Delhi District Court
Sc No. 57623/16; Fir No.420/08; Ps. ... vs . Virender Madan & Ors. Page No. 1 Of 40 on 21 May, 2019
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................57623/16
FIR No. 420/08
PS South Rohini
U/s: 306/34 IPC & 4 Dowry
Prohibition Act read with Section
34 IPC
State
Versus
1. Virender Madan
S/o Sh. Madan Lal
2. Neelu Madan
W/o Sh. Virender Madan
3. Saurabh Madan
S/o Sh. Virender Madan
All Residents of :
C163, MP Enclave, Pitam Pura, Delhi
Presently at :
R/o. G5, Pushkar Enclave,
Upper Ground Floor, Pachim Vihar, New Delhi.
Date of institution: 22.09.2012
Judgment reserved on: 06.05.2019
Judgment delivered on: 21.05.2019
SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 1 of 40
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ORDER/JUDGMENT: All the accused persons namely
Virender Madan, Neelu Madan and
Saurabh Madan are acquitted of
the charge(s) u/S. 306/34 IPC and 4
of Dowry Prohibition Act r/w. 34 IPC.
JUDGMENT
1. Brief facts, as stated in the chargesheet are that on 13.07.2008, DD No. 9A was marked to SI Krishan Kant, who alongwith Ct. Baljeet Khatri rushed to Maharaja Agarsen Hospital. In the said hospital, SI Krishan Kant had collected MLC No. 1066/08 of 'V' D/o Sh. Ashok Arora upon which doctor had mentioned brought dead. After collection of MLC and knowledge of death by hanging, the aforesaid police officials alongwith Sh. Ashok Arora i.e. father of deceased 'V' went to the place of occurrence i.e. at second floor, C 9/20, Sector8 Rohini, Delhi and got the said place of occurrence inspected through crime team officials. SI Krishan Kant also seized one white colour chunni with which 'V' allegedly hanged herself by ceiling fan. Thereafter, SI Krishan Kant recorded the statement of Sh. Ashok Arora, which reads as under :
That he is having three daughters and three sons. 'V' was born at second number, who had done her M.BA. Final year exams. On 07.05.2008, the engagement of his daughter 'V' was performed with Saurabh Madan. The things were normal for about 15 to 20 days.
SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 2 of 40 -3- Thereafter, a message was received from mediator Sh. Murli Tayal for giving a big car and for performing marriage at Gupta Tent House. He stated to the mediator that he would perform marriage to his abilities and later on the marriage was fixed to be performed at Lavanya GTK Karnal Road.
Thereafter, Saurabh said to his daughter that she is having mole over her face and broad nose and he replied that they had performed mangni after seeing his daughter for about 4 to 5 times and if they were not liking the relation, then they could break the marriage.
On 12.07.2008, his daughter had received a phone call of Saurabh and invited her to accompany him for the said evening. On or about 7:00 pm, Saurabh came to their house and Vandna accompanied him. Saurabh and 'V' returned back at about 12:00 night and left 'V' at their house. His daughter 'V' had some conversation with Shweta Arora.
Thereafter, Saurabh made a phone call and over the said phone call, Saurabh and 'V' had some SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 3 of 40 -4- arguments and were quarreling. Thereafter, 'V' went upstairs for sleeping.
On or about 2:20 / 2:25 am, Shweta went upstairs to check 'V' and she came downstairs while weeping and informed them that 'V' had hanged herself and her colour has turned black. They rushed to the room of 'V' and found 'V' hanged with a chunni tied over fan.
They untied the chunni and 'V' was brought down and thereafter was taken to Agarsen Hospital. In the said hospital, 'V' was declared brought dead.
His daughter was having two mobile numbers 9711292904 and 9310331967. Saurabh had stated to 'V' during the said night that he is breaking the relationship, as Saurabh and his family members were demanding dowry and were threatening to break the marriage due to which 'V' had committed suicide by hanging. Saurabh, his mother Neelu and father Virender Madan were responsible for the said suicide and he wants legal action against them.
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2. On this statement, an endorsement was made by SI Krishan Kant for offence(s) u/s 306/34 IPC and 4/5 Dowry Prohibition Act and handed over rukka to Ct. Baljeet Khatri, who accordingy went to PS, got the FIR registered and investigation was taken up by SI Krishan Kant.
3. During the course of investigations, IO got conducted postmortem on the body of 'V' and after postmortem, body of 'V' was handed over to her relatives. During investigation, IO had recorded the statements of witnesses. All the accused persons were granted anticipatory bail and were formally arrested. During investigation, uncertified copies of CDR of mobile phones were obtained.
4. After completion of investigations, a chargesheet for offence(s) punishable u/s 306/34 IPC was filed against all the accused persons namely Virender Madan, Neelu Madan and Saurabh Madan.
5. On committal of the case to the Court of Sessions, vide order dated 29.10.2013, charge(s) for offence(s) u/s 306/34 IPC and u/s 4 of Dowry Prohibition Act read with Section 34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Thereafter, vide order dated 02.08.2017, an amended charge(s) for offence(s) u/s 306/34 IPC and u/s 4 of Dowry Prohibition Act read with Section 34 IPC was framed against all the SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 5 of 40 -6- accused persons to which they pleaded not guilty and claimed trial.
6. Thereafter, prosecution in support of its case has examined 16 witnesses :
a) PW1 is Sh. Ashok Arora i.e. complainant / father of deceased 'V', who had deposed in corroboration to the contents of FIR. He also exhibited his statement as Ex. PW1/A made before the police.
