashree for brining less dowry and they were demanding Rs. 5 lacs more in dowry. PW 7 Shri Shambu Prasad further deposed that he was called by PW 1 to go to Delhi as accused Udai Narayan Yadav and other accused persons were asking for money to buy a flat in Delhi as Udai Narayan Yadav was living on rent in Delhi. PW 7 further deposed that he alongwith PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad came to Delhi at the house of 12/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 accused Udai Narayan Yadav and tried to make Udai Narayan Yadav understand that Shri Bihari Prasad was not having this much of amount. PW 7 further deposed that accused Udai Narayan Yadav did not agree and explained that his brother Suraj Narayan, Indu Bharti, Ram Bahadur Yadav and Ram Sundri Devi, were asking Udai Narayan Yadav to take a separate flat in Delhi.
12. A careful perusal of the depositions of PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad, revealed that they have made general accusations against accused Ram Bahadur Yadav, Ram Sundri Devi, Suraj Narayan and Indu Bharti regarding harassment of their daughter immediately after the marriage. They have not specified as to how their daughter was harassed or tortured by accused persons or whether any beating was given to their daughter or whether deceased had received any injury at the hands of these accused persons.
13. Specific suggestion was put to PW 1 Shri Bihari Prasad in cross examination by Mr. S. C. Buttan, learned Counsel for accused Suraj Narayan and Indu Bharti that deceased alongwith her husband came to the house of PW 1 on the occasion of Dushhera and stayed there and there was no complaint from the side of anyone. PW 1 Shri Bihari Prasad did not specifically denied this suggestion. PW 1 Shri Bihari Prasad deposed in cross examination that one month after the marriage, Satyanarayan Katha was arranged at the house of PW 1 and PW 2 and 13/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 both deceased and accused Udai Narayan Yadav came to Patna to attend the said Katha. PW 2 Smt. Urmila Prasad deposed that both deceased and accused Udai Narayan Yadav were happy at the time of said Satyanarayan Katha. In other words, one month after marriage, both accused Udai Narayan Yadav and deceased were happy and they could not have been happy, if there was harassment or torture of deceased on the part of accused Udai Narayan Yadav, Ram Bahadur Yadav, Ram Sundri Devi, Suraj Narayan and Indu Bharti. There is no other evidence apart from the oral testimonies of PW 1 and PW 2 to prove that accused Ram Bahadur Yadav and Ram Sundri Devi, Suraj Narayan and Indu Bharti harassed or cruelly treated the deceased Sudhashree. The depositions of PW 7 Shri Shambu Prasad that he came to know that accused Ram Bahadur Yadav and Ram Sundri Devi, Suraj Narayan and Indu Bharti were harassing Sudhashree for bringing less dowry is inadmissible in evidence as same is hearsay evidence. PW 7 Shri Shambu Prasad in cross examination deposed that he has not met Sudhashree at the house of Bihari Prasad after the marriage.
14. In AIR 2003 SC 11 - Prema S. Rao Vs. Yadle Shriniwas Rao it was held and laid down in this case as under :
" Apart from the oral testimony of PW1 (the father of the deceased) there is no other evidence on record to prove that the two accused Nos. 23 joined accused No.1 in harassing or cruelly treating the deceased. On appreciation of the evidence the conclusion drawn by the High Court in 14/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 favour of accused No.2 and accused No.3 is reasonable and does not justify interference by us in their acquittal. Consequently, we uphold the acquittal of accused Nos. 23 and dismiss the two appeals preferred by the State of Andhra Pradesh which are filed to seek their conviction.
15. In the marriage card Ex. PW1/D, the address of Ram Bahadur Yadav is shown as Village Etherwa, Taroni, Sakri, Darbhanga. PW 2 deposed in cross examination that accused Ram Bahadur Yadav was having residence in Darbhanga, Bihar. Therefore, a doubt has been created over the version of prosecution that accused Ram Bahadur Yadav and Ram Sundri Devi were living with their elder son at Patna. Hence, cruelty or harassment to deceased by accused Ram Babadur Yadav and Ram Sundri Devi is ruled out.
16. Hence, it is held that prosecution has not been able to prove the charge u/s. 498A IPC against Ram Bahadur Yadav and Ram Sundri Devi, Suraj Narayan and Indu Bharti.
17. Ingredients of Section 304B IPC were discussed by Hon'ble Supreme Court in Shanti Vs. State AIR 1991 SC 1226 as under :
(i) death of woman must have been caused by burn or bodily injury or otherwise then in normal circumstances;
(ii) such death must have been occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by the relatives of husband;
15/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08
(iv) such cruelty or harassment must have been for or in connection with demand of dowry;
(v) such cruelty or harassment is shown to have been meted out soon before her death.
18. The marriage between deceased and accused Udai Narayan Yadav is not disputed. Marriage is also proved by marriage card Ex. PW1/D and photographs Ex. PW1/E and Ex. PW1/E1. It is also proved on record that death of Sudhashree was an unnatural death as she was found hanging from fan by PW 10 SI Harender, PW 12 Ct. Parveen Kumar, PW 13 Sidharth Majumder and PW 14 Ct. Manoj. The postmortem report Ex. PW15/A also indicates that the death of Sudhashree was an unnatural death. It has also been proved on record that deceased Sudhashree died within seven years of her marriage.
19. Cruelty or harassment of woman by the husband or by the relatives of husband for or in connection with demand for dowry is very vital ingredient of Section 304B IPC. According to explanation to section 304B IPC, for the purpose of subsection (1) of section 304B, "dowry shall have same meaning as in section 2 of Dowry Prohibition Act 1961". 'Dowry' has been defined in section 2 of Dowry Prohibition Act 1961 as under :
'dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage;
16/56 St.Vs. Udai Narayan Yadav & Others
ID No. 02403R0080442009 FIR No. 285/08
or
(b) by the parents of either party to a marriage or by any other
person, to either party to the marriage or to any other person;
at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law applies.
