Delhi District Court
State vs . (1) Yogesh Kumar on 3 January, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 805/2007
Unique Case ID No.02404R0301982007
State Vs. (1) Yogesh Kumar
S/o Sh. Girvar Dutt
R/o House No. D108, Ext. II,
Nangloi, Delhi
Also at:
Village Nangal Thakran,
Bawana, Delhi
(Acquitted)
(2) Smt. Saroj
W/o Sh. Girvar Dutt
Village Nangal Thakran,
Bawana, Delhi
(Acquitted)
(3) Girvar Dutt
S/o Sh. Prem Narayan
Village Nangal Thakran,
Bawana, Delhi
(Expired)
FIR No.: 32/2007
Police Station: Nangloi
Under Section: 498A/304B/34 Indian Penal Code
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 1 of 52
Date of committal to session court: 12.7.2007
Date on which orders were reserved: 17.12.2011
Date on which judgment pronounced: 3.1.2012
JUDGMENT:
The case of the prosecution is that on or before 4.1.2007 at House No.D108, Nangloi, Delhi the accused Yogesh Kumar being the husband; accused Girvar Dutt being the father in law and accused Smt. Saroj being the mother in law of the deceased Praveen, in furtherance of their common intention subjected Smt. Praveen to cruelty for demand of dowry and on 4.1.2007 Smt. Praveen committed suicide. It has been alleged that all the accused in furtherance of their common intention abetted the commission of said suicide by causing her harassment and mental torture. CASE OF THE PROSECUTION/ BRIEF FACTS:
The case of the prosecution is that on the intervening night of 34.1.2007 DD No. 45A was received at Police Station Nangloi at about 12:00 midnight pursuant to which ASI Baljeet Singh reached Maharaja Agarsain Hospital where he found Ms. Parveen admitted. ASI Baljeet collected the MLC of Ms. Parveen wherein the injured was unfit for statement. On 4.1.2007 at about 11:30 PM Smt. Praveen was declared dead by the doctors after which her dead body was sent to the Mortuary of SGM Hospital. The brother of the deceased namely Sh. Udit Bhardwaj gave his statement to the SDM wherein he had alleged that her sister was harassed St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 2 of 52 mentally and physically by her husband and her inlaws for demand of dowry. He had alleged that his sister died on account of harassment caused by the accused persons. On the basis of the statement of the brother of deceased, the present case was got registered and the accused were arrested. After completion of investigations the charge sheet was filed against the accused persons CHARGE:
Charges under Sections 498A/306/34 Indian Penal Code were settled against the accused Yogesh Kumar, Saroj and Girvar Dutt to which they pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as sixteen witnesses as under:
Complainant/ Public witnesses PW1 Udit Bhardwaj is the brother of the deceased who has deposed that they are six brothers and sisters including the deceased namely Praveen who was married to accused Yogesh on 16.02.1997. According to him, at the time of marriage sufficient dowry articles were given by his parents to the accused persons and after the marriage his sister lived in the matrimonial home at Nangal Thakran with all the three accused persons and two unmarried sisters of the accused. He has alleged that the accused Guruvar Dutt (father in law), Saroj (Mother in law) along with accused St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 3 of 52 Yogesh used to harass his sister for demand of dowry in the shape of better sarees, cash etc. He has testified that accused Yogesh used to beat her having suspicion on her character since she had studied from a regular college and therefore he (accuse) suspected her to be having relations with other men. According to the witness, his sister had told these facts to him whenever they spoke her on telephone and whenever they personally met her. He has further deposed that on the occasion of marriage of his younger sister, accused Yogesh with Praveen (deceased) attended the ceremonies for very short duration when she was made to sit by accused Yogesh in the car itself and was allowed to come out only to take food but she was not permitted to meet other relatives. According to PW1, his sister was blessed with a daughter in 1999 and the second daughter was born to her five years later and at the time of both the deliveries accused Yogesh left Praveen at their house and they took care of her and the expenses of delivery. The witness has further deposed that she was taunted for having given birth to female children and was also forced to abort six times. He has alleged that on previous occasions also accused persons had attempted to kill his sister and on one occasion she was made to consume phenyl whereas on another occasion veins of her wrist were cut. He has testified that all these facts were disclosed by Praveen to him and his mother after which they tried to counsel the accused persons on several occasion and every time, they agreed to behave