This witness was also crossexamined by Ld. Addl. PP for State. He also exhibited the receipt vide which body of 'V' was handed over to him as Ex. PW1/B and his statement Ex. PW1/C regarding identification of body of 'V'.
b) PW2 is Ms. Shweta Arora i.e. sister of deceased 'V', who has also deposed in corroboration to the testimony of PW1 i.e. his father.
c) PW3 is Inspector Subhash, who deposed to have conducted further investigation and sent the file to prosecution branch
d) PW4 is ASI Kuldeep Raj i.e. DO who deposed to have recorded FIR Ex. PW4/B and made endorsement Ex. PW4/A on rukka.
e) PW5 is Dr. Anil Jindal, who deposed to have medically examined 'V' and found her brought dead. He also prepared MLC Ex. PW5/A. He also deposed that on local examination, around the neck, bruise or hanging mark strangulation was found.
f) PW6 is retired SI Ram Singh, who deposed to have conducted further investigation and on 24.08.2008 formally arrested accused SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 6 of 40 -7- Virender and Neelam vide arrest memos Ex. PW6/A and Ex. PW6/B respectively. He also deposed to have formally arrested accused Saurabh Madan vide arrest memo Ex. PW6/C on 05.09.2008.
g) PW7 is SI Imteyaz Alam, who deposed to have filed chargesheet in the court.
h) PW8 is Sh. Gaurav Khatri (Ex. SI), who deposed that the file of the present case remained in his custody from 19.11.2009 to 25.11.2010.
i) PW9 is Sh. Murlidhar Tayal i.e. the mediator and deposed to have introduced Sh. Ashok Kumar Arora with accused persons and deposed that both of them agreed for the alliance and then both parties started communicating with each other. He also deposed that both the parties started meeting with each other. He also deposed that on the day of occurrence, he went to the house of Sh. Ashok Arora and found 'V' lying on the floor and accused Saurabh Madan was also present there.
He also deposed that prior he being reached there, 'V' was taken to Saroj Hospital and then to Maharaja Agarsen Hospital. He also accompanied the family of deceased at Maharaja Agarsen Hospital. This witness was declared hostile by Ld. Addl. PP for the State and was crossexamined at length on other aspects, on which he did not support the prosecution story.
j) PW10 is SI Krishan Kant, who deposed to have conducted SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 7 of 40 -8- investigation and exhibited DD No.9A as Ex. PW10/A and deposed to have recorded statement Ex. PW1/A of Sh. Ashok Arora. He also exhibited the seizure memo of chunni as Ex. PW10/B. He also exhibited rukka as Ex. PW10/C. He also exhibited rough site plan as Ex. PW10/D. He also exhibited the request for conducting postmortem as Ex. PW10/E, his handwritten application in this respect as Ex. PW10/F and filled inquest form as Ex. PW10/G. He also exhibited the statement of Sh. Ashok Arora and Sh. Krishan Lal Arora as Ex. PW1/C and Ex. PW10/H respectively, whereby they had identified the body of 'V'. He also exhibited the receipt as Ex. PW1/B vide which after postmortem, the body of 'V' was handed over to her relatives.
k) PW11 is Mrs. Praveen Arora i.e. mother of deceased 'V', who has deposed in corroboration to the testimony of her husband Sh. Ashok Arora and of her daughter Ms. Shweta Arora.
l) PW12 is Sh. Krishan Arora, who deposed to have identified the body of 'V' vide his statement Ex. PW10/H. He also exhibited the receipt as Ex. PW1/B vide which body of 'V' was handed over to them.
m) PW13 is Sh. Rajiv Vashisht, Alternate Nodal Officer, Tata Tele Services Ltd., who has exhibited the CAF in respect of mobile no. 9213907038 in the name of Vinod Kumar Chopra as Ex. PW13/A, copy of ration card as Ex. PW13/B.
n) PW14 is Ct. Baljeet Singh, who had accompanied SI Krishan SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 8 of 40 -9- Kant to the hospital. He also deposed to have taken rukka and got the FIR registered.
o) PW15 is Dr. V. K. Jha, who deposed to have conducted postmortem on the body of 'V' and exhibited the PM report as Ex. PW15/A. He also opined the cause of death as asphyxia, as a result of pressure over throat structures by ligature.
p) PW16 is Sh. Yogesh Tripathi, Alternate Nodal Officer, Reliance Communication and has exhibited the CAF in respect of mobile no. 9310331967 in the name of Saurabh Madan as Ex. PW16/A, PAN card as Ex. PW16/A1, the CDR with Cell ID Chart as Ex. PW16/A2, certificate u/s 65B of Indian Evidence Act as Ex. PW16/A3.
He also exhibited the CAF in respect of mobile no. 9350192433 in the name of Nikhil Goyal as Ex. PW16/B, DL as Ex. PW16/B1, the CDR with Cell ID Chart as Ex. PW16/B2, certificate u/s 65B of Indian Evidence Act as Ex. PW16/B3.
7. Vide order dated 14.07.2017, the prosecution evidence was closed.
8. Thereafter, statement of accused persons u/s 313 Cr.P.C. were recorded separately in which the entire incriminating evidence appearing against the accused persons was put to them, in which the defence of the accused persons was that they have been falsely SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 9 of 40 -10- implicated and they had given extremely expensive gifts and jewellery to 'V' and they had not made any such demands. They also submitted that in fact, earlier relationship of 'V' and her disapproval of marriage with Saurabh Madan was never disclosed to them. However, they chose to lead evidence in their defence.
