Delhi District Court
State vs . Sanjay on 15 July, 2013
FIR no. 137/05 1/19 15.07.2013
State Vs. Sanjay
IN THE COURT OF MS. KIRAN GUPTA , METROPOLITAN
MAGISTRATE, MAHILA COURT, CENTRAL 01, DELHI
FIR NO. 137/05
P.S I.P. Estate
U/s 498A/328/304B IPC
Case ID 02401R0467222006
JUDGMENT
1. Sl. No. of the case : 1148/2
2. Name of the complainant : Asha(deceased)
3. Date of commission of : Since the date of
offence marriage ie 15.03.04
4. Name of accused and Address : Sanjay Kumar
s/o Sh. Jaswant singh
R/o Colony Behind Red
Cross hospital,
Bahadurgarh, Haryana
Delhi
5. Offence complained of : u/s 498A IPC
6. Plea of accused : Pleaded not guilty
7. Final order : Acquitted
8. Date of such order : 15.07.2013
Date of Institution of case : 13.12.2005 Date of hearing Final Argument: 10.07.2013 Date of decision of case : 15.07.2013 BRIEF FACTS AND REASONS FOR DECISION 1 Case of prosecution is that accused during the FIR no. 137/05 2/19 15.07.2013 State Vs. Sanjay subsistence of his marriage with Asha(deceased) harassed her for bringing insufficient dowry and continued to harass her for not fulfilling his demands. On 15.03.05, while she was present in her parental house, accused took her with him on the pretext that they would live together, however, he took her to Indira Gandhi Stadium from Mukundpur and demanded money. On her refusal, he abused her and gave her some salt to eat with grapes and fled away from the spot. After consuming the said grapes and salt, she became unconscious and was taken to LNJP hospital by one rickshaw wala. In the hospital, Asha(deceased) gave her written statement dt. 15.03.05 in the presence of ASI Bhup Singh and Dr.Madan Lal. Due to the consumption of some salt with grapes, her entire food pipe was damaged, however, after initial treatment, she was discharged from hospital on 04.04.05. She went back to her parental house, but, ultimately expired on 15.04.05 at her parental house.
2 Charge sheet was initially filed u/s 304 B/328/498A IPC. Ld. ASJ vide order dt. 15.05.06, on the basis of CFSL result, and final opinion regarding cause of death, discharged accused for the offence u/s 304 B/328 IPC and case was remanded back to the present court.
3 Charge u/s 498 A IPC was framed against accused on 10.12.07 to which he pleaded not guilty and claimed trial.
4 Prosecution with a view to establish its case has
FIR no. 137/05 3/19 15.07.2013
State Vs. Sanjay
examined eleven witnesses.
(a) PW1 Deepak Kumar is the brother of Asha(deceased) who duly proved her statement dt. 15.03.05 as Ex.PW1/A and identified her signature at point A.
(b) PW2 Shanti is the mother of Asha (deceased) who proved the photographs of her daughter which were again exhibited as Ex.PW1/A(colly).
(c ) PW 3 Bhagwan Dass is the maternal uncle of Asha(deceased). He deposed that after about 2 months of marriage, accused left Asha(deceased) at her parental house at Delhi. Asha(deceased) told him that her husband used to demand money from her and also gave beatings to her. On 16.03.05, he received a call on his mobile from JPN hospital through police official and he came to know that accused has brought her at Indira Gandhi stadium where he gave beatings to her and administered poison to her.
(d) PW4 Ct. Birender received the DD no. 28A on 15.03.05 and then along with SI Rajesh Vijay went on JPN hospital and took the statement of Asha(deceased) and handed over the same to Duty officer for registration of FIR.
(e) PW5 HC Prem Singh proved the arrest memo of accused Ex.PW5A and his personal search memo Ex.PW5/B. FIR no. 137/05 4/19 15.07.2013 State Vs. Sanjay
(f) PW6 Sh. N.R. Sharma, then SDM Darya Ganj, went to hospital on 15.03.05 for recording of statement of Asha(deceased). He deposed that her statement could not be recorded as it was reported by doctor that she is not able to speak properly and was declared unfit for statement. On 15.04.05, he was intimated about death of Asha(deceased). He proved the statement of of her father Ex.PW6/A.