20. Case of prosecution is that accused persons demanded a sum of Rs. 5 lacs from deceased as dowry for the purpose of purchasing a flat in Delhi. This demand of Rs. 5 lacs by accused persons from deceased or from the parents of deceased does not amount to dowry within the meaning of section 2 of Dowry Prohibition Act 1961. None of the prosecution witnesses have deposed that deceased Sudhashree or her parents had agreed directly or indirectly to give a sum of Rs. 5 lacs to accused Udai Narayan Yadav or his family members at or before or at any time or after marriage. PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad have merely deposed that Sudhashree was being harassed at her inlaws house and was being taunted and tortured by them for bringing very less dowry in the marriage. PW 1 Shri Bihari Prasad further deposed that his daughter informed him that inlaws of deceased were asking for more dowry i.e, for buying a house in Delhi. PW 2 Smt. Urmila Prasad deposed in cross examination that inlaws of deceased Sudhashree told prior to marriage that whatever parents of 17/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 deceased want to give, they can give to her daughter. In other words, there was no demand of dowry at the time of marriage. None of the prosecution witnesses have deposed that before or at the time or after the marriage, deceased or her parents had agreed to give Rs. 5 lacs to accused Udai Narayan Yadav or coaccused before, at the time of or at any time after marriage. In other words, one of the vital ingredients of Section 304B IPC viz. Demand of dowry could not be proved in this case. I find substance in the contention of Mr. Mahinder Saini, learned Counsel for accused Ram Bahadur Yadav and Ram Sundri Devi that sum of Rs. 5 lacs for purchase of flat by accused persons is not a demand of dowry within the meaning of section 304B IPC or under Dowry Prohibition Act. PW 2 Smt. Urmila Prasad deposed in the cross examination that she was told by her husband that there was no demand from accused Suraj Narayan, prior to marriage and that PW 1 and PW 2 had themselves deposited the amount of Rs. 5.25 lacs in the account of deceased Sudhashree. PW 1 Shri Bihari Prasad in cross examination deposed that he does not remember if deceased informed him regarding arrival of accused Ram Bahadur Yadav, Ram Sundri Devi, Suraj Narayan and Indu Bharti in Delhi. Thus, the deposition of PW 1 Shri Bihari Prasad that on 10.05.08 he has received call from his deceased daughter informing him that in Delhi, accused Ram Bahadur Yadav, Ram Sundri Devi, Suraj Narayan and Indu Bharti had come at the residence of accused Udai Narayan Yadav and they have been harassing 18/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 the deceased for not fulfilling the demand of Rs. 5 lacs, was contradicted by PW 1 himself in cross examination. Hence, it is concluded that prosecution has failed to prove the charge u/s. 304B IPC against Suraj Narayan, Indu Bharti, Ram Bahadur Yadav and Ram Sundri Devi.
21. The following observations made by Punjab & Haryana High Court in 1999 Crl. L.J. 2723 - State of Punjab Vs. Daljit Singh & Ors, are quite applicable to the facts of present case.
" 9. The explanation appended to the Section mentions that for the purposes of this section, 'dowry' shall have the same meaning as defined in Section 2 of the Dowry Prohibition Act, 1961. Section 2 of 1961 Act defines 'dowry' to mean "any property or valuable security which is either consented to be given on demand being made or the demand of such property or the valuable security itself as consideration of the marriage". As mentioned above, there is no allegation in the FIR that any demand of dowry was made by the appellants before or after the marriage as consideration for marriage. It may be recalled that marriage between appellant Khushkismat Singh and Lakhbir Kaur was solemnised four years before she died and that the couple was blessed with two children. The demand of Rs.50,000/ was made only for sending Khushwant Singh abroad. In our considered view, such a demand cannot be 19/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 connected with dowry as denied under Section 2 of 1961 Act. We are further of the view that to connect such a demand with dowry as defined under Section 2 would be stretching the definition of 'dowry' beyond all proportions. To illustrate, after four or five years of marriage, the husband, being in some difficulty in his business, requests or demands some money from his fatherinlaw directly or through his wife, only with a view that he is able to advance in life. Can such a demand be termed as 'dowry'? In our view, the answer has to be in negative. Looked from any angle, we are of the firm view that demand of Rs.50,000/ made by the appellants so as to send Khushwant Singh abroad, cannot be connected with dowry by any stretch of imagination. That being the position, in our view, learned Sessions Judge was absolutely justified in returning a finding of acquittal against the appellants insofar as their involvement under Section 304B, IPC is concerned. That being so, the State appeal bearing No.124DBA of 1992 deserves to be dismissed. So ordered."
Charge under section 498A/304B IPC against accused Udai Narayan.
22. Prosecution, in order to prove the charge u/s. 498A/304B IPC against the accused Udai Narayan Yadav, heavily relied upon the testimonies of PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and 20/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 PW 7 Shri Shambhu Prasad. PW 1 Shri Bihari Prasad deposed that he was called by accused Udai Narayan Yadav to come to Delhi and when he came to Delhi on 29.05.08, accused Udai Narayan Yadav demanded Rs. 5 lacs from him threatening that if the demand is not fulfilled, accused Udai Narayan Yadav will divorce deceased Sudhashree. PW 1 further deposed that while staying in Delhi, he came to know from his daughter that she was being beaten up by accused Udai Narayan Yadav who was demanding money for buying a flat as the flat in which they were residing was on rent. PW 1 deposed that he tried to pacify accused Udai Narayan Yadav that he had already spent so much money on the marriage and he is not in a position to arrange any further amount. PW 1 Shri Bihari Prasad further deposed that after spending 23 days, he left Delhi on 02.06.08, deceased Sudhashree came to see off PW 1 at the Railway Station and PW 1 advised his daughter to live peacefully and settle down as she was an educated girl. After sometime, he made telephonic calls from train to know if his daughter reached home well and deceased informed that accused Udai Narayan Yadav had created quarrel stating that when PW 1 has not paid the amount why should he keep the deceased Sudhashree. PW 1 further deposed that his daughter informed him that she was being threatened by accused Udai Narayan Yadav of dire consequence for not fulfilling his demand. PW 1 Shri Bihari Lal further deposed that during the journey at around 11 pm, he again made a call to his daughter on her mobile 21/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 and he overheard loud voices of Udai Narayan Yadav. PW 1 further deposed that his daughter was weeping and she told that she is being tortured by accused Udai Narayan Yadav and now she can not live any more. According to PW 1, he made another call next day morning at around 7pm while in the journey to his daughter from his mobile and deceased Sudhashree informed that she has been harassed throughout the night by accused Udai Narayan Yadav. PW 1 further deposed that deceased Sudhashree expressed serious danger to her life as accused Udai Narayan Yadav was not allowing her even to go to her office. PW 1 then deposed that at about 9/10 pm, he received a call from police official namely SI Rawat of PS Vasant Kunj who informed him that his daughter has hanged herself and she was dead and he was asked to come to Delhi.
