Delhi District Court
State vs Accused on 5 November, 2011
IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL SESSIONS JUDGE-II:EAST DISTRICT:KARKARDOOMA COURTS: DELHI SC NO. 67/10 Date of Institution :26.03.2009 FIR No. 366/08 Date of Argument :30.09.2011 PS Kalyan Puri Date of Order :05.11.2011 U/S 498A/ 406/304B/34 IPC State Versus Accused 1 Umesh S/o Sh. Rakam Singh R/o E-416, East Vinod Nagar, Delhi. 2 Reena W/o Sh. Satish R/o A-161, Vivek Vihar, Delhi. 3 Rakam Singh S/o Sh. Hem Raj R/o E-416, East Vinod Nagar, Delhi. 4 Savitri, W/o Rakam Singh R/o E-416, East Vinod Nagar, Delhi. 5 Satish, S/o Sh. Babu Ram R/o A-161, Vivek Vihar, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 22.11.08 a call vide DD no. 27A was received from the PS Kalyan Puri regarding hanging of a female at SC No. 67/10 State Vs. Umesh & Ors. Page 1 of 60 premises no. E-416, East Vinod Nagar, Delhi. S.I. Raj Kumar alongwith Constable Jagdish and Constable Ramesh arrived at the spot where on the first floor of the house in a room Kavita was found hanging with the ceiling fan with a chunni. On an inquiry, he come to know that the room was lying closed and the door of the room was subsequently broken. Kavita was married with Umesh on 16.02.08. Since death of Kavita was unnatural and within 7 years of her marriage, IO informed SDM of the area and crime team. SDM and crime team arrived on the spot and inspected the scene of crime. Photographs of the site were taken. The dead body was taken down with the help of Sh. Raj Kumar Bhati an uncle of the deceased and other persons of the locality. The ornaments, i.e. earings, ring and chain with locket were put off the dead body of the deceased Kavita and seized by IO. The dead body was removed to Mortuary of L.B.S Hospital with the help of Constable Jagdish. IO seized other articles as such stool, Chunni and chapples vide seizure memo. Sh. Meg Chand Bhati, father of deceased Kavita arrived on the spot. SDM made inquiry from him and recorded his statement. In his statement he disclosed that he was father of deceased Kavita and he was residing in village Lohari district, Gautam Budha Nagar, UP. Deceased Kavita was his eldest daughter. She was aged 23 years and she was BA pass.
SC No. 67/10 State Vs. Umesh & Ors. Page 2 of 60He had solemnized her marriage with Umesh on 16.02.08 as per his capacity. He was serving in High Court of Delhi. When he left office after office hours he received a telephonic call from his family and they asked him to come early. He arrived at his house at 7.30 p.m. His family members met him on the way and he alongwith his family members arrived at the house of her daughter at E-416, East Vinod Nagar, Delhi. His son-in-law Umesh was employed in IPG Limited at ITO. That house belonged to his son-in-law. His elder brother used to meet them at said house. Deceased Kavita was having four Nanad, one of them was married and three were unmarried. On the date of marriage his cousin Sh. Raj Kumar Bhati attended a phone call in which his son-in-law Umesh told him that he wanted a Maruti Wagon R and Rs. 2,00,000/- in cash in marriage. He gave Maruti Alto car and Rs. 1 lacs, 7 tola gold and household articles in the marriage. The list of articles without signatures was handed over alongwith articles at the time of marriage. In laws of Kavita were harassing her. He referred an incident of October when grand-father of Umesh scolded Umesh and thereafter, all became normal. He suspected involvement of some members of family of Umesh, including his son-in-law, Umesh, father-in-law, mother-in-law, sister-in-law Reena and her husband Satish in her murder. His daughter did SC No. 67/10 State Vs. Umesh & Ors. Page 3 of 60 not commit suicide but she was murdered. A phone call was also received from his daughter by his wife and on that day his wife told his daughter that her father would come on Sunday to take her back. Thereafter, phone was disconnected. On the basis of that statement FIR of the present case bearing no. 366/05 at PS Kalyan Puri was recorded on the instructions of SDM. IO got the postmortem conducted on the body of Kavita in L.B.S. Hospital. Ligature marks were found on the neck of Kavita. It was opined by the doctor that to the best of his knowledge and belief death of Kavita was due to Asphyxia Anti mortem hanging. The IO prepared site plan of the place of occurrence. He recorded statement of witnesses regarding identification of dead body. During postmortem, ligature material pullanda including chunni of Kavita was seized with the seizure memo of LBSH/DFMT and it was handed over to IO alongwith sample seal. Viscera box of the deceased with the same seal alongwith sample seal was also handed over to IO and he seized the same vide a seizure memo. After conducting the postmortem, the dead body of deceased was handed over to the father of deceased vide memo regarding handing over of dead body. The pullanda was deposited in malkhanna of police station. The accused persons could not be arrested by the IO on the day of occurrence. On 24.11.08 he arrested SC No. 67/10 State Vs. Umesh & Ors. Page 4 of 60 accused Umesh after taking permission of his arrest. His arrest memo and personal search memo were prepared. He also took into possession marriage album and marriage card of the deceased with Umesh. The accused was medically examined in L.B.S. Hospital. On 18.02.09 accused Rakam Singh and accused Savita were arrested. Their arrest memo and personal search memo were prepared. On the identification of Sh. Meg Chand Bhati and pointing out of accused Rakam Singh, 42 dowry articles were seized vide seizure memo. Out of these items, items mentioned at serial nos. 24, 25 to 40 were kept in sealed pullinda which were seized with the seal of RKT and 51 utensils were kept in a container (kata) duly sealed with the seal of RKT. Accused persons were also got medically examined. The seized dowry articles were subsequently released on superdari to the father of the deceased vide superdarinama. Father of the deceased also handed over list of dowry articles which was seized. IO obtained postmortem report. One small attachi album of photographs depicting marriage of deceased with Umesh was also seized. Thereafter, IO collected the photographs, recorded statements of witnesses, collected FSL report and after preparation of the chargesheet, filed it in the court.
2. On appearance copies of the chargesheet were SC No. 67/10 State Vs. Umesh & Ors. Page 5 of 60 supplied to the accused persons. On committal this case was assigned to my Ld. Predecessor.
3. My Ld. Predecessor vide his order dated 19.4.2009 opined that a prima facie case was made out against the accused persons for framing of charge u/s 304-B, 498-A and 406 read with section 34 IPC. Accordingly, common charge against accused persons for said offences was framed and read over to them. All the accused persons pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examined Sh. Pawan Kumar Jain, as PW-1; ASI Shiv Pal Singh as PW-2; Sh. Hem Raj as PW-3; Sh. Megh Raj Bhati father of the deceased as PW-4; HC Kartar Singh as PW-5; Smt. Sheela as PW-6; Sh. Mauji Ram Nagar as PW-7; Dr. Vinay Kumar Singh as PW-8; Ct. Jagdish Kumar as PW-9; HC Ramesh as PW-10; W/Ct Poonam as PW-11; Ct. Sanjeev as PW-12; Insp. Dheeraj Singh as PW-13; Vinod Kumar as PW-14; Ct. Dinesh Kumar as PW-15; Sh. Raj Kumar Bhati uncle of the deceased as PW-16; Sh. Braham Pal as PW-17; Ct. Javed as PW-18; and SI Raj Kumar Investigating Officer as PW-19.