(g) PW7 ASI Suresh Hiwarkar proved the entry at Sr. no. 1760 dt. 16.05.05 whereby SI Rajesh Vijay has deposited one viscera box duly sealed with the seal of hospital along with post mortem report and sample seal in the malkhana. He further stated that on 17.05.05, the same was collected by SI Rajesh Vijay from malkhana and deposited with FSL and on 25.01.06, report from FSL was received and handed over to SI Rajesh Vijay. He proved the register no. 19 Ex.PW7/F.
(h) PW8 Dr. Madan Lal is the concerned doctor on duty under whom Asha(deceased) was admitted on 15.03.05. He deposed that she was admitted in hospital at around 3.20 pm in Emergency with alleged history of eating Prasad at Hanuman Mandir around 2 hours back as stated by Babloo, rickshaw wala. During examination, she was found conscious but disoriented and unable to speak properly so he declared her not fit for giving oral statement. But she could give the statement in writing. She gave statement Ex.PW1/A in his presence bearing his signature at point B. FIR no. 137/05 5/19 15.07.2013 State Vs. Sanjay He further proved MLC of Asha(deceased) Ex.PW8/A.
(i) PW9 Sh S.K. Aggarwal proved the discharge slip of Asha(deceased) Ex.PW9/A and further proved the unattested photocopies of referral to ICU on 15.03.05 and corresponding treatment in hospital as mark A to mark H. He deposed that she was given conservative management which included TPN after 23 days of her admission.
(j) PW10 Insp. Rajesh Vijay is the IO of the case and proved the entire investigation and DD no. 28 A Ex.PW10/A and, endorsement on the hand written statement of Asha(deceased) Ex.PW10/B. He further proved the carbon copy of FIR Ex.PW10/C, statement of Bhagwan Das as Ex.PW10/D, Mahavir Singh as Ex.PW10/E, Shanti as Ex.PW1/B. He further proved the form 25/35 B and C as ExPW10/F and 10/G respectively. Identification statement of Mahavir and Deepak regarding body of Asha(deceased) as Ex.PW10/A and Ex.PW10/L. Post mortem report of Asha(deceased) as Ex. PW10/H and handing over memo of dead body as Ex.PW10/I. He deposed that he collected the viscera vide memo Ex.PW10/J.
(k) PW11 SI Bhoop Singh is the police official in whose presence Asha(deceased) gave her statement Ex.PW1/A. He further proved the DD no. 46 B which was marked to him on 15.03.05 at around 3.40 pm. He deposed that he immeidately along with Constable of Delhi Home Guard FIR no. 137/05 6/19 15.07.2013 State Vs. Sanjay went to hospital where he met Asha(deceased) and collected her MLC. Since, she was unable to speak, she gave her statement in writing Ex.PW1/A in his presence and in presence of Dr. Madan Lal. Since the matter was pertaining to jurisdiction of PS I.P. Estate, he submitted the statement of Asha(decelased), MLC and DD no. 46 B at I.P. Estate vide DD no. 28 A already Ex.PW10/A. 5 Formal recording of testimony of DO HC Ashok Kumar, Dr. Girish, PW Dr. Rohit was dispensed with vide order dt. 06.02.13. Since the whereabouts of rickshaw puller PW Babloo who took Asha(deceased) to the hospital were not traceable, he was also dropped from list of witnesses vide order dt. 06.02.13.