23. PW 2 Smt. Urmila Prasad, mother of deceased, deposed that in May 2008, she alongwith her husband and brother Shambhu had come to Delhi at the residence of her daughter who was living on rent in Delhi alongwith her husband Udai Narayan Yadav. PW 2 further deposed that they stayed in the house of her daughter for about three days and during this time her daughter informed her that her husband (accused Udai Narayan Yadav) is being instigating by the remaining accused persons through telephonic conversations, to harass her daughter for bringing more dowry. PW 2 Smt. Urmila Prasad further deposed that her daughter informed her that accused Udai Narayan 22/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Yadav is also continuously harassing and physically torturing her. PW 2 Smt. Urmali Prasad deposed that she alongwith her husband and brother Shambu Prasad left Delhi after advising deceased Sudhashree and soninlaw Udai Narayan Yadav to live peacefully. PW 2 Smt. Urmila Prasad further deposed that in the morning at 8 am, when they reached Kanpur, during the journey, she made a telephonic call from the mobile of her husband to her daughter and her daughter informed PW 2 that during the whole night the accused Udai Narayan Yadav had quarreled with her and still the situation was tense. PW 2 Smt. Urmila Prasad further deposed that deceased Sudhashree informed her that accused Udai Narayan Yadav told the deceased that since PW 1 Shri Bihari Prasad had left without paying anything, deceased will not be spared now.
24. PW 7 further deposed that he was called by PW 1 Shri Bihari Prasad to go to Delhi as his daughter's inlaws were asking for money to buy a flat in Delhi as accused Udai Narayan Yadav was living on rent in Delhi. PW 7 Shri Shambu Prasad went on to depose that he along with PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad came to Delhi in the house of accused Udai Narayan. PW 7 further deposed that he tried to make accused Udai Narayan understand that Shri Bihari Prasad was not having this much of amount but accused Udai Narayan Yadav stated that his elder brother Suraj Narayan and his wife Indu Bharti, father Ram Bahadur Yadav and mother Ram Sundri Devi, were 23/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 asking Udai Narayan Yadav to take his separate flat in Delhi. PW 7 Shri Shambu Prasad further deposed that he stayed at the house of accused Udai Narayan Yadav in Delhi for 23 days and persuaded him not to ask for money. PW 7 further deposed that at about 11 pm while they were in train, Bihari Prasad in order to know about Sudhashree, made a telephonic call to her. PW 7 further deposed that he was sitting alongwith Bihari Prasad and he heard from the other side on telephone that Sudhashree was telling Bihari Prasad that Udai Narayan Yadav was not happy as Bihari Prasad had left without paying any money and Udai Narayan Yadav was threatening Sudhashree to kill her. PW 7 Shri Shambu Prasad further deposed that at about 8 am, Bihari Prasad again made a call to his daughter Sudhashree and Sudhashree again informed that Udai Narayan Yadav was still adamant on his demand of money. PW 7 further deposed that after coming to know about the death of Sudhashree, he and Bihari Prasad came to Delhi by air and reached at Police Station Vasant Kunj where police officials informed them that their statement will be recorded by a Magistrate but due to some reason, their statement could not be recorded. PW 7 further deposed that police inquired from him and on 12.06.08, his statement was recorded.
25. Mr. S. C. Buttan, learned counsel for accused Suraj Narayan and Indu Bharti relied upon following judgments :
(i) Crl. L.P. 598/2011 and Crl. M.A. 19759/2011 - Delhi High Court 24/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 State of NCT of Delhi Vs. Daulat Ram & Anr.
(ii) 2011 (3) JCC 1966 - Delhi High Court State Vs. Sohan Lal & Ors.
(iii) Crl. M.A. No. 12746/2010 and Crl. L.P. No. 247/2010 - Delhi High Court State Vs. Ram Niwas & Ors.
(iv) Crl. L.P. No. 202/2005 - Delhi High Court State Vs. Jitender Garg & Ors.
(v) 2010 (2) LRC 80 (Del) (DB) - High Court of Delhi - Girajo Devi & Ors. Vs. State.
(vi) 2010 (3) LRC 349 (Del) - High Court of Delhi - Narender Singh Arora Vs. State.
(vii) 2010 (3) LRC 283 (Del) (DB) - High Court of Delhi - State Vs. Ravinder Chhabra & Ors.
(ix) 2010 (3) LRC 157 (SC) - Durga Prasad & Anr,. Vs. State of M.P.
(x) 2011 (7) LRC 413 (Del) (DB) - High Court of Delhi - State Vs. Suraj Mehto & Ors.
(xi) 2010 (4) LRC 192 (Del) (DB) - High Court of Delhi - State Vs. Mukesh & Anr.
(xii) 2010 (4) LRC 145 (Del) - High Court of Delhi - Pyare Lal Vs. State.
(xiii) 2012 (2) LRC 287 (Del) - High Court of Delhi - Ashok Narang Vs. State.
26. All these judgments are distinguishable on facts. For instance in 25/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Crl. L.P. 598/2011 - State of NCT of Delhi Vs. Daulat Ram & Anr. Decide don 07.03.12, leave to appeal against the judgment and order of learned Additional Sessions Judge whereby accused persons were acquitted in respect of charges u/s. 498A/304B/34 IPC was dismissed. In this case, Hon'ble High Court inter alia observed that during the course of proceedings, SDM who recorded the statement of material witnesses i.e, PW 1 mother of deceased Smt. Mahavti who also died during investigation, infact went on to depose in the Court that at the time of recording the statement, there was certain allegations that the accused is being involved in extra marital affairs, which was opposed by deceased as well as her mother. Hon'ble High Court further observed that Trial Court was persuaded to conclude about prosecution inability to prove the case in the manner known to law on account of a very material and important circumstances, i.e, a complaint by Kalpana herself along with her motherinlaw, one of the accused before the Court and respondent in this case, alleging that both of them were being beaten when they objected to Umesh's extramarital affairs. In the present case, there are no allegation of extra marital affairs against accused Udai Narayan Yadav. Therefore, this judgment was decided on totally different facts.
27. In 2011 (3) JCC 1966 - State Vs. Sohan Lal & Ors. leave to appeal against the judgment passed by learned Additional Sessions Judge whereby respondents were acquitted of the charges u/s.
26/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08
498A/304B rw section 34 IPC was dismissed on the ground that there are contradictions vis a vis witnesses examined by prosecution in respect of dowry demands but there were material improvements also to the statements made under section 161 Cr.PC by witnesses to SDM/investigating Officer. Hon'ble High Court further observed that prosecution witnesses were completely silent as to how deceased was treated with cruelty. In the present case, as has already been observed that there are no contradictions vis a vis witnesses examined by prosecution in respect of dowry demand nor there is any improvement to the statement made u/s. 161 Cr.PC by PW 1 Shri Bihari Prasad to SDM/IO. In the present case, PW 7 clearly deposed that deceased showed him injuries caused to her by deceased. Therefor, accused persons cannot take any benefit from the aforesaid judgment.