5. After closing of prosecution evidence SC No. 67/10 State Vs. Umesh & Ors. Page 6 of 60 statements of accused persons u/s 313 Cr.P.C. were recorded. In their statements all the accused persons admitted that accused Umesh was married with deceased Kavita on 16.02.2008; an Alto car in the name of Kavita; clothes and household articles were given in the marriage. It was also admitted that PW-5 correctly identified case property i.e. chunni EX.P1, marriage photos EX.P2, black sleeper EX.P3, kundi EX.P4, wooden stool EX.P5 and jewelery articles EX.P6 in the court. Accused Umesh also admitted that he was arrested on 24.11.2008. His arrest memo EX.PW19/F and personal search memo EX.PW19/F-1 were prepared; IO seized marriage card EX.PW4/A and album of marriage P2 vide seizure memo EX.PW19/G; the cause of death of Kavita was mentioned as "asphysia due to ante mortem hanging" in post mortem report EX.PW8/A and PW19/Z1. However, he explained that his wife Mrs. Kavita died unfortunately. She was not able to adjust in his house and she was not happy in his house and present case was made out against him as his wife died within seven years of his marriage with Mrs. Kavita.
6. Accused Savitri in her statement admitted that Mrs. Kavita was found dead and hanging from the ceiling fan with the chunni in her house No. E-416, East Vinod Nagar, Delhi on 22.11.2008. She explained that they had SC No. 67/10 State Vs. Umesh & Ors. Page 7 of 60 broken open the door. She also admitted that the police, SDM Sh. P.K. Jain and crime team also arrived at her house and took the photographs EX.PW12/A, PW12/A1 to A8 of the site; dead body of Mrs. Kavita was taken down with the help of Raj Kumar Bhati; some ornaments on the dead body of deceased, i.e. ear ring, ring, chain with locket were also put off from the body of the deceased and those were seized vide seizure memo EX.PW9/B; dead body was sent to mortuary of LBS hospital on the direction of SDM; IO seized stool, kundi, chappal vide seizure memo EX.PW19/A; she and her husband Rattan Singh were arrested on 18.02.2009 and arrest memo EX.PW4/F and PW4/G and personal search EX.PW4/H and PW4/I were prepared; 42 dowry articles on the identification of Megh Chand Bhati were seized by the IO vide memo EX.PW4/A; and these were subsequently released to Sh. Megh Chand Bhati. However, she explained that she was falsely implicated.
7. In their statements Sh. Rakam Singh, Satish, Smt. Reena made similar kinds of admissions of evidence. All of them explained that they were falsely implicated in the present case.
8. Accused persons, in their defence examined Sh. Desh Raj Singh as DW-1.
SC No. 67/10 State Vs. Umesh & Ors. Page 8 of 609. After closing of evidence by Counsel for accused persons, I have heard lengthy arguments addressed by Ld. Defence Counsel and arguments addressed by Ld. Addl. Public Prosecutor and perused file including written submissions.
DOWRY DEATH
10. The prosecution in order to prove its case against accused persons for the offence of dowry death punishable u/s 304-B/34 IPC has to establish firstly that death of Mrs. Kavita occurred otherwise than under normal circumstances; secondly that Mrs. Kavita died within seven years of her marriage; thirdly that Mrs. Kavita was subjected to cruelty or harassment by her husband or by any relative of her husband; fourthly that such cruelty or harassment was in connection with the demand of dowry; and fifthly that such cruelty or harassment was soon before her death.
11. In a case Gurdeep Singh vs. State of Punjab and Ors., MANU/SC/1087/2011, relied on by Ld. Defence Counsel, it was held that:
"A bare reading of Section 304B pre-supposes several factors for its applicability, they being: (1) death should be of burns or bodily injury or has occurred otherwise than under normal circumstances: (ii) within seven years of SC No. 67/10 State Vs. Umesh & Ors. Page 9 of 60 marriage; and (iii) that soon before her death she had been subjected to cruelty or harassment by her husband or her relatives. This Court in Suresh Kumar Singh's case supra has held that even if one of the ingredients is not made out, the presumption under Section 113B of the Evidence Act would not be available to the prosecution and the onus would not shift to the defence."
12. Let us examine, evaluate and discuss the evidence on these aspects.
Death of Mrs. Kavita otherwise than under normal circumstances
13. PW-1 on this aspect deposed that on 22.12.2008 he was posted as SDM East District. On that day on the request of IO of P.S. Kalyanpuri he visited premises no. E-416, East Vinod Nagar near Durga Mandir, Delhi and found that a lady was hanging with the ceiling fan. Crime team was called and he directed the IO to send the dead body to mortuary of LBS hospital. Dead body of Kavita was identified by Sh. Meg Chand Bhati and Sh. Raj Kumar Bhati, father and uncle of the deceased. PW-8 deposed that on 23.11.2008 he was working as Specialist (forensic medicine) at LBS hospital, Delhi. On that day he conducted postmortem on the dead body of Kavita W/o Umesh aged 23 years female vide postmortem report EX.PW8/A bearing his signature at point A. The cause of death was kept pending till chemical analysis (Visra). On 03.9.2010, IO of SC No. 67/10 State Vs. Umesh & Ors. Page 10 of 60 this case met him in the hospital and produced forensic report. The time since death was 16.20 hours. He opined the cause of death of deceased Kavita "asphyxia" due to ante mortem hanging. All the accused admitted that death of Mrs. Kavita occurred other than under normal circumstances. It is, therefore, held that it has been proved on record by the prosecution that death of Mrs. Kavita occurred otherwise than under normal circumstances.
Death of Mrs. Kavita within seven years of her marriage
14. PW-4 on this aspect deposed that Kavita was his eldest daughter. She got married with Umesh on 16.02.2008. On 22.11.2008 he received information in his office from his son Sanjay that Kavita had been killed. They reached at Vinod Nagar where he came to know that dead body of her daughter had already been shifted to the hospital. On 23.11.2008 postmortem on the dead body of his daughter was conducted in LBS Hospital and thereafter dead body was handed over to them. Statement of PW-6 is also on the same effect. In their statements recorded u/s 313 Cr.P.C. all the accused persons admitted marriage of deceased Mrs. Kavita with accused Umesh on 16.02.2008 and her death on 22.12.2008. Thus evidence on record has established that Mrs. Kavita died within 7 years of her SC No. 67/10 State Vs. Umesh & Ors. Page 11 of 60 marriage.
Mrs. Kavita was subjected to cruelty or harassment by her husband or by any relative of her husband
15. PW-3 on this aspect deposed that accused Rakam Singh is his son. His wife and Umesh were residing at Vinod Nagar. Savitri daughter of Rakam Singh with her husband, whose name he did not recollect was residing elsewhere. Rakam Singh is his son, who resides at East Vinod Nagar. Umesh is son of Rakam Singh. On 16th of March last year Umesh was married at village Loharli. It was a good marriage. Since the date of marriage, Umesh, who is his grandson and his mother whose name he did not recollect, started taunting wife of Umesh that she was less educated and brought lesser amount and that she did not bring any big vehicle. Father of deceased Kavita informed him that Umesh and his family members were troubling her whereupon about one month prior to the demise of Kavita he had called both the parties namely his son Rakam Singh, Umesh and his mother and brothers of his uncle as well as father of deceased Kavita and a Panchayat was held at village Badalpur wherein his son Rakam Singh and his family members had assured that Kavita would not be troubled. Thereafter, Kavita was brought from her parents house on the same evening when the Panchayat SC No. 67/10 State Vs. Umesh & Ors. Page 12 of 60 was held. After one month he came to know about death of Kavita.
16. PW-4 on this aspect deposed that Kavita was his eldest daughter who was married with Umesh on 16.02.2008. On the day of marriage Umesh had telephonically called his wife Smt. Savitri and demanded a big vehicle and Rs.Two lakhs in cash. His wife handed over the telephone to his cousin Sh. Raj Kumar Bhati who heard the telephone. Umesh repeated the same demand to Sh. Raj Kumar Bhati. They did not fulfill the demands but the marriage had taken place in the evening. In the marriage the had given an Alto vehicle, Rs. One lakh in cash and 7 tola of gold jewelery besides, dowry articles such as clothes, etc. A list of articles in connection of marriage was also given to Sh. Rakam Singh. Kavita informed him after 10-12 days of her marriage that Umesh and his mother were harassing her on ground that demand of big vehicle and their other demands were not fulfilled. Other accused Rakam Singh, father in law, Reena and Satish, nanad and nandoi used to instigate Umesh and his mother in harassing Kavita. Kavita had informed him that Reena used to say to Kavita that her brother Umesh was well educated and that he was well employed and that she had not brought sufficient dowry i.e. big vehicle and cash.