9. In support of their defence, the accused persons have examined 9 defence witnesses:
a) DW1 is ASI Umesh Tiwari, who had exhibited the complaint register as Ex. DW1/A and deposed that complaint no. 11721 was sent by Saurabh Madan.
b) DW2 is W/ASI Suman, who has deposed that vide diary no.
16848, serial no. 41, one complaint was received from the office of Commissioner of Police and the name of the sender of the said complaint was Saurabh Madan. She also exhibited the copy of the relevant entry of the register as Ex. DW2/A.
b) DW3 is Sh. Arun Kaushik, but this witness could not produce summoned record being destroyed.
b) DW4 is Ct. Avnish, but this witness could not produce summoned record being destroyed.
b) DW5 is Ct. Intezar, but this witness could not produce summoned record being destroyed.
b) DW6 is Ct. Pramod Saini, but this witness could not produce summoned record being destroyed.
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b) DW7 is accused Saurabh Madan who has examined himself u/s 315 Cr.P.C. During his examination, he exhibited his mobile phone no. 9873331967 as Ex. PX1, the truth lab report including two envelopes and sample seal as collectively Ex. PX2. He also exhibited mobile phone having number 9311331967, adapter and charger as Ex. PX3 (colly), the truth lab report including the envelopes and sample seal as collectively Ex. PX4.
He also exhibited the transcript of the text messages as collectively Ex. PX5. He also exhibited his request for conducting proper investigation which was recorded vide DD No. 28A as Ex. PX6 and postal receipts to various authorities as Ex. PX7.
b) DW8 is ASI Vijay Kumar, who had exhibited DD No. 28A dated 29.07.2008 as Ex. DW8/A.
b) DW9 is Sh. Ashok T., Assistant Director, Truth Lab, Benguluru, who deposed to have examined two mobile phones and prepared detailed report Ex. PX2. He also deposed to have examined one mobile phone of Samsung and prepared report Ex. PX4.
He also identified the mobile instruments available in the judicial file and exhibited the same as Ex. P1 to Ex. P3. He also deposed to have derived the text messages running into 21 pages and exhibited them as collectively Ex. P5.
10. Thereafter, vide joint statement dated 07.01.2019, the accused persons closed defence evidence.
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11. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP for the State and Sh. Anupam S. Sharma, Ld. Counsel for all the accused persons.
12. It was contended by Ld. Counsel for the accused persons that in the present case, the testimonies of PW1 Ashok Arora, father of the deceased, PW2 Shweta Arora, sister of the deceased and that of PW11 Smt. Praveen Arora, mother of the deceased are not reliable and trustworthy, as all the said witnesses are biased against the accused persons and have deposed falsely. It is further stated that the said witnesses have also made number of material improvements in their examinationinchief visavis their earlier statements recorded u/S. 161 CrPC, which were duly confronted during their crossexamination.
He further argued that the testimonies of PW1 and PW11 with regard to the incident dated 12.07.2008 are hearsay, as they were allegedly sleeping at the time, when the deceased was dropped back at her house by the accused Saurabh Madan. He has further argued that the testimony of PW2, the sister of the deceased is also hearsay, as she had not heard the alleged conversation between the accused Saurabh Madan and her deceased sister 'V'.
He has further argued that the death in the present case was as a result of strangulation, which has also been stated so by PW5 Dr. Anil Jindal, who has proved the MLC of the deceased Ex. PW5/A, as SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 12 of 40 -13- the deceased was firstly taken to Maharaja Agrasen Hospital and the said doctor has also suspected it to be a case of strangulation.
He has further argued that PW1 and PW2 have admitted in their crossexamination(s) that the deceased was having friendship with one Amit and she also used to talk with him frequently and accused also appeared in the witness box and got recorded his statement u/S. 315 CrPC as DW7, in which he has also narrated that when on the date of the incident i.e. 12.07.2008, the deceased was with him, she received repeated calls from her friend Amit and one of those calls and SMS were heard and seen by the accused Saurabh Madan, then he was shocked that the said person was saying "Hai Shona" and after some time he dropped her at her house, even then she continued talking with that fellow Amit and since her lie had been nailed by the accused Saurabh Madan, therefore, she had nowhere to hide and in her sheer depression, she had committed suicide or had been killed by her family members to save the family honour.
He has further argued that the star witness of the prosecution, who was rather an independent witness i.e. the mediator PW9 Murlidhar Tayal has turned hostile and has not supported the prosecution story regarding demand of dowry by the accused persons at any point of time during the subsistence of the engagement between the deceased and the accused Saurabh Madan.
He has further argued that the entire story of demand of dowry SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 13 of 40 -14- and cruelty and harassment prior to the marriage is a figment of the imagination of IO and the prosecution witnesses. He has further argued that PW10 SI Krishan Kant, the main IO of this case has admitted that it is mentioned in the rukka that the mobile phone belonging to the deceased of Spice make was also collected from the spot, but the same has not been seized nor it has been produced by the prosecution, which shows that it contained such intimate conversation between the deceased and the said boy Amit, which would have gone against the case of the prosecution. He has further argued that even otherwise, if the entire prosecution story is taken as gospel truth, even then from the said facts and circumstances, no abetment, enticement, goading or intention to push the deceased to commit suicide is made out. Therefore, all the accused persons are liable to be acquitted for the offence(s) u/S.306/34 IPC and Sec. 4 of Dowry Prohibition Act r/w Section 34 IPC.