6 PE was closed on 12.03.13 and statement of accused was recorded after putting all the incriminating evidence on record. He denied all the allegations and stated that he never went to parental house of Asha(deceased) on 15.03.05 as the matter was already compromised between them in Mahilla Panchayat Sabla Sangh. On 15.03.05, he was in his native village Tikri kalan. He in order to support his defence has examined DW Bhawri who is working as Para legal Worker with Action India Samta Sangh, where the matter was compromised between accused and Asha(deceased). She proved the final compromise Ex.DW1/A, photographs Ex.DW1/B and Ex.DW1/C. The original form filled by accused and Asha(deceased) FIR no. 137/05 7/19 15.07.2013 State Vs. Sanjay Ex.DW1/D, complaint to SHO by Asha(deceased) Ex.DW1/E and proceeding sheets Ex.DW1/F. She further proved the interim compromise between the parties Ex.DW1/G and notice sent to accused dt. 04.02.05 for 23.02.05 as Ex.DW1/H. 7 It is argued by Ld. Defence counsel that accused has already been discharged for the offence u/s 304B/328 IPC by Ld. Sessions Judge. There is not even a single allegation against accused regarding any sort of demand or consequent cruelty, hence, in the absence of any such allegations, accused be acquitted accordingly. It is further argued that accused has amicably compromised all the disputes with his wife Asha(deceased) before Mahila Ayog as is evident from documents Ex.DW1/A to 1/H and returned all her articles. After the compromise, no occasion arose that accused would go to the house of Asha(deceased) and demand money thereafter. It is argued that on 15.03.05, accused was present in his village at Tikri Kalan and never went to the house of Asha(deceased). It is further argued that there is no evidence on record to show that accused went to the house of Asha(deceased) on 15.03.05 to establish the case of prosecution. It is further argued that even before Mahila Ayog, Asha(deceased) has not levelled any allegation of demand against accused to bring home the offence u/s 498A IPC, hence in absence of any such allegations, accused be acquitted accordingly. It is further argued that police neither inquired as to whether FIR no. 137/05 8/19 15.07.2013 State Vs. Sanjay accused went to the house of Asha(deceased) on 15.03.05 nor made any efforts to record any supplementary statement of Asha(deceased), despite the fact that she expired after one month on 15.04.05. It is further stated that cause of death was natural as per report of viscera and as per final post mortem report whereby it is clearly stated that she died of pulmonary Tuberculosis .
8 It is argued by APP for the state that since statement dt. 15.03.05 which is in the handwriting of Asha(deceased) Ex.PW1/A has been duly proved by the prosecution, it is clearly established that accused has given some poisonous substance to her which ultimately caused her death. it is further argued that as per the statement Ex.PW1/A, Asha(deceased) has categorically stated that accused took her to Indira Gandhi Stadium and demanded money. When she refused, he gave her some salt with grapes which resulted in her such condition. It is further argued that demand is clearly established from said statement Ex.PW1/A and is further proved from testimony of PW1, PW2 and PW3 that main cause of dispute between Asha(deceased) and accused was demand of Rs. 20,000/ for which Asha(deceased) initially filed the complaint before police and thereafter before Mahilla Ayog. It is further argued that demand is clearly established and consequent cruelty is evident from the fact that accused gave something poisonous along with grapes to Asha(deceased) on 15.03.05 which caused damage to her FIR no. 137/05 9/19 15.07.2013 State Vs. Sanjay food pipe and she ultimately expired on 15.04.05.
9 Heard APP for the state, ld. Defence counsel and perused the complete record file. Accused has already been discharged for the offence u/s 328/304 B IPC by Ld. Sessions Judge vide order dt. 15.05.06. Limited scope which is for scrutiny before this court is whether the offence u/s 498A IPC is made out on the basis of evidence on record. The fact that deceased Asha(deceased) was admitted in LNJP hospital on 15.03.05 has been duly proved by prosecution witnesses. PW8 Dr.Madan Lal is the doctor concerned under whom Asha(deceased)was admitted on 15.03.05. He has deposed that during examination, he found that Asha(deceased) was conscious but disoriented and unable to speak properly so he declared her not fit for giving oral statement. She could give the statement in writing. She gave the statement in writing in his presence Ex.PW1/A bearing his signatures at point B. He further deposed that said statement was given in his presence and in presence of police officials and has been duly attested by him. He further proved MLC of Asha(deceased) which is Ex.PW8/A. He categorically denied the suggestion of Ld. Defence counsel that statement of Asha(deceased) was not recorded in his presence.