SC No. 67/10 State Vs. Umesh & Ors. Page 13 of 60Whenever Kavita used to telephonically call him or his wife, she used to complain about the harassment, taunts by Sh. Umesh and Smt. Savitri about the dowry demands. Smt. Savitri and Rakam Singh used to tell Kavita that they will marry their son Umesh again if she would not bring more dowry and she was harassed since the day of her marriage. Panchayat in this connection were held twice once at his village Loharli and once at Badalpur. In the panchayat held at his residence in the first week of November 2008, which was attended by Umesh, his grandfather, Rakam Singh and husband of sister of his father (fuffa) at Jagatpuri and 4-5 other persons, Sh. Umesh and Rakam Singh were made to understand that they will not harass Kavita in future. Sh. Hem Raj Singh and fuffa of Umesh had assured them that they will not given any cause of complaint so Kavita was sent to her matrimonial home on the same evening. Merely a week had passed then Kavita again informed him telephonically about the same harassment. He sent his cousin Raj Kumar Bhati to the matrimonial home of Kavita to make her in- laws understand. His cousin informed him that he had a talk with Savitri, mother of Umesh, Umesh and Rakam Singh and they had stated that they will not repeat such harassment. Two days of her demise Kavita had telephonically informed her mother that Umesh and his SC No. 67/10 State Vs. Umesh & Ors. Page 14 of 60 mother were troubling her a lot. His wife informed that she will send him to her matrimonial home on coming Sunday but the incident occurred on Sunday i.e. on 22.11.2008.
17. PW6 on this aspect deposed that her daughter Kavita was married with accused Umesh on 16.02.2008 and they had given Alto car, 7 tolas gold and cash of Rs.1 lac and other household items to Umesh and his family members at the time of marriage. On the day of marriage, a telephonic call from Umesh had come who demanded a big car and Rs. 2 lac in cash. They folded their hands before the accused persons because they were not having sufficient money and a big car and Rs. 2 lac cash as demanded by accused persons but they were not agreeable. She handed over the phone to her son Sonu who further handed over the phone to uncle Raj Kumar. The marriage was solemnized and they sent their daughter to her matrimonial home. After about 10 days, her daughter came back to her house and told them that her inlaws were demanding Rs.2 lacs. They kept their daughter at their house. Thereafter, they sent their daughter after one month. Whenever they used to call their daughter on telephone she used to tell us that the accused persons were harassing her. Accused Satish asked them that if they did not fullfill their demand they SC No. 67/10 State Vs. Umesh & Ors. Page 15 of 60 would remarry accused Umesh. Thereafter, they called their daughter back and kept their daughter at their house for about three months. They sent their daughter in the month of Baisakhi. Her daughter made a telephonic call that she was forced to eat medicine. She ate the same as a result of which her child in womb was aborted. She and her Jethani went to the inlaws of her daughter. Umesh, Reena and Satish abused them and told them that why they were called by their daughter at their residence. They returned to their house. A telephonic call from her daughter was also received and it was told that accused Satish, Reena and Savitri had beaten Kavita after putting off her clothes. They called their daughter back. Thereafter, they sent their daughter to the matrimonial home after four months. They called Panchayat once at Badalpur and once at village Loharli and after giving promise from accused persons they sent their daughter back to her matrimonial home. Accused Umesh continued to demand big car and cash. Her daughter was again beaten by aforesaid accused persons. She sent her devar Raj Kumar to the house of accused persons to advise them not to raise such demand again. Her daughter made telephonic call again to her and asked that she should be called back otherwise the accused persons would kill her. She told her daughter that she would send her husband to SC No. 67/10 State Vs. Umesh & Ors. Page 16 of 60 her matrimonial home on the coming Sunday but on the previous day i.e. Saturday the accused persons killed her daughter on 22.11.2008. Savitri made a telephonic call on 22.11.2008 at about 5pm and informed her that her daughter hanged herself.
18. PW7 on this aspect deposed that she was friend of Sh. Raj Kumar Bhati who is brother of Sh. Megh Raj Bhati. Marriage between Kavita daughter of Megh Raj and Umesh accused, present in the court was solemnized on 16.02.2008. Megh Raj had given an Alto vehicle but the accused Umesh was demanding big car. Sh. Raj Kumar Bhati made a telephonic call to him and informed that Barat is yet to arrive and the groom Umesh Kumar and his parents were demanding a big car. He took grandfather of accused Umesh from village Badalpur and reached at Vinod Nagar, the residence of accused persons. He made efforts to sort out the situation and talked with Rakam Singh, father of Umesh and tried to make him understand upon which Rakam Singh became ready and promised that they would not repeat the demand. In the evening Barat arrived at village Loharli and the marriage was solemnized. It was a good marriage from the side of Megh Raj. Megh Raj spent Rs.10-12 lacs in the marriage and also gave an Alto car to accused Umesh. Thereafter, a Panchayat was SC No. 67/10 State Vs. Umesh & Ors. Page 17 of 60 also held in September 2008 and he had attended the same. The grand father of accused Umesh was a good person and they talked. At the instance of grandfather Hem Raj Singh , Umesh and Rakam Singh agreed to take Kavita. In the month of November 2008 he came to know that Kavita was hanged by Umesh and his parents. He went to PS Kalyan Puri in the evening on the day of incident and his statement was also recorded.
19. PW14 deposed that Rakam Singh is his brother in law (sala). Umesh is son of Rakam Singh. In the month of October 2008, he attended a Panchayat at Badalpur village regarding dispute between families of Umesh and deceased Kavita. 4-5 persons from both sides attended the Panchayat. In the Panchayat, the deceased was agreed to be sent to her matrimonial house. In cross examination conducted by Ld. Additional Public Prosecutor he admitted that in his statement he had told to IO that after Panchayat Kavita was taken by Rakasm Singh and Umesh at his house at Vinod Nagar, Delhi. He also admitted that he had also told that he alongwith Sh. Raj Kumar Bhati visited the matrimonial house of Kavita on 13.12.2008.
20. PW16 deposed that deceased Kavita was his SC No. 67/10 State Vs. Umesh & Ors. Page 18 of 60 niece. On 16.12.2008 he was present in the function as they were waiting for arrival of Barat. At about 9 or 10 am the phone of Umesh accused had come on the mobile phone of brother of deceased. His elder brother Pitambar Singh attended that phone and he was in the disturbed state of mind after hearing the phone. On asking he informed that phone of Umesh had come. He took the phone and talked with accused Umesh who told him that he would not allow the Alto car to be entered in the tent which was to be given in istridhan. He was asked to give the phone to his father but he did not hand over the phone to his father. He talked to his brothers. His brothers were saying that parents of Kavita were giving small vehicle that is why they are angry. He made a telephonic call to Sh. Mauji Ram Nagar and made complaint and asked him to talk with accused persons to make them understand. Sh. Mauji Ram alongwith brother of Umesh's Grand father went to Vinod Nagar at the house of accused persons. Thereafter, the Mauji Ram informed him that there would be no inconvenience in the marriage. In the evening marriage was solemnized peacefully. Whenever he used to come to his village the mother of deceased used to make complaints that her daughter was not happy and her inlaws used to harass her. In the month of September he went to village Badalpur where the grandfather of accused SC No. 67/10 State Vs. Umesh & Ors. Page 19 of 60 Umesh stays to make them understand. They called Umesh and his father and were talked. They were convinced by the grand father of Umesh that there would be no problem in future. In the month of November her mother again complained and thereafter he went to the house of accused and talked with deceased. The deceased was appearing disturbed and she was asking him to take her back. She wanted to say something but due to presence of family members of accused persons she could not say anything. She insisted him to take her back to her parents house. Thereafter, a telephonic message was received from his village that Kavita had committed suicide.