13. On the other hand, Ld. Addl. PP for the State has vehemently controverted the above contentions of the Ld. Defence Counsel and submits that the testimonies of PW1 Ashok Arora, PW2 Shweta Arora and PW11 Smt. Parveen Arora are cogent, consistent and are complimenting each other with regard to the demand of dowry i.e. demand of big vehicle and performing of marriage of in Gupta Tent House and these witnesses have also stated that the accused SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 14 of 40 -15- Saurabh Madan used to taunt the deceased on her looks saying that her nose was broad and she was having moles on her face and 15 days prior to the death of deceased, the accused Neelu Madan came to the house of deceased and complained about her hairs by pulling her hairs and all the accused persons were consistently pressurizing her and her family asking them for a big vehicle.
He has further argued that from the testimony of PW2 Shweta Madan, who was the only member of the family of deceased awake at the time when accused Saurabh Madan dropped the deceased back at her house at 12:00 pm on 12.07.2008, has stated that the deceased was visibly upset at that time and when she asked about the reason, she stated that the accused was saying that he will break the marriage. When she asked the reason, she stated that she will tell in the morning and in the meantime, a call came from Saurabh Madan and she heard her arguing with Saurabh Madan and thereafter she went to her room. Ld. Addl. PP for the State submits that the facts stated by the said witness in spontaneity to her sister would come within the rule of res gestae and would be admissible in evidence with regard to the transaction in question or facts relevant thereto.
He has further argued that it may that the mediator PW9 Murlidhar Tayal has turned hostile, but that does not affect the case of the prosecution, as the other prosecution witnesses have duly established the case of the prosecution beyond reasonable doubt SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 15 of 40 -16- and it was the accused, who had fought bitterly with the deceased when she was taken for an outing by the accused Saurabh Madan and when she came back, she was highly perturbed and stressed out and she told this fact to her sister PW2 and she also told that accused was threatening to break the marriage and thereafter call was made by the accused Saurabh Madan and both were talking till late hours and thereafter she committed suicide. Therefore, it is stated that acts of the accused Saurabh Madan are the direct and proximate cause of the death of the deceased, who had been goaded and instigated by the acts of the accused persons and she had no other alternative but to commit suicide. It is further argued that the accused persons had also created a scenario by demanding dowry repeatedly and harassing her, coupled with the threat of the accused for breaking marriage that she left with no other alternative, but to commit suicide and it was the act of the accused Saurabh Madan, which triggered the death of the deceased 'V'. Therefore, all the accused persons are liable to be convicted u/S. 306/34 IPC and Section 4 of Dowry Prohibition Act r/w Section 34 IPC.
14. I have gone through the rival contentions.
15. Regarding the offence U/s 306 IPC, the law is well settled, as laid down in various judgments, including the judgment 2007(3) SCC SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 16 of 40 -17- (Cri)701, in which it has been laid down:
Section 107 IPC defines abetment of a thing. The offence of abatement is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when(1) he instigates any person to do that thing; or(2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.
In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See Mahendra Singh v. State of M.P) Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable.
13. Further in a judgment II(2006)DMC 382, SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 17 of 40 -18- the Hon'ble Delhi High Court relied upon the judgment of the Hon'ble Supreme Court in Mahendra Singh Vs. State of M.P. 1995 Supp.
(3)SCC 731, in which it has been held that :
"The appellant was charged for an offence under Sec. 306 IPC basically based upon the dying declaration of the deceased, which reads as under:
"My mother in law and husband and sister in law(husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sisterinlaw. Because of these reasons and being harassed I want to die by burning.
This court, considering the definition of `abetment' under Section 107, IPC, found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This court further held that neither of the ingredients of abetment are attracted on the statement of the deceased".
The Supreme Court further observed in paragraph 12 of the said decision that the word `instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite.
Presence of mens rea, therefore, is the
necessary concomitant of instigation. It is
common knowledge that the words uttered in a quarrel or in the spur of the moment can not be taken to be uttered with mens rea. It is in a fit of anger and emotional. The words expressed in the case before the Supreme Court were `to go and die'. As a result of such an utterance, the deceased went and committed suicide. Yet, the SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 18 of 40 -19- Supreme Court was of the view that an offence under Section 306, IPC was not made out because there was no element of mens rea.
18. Coming now to the facts of the present case, I find that the case of Mahendra Singh v.
Stated of M.P., 1995 Supp.(3) SCC 731, referred to in Sanju @ Sanjay Singh Sengar (supra), is quite apposite. A similar allegation of harassment was made against the inlaws, but that was not considered to fall within the four corners of Section 306 IPC. In that case, there were allegations of beating as well which are absent in the present case. Apart from all this, in the present case, I find that there is no element of mens rea, which is an essential ingredient, even if the allegations, as per the case of the prosecution, were to be taken to be true and correct. In my view, the learned Additional Sessions Judge was entirely wrong in coming to the conclusion that a charge under Section 306 IPC could be framed against the present petitioners. The deceased(Shobha) may have been treated harshly and unfairly, if the allegations were to be believed, but, it can not be said that the petitioners instigated, goaded or incited her to commit suicide. There is nothing on record to suggest that the petitioners had the mens rea to drive the deceased (Shobha) to commit suicide.
16. Before proceedings further, it would be relevant to discuss the relevant testimony of PW1 Ashok Arora, PW2 Shweta Arora and PW11 Mrs. Parveen Arora.