properly but reverted to their previous conduct. The witness has deposed that they were also taunted by the accused whenever they carried St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 4 of 52 gifts for various festivals, regarding the quantity and value of gift articles. He has testified that on 03.01.2007 at about 2.30 AM in the night his father who lived in Gurgaon received information through Dilbagh Singh (brother in law of accused Yogesh) that Praveen had consumed 'Celphos' and was admitted in Maharaja Agersen Hospital. According to the witness, his father transmitted the message to him in Delhi after which he rushed to Maharaja Agersen Hospital where his sister was admitted in the ICU and was in a serious condition. The witness has deposed that his parents reached in the morning and they attended upon his sister and in the evening his father made a complaint at police station Nangloi but the complaint was not registered at that time. According to him, during the night of 04.01.2007 his sister was declared dead at about 11.30 PM and on the next day he made a written complaint which is Ex.PW1/A which is in his handwriting. He has testified that the dead body of his sister was taken to SGM Hospital on 05.01.2007 for postmortem examination which was conducted by a board of doctors and his statement was recorded regarding identification of the dead body of his sister which is Ex.PW1/B after which the dead body was handed over to his father and they performed the last rites. The witness has proved having handed over to the Investigating Officer two letters written by his sister Praveen to him and three photographs of the marriage (Ex.P1 to P3) on 21.01.2007 which were seized vide memo Ex.PW1/C. He has clarified that postmortem examination of the dead body of his sister had taken place at MAMC and St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 5 of 52 not at SGM Hospital. The witness has testified that the letters Ex.PW1/D and Ex.PW1/E were written by his sister Praveen in his presence and in the presence of her mother in law. According to him, he had seen his sister writing and signing several times since they grew up together. After seeing the answer sheet of PaperIII, conducted by Bhartiya Shiksha Padhiti, pertaining to a candidate bearing roll number 9510894 the witness has deposed that the said answer sheet was also in the handwriting of his sister which answer sheet is Mark X. He has correctly identified all the accused in the Court.
In his cross examination by the Ld. Defence Counsel the witness has deposed that since September 2006 he had been living independent of his parents in a different accommodation at Chirag Delhi and his parents had been living at House No. 788/171, Shivji Park, Khandsa Road, Gurgaon, Haryana. According to the witness, he had a love marriage which was with the consent of his parents and he started living independent two months after marriage because he was working in Okhla, Delhi. He has admitted that there was a litigation (petition under Section 9 of HMA) pending between him and his wife and that allegations in the written statement by his wife were general as they were, with regard to the demand of dowry. According to PW1, he last meet his sister before her death on Diwali and he had visited alone her matrimonial home on the occasion of Diwali at Nangloi. He has testified that he did not advise his parents to invite her for Diwali Festival and states that she was happy at her St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 6 of 52 matrimonial home. He has further deposed that at the time of her marriage, accused Yogesh lived at Nangal Thakran with his coaccused persons and about seven months prior to the death of his sister, accused Yogesh alongwith his children and his sister shifted to Nangloi. According to PW1, the landlord lived in the same premises and there were houses nearby. PW1 has deposed that about one and a half to two years prior to her death, his sister was teaching in a school at or around Kanjhawla but at the time of her death she was not working. He has testified that he visited the matrimonial home of his sister at time alone, on other occasion with his younger brother or sister or parents and they were well attended upon by the accused persons. The witness has deposed that on his last visit also he was well looked after by his sister but has voluntarily added that there were taunts which followed the looking after. According to him, the accused persons had been taunting since the marriage of his sister till her death. He has admitted that on the last visit his wife did not join him but there was no specific explanation for her not joining his company. He has denied the suggestion that his wife did not join him on his visit to Praveen's matrimonial home, since Praveen had supported his parents who had objected to his marriage with Swati.