10 PW9 Sh. SK. Aggarwal has also deposed that on 15.03.05, one patient namely Asha was admitted in LNJP hospital in emergency with CR no. 501454 with alleged case FIR no. 137/05 10/19 15.07.2013 State Vs. Sanjay of corrosive poisoning. She was given conservative management which included TPN after 23 days of her admission in hospital. She was given ryle's tube because she was unable to swallow as apparently there was some obstruction in the food pipe which might have been caused due to swallowing the corrosive poisoning substance. Endoscopy was not done at the time of admission as the same might have caused further damage including perforation to the food pipe itself. He further placed on record unattested photocopies of referral to ICU on 15.03.05 and further allied documents mark A to mark H. 11 PW11 SI Bhup Singh has deposed that on 15.03.05, he was posted at PS Kashmere Gate. On that day, DD no. 46 B at around 3.40 pm was marked to him for inquiry. The call was received by him from JPN hospital that one lady by name of Asha(deceased) has been brought to hospital by rickshaw puller in hospital and some poisonous substance was given to her in food. He proved the MLC Ex.PW11/A. He along with doctor visited the patient. Then in the presence of Dr Madan Lal, he gave her a paper to write her statement so that he could investigate the matter further. Asha(deceased) in his presence and in presence of Dr. Madan Lal, gave her hand written statement and also signed and mentioned address with phone number.
12 PW8 and PW 11 have co jointly deposed that Asha(deceased)gave her statement in her own hand writing FIR no. 137/05 11/19 15.07.2013 State Vs. Sanjay to them on 15.03.05. The said statement of Asha(deceased) is Ex.PW1/A. The contents of same are re produced as under :
"Mere ko pati or Sanjay mujhe Mukundpur se lekar Indira Gandhi Stadium lekar aaya tha, woh mujhse paisa mangne laga, mere mana karne par mujhe galiya dene laga. Phir mujhe koi cheez angoor ke saath khilai, wahi se mujhe rickshaw mein bithakar bhaag gaya, angoor mein namak mila kar khilaya tha."
13 Admittedly, this is the only statement of Asha(deceased) before her death. She expired on 15.04.05 ie almost after one month of incident. There is no other supplementary statement of Asha(deceased) except the statement dt. 15.03.05. In the said statement, it is merely stated that accused had come to her house and took her to Indira Gandhi Stadium and demanded money. Except this piece of allegations, there is no other complaint which has been filed by prosecution alleged to have been filed by Asha(deceased) against accused earlier. It is accused who has filed the compromise deed along with the complaint filed by Asha(deceased) before SHO Jahangir Puri which shall be discussed subsequently. However, prosecution has examined three family members of Asha(deceased) to prove the allegations against accused. Now coming to the testimony of other witnesses i.e PW1 and PW2 who are brother and mother of Asha(deceased).
FIR no. 137/05 12/19 15.07.2013 State Vs. Sanjay 14 PW1 deposed that his sister resided at her
matrimonial house at Bahadurgarh only for a period of about 2 months after her marriage. Thereafter, accused left her outside their house. She informed him and his family members that her husband demanded Rs. 20,000/ from her and when she refused to fulfill the said demand, he along with his family members beat her mercilessly. Though he and his maternal uncle requested accused to take back his sister, but he was not ready till his demand was satisfied. So his sister was staying with them.
15 PW2 deposed that accused has thrown her daughter out of the matrimonial house. Her daughter told her that he used to demand Rs. 20,000/ from her and further told her not to come back till she fulfills the said demand. Her daughter further told her that accused along with his mother and brother used to beat and abused her in her matrimonial house.
16 From the testimony of PW1 and PW 2 , it is evident that no demand was made by accused or his family members in their presence. They have deposed on the basis of what was told to them by Asha(deceased). Thus, the testimony of PW1 and PW 2 regarding any sort of demand is merely hearsay. Even PW3 who is maternal uncle of Asha(deceased) deposed that she told him that her husband used to demand money from her and also gave beatings to her. None of these witnesses have deposed as to FIR no. 137/05 13/19 15.07.2013 State Vs. Sanjay when the said fact was told to them by Asha(deceased). No specific date , month or year has come up in the testimony of these witnesses as to when they came to know from Asha(deceased) that she was being harassed for demand of dowry by her husband and in laws.