PW1 has deposed following main points in his examination in SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 19 of 40 -20- chief :
a) That roka ceremony between the deceased 'V' and accused Saurabh Madan took place on 07.05.2008;
b) That the said marriage was fixed through mediator Murli Tayal and the accused persons demanded Ford Endeavour in dowry and that the marriage function to be held in Gupta Tent House, Pitam Pura, to which they refused and lastly it was settled for Lavanya Farm House.
c) That the accused persons demanded Rs. 10 Lakhs cash in dowry, two gold chains for the sister of groom, gents suits and sarees for the husband of sisters.
d) That the accused Neelu Madan caught deceased 'V' with hairs and asked her to straighten her hairs.
e) That his daughter / deceased 'V' was depressed after engagement. When he asked the reason, she said that will tell the same to the mediator Murli Tayal, which she disclosed that accused persons used to make demands of dowry.
He was declared hostile by the Ld. Addl. PP for the State and crossexamined on certain aspects visavis his earlier statement recorded by the police in which he stated that the accused Saurabh Madan had stated that she had broad nose and black spots on her face. He has further stated that accused Saurabh came to his house on 12.07.2013 at 7:00 pm and thereafter she went out along with him and he dropped her at 12:00 Night.
The remaining part of his testimony is not direct, but was told to SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 20 of 40 -21- him by his daughter Shweta with regard to the alleged conversation between the deceased and Shweta i.e. PW2, which is hearsay. He has further stated that the deceased was having mobile phone with two sim cards having no(s) 9711292904 & 9310331967. He has further deposed that his daughter had committed suicide due to harassments done by the accused persons.
In his crossexamination, he has deposed that the police met him in the hospital. He further deposed that his statement was recorded on next day. He was also confronted with material improvements made by him in his examination in chief vis a vis his earlier statement recorded by the police by the Ld. Defence Counsel.
He further deposed that he does not know Amit, however, his daughter might be knowing him. He further admitted that it is correct that inquiry was made by police regarding phone calls between Amit and deceased 'V' at odd hours, but as he was not well on the day of occurrence, he do not know what was disclosed to the police. He further deposed that he cannot say that accused had made complaint many times that Amit had made phone calls and had sent messages to deceased 'V' when she was with accused Saurabh.
He further deposed that his daughter Shweta told him that after her return after meeting Saurabh on the day of occurrence deceased 'V' had long conversation with Amit. He further deposed that Shweta did not tell anything about dowry demand in the night of occurrence. He admitted that it was correct that accused had gifted a diamond SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 21 of 40 -22- necklace to 'V' at the time of engagement.
17. PW2 Shweta Arora in her examination in chief has deposed following main points :
She deposed that the rokka between her sister 'V' and accused Saurabh took place on 07.05.2008 through the mediator Murli Tayal. She further deposed that the accused persons had demanded the marriage to be solemnized at Gupta Tent House and an SUV was also demanded in dowry, but her father refused for the same and later on the marriage was settled for Lawanya Farm House. She deposed that accused Saurabh found fault with her sister saying about her broad nose and mole on her face.
She further deposed that the mother of accused Saurabh caught hairs of deceased 'V' saying that her hairs were very light and she should straighten them. She further deposed that the accused persons demanded difference for not performing marriage in Gupta Tent House and they also demanded suits and heavy gold chains. The accused Saurabh demanded Mehndi ceremony with performance from dance troupes.
She further deposed that on 12.07.2008, she was present at her house, when accused Saurabh called her sister 'V' and then he took her for outing at 7:00 pm and dropped back by 12:00 night. She deposed that she was only awake at that time and rest of the family members were sleeping. She deposed that the deceased 'V' was SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 22 of 40 -23- very upset at that time. She asked her the reason, but she said accused was saying of breaking marriage. She asked her the reason for the same, but she said that she will tell in the morning. In the meantime, the deceased received a phone call from the accused Saurabh. She heard her arguing with the accused Saurabh Madan and thereafter, she went to her room. Thereafter, again she went to the room of her sister 'V' at around 2:20 AM to check her, but she found her hanging from the fan.
In her crossexamination, she deposed that she and her deceased sister remained together for about half an hour of her return and during that period she had received calls on her mobile phone which were attended by her. She cannot tell the time, when her sister received first call on her mobile after return to the home.
She further deposed that she knew Amit, he was a friend of deceased 'V' and a call was received from Amit at 8:00 pm. She does not know whether her sister started talking with Amit at 12:37 AM.
She further deposed that accused talked continuously for a considerable period of time. She further deposed that she cannot say whether her sister called Saurabh Madan or it was other way round. She further deposed that after engagement, one mobile phone was gifted by accused Saurabh. She further deposed that she cannot comment on the suggestion that on day of occurrence, after return of his sister, she told her that Saurabh had come to know about Amit, SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 23 of 40 -24- since he had heard him calling the deceased 'V' as shona etc.
18. PW11 Smt. Parveen Arora in her examination in chief has deposed following main points :
a) That the engagement between her daughter / deceased 'V' and the accused Saurabh Madan took place on 07.05.2008 through the mediator Murli Tayal.
b) That the accused persons sent message for solemnizing the marriage in Gupta Tent House and a big vehicle in dowry, but her husband refused for the same, and finally the marriage was settled for Lavanya Farm House.
c) That the accused Saurabh used to taunt the deceased 'V' about her looks by saying that her nose was broad and she has moles on her face.
d) That the accused Neelu 15 days prior to the death of deceased came to their house to complain about the hairs of deceased 'V'.
e) That all the accused persons were consistently pressing 'V' for big vehicle.
f) That on 12.07.2008, accused Saurabh took the deceased 'V' for outing and dropped her back at 12:00 night.
g) That at that time, she was sleeping, when her daughter 'V' came back.