Such cruelty or harassment was in connection with the demand of dowry
21. PW3 on this aspect deposed that Umesh who is his grandson and his mother started taunting the wife of Umesh that she was less educated and had brought lesser amount and that she had not brought any big vehicle. Father of deceased Kavita had informed him that Umesh and his family members were troubling her.
22. PW4 on this aspect deposed that Kavita informed him that Umesh and his mother were harassing SC No. 67/10 State Vs. Umesh & Ors. Page 20 of 60 her on the ground that demand of big vehicle and other demands were not fulfilled. Whenever Kavita used to talk telephonically with him or his wife, she used to complain about the harassment, taunts about the dowry demands.
23. PW6 on this aspect deposed that accused Umesh continued to demand big car and cash. Her daughter was beaten by the accused persons. She sent her dewar Raj Kumar to the house of accused persons to advise them not to raise any such demand again. Whenever she used to call her daughter on telephone, she used to tell her that accused persons were harassing her. Her daughter made telephonic call to her and asked her that she should be called back otherwise accused persons would kill her.
24. PW14 on this aspect deposed that he did not know any fact regarding harassment of deceased by her in- laws on account of dowry demand. He was declared hostile. In cross-examination conducted by Ld. Addl. Public Prosecutor he admitted that IO had recorded his statement and that he had visited matrimonial house of Kavita alongwith Raj Kumar Bhati.
25. PW16 on this aspect deposed that whenever he used SC No. 67/10 State Vs. Umesh & Ors. Page 21 of 60 to come to his village, the mother of deceased used to make complaints that her daughter was not happy and that her in-laws used to harass her. In the month of November, her mother again complained and thereafter he went to the house of accused persons at Vinod Nagar and talked with deceased. She was appeared disturbed and she asked him to take her back. He also realised that she wanted to say something but due to presence of family members of accused, she could not say anything. She insisted him to take her back to her parental house. Thereafter a message was received on phone from his village that Kavita had committed suicide.
Such cruelty or harassment was soon before her death
26. PW4 on this aspect deposed that Kavita used to inform him and his wife about the harassment and taunts by the accused persons. Panchayats in this connection were held. Sh. Umesh and Sh. Rakam Singh were made to understand that they would not harass Kavita in future. Two days before her demise Kavita had telephonically informed his wife that Umesh and his mother were troubling her a lot. His wife informed Kavita that she would send him to the matrimonial home on coming Sunday but the incident occurred itself on Saturday i.e. 22.11.08.
SC No. 67/10 State Vs. Umesh & Ors. Page 22 of 6027. PW6 on this aspect deposed that after holding of Panchayats Kavita was again sent to matrimonial home. Accused Umesh continued to demand the car and cash. She sent her dever Raj Kumar to the house of accused persons to advise them not to raise such demand again. Her daughter made telephonic call to her and asked her that she should be called back otherwise the accused persons would kill her. She told to her daughter that she would send her husband to her matrimonial house on coming Sunday but on Saturday accused persons had killed her daughter.
28. PW-16 on this aspect deposed that in the month of September he went to Village Badalpur where the grandfather of accused Umesh stays to make them understand not to repeat the harassment again. They called Umesh and his father and talks took place in presence of everyone. They were convinced by the grandfather of Umesh that there would be no problem in future and on being satisfied they left. In the month of November, her mother again complained and thereafter he went to the house of accused persons at Vinod Nagar and talked with the deceased. She was appearing disturbed and she was asking him to take her back. He found that she wanted to say something but due to presence of family SC No. 67/10 State Vs. Umesh & Ors. Page 23 of 60 members of accused persons she could not say anything. She insisted to take her back to her parental house. Later on he received telephonic information that Kavita had committed suicide.
PLEA OF ACCUSED
29. It has been argued on behalf of accused persons that cause of death in the present case was something else than suicide due to cruelty and harassment. There was no cogent or reliable evidence on record to prove that deceased Kavita committed suicide on account of cruelty and harassment to which she was subjected just prior to her death in connection with demand of dowry and prosecution has further failed to prove that death of Kavita can be called as dowry death.
30. This argument of Ld. Defence Counsel is not tenable for the reasons firstly that prosecution evidence has established on record that Smt. Kavita died due to cruelty and harassment meted out to her for demand of dowry consistently from the date of marriage till soon before her death. Secondly, none of the accused persons came forward to depose as a witness to prove their contention that none of them harassed her or committed cruelty on her to coerce her to bring the dowry or that SC No. 67/10 State Vs. Umesh & Ors. Page 24 of 60 she committed suicide of her own due to any other reason. Thirdly, although in cross examination parents of deceased PW4 & PW6 admitted that deceased Kavita wanted to marry other boy but refusal to marry with that boy does not appear to me as a good reason for committing suicide. Fourthly, the statement of DW1 is silent on this aspect.
31. It has been argued on behalf of accused persons that testimony of mother of deceased was on the same line as that of her husband. The evidence on record has also proved this that parents of the deceased had never visited the matrimonial home of the deceased and there was no conversation with the accused persons since the date of marriage till death of the deceased.
32. In support of his arguments Ld. Defence Counsel relied on a case Biswajit Halder @ Bablu Halder & Ors. vs. State of West Bengal, 2007(2) Crimes 404 (SC) it was held that Mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry.
33. Prosecution evidence has been analyzed keeping in view the principles laid down in Biswajit Halder SC No. 67/10 State Vs. Umesh & Ors. Page 25 of 60 @ Bablu Halder & Ors. vs. State of West Bengal, (supra). In view of the evidence on record and particularly discussed here in above, I came to the conclusion that the evidence has established that accused Umesh and Savitri had been harassing deceased Kavita in connection with the demand of dowry. Therefore, this argument of Ld. Defence Counsel is not convincing.
34. It has also been argued on behalf of accused persons that testimonies of relatives of the deceased are unreliable and untrustworthy and do not inspire confidence at all. There is no evidence on record to show that there was any cruelty or harassment for or in connection with demand of dowry to compel Kavita to commit suicide.
35. The evidentiary value of the testimonies of parents of deceased Kavita i.e. PW4, PW6 and PW16 has been evaluated. I find their testimonies consistent, reliable and trustworthy. The evidence which has established that deceased Kavita was harassed and cruelty was infliced on her in connection with demand of dowry and that had driven her to commit suicide. Therefore, this argument of Ld. Defence Counsel is not tenable.
36. It has been argued on behalf of the accused SC No. 67/10 State Vs. Umesh & Ors. Page 26 of 60 persons that Sh. Megh Raj Bhati was conscious and oriented at the time of recording his statement on 22.11.2008 and his testimony does not suggest that any demand for dowry was made soon before the death of Kavita or Kavita was harassed and tortured on account of non fulfillment of any alleged demand. It has also been emphasized that PW4, father of deceased Kavita failed to mention any fact in his statement given to the SDM on the basis of which present case was registered against the accused persons that there was any demand of dowry by any of the accused persons.
37. In a case Arulvelu & Anr. vs. State Rep. by the Public Prosecutor & Anr., 2009(4) Crimes 100 (SC), relied on by Ld. Defence Counsel, it was held that:
"14. According to the High Court, if she (the deceased) had no problem in her marital house and she was living peacefully with her husband and in-laws, what was the necessity for her to commit suicide? Why should she write in her suicide note to leave her children in her mother's house? According to the High Court, unless an intolerable harassment was meted out to her, there was absolutely no necessity for her to write like this that the children be handed over to her mother's house. Therefore, the High Court held that, in all probabilities, there was demand of dowry and the deceased was harassed by the first accused and therefore, she committed suicide.