17 Now coming to the narration of allegations by Asha(deceased) before Mahila Sangh Ex.DW1/D. The allegations are narrated on second page of Ex.DW1/D wherein it is alleged that her mother in law used to harass her for demand of dowry every day. Her husband had beaten someone due to which police was searching him and he was evading his arrest from police. On 31.01.05, her devar misbehaved with her and when she disclosed this fact to her mother in law, she also started scolding her and further beat her mercilessly. She suffered injuries on her head and hands and in order to save herself, she ran away from her matrimonial house and came back to her parental house. Other document again placed on record by accused is Ex.DW1/E i.e initial complaint filed by Asha(deceased) before SHO dt. 04.02.05. Even in the said complaint, she has levelled allegations against mother in law that she did not provide sufficient food to her and regarding misbehaviour against her brother in law. Even in the said complaint Ex.DW1/E, there is not even a single allegation regarding any sort of demand by accused. PW1 during his cross examination stated that accused has filed complaint in Mahila Panchayat and denied that Asha(deceased) has FIR no. 137/05 14/19 15.07.2013 State Vs. Sanjay filed any such complaint before Mahila Panchayat. When he was confronted with document, he denied the same being illiterate. He duly identified the signatures of his mother and father on mark A and B which have been subsequently exhibited as Ex.DW1/ A (colly). He further admitted that at the time of compromise in writing, his sister was residing with them. Even after the compromise, she was residing with them. When he was confronted with final compromise dt. 02.03.05, he identified signatures of his sister in Hindi and not in English.
18 PW2 during her cross examination admitted that she lodged the complaint in Jahangir Puri Mahilla Mandal and a talaqnama agreement was also entered. It was agreed by accused that he will not marry again till her daughter is alive, however, they will live separately. She failed to identify her signatures on mark A and B subsequently exhibited as Ex. DW1/A(colly).
19 DW1 Bhanwri has duly proved the Ex.DW1/A to 1/H. There is no suggestion in the entire cross examination of DW1 that said compromise was never entered by Asha(deceased) and accused at any point of time. The testimony of PW1 and PW2 regarding the compromise is entirely in contradiction to each other. At one point, PW2 has admitted that matter was compromised and written talaqnama was executed, however, when she was confronted with documents, she refused to identify her FIR no. 137/05 15/19 15.07.2013 State Vs. Sanjay signatures. PW1 duly identified signatures of his mother and father at point X and Y on Ex.DW1/A(colly). He is the one who has identified the signatures of Asha(deceased) on Ex.PW1/A and further on final compromise dt. 02.03.05. Thus, it can be inferred that some sort of compromise was entered between Asha(deceased) and accused and pursuant to that, they were living separately.
20 From the testimony of witnesses and on the basis of documents on record, it is evident that prosecution has failed to prove that any sort of demand was made by accused from Asha(deceased) or that she was harassed by accused for non fulfilling his demands. No inference regarding any demand can be made from Ex.PW1/A and initial complaint filed by her Ex.DW1/E and her narration of allegations as per Ex.DW1/D. All allegations as per Ex.DW1/E and Ex.DW1/D are against mother in law. As discussed above, the testimony of PW1 and PW2 regarding alleged demand is merely hearsay.
21 The other aspect to the case is regarding the incident dt. 15.03.05. The case of prosecution is that accused took Asha(Deceased) with him for taking her back to the matrimonial house, but however, administered poisonous substance to her due to which she developed certain infection in food pipe and ultimately expired on 15.04.05. Accused has already been discharged for offence u/s 328 IPC vide order dt. 15.05.06. It is argued by Ld. APP FIR no. 137/05 16/19 15.07.2013 State Vs. Sanjay for the state that very fact that accused gave poison to Asha(deceased) when she failed till fulfill his demand of money on 15.03.05, proves the case of prosecution that he committed cruelty to such an extent that the same caused death of Asha. Per contra, it is argued by Ld. Defence counsel that accused never visited the house of complainant on 15.03.05. It is further argued by him that once accused has entered into compromise and returned all articles of Asha(deceased), no occasion arose to bring her back and accused has been falsely implicated by family members of Asha(deceased). Let the said arguments be analysed in view of evidence on record. Prosecution has examined mother and brother of Asha(deceased).