The rest part of her testimony is hearsay, as told to her by her daughter 'V' of being upset etc. She deposed about the mobile SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 24 of 40 -25- number of deceased 'V' were 9711292904 & 9310331967.
In her crossexamination, she deposed that marriage proposal came through one of their neighbourers Murli Tayal. She further deposed that prior to the engagement ceremony, the accused persons did not make demand of dowry. She further deposed that the girl was gifted jewellery of diamond and one mobile phone with Sim was arranged by the accused Saurabh for the deceased 'V'. She was also confronted with material improvements made by her in her examination in chief visavis her earlier statement recorded by the police by the Ld. Defence Counsel.
She deposed that her daughter did not come to ground floor after she returned back at 12:00 night after meeting the accused Saurabh Madan, who had dropped her. She further deposed that there was no direct demand of dowry by the accused persons and the same used to be made through the mediator Murli Tayal. She further deposed that she does not know Amit or that the deceased 'V' used to talk to him or that she was receiving messages / calls from Amit when she was in company of accused Saurabh.
19. PW10 IO SI Krishan Kant in his testimony in examination in chief has deposed as under :
On 13.07.2008 I was posted at PS Rohini. On that day, on receipt of DD no. 9A Ex. PW10/A, I alongwith Ct. Baljeet Khatri went to Maharaja SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 25 of 40 -26- Agrasen Hospital and collected the MLC of Vandana d/o Sh. Ashok Arora upon which, doctor has mentioned 'brought dead'. The dead body was shifted to the mortuary of SGM Hospital. I alongwith Ct. Baljeet and Ashok Arora father of deceased Vandana reached at 2nd floor, C9/20, Sector8, Rohini and got the scene of occurrence inspected by the crime team. I also took the photograph of the scene of occurrence by my own mobile phone but the same were not developed and are not available now. I recorded the statement of Ashok Arora Ex. PW1/A which bears my signatures at point B. I seized one chunni (white colour) through which Vandana allegedly hanged herself by ceiling fan vide seizure memo Ex. PW10/B bearing my signatures at point A. I prepared the rukka Ex. PW 10/C bearing my signatures at point A and handed over the same to Ct. Baljeet for the registration of the case. I prepared the site plan Ex. PW10/D bearing my signatures at point A at the instance of complainant Ashok Arora. I got conducted the postmortem examination of deceased Vandana, carried out the inquest proceedings. My request to SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 26 of 40 -27- conduct the postmortem on the body of deceased Vandana is Ex. PW10/E (proforma) bears my name at point A and hand written application in this respect is Ex. PW10/F bearing my signatures at point A. I filled up the inquest form Ex. PW10/G (colly) bearing my signatures at point A. I recorded the identification statement of Ashok Arora and Krishan Lal Arora Ex. PW1/C and Ex. PW10/H respectively, both bearing my signatures at point X. The dead body after the postmortem examination was handed over to the relatives vide receipt Ex.
PW1/B bearing my signatures at point B. Efforts were made for the search of accused persons.
During the course of investigation, I recorded the statements of the witnesses and their supplementary statements. Accused Neelu Madan and Virender Madan were granted anticipatory bail on 19.08.2008. I, thereafter, went on course and I handed over the file to MHC(R).
In his crossexamination, he has deposed that it is correct the doctor who prepared the MLC suspected it to be the case of strangulation. He further deposed that the had taken photo(s) from SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 27 of 40 -28- his mobile phone, but could not develop the same. He further deposed that the had not collected the mobile of deceased. The witness was confronted with rukka Ex. PW10/C to this effect, however, he stated that he did not collect the mobile phone of deceased. This witness had further deposed in his crossexamination as under :
The witness after being confronted with the rukka Ex. PW10/C states that he had not collected any mobile phone of Spice from the spot. The witness is further asked to explain how it is mentioned in the rukka prepared by him that one Spice mobile phone was recovered from the spot. To this the witness stated that actually the rukka was got written from some police official at the spot, the name of whom he does not remember now. The said rukka has been signed by me.
20. The other star witness of the prosecution is Murli Tayal, who was the mediator in the marriage was examined as PW9, however, he has not supported the prosecution story that any demand of dowry was made at any point of time, rather he categorically stated in his examinationinchief that no demand of dowry was made by the accused persons in his presence. He also stated that with the SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 28 of 40 -29- concurrence of the parties, the marriage was fixed at Lavanya instead of Gupta Tent House, as the same was not available due to Ramleela. He was declared hostile by the Ld. Addl. PP for the State, but he denied that any demand of dowry was made, as stated by PW1, PW2 and PW11.
Since the said independent witness has not supported the prosecution story with regard to demand of dowry and the fact that PW2 has also admitted in her crossexamination that after engagement, one mobile phone was gifted by accused Sarubah Madan to the deceased and PW11 has also admitted in her cross examination that the deceased was gifted diamond jewellery and mobile phone by the accused Saurabh Madan, these facts cumulatively disprove the prosecution version that there was demand of dowry either at the time of engagement ceremony or thereafter. In fact PW11 in her crossexamination admitted that no demand of dowry was made at the time of engagement.
Since the objectivity of all the above witnesses PW1, PW2 and PW11 is of doubtful nature, as they in any case would have deposed against the accused persons to strengthen the case of the prosecution and the only independent witness Murli Tayal PW9 has turned hostile and has not supported their version with regard to the demand of dowry and other articles, the prosecution has failed to prove the same.
SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 29 of 40 -30-
21. With regard to the arguments of the Ld. Defence Counsel that the death of the deceased 'V' was due to strangulation, as has been deposed by PW5 who had prepared the MLC Ex. PW5/A. However, the perusal of his testimony reveals that he had only put a question mark suspecting it to be a case of strangulation and had not given any specific opinion that it was a case of strangulation. In any case it was not under his domain, as this opinion could only have been given by an forensic or autopsy expert.
The autopsy surgeon in this case PW15 DR. V. K. Jha instead of helping the court, rather confounded by giving a very evasive kind of opinion in his post mortem report by opining as under :
"I opined cause of death as asphysiz and apoplexy as a result of pressure over throat structures by ligature. Ligature mark was ante mortem in nature and time since death was approximately 13 hours."
From his opinion, it cannot be gathered what was the actual cause of death, whether it was strangulation or hanging. He has given an opinion, which is hanging in between and is totally esoteric and difficult to fathom. However, the perusal of the post mortem report reveals that if it would have been a case of strangulation then there would have been some positive findings in the neck / soft tissues of the neck.
In the post mortem report, there are no bruises or absence of SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 30 of 40 -31- bruises on the neck which would have been there, if it was a case of strangulation. Further, in case of strangulation there would have been extravasation of blood, from blood vessels in the tissues of the neck. Further, there would have been a break up of neck cartilage or hyoid bone, which is missing in this case.
Since, there was no such finding in the neck as per the post mortem report Ex. PW5/A therefore, it can be safely presumed that the finding as appeared to have been given by the autopsy surgeon are consistent with hanging or suggestive of hanging. Therefore, this argument of the Ld. Defence Counsel, that it was the case of strangulation by the family members of the deceased is contrary to the medical jurisprudence and is accordingly rejected.
22. Now with regard to Section 306 IPC, the accused Saurabh Madan himself appeared in the witness box u/S. 315 CrPC as DW7 and his relevant examination in chief is as under :
"....On 12.07.2008, I requested Vandana for an evening outing with the permission of elders in the families. I picked her up in the evening from her house. We went first to Waves Cinema, then to Club Mahindra and then to Surya Hotel now hotel Crown Plaza, New Friends Colony for dinner and to the discotheque where after we went to India Gate for ice cream and then on my insistence to Gurudwara SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 31 of 40 -32- Bangla Sahib Ji. While returning home, at around 11:40 pm, a call was received on Vandana's moible phone bearing either connection 9711292904 or 9310331967 (since it was double sim card phone), while she was taking the phone out from her purse she said that it must be from her house and asked me what should she tell them. However, after looking at the number she did not attend the call by saying that it was from Hutch Company. I was a bit surprised since executives of Hutch Company do not make late night calls. Immediately thereafter, another call, at around 11:42 pm, was received from a reliance network number while the phone was still in her hand, I again asked her if she recognized the number and on her refusal I requested her to let me deal with the person disturbing us, as such I attended the call on loud speaker since I was driving and heard a male voice saying "HAI SHONA". When I responded asking who it was, initially no response was received from the other side and then it was disconnected after saying "GuptajiGuptaji". I was shocked because Vandana used to call me "SHONA' with love.
SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 32 of 40 -33- Vandana snatched the phone from my hand and switched it off by saying that some unknown person was disturbing her. On prevailing upon her to switch on her phone she started receiving one call after another from cell no. 9350192433 and she kept disconnecting the calls. It was only on my insistence that Vandana eventually attended the call on loudspeaker and the conversation on the other side started with "KYA HAAL HAI DARLING" to which she replied that she was with her fiancee. I interrupted and asked the caller why he was calling so late in the night to which the person on the other side stated that he had some project work to discuss with Vandana and when I made enquiry about the project which he had to discuss, the person got annoyed and gave his name as Amit and said that it ws his number and stated that he was a resident of Rohini and that I may come to his house to discuss whatever I had to discuss about Vandana.
Thereafter, I checked the inbox message on Vandana's mobile phone wherein at around 10:37 pm on 12.07.2008 an SMS had been received from 9350192433 where it was mentioned that in a true SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 33 of 40 -34- relationship one need not speak but may send a soft SMS because it is not the mouth which speaks but it is the heart which feels. I was shocked and Vandana started giving me explanations. In the meantime we had reached her house and I dropped Vandana at around 12:00 midnight. Later Vandana made a few calls which I did not attend as I wanted to understand the situation and recollect myself. In the meantime, I tried Amit's number i.e. 9350192433 which was not picked up by him whereafter, I at 12:08 am sent a message to him asking him to pick up the phone. Thereafter, at 12:12 am I again sent a message to him mentioning that I was unable to find his house but did not receive any response from his side. On receiving persistent calls from Vandana I attended a call and asked her to relax telling her that I would call her back later and there was nothing to worry about.
After sometime, I dialed Amit's number 9350192433 from my Reliance number 9311331967, as his number was saved in the dialed list of this number while simultaneously dialing Vandana's mobile number from my other phone number i.e. SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 34 of 40 -35- 9873331967 but both the phones were busy at the same time. Although the call list of Reliance number 9311331967 is still in my Samsung instrument, however, the call list of other mobile number 9873331967 gets erased the moment battery is removed, as such the call details of other number are not available. I managed to talk to Amit who told me that he was a close friend of Vandana and I should discuss the matter with him without informing Vandana in case I wanted to know the exact relationship they shared.