15. The High Court set aside the judgment of the trial court on the count that the trial court gave undue emphasis on the minor inconsistencies and contradictions. The High Court discarded the version of the trial court regarding SC No. 67/10 State Vs. Umesh & Ors. Page 27 of 60 PW1's depositing for the first time in court regarding demand of car which he did not mention in the first information report (FIR)
16. The High Court observed that the FIR cannot be an encyclopedia to contain all the details of history of the case. This approach of the High Court does not seem to be correct. The FIR should at least mention a broad story of the prosecution and not mentioning of material and vital facts may affect the credibility of the FIR."
I have gone through the statement of Sh. Megh Chand Bhati PW4 I find that not only he has made details of the demand made by the accused Umesh and his family members but also about the harassment which was meted out to his deceased daughter Kavita. Therefore, this argument of Ld. Defence Counsel will not provide any benefit to the accused Umesh and Savitri.
38. It has also been argued on behalf of the accused persons that the prosecution has failed to prove the factum of demand of dowry or the physical or mental harassment of deceased by any of the accused persons even the evidence has established that deceased was freely handling with her family members and she was free to go to her parents and live as long as she desired.
39. In support of his arguments Ld. Defence Counsel relied on a case Appasaheb & Anr. vs. State of Maharashtra, 2007(1) Crimes 110 (SC), it was held by SC No. 67/10 State Vs. Umesh & Ors. Page 28 of 60 Hon'ble Supreme Court that:
"Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking or property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning."
40. Ld. Defence Counsel further relied on a case of Durga Prasad and Anr. vs. State of M.P., MANU/SC/0396/ 2010, wherein it was held that:
"15. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be 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 for dowry. Only then would such death be called "Dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned."
41. On examination of evidence on record I find that deceased Kavita never went alone to her matrimonial home and never returned to her parents house alone. This SC No. 67/10 State Vs. Umesh & Ors. Page 29 of 60 has itself established that she was not free to move freely as per her desire. Deceased Kavita died within 10 months from the date of her marriage. Admittedly, she was a graduate. It does not sound good that she committed suicide without any cruelty or harassment for demand of dowry. PW16 in his statement stated that he met her two days before her death and she was looking very disturbed and she wanted to say something but she could not do so due to presence of accused persons. This has further established that she was not even free to talk in private with her family members. Mother of deceased PW6 also deposed that two days before her death she received a telephonic message and she disclosed about the harassment by Sh. Umesh and his mother. Due to these reasons I am not convinced with the arguments of Ld. Defence Counsel on this aspect.
42. It has also been argued on behalf of accused persons that there are material contradictions on the material points in the statements of prosecution witnesses. The witnesses have made substantial improvement in their statements recorded by the police and therefore their testimonies are unreliable and untrustworthy and are liable to be rejected on the point of material contradictions.
SC No. 67/10 State Vs. Umesh & Ors. Page 30 of 6043. Ld. Defence Counsel emphasized some contradictions, e.g. PW4 stated that on the day of marriage Umesh had telephonically called his wife Smt. Sheela who handed over telephone to his cousin Raj Kumar Bhati. PW6 Smt. Sheela deposed that on the day of marriage a telephonic call from Umesh was received. They folded their hands before the accused persons. She handed over the phone to his son Sonu who further handed over the phone to uncle Raj Kumar. PW16 Raj Kumar deposed that on the day of marriage they were waiting for arrival of barat. At about 9 or 10am the phone of Umesh was received on the mobile phone of brother of deceased. His elder brother Pitambar Singh attended that phone and he was in disturb state of mind after hearing the phone. On asking he informed him that phone of Umesh had come. He took the phone from him and talked with accused Umesh. He told that they should not allow the alto car to be entered in the tent which was to be given marriage.
44. Ld. Defence Counsel further emphasized on the contradictions on holding of Panchayat. PW3 deposed that Panchayat was held at village Loharli. PW4 deposed that Panchayat was held once in village Loharli and second time at village Badalpur. PW6 deposed that they called SC No. 67/10 State Vs. Umesh & Ors. Page 31 of 60 Panchayat once at village Badalpur and once at village Loharli. PW16 deposed that Panchayat was called at village Badalpur.
45. In a case reported as Ramesh v. State of Himachal Pradesh, (HP) 2004(4) Crimes 60, the HP High Court observed that:
"15. There are minor contradictions in the statements of the prosecution witnesses but because of errors in individual perceptions and observations such contradictions are bound to occur. Secondly with the passage of time lapse of memory can also lead to minor contradictions and discrepancies in the statements of the witnesses. Human tendency to back up good cases by exaggerated version can be yet another reason for contradictions and discrepancies in the evidence of the witnesses. Therefore, while appreciating the evidence the Courts are not to attach undue importance to minor contradictions and discrepancies in the version given by the witnesses and not to disbelieve such statements as a whole because of such minor discrepancies/contradictions unless they go to the root of the case. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy."
46. In case of Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588 :
1999 A.I.R. (SC) the Apex Court Observed that:
9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, SC No. 67/10 State Vs. Umesh & Ors. Page 32 of 60 but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, 1985(1) RCR(Crl.) 88 : AIR 1985 SC 48. In paragraph 10 of the report, its Court observed :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and SC No. 67/10 State Vs. Umesh & Ors. Page 33 of 60 formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
47. In case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696 the Apex Court in paragraph 13 observed that:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
48. It has to be seen if minor contradictions and the points discussed here in above have created any doubt about the genuineness of the prosecution case. After carefully scrutinizing the evidence available on record, and SC No. 67/10 State Vs. Umesh & Ors. Page 34 of 60 in view of the principles of law laid down in Ramesh v. State of Himachal Pradesh, (HP), (supra), Leela Ram (Dead) through Duli Chand v. State of Haryana, (supra), and Appabhai and another v. State of Gujarat, (supra), I am of the view that neither the points raised by Ld. Defence Counsel nor the minor discrepancies in the testimonies of the prosecution witnesses could create any dent in the prosecution case particularly when many prosecution witnesses deposed consistently and I find their testimonies reliable and trustworthy.
PRESUMPTION AS TO DOWRY DEATH
49. It would be appropriate to reproduce Sections 113B of the Indian Evidence Act, which reads as under:
113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation.-For the purposes of this section "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)".
50. It has been argued on behalf of the Ld. Defence Counsel that presumption u/s 113-B of the Indian Evidence Act cannot be drawn as all the ingredients necessary for SC No. 67/10 State Vs. Umesh & Ors. Page 35 of 60 drawing the presumption could not be proved by prosecution.
51. In support of his arguments Ld. Defence Counsel relied on a case Tarsem Singh Vs. State of Punjab, 2009(1) Crimes 168 (SC) it was held that:
"Presumption in terms of Section 113 B is one of the law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC.
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
13. Harassment caused to the deceased was on three counts:
1. Insufficient dowry;
2. Inability to bear a child; and
3. Insistence by her parents that every time appellant must go to her parents' house for bringing her back."
52. Ld. Defence Counsel further relied on a case Suresh Kumar Singh vs. State of U.P., 2009(3) Crimes 39 (SC), it was held that:
"Yet again in Kamesh Panjiyar Alias __amlesh Panjiyar Vs. State of Bihar [(2005) SCC 388], this court held: "The expression 'soon before' is very relevant where SC No. 67/10 State Vs. Umesh & Ors. Page 36 of 60 Section 113B of the Evidence Act and Section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and not strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test."