28. In Crl. M.A. No. 12746/2010 - Delhi High Court State Vs. Ram Niwas & Ors. acquittal of accused u/s 498A/304B IPC was because of the fact that deceased was not satisfied with marriage on account of being forced into it. In the present case, there was no allegation that deceased was not satisfied with her marriage with accused Udai Narayan Yadav.
29. Crl. L.P. No. 202/2005 - Delhi High Court State Vs. Jitender Garg & Ors. the leave to appeal against this judgment of acquittal passed by learned Additional Sessions Judge in case u/s. 498A/304B/302 IPC was declined inter alia on the ground that 27/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 deceased was doing the work of modelling without the knowledge of her husband and on being exposed, committed suicide. These facts are totally different from the facts of present case.
30. Before proceeding to appreciate the depositions of prosecution witnesses, I would like to discuss a very pertinent point raised by Mr. S.C. Buttan, learned Counsel for accused Suraj Narayan and Indu Bharti, about the admissibility of statement given by PW 1 Bihari Prasad to the SDM. Mr. S.C. Buttan, learned Defence Counsel submitted that the SDM who recorded the statement could not be examined in the Court because of his unfortunate death and therefore, the statement of Bihari Prasad recorded by the SDM was not proved in accordance with law. On 08.10.12, statement of accused Udai Narayan Yadav was recorded where he stated that he does not dispute the documents prepared by Sh. R.K. Arora, Executive Magistrate, who has since expired. Accused Udai Narayan further stated on 08.10.12 that the endorsement made by Sh. R.K. Arora, Executive Magistrate and his signatures on Ex. PW1/A , Ex. PWAX1 at point A, on Ex. AX2 at point A and on Ex. PW19/DA at point A, are not disputed. In other words, accused Udai Narayan Yadav admitted all the proceedings conducted by Sh. R.K. Arora, Executive Magistrate. Apart from the admission of accused Udai Narayan Yadav, it must be kept in mind that the statement of PW 1 Shri Bihari Prasad recorded by the SDM was part of proceedings conducted by the SDM under section 176 Cr.PC.
28/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08
Therefore, what has come on record is not mere statement of Bihari Prasad recorded by the SDM but an inquiry conducted by the SDM under section 176 Cr.PC. Statement of Bihari Prasad recorded by the SDM bearing the signature of the SDM as well as Bihari Prasad and endorsement made by the SDM is a report of inquiry given by the Magistrate under section 176 Cr.PC. Hence, it is a document withing the meaning of Section 3 of Evidence Act. According to Section 64 of Evidence Act, a document must be proved by primary evidence except in cases herein after mentioned. Section 62 of Evidence Act defines primary evidence is document itself produced for inspection of the Court. Therefore, the original inquiry report of the Magistrate conducted under section 176 Cr.PC that has come on record has been proved in accordance with section 64 of Evidence Act and is admissible in evidence. The person i.e, Shri Bihari Prasad, whose statement was recorded by the SDM during inquiry u/s. 176 Cr.PC proved his signature on his statement Ex. PW1/A.
31. One of the arguments of learned Defence Counsels was that there are major contradictions and improvements in the depositions of PW 1. when the depositions of PW 1 given in the Court is compared with his statement given to police official u/s. 161 Cr.PC and his statement given to SDM. It transpired from perusal of the record that the SDM put specific questions to PW 1 which were answered by PW 1 specifically. When PW 1 Shri Bihari Prasad was asked to explain as to why various 29/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 facts which he deposed in the Court were not stated in his statement recorded by the Magistrate, PW 1 clarified in cross examination that he did not tell these facts to SDM because he was asked by the SDM to say about whatever was asked from him and the SDM used to get annoyed if something is told to him without being asked. When the statement of a public person is recorded by a person in authority like SDM and if the SDM was getting annoyed, if PW 1 told him something without being asked, it was natural for PW 1 to tell the SDM about what was being specifically asked. In such circumstances, PW 1 was not expected to describe all the events and circumstances of case to the SDM and that is why at the end of the statement, when the SDM asked PW 1 whether he wants to say something else, PW 1 answered in negative. Since the SDM did not give PW 1 sufficient opportunity to present his entire case before him, his statement was rightly recorded by the IO u/s. 161 Cr.PC wherein he has given all the details. Even otherwise, PW 1 while giving his statement to SDM has infact told all the vital and material facts to the SDM and if improvement, if any made by PW 1 in his depositions before the Court, was only with a view to elucidate and explain the facts which were recorded by the SDM. For instance, PW 1 deposed in the Court that while staying in Delhi, he came to know from his daughter that she was being beaten up by accused Udai Narayan as he was demanding money for buying a flat. PW 1 further deposed that while he was in Delhi, accused Udai 30/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Narayan Yadav demanded Rs. 5 lacs from him threatening that otherwise he would divorce his daughter. PW 1 stated before the Magistrate that he reached Delhi on 29.05.07 ( it may be a typographical error and the correct date is 29.05.08) and he got the matter settled between his daughter and her husband Udai Narayan Yadav. Settlement of dispute implies that there was a dispute between the deceased and Udai Narayan Yadav. PW 1 also stated to the Magistrate that his soninlaw wanted some financial assistance. To elucidate this point he deposed in the Court that his soninlaw demanded Rs. 5 lacs and threatened if Rs. 5 lacs is not paid to him, he would divorce his daughter. Therefore, there are minor improvements in the deposition of PW 1 which can be safely ignored. Further, when the depositions of PW 1 recorded in the Court is compared with his statement recorded u/s. 161 Cr.PC, one can hardly find any contradiction or improvement.
32. Mr. S.C. Buttan, learned Defence Counsel referred to the deposition of PW 1 wherein PW 1 deposed that when he was in Delhi in the house of his soninlaw, his daughter after coming back from duty used to prepare food and thereafter she used to live very comfortably. Learned Defence Counsel further submitted that the fact that she was living comfortably with her husband just before her death shows that there was no demand of dowry on the part of accused Udai Narayan Yadav. I am in respectful disagreement with the learned 31/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Defence Counsel on this point. The term 'comfort' is relateable to body and not to mind. A person might be having all physical comforts in live and yet he or she may have restlessness or agitations of mind because of the unconducive environment in the house. Therefore, when PW 1 deposed that his daughter was living comfortable with her husband, he only meant that deceased was having all basic necessities of life in her house but it does not mean that she was not mentally stressed and depressed on account of dowry demand by her husband and inlaws. Material comfort and disturbance of mind can coexist together. One does not rule out the other.