22 PW1 has deposed that he came to know that on 15.03.05, accused came to their house and took his sister with him. At that time, he was not present in the house. In the evening, he received a phone call of one unknown rickshaw puller who has admitted his sister at Irwin hospital. He immediately reached the hospital and there one SI was also present. His sister was though conscious but some jhag was coming out of her mouth. His sister had given one written statement to police. When his sister has given written statement to IO, at that time his father namely Mahavir Singh and mama Bhagwan Das were also present in the hospital. His mother and other family members also reached the hospital. IO recorded his statement Ex.PW1/B. FIR no. 137/05 17/19 15.07.2013 State Vs. Sanjay 23 PW2 has deposed that for 9 months, her daughter resided with her and thereafter, accused came to their house and took her daughter for taking her to her matrimonial house. She sent her daughter with accused . On that day itself, in the evening at about 6 pm, she received the call that accused has given poison to her daughter and her daughter is admitted in LNJP hospital. In the hospital, police officials recorded the statement of her son Deepak, her husband and her statement.
24 From the testimony of PW1, it is evident that accused has not come to their house to take Asha(deceased) in his presence. He categorically admitted that he came to know that on 15.03.05, accused came to their house and took his sister. He further admitted that he was not present in the house at that time. Only PW2 has deposed that accused came to take her daughter and she sent her daughter with accused. Except the mother of Asha(deceased), prosecution has not examined any other witness to substantiate that accused had actually visited the house of Asha(deceased) on 15.03.05. Even, when the IO was specifically put the question as to whether he made any inquiry, whether accused had visited Mukundpur on the date of incident or not. He stated that he did not made any investigation from family members or neighbours of Asha(deceased). He admitted that he did not verified from father of deceased as to whether accused visited her house on 15.03.05. There is FIR no. 137/05 18/19 15.07.2013 State Vs. Sanjay no supplementary statement of any other witness to show that accused actually visited the house of Asha(deceased).
25 It is settled law that in order to convict a person, case of prosecution has to be proved beyond the pales of reasonable doubt. There should not be an iota of benefit of doubt. When the main pillars of the case of prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged. The argument of ld. Defence counsel sounds plausible that why accused after returning the articles and entering into compromise would again go back to the house of Asha(deceased) to take her back. Further, in statement Ex.PW1/A, it is stated that accused took her to Indira Gandhi Stadium and demanded money. When she refused to give money to accused, he gave her something to eat along with grapes and made her sit in one rickshaw. As per testimony of PW8 and 9, Asha(deceased) was brought to hospital by one rickshaw puller. The said rickshaw puller namely Babloo has not been examined by prosecution as his whereabouts were not traceable. However, in his statement u/s 161 Cr.Pc, it is stated that on 15.03.05 while he was standing at Hanuman mandir, he saw one female in unconscious state to whom he took to JPN hospital. Admittedly, there is a lot of distance between Hanuman Mandir and Indira Gandhi stadium. Even without considering the said contradiction, no allegation of demand of dowry is proved against accused. Admittedly, FIR no. 137/05 19/19 15.07.2013 State Vs. Sanjay Asha expired almost after one month of alleged incident. There is no supplementary statement recorded by police or investigating agency. As discussed above, prosecution has miserably failed to prove that Asha(Deceased) was harassed by accused for bringing insufficient dowry or the other allegations. Benefit of doubt goes in favour of accused and he is accordingly acquitted for offence u/s 498A IPC. Bail bond of accused is further extended for six months as per section 437A Cr.PC. File be consigned to record room.
Announced in the open (Kiran Gupta)
court on 15.07.2013 MM(Mahila Court Central01)
Delhi
FIR no. 137/05 20/19 15.07.2013
State Vs. Sanjay