53. Ld. Defence Counsel further relied on a case Narayanamurthy vs. State of Karnataka and Anr., MANU/SC/7695/2008 it was held by Supreme Court that:
"It is proved on record that deceased B.V.D. Mani, father of deceased Jagadeshwari, gifted a silver Panchapatre and silver plate to A-1 at the time of performing customary thread changing ceremony in connection with birth of girl child and such ceremony is prevalent in their society. Such gifts are not enveloped within the ambit of 'dowry'. It is also to be noticed that the High Court on the same set of evidence has chosen to acquit A-3 (the mother of A-1), whose case is no better than that of A-1. Even the unproved allegations of ill-treatment, harassment and demand for dowry and the evidence led by the prosecution are similar to that led against A-3. We agree with the High Court that the evidence against mother (A-3) is insufficient and inconsistent to convict her and, in our view, it is the same against A-1. This deficiency in the evidence proves fatal to the prosecution case. Even otherwise, mere evidence of cruelty and harassment is not sufficient to being in application of Section 304B, IPC. It is to be SC No. 67/10 State Vs. Umesh & Ors. Page 37 of 60 established that 'soon before death', deceased was subjected to cruelty or harassment by her husband for, or 'in connection with demand for dowry'. In the afore- mentioned situation, the provisions of Section 304B, IPC, and Section 113B of the Evidence Act could not be attracted to hold A-1 guilty of the offence of dowry death and/or cruelty in terms of Section 498A, IPC. The prosecution, therefore, must be held to have failed to establish any case against A-1 herein."
54. Ld. Defence Counsel further relied on a case Vitthal vs. State of Maharashtra, 2009 (2) Crimes 596 (Bom.), it was held that:
"12. The learned counsel for the appellant drew my attention to a judgment of the Supreme Court in Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618, where the Court held in Para 12 of the judgment as under:
".......Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide
(ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory;
it is only permissible as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to "all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression-"the other circumstances of SC No. 67/10 State Vs. Umesh & Ors. Page 38 of 60 the case" used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available a record may destroy the presumption. The phrase "may presume" used in Section 113-A is defined in Section 4 of the Evidence Act, which says-"whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."
55. I have analyzed the prosecution and defence evidence keeping in view the principles of law laid down in Tarsem Singh Vs. State of Punjab, (supra), Suresh Kumar Singh vs. State of U.P., (supra), Narayanamurthy vs. State of Karnataka and Anr., (supra), and Vitthal vs. State of Maharashtra, (supra), I came to the conclusion that arguments of Ld. Defence Counsel are not convincing and tenable. I also came to the conclusion that evidence on record and particularly discussed here in above has established that accused Umesh and Savitri subjected deceased Kavita to cruelty and harassed her to that extent that drive her to commit suicide and that harassment and cruelty was meted out to her in connection with the demand of dowry and it was committed soon before her death. Therefore, I am not convinced with the argument of Ld. Defence Counsel that all the ingredients for drawing SC No. 67/10 State Vs. Umesh & Ors. Page 39 of 60 presumptions u/s 113-B Indian Evidence Act are not present in the present case. Conversely I am of the view that prosecution has proved on record all the facts for drawing presumption u/s 113-B of the Indian Evidence Act. Accordingly, a presumption is drawn in favour of the prosecution and against the accused that Umesh & Savitri had caused the dowry death.
56. It has been argued on behalf of the defence counsel that deceased Kavita did not leave any suicide note. Besides, she did not make any statement to any person just before her death. The telephonic conversation which had allegedly taken place between her and her mother two days prior to her death cannot be treated as her dying declaration.
57. In support of his arguments Ld. Defence Counsel relied on a case Bhairon Singh Vs. State of Madhya Pradesh, 2009(3) Crimes 199 (SC), it was held that:
"The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani @ Raj Kumari to cruelty as contemplated under Section 498A, IPC. In our considered view, the evidence of PW-4 and PW-5 about what the deceased Ranjana Rani @ Raj Kumari had told them against the accused about the torture and harassment is inadmissible under Section 32(1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32(1) of the Indian Evidence SC No. 67/10 State Vs. Umesh & Ors. Page 40 of 60 Act, there is no other provision under which the statement of a a dead person can be looked into in evidence. The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstances of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498A simpliciter, the question; of death is not and cannot be an issue for consideration, we are afraid the evidence of PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted."
58. Although Ms. Kavita did not leave any dying declaration yet the telephonic conversations and the other informations passed on by her to her mother, father, uncle or other relative is relevant and is admissible in evidence u/s 8, 14 and other provisions of the Indian Evidence Act. Therefore, the information and facts disclosed by deceased Kavita either to her mother or father or any other person cannot be ignored for the purpose of decision of present case. Moreover, principles of law laid down in Bhairon Singh Vs. State of Madhya Pradesh, (supra), will not provide any benefit to the accused as in that case death of deceased was accidental. It is not so in the present case.
59. It has been argued on behalf of the defence SC No. 67/10 State Vs. Umesh & Ors. Page 41 of 60 counsel that deceased Kavita ended her life because of the fact that she wanted to marry another boy of her choice for which her parents did not agree and her marriage with accused Umesh was solemnized against her wishes. She did not want to continue with that marriage and further that despite knowing her such desire the parents of deceased Kavita were trying to force and compel her to built up the marriage and stay at matrimonial home.
60. In order to substantiate his plea Ld. Defence Counsel referred cross examination of prosecution witnesses particularly PW4, father of deceased wherein he admitted that his daughter Kavita had completed her schooling and graduation from Dadri. She used to stay in a rented accommodation alongwith her friends. He could not say if during the course of her graduation, her daughter had developed intimacy with a boy who was doing B.tech course from Vishweshwaraiya College in Dadri and both had liking of each other and they wanted to marry but that relationship was not acceptable as the boy was not from Gujjar community. He admitted that boy was residing in house just opposite to the house where his daughter was residing and he was aware that his daughter and that boy were knowing each other and they were interacting but he was not aware that there interaction had reached at a SC No. 67/10 State Vs. Umesh & Ors. Page 42 of 60 stage where they had decided to get married. He further admitted that he did not ask her daughter Kavita as to whether she was agreeable and desirous and willing for the marriage with Umesh and that prior to the date of marriage Umesh & Kavita never had an occasion to meet and interact with each other alone.
61. PW6 in her cross examination admitted that she did not ask wish and desire of her daughter regarding the marriage with Umesh and her consent was never taken by her and she did not even asked her whether she was happy or willing for the marriage or not. She further admitted that her daughter had developed intimacy with a boy who was staying opposite to the house in Dadri where her daughter was residing and who was a student of engineering. Her daughter had expressed her desire before her to marry that boy and that she did not agree as the boy was not of their choice. She further admitted that a proposal from a boy from Faridabad was acceptable to Kavita as both the boy and Kavita liked each other but that boy was not of their choice.
62. I have considered these arguments of Ld. Defence Counsel but I am not convinced that due to this reasons the deceased Kavita committed suicide.
SC No. 67/10 State Vs. Umesh & Ors. Page 43 of 6063. It has also been argued by Ld. Defence Counsel that testimony of PW3 is not reliable as he deposed against the accused persons as his relations with the accused persons were not cordial. He also referred cross examination of PW3 wherein he admitted that the land which was acquired and other land which was still in his possession was ancestral property. He received Rs.84 lacs as compensation for acquiring portion of ancestral land. He did not give any amount to Rakam Singh out of the said compensation.
64. On analyzing I find the testimony of PW3 Sh. Hemraj, father of Rakam Singh as reliable and trustworthy. The reasons which support my decision are firstly that not only he deposed against accused Umesh and his mother Savitri but also he deposed in favour of Reena and Satish when he deposed that daughter of Rakam Singh i.e. Reena and her husband i.e. Satish were residing elsewhere. Secondly, he did not depose against accused Rakam Singh and thirdly, he has given reason for not giving portion of compensation or the ancestral land to Rakam Singh when he stated that Rakam Singh inherited the property of his father in law.
65. It has also been argued on behalf of defence SC No. 67/10 State Vs. Umesh & Ors. Page 44 of 60 counsel that PW7 Mauji Ram Nagar deposed in favour of the prosecution due to influence of Sh. Raj Kumar Bhati as he is an influential person of the area. He referred portions of his cross examination wherein he admitted that Sh. Raj Kumar Bhati was instrumental in arranging funds for running a school and that Sh. Raj Kumar Bhati is a politician and he has contested MLA Election from Dehat Morcha Party and that he had campaigned for him and that he was an active member of his party.