33. Mr. L. K. Upadhyay, learned Defence Counsel for accused Udai Narayan Yadav argued that it has come in evidence that three persons namely Sidharth, Manoj and Abhey Kumar, were family friends of deceased Sudhashree and were residing in Delhi only at the relevant time. Learned Defence Counsel further argued that if deceased was being constantly harassed by accused Udai Narayan Yadav on account of dowry, in normal circumstances, she would have definitely discussed the issue with aforesaid three persons who were very close to her or her family particularly PW 13 Sidharth who was like her brother (dharambhai). Mr. L. K. Upadhyay, learned Defence Counsel argued that since Sudhashree did not discuss about the alleged harassment meted out to her by accused persons with aforesaid family friends, therefore, prosecution story is false. When a woman is being harassed 32/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 for dowry by her husband, in normal circumstances, she would discuss the same with and express her concern to her parents at the first instance which the deceased infact did in the present case. Whenever the deceased was tortured by accused Udai Narayan Yadav, she told her parents about the same and her parents took up the issue with accused Udai Narayan Yadav. PW 1 infact requested PW 13 Siddharth Majumder to make Udai Narayan Yadav understand that he cannot give so much of dowry. When all the possible assistance and mental support was forthcoming from her parents, there was no need for deceased Sudhashree to discuss the issue with aforesaid family friends.
34. Mr. S.C. Buttan, learned Defence Counsel for accused Suraj Narayan and Indu Bharti argued that it has come in evidence that deceased Sudhashree completed her B.Ed course after marriage and has secured 75% marks. Ld. Defence Counsel sought to emphasise that good performance of deceased in her B.Ed examination after her marriage establishes that she was in a balanced state of mind which would not have been the case, had she been subjected to cruelty and harassment by accused Udai Narayan Yadav as alleged. From the material placed on record, it transpired that deceased was quite committed to her studies and carrier. She decided to continue her studies even after marriage which is very difficult for a woman. Such a committed person would concentrate on her studies and examinations even if she was undergoing mental stress and trauma. In society, 33/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 instances of persons showing good performance in academics despite having tense atmosphere in house, are not rare. This argument has no legs to stand on.
35. Delay in registration of FIR was the major thrust in the arguments of learned Defence Counsels. It was submitted that there was an inordinate delay in registration of FIR and prosecution has not explained the same. It was also submitted that prosecution has not explained as to why statement of PW 1 was not got recorded by the SDM on 04.06.08. Learned Defence Counsels also referred to the cross examination of PW 1 wherein he has deposed that he made his statement on the basis discussions he had with police officials.
36. Learned Defence Counsels in this regard relied upon a judgment given by Delhi High Court in State Vs. Sanjeev Jain & Ors. Crl. A. No. 296/11 decided on 26.03.12. In this case the Hon'ble High Court held in para 13 as under :
" As regards the submission by the learned APP that delay in this case ought not have been a determining or vitiating factor, we are of the opinion that the findings of the Trial Court cannot be faulted as unreasonable. Although there is a body of case law to the effect that the near relatives of a young wife who takes her own life or dies an unnatural death would be traumatized and cannot be expected to cover all the facts when the statements are recorded, at the same time, 34/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 the Court has to be conscious of the fact about what is the earliest available opportunity for the police to record such a statement. In this case, PW 19 stated that the SDM, PW 20 was informed on 24.04.2000 itself. The latter witness does not deny this fact. Admittedly, the statements of all witnesses were recorded on the next day, i.e, after discovery of the suicide note, on 25.04.2000. No explanation is forthcoming about this significant aspect during trial (which is unbelievable) that all relatives of the deceased (and not only the parents) were in such state of shock as to not mention even once that they suspected the accused or any of them. The failure to record the FIR earlier than 24 hours after the death is, therefore, most suspicious."
37. Death of deceased occurred on 03.06.08. Parents of deceased who were away in Patna were informed about the death on 03.06.08 at about 9 pm. Father of deceased and Shambhu Prasad reached Delhi on 04.06.08 and went straight to Police Station Vasant Kunj. PW 1 has deposed that when he and his relative Shambhu Prasad reached Police Station Vasant Kunj, they met Inspector Satbir Singh and were advised to appear before the Executive Magistrate for giving statement. PW 1 further deposed that since it was late and the Magistrate was not available, he reached the office of Executive Magistrate on 05.06.08 and made his statement Ex. PW1/A. It has also come in the cross 35/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 examination of PW 1 that he reached Police Station Vasant Kunj at about 11 am or 12 noon. PW 1 has also deposed in cross examination that he was inquired by the police officials but his statement was not recorded on 04.06.08. PW 1 again went to the Police Station on 05.06.08 at about 8 am and his statement was recorded by the SDM at 12 noon. After recording the statement of PW 1, the SDM directed the SHO to take stringent action against accused persons under appropriate provisions of law. Accordingly, FIR u/s. 498A/304B/34 IPC was registered on 05.06.08. It is clear from the chronology and sequence of events from 03.06.08 to 05.06.08 that there was not deliberate delay either on the part of police or on the part of PW 1 in recording the statement of PW 1 before the Magistrate and in registration of FIR.
38. As discussed above, when PW 1 received the information about the death of his daughter, he was in Patna and reached Delhi next date at about 11 am by taking first available flight. The version given by PW 1 that the SDM was not available on 04.06.08 cannot be disbelieved particularly when the accused persons have not been able to show from the evidence adduced by prosecution or otherwise that the concerned SDM was infact available on 04.06.08 and police deliberately did not register the FIR on 04.06.08. Obviously, it was an unnatural death of a woman within seven years of her marriage and police could not have registered the FIR before completion of proceedings u/s. 174 and 176 of Cr.PC. The discussions PW 1 had with the police officials before his 36/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 statement was recorded u/s. 161 Cr.PC is not unusual as normally police would like to know the crux of the matter from the witness particularly when the witness is complainant of the case. Hence, it is concluded that there was no inordinate delay in registration of FIR in the present case.
39. PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad are quite consistent in their depositions and fully corroborated each other. It is clear from the depositions of PW 1, PW 2 and PW 7 that accused Udai Narayan Yadav had been harassing and torturing the deceased Sudhashree for not fulfilling his demand of Rs. 5 lacs for purchasing a flat. It was because of this harassment and torture of deceased by accused Udai Narayan Yadav that, PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad reached Delhi on 04.06.08. Ld. Defence Counsels submitted that PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad, at one place have deposed that it was the deceased who called her parents and at other place they stated that it was accused Udai Narayan Yadav who had called the PW 1 to Delhi. It is immaterial as to who called or requested PW 1 to come to Delhi and what is material is the circumstances, which forced PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad to come to Delhi on 04.06.08. It was the persistent demand of Rs. 5 lacs by accused Udai Narayan Yadav and consequential torture of deceased Sudhashree by 37/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 accused Udai Narayan Yadav which compelled PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad to come to Delhi. PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad are also consistent when they described the demand of Rs. 5 lacs made by accused Udai Narayan Yadav during their stay from 29.05.08 to 02.06.08 in the house of accused Udai Narayan Yadav. Infact PW 7 Shri Shambhu Prasad deposed that during these days, though he did not see any incident of physical quarrel but there was tension between Sudhashree and Udai Narayan Yadav and Sudhashree had shown them the marks of beatings on her hand. It was argued on behalf of accused persons as to why marks of injury were only shown to PW 7 Shambu Prasad and not to the parents of deceased. The words used in the deposition of PW 7 is "shown to us", meaning all three persons viz. PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad. PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad might not have deposed about the injury shown to them by deceased but that will not weaken the case of prosecution. All the three i.e, PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad have deposed about three phone calls exchanged between PW 1 and deceased Sudhashree. These phone calls are also mentioned in the deposition of PW 1 recorded by police u/s. 161 Cr.PC.
40. Learned Defence Counsels referred to the cross examination of 38/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 PW 1 Shri Bihari Prasad wherein he has deposed that for purchase of Alto car, deceased had given Rs. 1 lac from her account and that deceased has given amount of Rs. 2 lacs as loan to PW 13 Sidharth from her bank account. It was submitted that when deceased was already having Rs. 3 lacs, it is unbelievable that accused Udai Narayan Yadav will demand Rs. 5 lacs from the parents of deceased for purchase of house. The aforesaid amount of Rs. 3 lacs (Rs. 2 lacs given as loan to PW 13 Sidharth and Rs. 1 lacs paid for purchase of car) cannot be termed as separate wealth or property of deceased Sudhashree alone. It was the combined property of deceased and her husband Udai Narayan Yadav. Accused Udai Narayan Yadav wanted Rs. 5 lacs apart from his funds and the funds of his wife so that he can purchase the house. Hence, it cannot be said that when the deceased, wife of accused Udai Narayan Yadav, was also having Rs. 3 lacs, accused Udai Narayan Yadav would not have demanded Rs. 5 lacs from the parents of deceased.
41. Learned Defence Counsels for accused persons also tried to point out the contradictions in the testimonies of PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad arguing that at one place, these witnesses have stated that on 04.06.08, Shambu Prasad and Bihari Prasad came to Delhi by train and at other place, they stated that they came to Delhi by Air. The mode of travel of PW 1 and PW 7 from Patna to Delhi, is not relevant for deciding this case.
39/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08
42. Mr. S.C. Buttan, learned Defence Counsel for accused Suraj Narayan and Indu Bharti argued that PW 13 Sidharth Majumder has not supported the case of prosecution and learned Public Prosecutor for the State did not chose to re examine PW 13 Sidharth Majumder and hence the benefit of testimony of PW 13 Sidharth Majumder must go to accused persons. PW 13 Sidharth Majumder deposed that as far as he knows accused Udai Narayan Yadav used to look after the deceased Sudhashree very well. PW 13 Sidharth Majumder deposed in cross examination that in order to fulfill the desire of Sudhashree, Udai Narayan Yadav shifted to Kishan Garh, Vasant Kunj and took a bigger house of two room set on rent. PW 13 Sidharth Majumder further deposed in cross examination that at the desire of Sudhashree, many household articles like T.V. Fridge, Cooler, etc. were purchased by Udai Narayan Yadav by making payment through his credit card. PW 13 Sidharth Majumder further deposed in cross examination that at the desire of Sudhashree, Udai Narayan Yadav agreed to purchase a car. Down payment of Rs. 1 lacs was made by Sudhashree by cheque and balance amount was got financed by Udai Narayan Yadav from HDFC Bank.
43. PW 13 Sidharth Majumder further deposed that he met PW 1 Bihari Prasad on 04.06.08 and Shambu Prasad was with him. PW 13 Sidharth Majumder further deposed that Bihari Prasad wanted to compromise the matter with Udai Narayan Yadav but Shambhu Prasad 40/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 was objecting and at the instance of Shambu Prasad, PW 1 demanded Rs. 20 lacs for doing away with the matter. PW 13 Sidharth Majumder, deposed that mother of Sudhashree praised Udai Narayan Yadav for his behaviour with her daughter. The deposition of PW 13 is nodoubt a weak link in the prosecution story but same is not fatal for the case of prosecution when once considers the consistent testimonies of PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad regarding persistent demand of Rs. 5 lacs made by accused Udai Narayan Yadav. PW 13 may be like the brother of deceased, Sudhashree, but he is not a family member of deceased and hence may not be aware of the exact situation prevailing in the matrimonial life of accused Udai Narayan Yadav and deceased Sudhashree. From the testimonies of PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and PW 7 Shri Shambhu Prasad, it has been proved on record that accused Udai Narayan Yadav being the husband of deceased Sudhashree subjected the deceased to cruelty. Explanation (a) to Section 498A IPC, defines cruelty as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
44. Cruelty is also defined in explanation (b) to Section 498A IPC as harassment of woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful 41/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 demand for any property or valuable security or is on account of failure by her or any person related to her to meet the said demand.
45. In the present case, accused Udai Narayan Yadav by his willful conduct drove the deceased Sudhashree to commit suicide. It has also been proved on record by prosecution that harassment of deceased Sudhashree at the hands of accused Udai Narayan Yadav was with a view to coercing her to fulfill his demand of Rs. 5 lacs which is an unlawful demand.
46. Mr. L. K. Upadhyay, learned Counsel for accused Udai Narayan Yadav deposed that accused Udai Narayan Yadav never needed the car and car was infact purchased as per the deposition of PW 13 Sidharth at the desire of deceased Sudhashree. It was further submitted that if accused Udai Narayan Yadav needed a house, he would not have purchased the car. Mr. L. K. Upadhyay, learned Counsel for accused Udai Narayan Yadav also referred to the cross examination of PW 13 wherein he deposed that in order to fulfill the desire of Sudhashree, accused Udai Narayan Yadav shifted to Kishan Garh and took a bigger house of two room set on rent. Even if, it is believed that bigger house was taken on rent and car was purchased by accused Udai Narayan Yadav at the desire of deceased Sudhashree, same does not indicate or point out towards the innocence of accused Udai Narayan Yadav. The desire expressed by deceased Sudhashree for a car and big house are the desire for genuine requirements of a householder and same will not 42/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 prove that there was no greed in the mind of accused Udai Narayan Yadav for getting money from the parents of deceased Sudhashree.