In the meanwhile, Vandana was persistently calling me up either from her own number, her landline and from her sister Shweta's numbers 9971077760 and 9250367016, who used to sleep with her in the same bedroom. I enquired from her about her relationship with Amit telling her exactly what Amit had told me.
On my persistence she disclosed that she was having an affair with Amit, but her parents were against her marriage because Amit was not from a well do family and she was forced into an alliance with me against her wish by her parents and now SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 35 of 40 -36- Amit was blackmailing her as he had few proofs against her. I was shocked and speechless and stated that to my mind the matter was something to be discussed between the families.
That she had requested me not to tell anybody about what had happened that night or her father would kill her. After trying to destress her, I kept the phone, however, I was totally perplexed and in a state of shock and did not know what to do, whether to tell my parents or not.
That earlier, I never doubted Vandana and could not imagine that she was being forced into marriage while she was carrying on with some other person because she always portrayed herself to be in love with me and behaved very sweetly sending me love SMS, which now seemed to be all fake. Now, I understand that she was playing safe with me while simultaneously carrying on a relationship with Amit, that if her parents would not have agreed to Amit's relationship she would have got married to me.
SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 36 of 40 -37- That I called Vandana on the landline after trying mobile phone at around 2:18 am. I was informed by her younger brother that Vandana was not well and had been taken to Saroj Hospital by her family members. I immediately reached the hospital from my house and found nobody there. In the meantime, I received a phone call from Vandana's landline and her younger brother informed me that Vandana had gained consciousness and there was nothing to worry about. However, I reached Vandana's house, I saw her lying in an unconscious state in the lobby......."
In his crossexamination, he has deposed as under :
"It is correct that on 12.07.2008, in the evening hours, I had made a call to Vandana and during the conversation, I had asked Vandana for accompanying me for going out. Vol. We had already planned that we will go out on Saturday. It is correct that I visited the house of Vandana on the same day in between 6 to 7 pm and we went out. It is also correct that I dropped Vandana at 12:00 midnight at her house.
XXX XXX XXX It is correct that Vandana had expired during the SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 37 of 40 -38- said intervening night. It is correct that Shweta is sister of Vandana and Shweta and Vandana used to sleep in the same room being real sisters.
It is correct that I had not offered the said mobile instruments to be seized by the investigation officer during the investigation of this case."
23. From the analysis of the evidence of the prosecution witnesses and that of PW7, it appears as per the version of PW2 that the cause of suicide of 'V' was breakup of deceased was accused Saurabh Madan, however, as per the version of the defence the cause of death or reason of suicide was that she was having affair with another boy Amit, which was discovered by DW7 and since the said relationship had been discovered by DW7, therefore, deceased had requested DW7 not to tell about the same to anyone, otherwise her father would kill her.
Therefore, there is equal probability that the deceased committed suicide due to the said relationship and this fact has also been admitted by PW2 that deceased was knowing Amit and PW1 gave an evasive reply with regard to the said relationship but he admitted that the police made inquiries about the phone calls made by Amit and deceased at odd hours.
Therefore, the version of the defence that the deceased had died due to the engagement of hers with accused Saurabh Madan, which SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 38 of 40 -39- was forced upon her by her parents and due to the said jilted relationship with one Amit or that she committed suicide or the same triggered her suicide, appears to be highly probable.
24. In the present case, the IO had neither seized the mobile phone of accused Saurabh Madan nor of the deceased, though regarding the seizure of the mobile phone of the deceased, it was mentioned in the rukka Ex. PW6/D, but for reasons best known to the IO, the same was not seized, as it would have contained a treasure of information regarding the inter se relationship between the deceased and accused Saurabh Madan or the said other boy Amit and similarly the mobile phone pertaining to accused Saurab Madan was also not seized by the IO which would also shed light on the controversy in issue.
25. Be that as it may, both the versions are equally possible as discussed above. Even if either of them were correct or true state of affairs, even then none of the acts of the accused persons amounted to abetment i.e. aiding, goading, instigating or urging the deceased to commit suicide nor there is any element of mens rea with regard to the said elements which has been proved by the prosecution.
26. The net result of the above discussion is that the probative force of the entire version of the prosecution evidence, when taken SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 39 of 40 -40- as a whole is quite low on the probative scales where the probability of happening of an event is quantified or assessed, whereas the probative force of the defence version on the other hand is slightly more than that of the prosecution version and the yardstick in criminal trial is beyond reasonable doubt, which has not been achieved by the prosecution in the present case. Therefore, all the accused persons Virender Madan, Neelu Madan and Saurabh Madan are liable to be acquitted for the charge(s) u/S. 306/34 IPC as well as u/S. 4 Dowry Prohibition Act r/w. Section 34 IPC.
27. Their previous bail bonds are cancelled. Previous sureties stand discharged. Original document(s), if any be returned after cancelling the endorsement(s), if any on the same, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
28. The Accused persons have already furnished their bail bonds in compliance of Section 437A Cr.P.C, which will remain valid for a period of six months from today, as per the provisions of Section 437A CrPC.
File on completion be consigned to record room.
Digitally signed by SANJEEV SANJEEV AGGARWAL
AGGARWAL Date: 2019.05.23
15:58:49 +0530
Announced in the open Court (Sanjeev Aggarwal)
st
on 21 day of May 2019. Addl. Sessions Judge02,North Rohini Courts, Delhi 21.05.2019 SC No. 57623/16; FIR No.420/08; PS. South Rohini State Vs. Virender Madan & Ors. Page No. 40 of 40