66. I have analyzed his testimony and also noticed some of the contradictions which have emerged between his statements made u/s 161 Cr.P.C. and in the court. I came to the conclusion that if his testimony is read as a whole it has supported prosecution case on the points that he and Sh. Raj Kumar Bhati visited the matrimonial home of deceased Kavita two days before her death. That above referred articles were given in the marriage. There was demand of a big car. It is, therefore, concluded that his testimony as a whole can not be discarded.
67. It has also been argued on behalf of Ld. Defence Counsel that PW14 Sh. Vinod Kumar did not support the prosecution case. He was declared hostile.
SC No. 67/10 State Vs. Umesh & Ors. Page 45 of 6068. My attention goes a case of State v. V. Sejappa, (Karnataka), 2008 Cri.L.J. 3312, wherein the Karnataka High Court observed:
"27. As far as the acceptance of evidence of the hostile witness is concerned, it is a well settled law that part of the hostile witness which goes well with the prosecution case can be accepted and rejecting only that portion of the evidence which does not support the prosecution case. Therefore applying such yardstick in the instant case, it cannot be said by any stretch of imagination that the evidence of P W. 1 has to be ignored in totality merely because of a witness not supporting the prosecution case in certain minor aspects which do not have any bearing on the core of the prosecution case. ***Therefore, on the very same analogy of accepting the evidence of a hostile witness to the extent that it supports the prosecution case, the testimony of P.W. 2 also will have to be accepted in regard to that part of the evidence, which supports the prosecution case."
69. On perusal of testimony of PW14, I find that he was declared hostile. In cross examination conducted by Ld. Additional Public Prosecutor he admitted that he told to IO that after Panchayat Kavita was taken by Rakam Singh and Umesh on 07.10.2008 to their house at East Vinod Nagar, Delhi. He further admitted that when he visited her at her matrimonial home he saw deceased Kavita quiet at that time. In his examination in chief he also stated that in the month of October 2008 he attended Panchayat at Badalpur village regarding dispute between the families of Umesh and deceased Kavita. On relying the principles of law laid down in State v. V. Sejappa, (Karnataka),(supra), SC No. 67/10 State Vs. Umesh & Ors. Page 46 of 60 some of the portion which has supported the prosecution case can be utilyzed and her entire testimony is not liable to be discarded.
CONCLUSION
70. On evaluating the evidence discussed here in above in detail and considering the arguments accused wise, I came to the following conclusions:
UMESH & SAVITRI
71. The prosecution has successfully proved its case against accused Umesh and accused Savitri for the offences of dowry death punishable u/s 304-B/34 IPC. The reasons which support my decision are firstly, that all the material witnesses deposed against them and mentioned their names specifically that they in furtherance of their common intention subjected deceased Kavita to cruelty and harassed her in connection with demand of dowry. Secondly, it has also been established that the cruelty and harassment committed on deceased Kavita with her was soon before her death. Thirdly, the accused persons have failed to rebut the presumption drawn u/s 113 B of the Indian Evidence Act to show that the deceased was neither subjected to any cruelty nor any harassment to her was done nor there was any demand of dowry by either of SC No. 67/10 State Vs. Umesh & Ors. Page 47 of 60 them. Lastly, not only the prosecution evidence has proved on record but also accused persons admitted that death of deceased Kavita occurred otherwise than under normal circumstances and she died within seven years of her marriage with Umesh. Therefore, the prosecution case against them for the offence punishable u/s 304-B/34 IPC stands proved.
REENA, RAKAM SINGH AND SATISH
72. The prosecution has failed to prove its case against accused Reena, Rakam Singh and Satish for the offences punishable u/s 304-B/34 IPC. The reasons which support my decision are firstly, that PW3 Hem Raj specifically stated that accused Reena and her husband Satish were residing elsewhere i.e. they had not been residing in the matrimonial home of deceased Kavita. There is no cross examination by Ld. Additional Public Prosecutor that either or both of them were residing at the matrimonial house of the deceased Kavita. Thus the testimony of PW3 has not been challenged on this aspect. Secondly, PW4 & PW6 only referred their names in casual manner. No specific incident of harassment or cruelty to deceased Kavita was narrated either or both of them. Thirdly, even in the charge sheet the address of Reena and Satish has been mentioned different from the address of matrimonial house. There is no convincing trustworthy and SC No. 67/10 State Vs. Umesh & Ors. Page 48 of 60 reliable evidence on record to establish that either or both of them were visiting the matrimonial home of deceased Kavita and subjecting her either to cruelty or harassment or they ever demanded any dowry. Fourthly, analysis of above mentioned witnesses of prosecution has also established that prosecution could not produce sufficient, reliable and trustworthy evidence against accused Rakam Singh to prove its case of dowry death against him. On the basis of the evidence available on record it would be hazardous to convict accused Rakam Singh for the offence of dowry death. Fifthly, it is one of the principle of criminal justice that let hundred offenders may go unpunished but one innocent should not be punished is applicable in the present case in respect of accused Rakam Singh, Reena and Satish. All these three accused are entitled to get benefit of doubt. Therefore, it is held that the prosecution could not prove its case against accused Reena, Rakam Singh and Satish for the offence of dowry death punishable u/s 304-B/34 IPC beyond any reasonable suspicion or shadow of doubt.
73. Besides, the principles of law laid down in case of State vs. Jitender Garg and Ors., 2008(4) Crimes 374 (Del.), also support case of Reena, Rakam Singh and Satish. It was held therein that:
SC No. 67/10 State Vs. Umesh & Ors. Page 49 of 60"In our view, the learned trial Judge has correctly held that suspicion, by itself, howsoever strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused. Reliance placed by the learned trial Judge on the judgments of the Hon'ble Supreme Court in State of Punjab vs. Bhajan Singh, AIR 1975 SC 258, Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773, in this regard is not, in our view, misplaced.
CRIMINAL BREACH OF TRUST
74. The prosecution in order to prove its case against accused persons for the offence of criminal breach of trust punishable u/s 406/34 IPC has to prove firstly that there was any entrustment of property or any dominion over property; or accused persons were entrusted with the property; and secondly there was either dishonest misappropriation or conversion of that property into their own use.
75. Let us examine, evaluate and discuss the evidence on these aspects.
Entrustment of property or any dominion over the property
76. PW-4 on this aspect deposed that in the marriage they had given an Alto vehicle, Rs. One lakh in cash, 7 tola gold jewelery and other dowry articles, clothes, etc. alongwith a list of articles. PW-6 deposed on this aspect that they had given an Alto Car, 7 tolas gold, cash SC No. 67/10 State Vs. Umesh & Ors. Page 50 of 60 of Rs. One lakh and other household items to Umesh and his family members at the time of marriage of his daughter Kavita with Umesh on 16.02.2008. PW-7 on this aspect deposed that Megh Raj had given an Alto vehicle in the marriage and he also spent about Rs.10-12 lakhs in the marriage. Accused persons in their statements recorded u/s 313 Cr.P.C. admitted that an Alto car, clothes and household articles were given in the marriage. Thus it has been proved by the prosecution that there was entrustment of above mentioned property to the accused persons.
Accused persons dishonestly misappropriated or converted that property into their own use
77. PW-19 on this aspect deposed that during investigation he seized dowry articles which were released on superdari to the father of deceased Megh Chand Bhati vide superdarinama vide EX.PW19/I. List of dowry articles was also seized vide memo EX.PW4/B. PW-4 on this aspect deposed that he had accompanied the IO to Vinod Nagar and had received all the dowry articles given to his daughter except the clothes given to the deceased Kavita and other relatives. These articles were seized vide memo EX.PW4/A which was signed by him at point A. He had also received back the entire jewelery and other dowry articles SC No. 67/10 State Vs. Umesh & Ors. Page 51 of 60 as per list on superdari. List of dowry articles was proved by him as EX.PW4/B. The list was seized vide memo EX.PW4/C. All the accused persons in their statements u/s 313 Cr.P.C. admitted that on the identification of Megh Chand Bhati 42 dowry articles were received from their house which were seized vide seizure memo EX.PW4/A and these were released on superdari to Megh Chand Bhati.