47. Mr. L. K. Upadhyay, Mr. S.C. Buttan and Mr. Mahinder Saini, learned Defence Counsels submitted that Investigating Officer has not obtained call details record of telephonic conversation which took place between PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and deceased Sudhashree during the journey of PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad from Delhi to Patna and has not placed the same on record. It is submitted that this is a vital lapse on the part of Investigating Agency which raises serious doubt about prosecution version. Mr. L. K. Upadhyay, learned Counsel for accused Udai Narayan Yadav referred to the arrest memo of accused Udai Narayan Yadav Ex. PW1/F which bears the signature of PW 1 Bihari Prasad as a witness and then referred to the cross examination of PW 1 wherein PW 1 deposed that he has not signed any document regarding arrest of accused Udai Narayan Yadav. Mr. L.K. Upadhyay, learned Defence Counsel thus contended that the arrest memo Ex. PW1/F is a fabricated document. Mr. L.K. Upadhyay, learned Defence Counsel also referred to seizure memo of marriage photographs and marriage invitation card Ex. PW8/A which bears the date as 07.06.08 and which is signed by PW 1 Bihari Prasad. Mr. L.K. Upadhyay, learned Defence Counsel for accused Udai Narayan Yadav raised a question as to how signature of Bihari Prasad appeared on Ex. PW8/A when he was not in Delhi on 43/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 07.06.08.
48. The Investigating Officer ought to have collected call details record of the conversation between PW 1 Shri Bihari Prasad, PW 2 Smt. Urmila Prasad and deceased Sudhashree during the train journey on PW 1 and PW 2 from Delhi to Patna. Since no such call detail records were collected by the Investigating Officer, it was lapse on the part of Investigating Officer. However, accused persons cannot take any advantage from the lapse on the part of Investigating Agency and defective investigation on certain aspects of case. If a person accused of serious offence is acquitted merely because of negligence and lapse on the part of Investigating Officer, it will be a mockery of justice and judicial process. If the evidence adduced on record is sufficient to prove the charge against the accused persons, such lapses on the part of police will not advance the case of accused persons. Ld. Counsel for complainant in this regard rightly relied upon (2013) 10 SCC 192 - Hema Vs. State. In this case it was held and observed in para 17 as under :
" Since, the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those case (Gajoo case, SCC pp. 54044 para 20).
"20. In regard to defective investigation, this Court in Dayal Singh vs. State of Uttranchal, while dealing with the cases of 44/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 omissions and commissions by the investigating officer, and duty of the court in such case, held as under: (SCC pp. 28083, paras 2736).
'27, Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of UP, this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapse ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanraj Singh Vs. State of Punjab, held (SCC p.657, para 5)' '5. In the case of a defective 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".
28. Dealing with the cases of omission and commission, the Court in Paras Yadav V. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts, otherwise the designed 45/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 mischief would be perpetuated and justice would be denied to the complainant party." The legal preposition laid down in the aforesaid case is squarely application to the present case.
49. It was also submitted on behalf of accused persons that as per the depositions of PW 1, when he alongwith Shambu reached Police Station Vasant Kunj on 04.06.08 and he saw accused Udai Narayan Yadav in the custody of police. Mr. L.K. Upadhyay, Ld. Counsel for accused Udai Narayan Yadav argued that accused Udai Narayan Yadav could not have been taken in custody by police on 04.06.08 when he was formally arrested on 05.06.08.
50. If accused Udai Narayan Yadav was in illegal kept in custody of police on 04.06.08, accused Udai Narayan Yadav can seek his remedy against police officials in accordance with law and same will not impact or weaken the case of prosecution.
51. It is thus proved that on account of demand of Rs. 5 lacs by accused Udai Narayan Yadav which was not fulfilled, deceased Sudhashree was harassed which compelled her to end her life. Hence, prosecution has successfully proved all the ingredients of section 498A IPC against accused Udai Narayan Yadav beyond reasonable doubt.
52. As discussed above, one of the vital ingredients of section 304B IPC viz. Demand of dowry is missing in the present case. There is no allegation in the FIR or in the evidence adduced by prosecution witnesses that any demand of dowry was made by accused Udai 46/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Narayan Yadav before or after the marriage as consideration of marriage. Therefore, Rs. 5 lacs which accused Udai Narayan Yadav was demanding from deceased and her parents was never agreed to be given before, at the time of after the marriage.
53. In K. Prema S. Rao Vs. Yadla Srinivasa Rao & Ors. (supra) in this case, accused, husband of deceased, started demanding from deceased execution of deed in his favour of the land and house site gifted to her. Refusal on the part of deceased to meet the demand was the cause of her continuous harassment. At the time of marriage if father of deceased gifted 5 acres of land and a house site in the course of marriage ritual described as 'pasupumkumkuma'. It was explained that this gift of land was in the nature of 'Stridhana' given to the bride by the father for her maintenance. Hon'ble Supreme Court held that there is no evidence on record to show that land was demand as dowry. It was observed that land was given by the father of deceased in marriage rituals as 'pasupukumuma' and the harassment or cruelty meted out to deceased by the husband after the marriage to force her to transfer the land in his name was not in connection with any demand for dowry. One of the main ingredients of offence of 'demand of dowry' being absent in this case, the accused could not be said to have committed the offence under section 304B IPC
54. Hence, prosecution could not prove the charge u/s. 304B IPC against accused Udai Narayan Yadav. However, case of conviction and 47/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 sentence of accused Udai Narayan u/s. 306 IPC has been clearly made out irrespectively of failure of prosecution to prove charge u/s. 304B IPC. It may be noted that no charge u/s. 306 IPC was framed against accused Udai Narayan. However, accused Udai Narayan Yadav can still be convicted u/s. 306 IPC in view of law laid down by Hon'ble Supreme Court in AIR 2003 SC 11 - K. Prema S. Rao & Anr. Vs. Yadla Srinivasa Rao & Ors. In this case, the Hon'ble Supreme Court held as under :
" 21. From the record we find that although a charge specifically under Section 306, IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under Section 494A and Section 304B of IPC. The statement of charge framed by the trial Courts reads thus:
"That on or about the 22nd day of October, 1989, at your house at Tunikipadu, of Gampalagudem Mandal, Yedla Krishna Kumari, wife of A1 of you and daughter in law of A2 and A3 among you, committed suicide by consuming poison, and that you all subjected her to such cruelty and harassment as did drive her to commit suicide with the object of extraction Ac500 of land as dowry to A1 and thereby committed an offence punishable under Section 304B of the Indian Penal Code and within the cognizance of the Court.