78. It has been argued on behalf of defence counsel that there was voluntarily presentation of gifts to Umesh and his family members by parents and family members of deceased Kavita on the occasion of her marriage with Umesh and that could not be termed as either demand of dowry or conversion of those gift items into their use as they were presented as per customs prevailing in the area. He also referred to portion of cross examination of PW4 wherein he admitted that he received the articles in the same packed condition in which these items were given in the marriage.
79. On analyzing the evidence on record keeping in view the arguments of Ld. Defence Counsel and particularly discussed here in above, I come to the conclusions that the prosecution evidence on record has SC No. 67/10 State Vs. Umesh & Ors. Page 52 of 60 established that there was entrustment of property by the parents and family members of deceased Kavita to Umesh and his family members at the time of marriage and there was conversion of that property into their use by Umesh and his mother Savitri. Therefore, the commission of offence of criminal breach of trust by both of them has been established. It is further held that prosecution could not prove its case for commission of criminal breach of trust by accused Rakam Singh, Reena and Satish beyond any suspicion or reasonable shadow of doubt.
CRUELTY BY HUSBAND AND RELATIVE OF HUSBAND
80. The prosecution in order to prove its case against accused persons for the offence of cruelty by husband or his relatives punishable u/s 498-A/34 IPC has to prove that accused persons being husband or relative of husband of deceased Kavita subjected her to cruelty. That cruelty was inflicted or committed either by any willful conduct by husband Umesh or his family members of such a nature which was likely to drive Mrs. Kavita to commit suicide or there was harassment of Mrs. Kavita with a view to coerce her or any person related to her to meet any unlawful demand for any property.
81. Let us examine, evaluate and discuss the SC No. 67/10 State Vs. Umesh & Ors. Page 53 of 60 evidence on these points.
Accused persons being husband or relative of husband of deceased Kavita subjected her to cruelty
82. The relevant portions of testimonies of PW3, PW4, PW6 and PW16 on this aspect have already been produced here in above which has proved that not only Kavita was coerced but her parents were also asked to meet the demand of dowry and particularly a big vehicle and a cash of Rs.2 lacs. The prosecution evidence on this aspect has already been discussed in detail here in above in paragraph nos. 14 to 27 under the similar heading for the offence of dowry death punishable u/s 304-B/34 IPC. In view of the evidence on record and reasons particularly mentioned under the heading conclusion, here in above in paragraph nos.70 to 72, it is held that deceased Kavita was subjected to cruelty and she was harassed by her husband Umesh and his mother Smt. Savitri in connection with demand of dowry and drive her to commit suicide. Accordingly, it is held that prosecution has established on record the commission of offence of cruelty by Umesh and his mother Smt. Savitri on deceased Kavita. It is further held that prosecution could not prove its case for commission of cruelty by husband and relative of husband by accused Rakam Singh, Reena and Satish beyond any SC No. 67/10 State Vs. Umesh & Ors. Page 54 of 60 suspicion or reasonable shadow of doubt.
SUMMARY OF CONCLUSIONS
83. Consequent upon the above reasons, discussion and conclusions, it is held that prosecution has proved its case against accused Umesh and Savitri that in furtherance of their common intention both of them committed the offence of dowry death punishable u/s 304- B/34 IPC, offence of criminal breach of trust punishable u/s 406/34 IPC and offence of cruelty by husband and relative of husband punishable u/s 498-A/34 IPC. Resultantly, both the accused are held guilty and convicted for the offences punishable under section 304-B/406/498-A/34 IPC. Both the accused are on bail. They be taken into judicial custody.
84. It is further held that as prosecution has failed to prove its case against accused Reena, accused Rakam Singh and accused Satish beyond any suspicion and reasonable shadow of doubt therefore, accused Reena, accused Rakam Singh and accused Satish are entitled to get benefit of doubt and resultantly they are acquitted for the offences punishable under section 304-B/406/498-A/34 IPC by giving them benefit of doubt. However, they are SC No. 67/10 State Vs. Umesh & Ors. Page 55 of 60 directed to furnish their personal bond for a sum of Rs. 25,000/- with one surety of like amount as per provisions of Section 437 A of Cr.P.C. for a period of six months for ensuring his presence before the Appellate Court.
Announced in the open court on 05.11.2011 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District:KKD Courts:Delhi SC No. 67/10 State Vs. Umesh & Ors. Page 56 of 60 IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL SESSIONS JUDGE-02:EAST DISTRICT:KARKARDOOMA COURTS: DELHI SC NO. 67/10 FIR No.366/08 PS Kalyan Puri U/S 498A/406/304-B/34 IPC State Versus Umesh Etc. ORDER ON SENTENCE 08.11.2011 Present: Sh. Maqsood Ahmad Addl. P.P. for the State.
Convict/accused Umesh & Savitri in J.C. Sh. L.K. Singh, Advocate for the accused.
I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict have no previous criminal record. Accused/convict Umesh is about 30 years of age; employed with M/s Sony India; he is the only son and bread earner in the family; he has a good family background and he has neither created any hindrance during the course of investigation nor he SC No. 67/10 State Vs. Umesh & Ors. Page 57 of 60 created any impediment during the trial; he has responsibility of three unmarried sisters who are of marriageable age. Accused/convict Savitri is housewife and aged 57 years; has a son and four daughters out of them three daughters are of marriageable age. She has been suffering from illness of breathlessness, acute osteoporosis and acute depression. She has also no previous criminal background. It has been submitted that both the convict deserve for leniency and it has been prayed that lenient view in sentence may be taken.
3. On the other hand it has been argued on behalf of Ld. Additional Public Prosecutor that life of a person has been lost due to the cruelty and harassment meted out to her by the convicts and therefore, they deserve for harsh punishment. He also prayed for awarding of some compensation to the legal heirs/parents of the deceased.
4. Although convicts have been found guilty for the offence of dowry death etc., criminal breach of trust and cruelty by husband and relative of husband SC No. 67/10 State Vs. Umesh & Ors. Page 58 of 60 punishable under sections 304-B/406/498-A/34 IPC respectively, yet keeping in view the submissions made by Ld. Defence Counsel, a moderate view in sentence is being taken in the present case. Keeping in view the submissions and all relevant factors of the present case, convict Umesh & Savitri are sentenced to undergo imprisonment for a term of 10 years for the offence punishable u/s 304-B/34 IPC.
5. Both the Convicts are further sentenced to undergo simple imprisonment for a period of two years and they are also sentenced to pay fine of Rs. 10,000/- each in default simple imprisonment for six months for the offence punishable u/s 406 IPC.
6. Both the Convicts are further sentenced to undergo simple Imprisonment for a period of two years and they are also sentenced to pay a fine of Rs. 10,000/- each in default simple imprisonment for six months for the offence punishable u/s 498-A IPC.
7. All these sentences will run concurrently.
SC No. 67/10 State Vs. Umesh & Ors. Page 59 of 608. Out of fine amount, a sum of Rs.20,000/- shall be payable to the legal heirs/parents of the deceased Kavita as compensation U/s 357 Cr.PC after expiry of period of appeal.
9. It is further ordered that if convicts have undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C.
10. Both the convicts be sent to imprisonment to serve the sentence.
11. Copy of judgment and order on sentence are supplied to both the convicts Umesh & Savitri free of cost.
File be consigned to Record Room.
Announced in the open court on 08.11.2011 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No. 67/10 State Vs. Umesh & Ors. Page 60 of 60