Or alternatively
48/56 St.Vs. Udai Narayan Yadav & Others
ID No. 02403R0080442009 FIR No. 285/08
That, prior to the 22nd day of October, 1989, at your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A1 among you and daughter in law of A2 and A3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to commit suicide and thereby committed an offence punishable under S.498A of the Indian Penal Code and within the cognizance of this Court.
22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under S.306 IPC existed in the case. The mere omission on the part of the trial Judge to mention of S.305 IPC with 498A IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under S.498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to driver her to commit suicide. The provisions of Section 221 of Cr.PC take care of such a situation and safeguard the powers of the criminal Court to convict an accused for an offence with which he is not charged although on 49/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 facts found in evidence, he could have been charged for such offence. Section 221 of Cr.PC needs reproduction;
"221. Where it is doubtful what offence has been committed (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of subsection (1) he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
The provision of subsection (2) of section 221 read with subsection (1) of the said Section can be taken aid of in convicting and sentencing the accused no. 1 of offence of abetment of suicide under section 306 of IPC along with or instead of Section 498A of IPC.
23. Section 215 allows criminal Court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of 50/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 justice. Sec Section 215 of Cr.PC which reads :
"215. Effect of errors no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. As provided in Section 215 Cr.PC, omission to frame charge under section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under section 306 IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under section 498A for cruel treatment of his wife, make out a case against him under section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing 'dowry death' under section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under section 113 A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under section 495A IPC. No further opportunity of defence is required to be granted to the appellant when 51/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 he had ample opportunity to meet the charge under section 498A IPC.
It may be mentioned that against confirmation of his conviction by the High Court under S. 498A IPC, the accused no. 1 has not preferred any special leave to appeal to this Court. The facts found proved for his conviction and sentence under S. 498A, cannot now be questioned by the accused. Our conclusion, therefore, is that same facts and evidence on which accused no. 1 was charged under section 498A and Section 304B, the accused can be convicted and sentenced under Section 306 IPC. We find no legal or procedural impediment in doing so."
55. Section 306 IPC is being reproduced herein as under :
" Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 113A of Evidence Act provides as under :
" When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, 52/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
Explanation - For the purpose of this section 'cruelty' shall have the same meaning as in section 498A of IPC (45 of 1860).
56. From the evidence adduced by prosecution in this case, a presumption which arises u/s. 113A of Evidence Act is that husband Udai Narayan Yadav abetted commission of suicide by the deceased Sudhashree in the present case. The word 'cruelty' mentioned in explanation below section 113A of Evidence Act has been given the same meaning as contained in explanation below section 498A IPC.
57. The unnatural death of deceased Sudhashree occurred in the house of accused Udai Narayan Yadav and the circumstances leading to the death of deceased Sudhashree was within the knowledge of accused Udai Narayan Yadav. According to section 106 Evidence Act the burden of proving the fact and circumstances leading to death of deceased Sudhashree was upon accused Udai Narayan Yadav. The explanation that has been offered by all the accused persons including accused Udai Narayan Yadav about the unnatural death of Sudhashree is that deceased was an emotional and short tampered person and used to get angry over trivial issues. Another explanation given by accused persons is that deceased Sudhashree was upset and depressed because accused Udai Narayan Yadav did not come to Railway Station to see off 53/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 the parent of deceased Sudhashree i.e, PW 1 Shri Bihari Prasad and PW 2 Smt. Urmila Prasad. It was thus suggested that PW 1 instigated his daughter that she has no control over her husband and therefore, he did not come to Railway Station. This explanation offered by accused persons does not appeal to the reason and cannot be believed. A well educated lady who is employed in Delhi will not take extreme step of suicide just because her husband refused to come to Railway Station to see off her parents. There were graver circumstances and compelling reasons which drove the deceased to commit suicide. Accused Udai Narayan Yadav has miserably failed to show from the evidence adduced in this case that deceased was over sensitive and highly emotional woman who could commit suicide over such trivial issues. Legal position in this regard was clarified by Hon'ble Supreme Court in State of Punjab Vs.Daljit Singh (supra) as under :
" In addition to what has been said above, and what has been held by the learned trial Judge, we would like to mention here that no plausible reason has been given by the appellants as to why Lakhbir Kaur, who was mother of two small children, at young age, thought of ending her life. All that has been suggested is that Harjit Singh PW5, to whom Lakhbir Kaur was related, being his sister's daughter, wanted to marry his daughter to Khushwant Singh. This offer was declined by Khushwant Singh. This annoyance and anger guided 54/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 Lakhbir Kaur to end her life. We find the explanation given by the appellants to be absolutely hollow. There was no question for Lakhbir Kaur to secure marriage of her mother's brother's daughter with appellant Khushwant Singh. Lakhbir Kaur had died at the house of appellants. If the allegations made against them are not true, they were supposed to give some plausible explanation as to why Lakhbir Kaur took such a drastic step so as to end her life and the explanation furnished by them, as mentioned above, does not appear to be true at all."
58. It has been proved on record beyond reasonable doubt that accused Udai Narayan Yadav, husband of deceased Sudhashree, by his wilful conduct abetted the commission of suicide by deceased Sudhashree.
59. The evidence adduced on record which has been relied upon to prove the charge u/s. 498A IPC against accused Udai Narayan Yadav clearly makes out a case for his conviction for offence of abatement of suicide u/s. 306 IPC read with section 113A of Evidence Act.
60. Infact the facts of case K. Prema S. Rao Vs. Yadla Srinivasa Rao & Ors. (supra) are almost identical to the facts of present case. Hence, the law laid down in the said case is clearly applicable to the facts of present case.
61. In view of the facts and the legal preposition discussed above, 55/56 St.Vs. Udai Narayan Yadav & Others ID No. 02403R0080442009 FIR No. 285/08 accused Udai Narayan Yadav is convicted under section 498A IPC and under section 306 IPC. However, accused Udai Narayan Yadav is acquitted for the offence u/s. 304B IPC. Accused Ram Bahadur Yadav, Ram Sundri Devi, Suraj Narayan and Indu Bharti are acquitted of the charges u/s. 498A/304B IPC framed against them.
Let the accused Udai Narayan Yadav be heard on the point of sentence and compensation.
Copy of this judgment be given to all accused persons immediately.
Announced in open Court (Sandeep Yadav)
Additional Sessions Judge5 (South)
Saket Courts, New Delhi/09.05.14
56/56 St.Vs. Udai Narayan Yadav & Others
ID No. 02403R0080442009 FIR No. 285/08