The witness PW1 has further deposed that the format of Ex.PW1/A was suggested by the Investigating Officer and when he visited the Police Station for the first time on 4.1.2007 his father was also with him but on 04.01.2007 his statement was not recorded, however, his father had St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 7 of 52 given his statement in the format of a complaint which was ascribed by his father in his own handwriting. According to him, he did not object to the contents thereof as he agreed to the same and during their stay in the police station for about two hours noone else from his family was present or had made a visit to the Police Station. He has admitted that his statement dated 05.01.2007 is different from the statement of his father dated 04.01.2007 because certain facts were only to his (witness) knowledge but he did not tell those facts to his father when he was making his statement on 04.01.2007, nor he disclosed those facts to the Police at that time. He has denied the suggestion that during the period 04.01.2007 to 05.01.2007 he had consulted some lawyers or concocted false facts to be stated in his complaint Ex.PW1/A. According to PW1, he did not state in his statement that at the time of marriage sufficient dowry articles were given by his parents to the accused persons. He has denied the suggestion that his statement recorded on 29.04.2008 was a tutored statement. According to the witness he knew that giving of dowry was an offence but states that the dowry given by his parents was voluntary and out of love, as a gift to his sister. PW1 has further testified that at the time of marriage a demand of scooter was made by the accused persons despite which they went ahead with the marriage and they brought the demand to the knowledge of the mediator Mr. Hawa Singh and due to his counseling to the accused persons, demand was not insisted to be met. He has denied the suggestion that there was no demand by the accused persons or that whatever gifts they had St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 8 of 52 given, were voluntary and out of love. The witness has also denied the suggestion that he attempted to commit suicide after his marriage to scare his wife who had left him as he had made demands on her for dowry or that he remained admitted in hospital for treatment for attempted suicide. PW1 has further deposed that he reached Maharaja Agersen Hospital in the morning of 04.01.2007 at about 2:30/ 3:00 AM whereas his father came to hospital at about 8:00 /9:00 AM. He has also deposed that all the three accused persons and sister and brother in law of Yogesh were present in the ICU, to look after his sister and he remained at the ICU till about 10.00 PM of 04.01.2007. The witness has further deposed that his family members i.e. father, mother, sister, brother in law and other relations had also arrived but his wife had not arrived despite knowledge of admission of Parveen in the Hospital and has voluntarily stated that she was pregnant and living alone at Chirag Delhi and did not have a driver to bring her to hospital. PW1 has deposed that In the Police Station, they met HC Baljit Singh who advised them to meet SI Puran Singh who in turn advised them on the format of the complaint and accepted the statement of his father after which SI Puran Singh guided them to hand over the complaint to the Duty Officer. According to the witness, he himself and SI Puran Singh first went to the house of the accused persons where SI Puran Singh made inquiries from the neighbours and was writing certain facts but he did not know if he was writing the statement of neighbours. The witness has further deposed that though his sister had expired at 11.30 PM on 04.01.2007 but the doctors and St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 9 of 52 the attending staff did not intimate to him about the death till 7:00 AM on 05.01.2007. He has also deposed that at Nangloi, there was no land line phone but Yogesh possessed a mobile phone and during this period at Nangloi whenever he spoke to his sister, it was on the mobile of accused Yogesh. According to PW1, there was a land line phone at the Nangal Thakran house of accused persons and at times accused Saroj used to avoid the phone call by giving excuses that his sister was in toilet or in the upper floor but they could speak to his sister if she herself picked up the phone. He has testified that they had not made any complaint to the police, Mediator or to any other relation prior to 04.01.2007. The witness has also deposed that during the matrimonial life of Parveen though they did not make any inquiry as regards the harassment etc meted out to Parveen by her in laws but they did inquiry from one Pushpa who was residing in the neighbourhood after three to four gali of accused and belonged to the same village from where they belong and she never told anything to them about his sister and did not make any complaint. PW1 has deposed that his marriage could not remain a success and his wife had gone back to her parental house. He has also admitted that in response to his petition under Section 9 of HMA she stated that they used to harass her on account of demand of dowry. He has denied that after his wife filed a reply to his petition he deliberately injured himself and got himself admitted in hospital and has voluntarily added that he had not deliberately injured himself but he had got injured and was treated in MAX hospital. According to him, police St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 10 of 52 recorded his statement with regard to the said injuries wherein he had stated that as he was having dispute with his wife, so he had injured himself with knife. PW1 has further admitted that on 15.03.2008 his wife Swati Bhardwaj had written a letter at his instance wherein she had stated that once she had tried to consume poison but her husband had snatched it away, copy of which letter is mark PW1/DA. According to the witness, his wife and her mother etc. all had apologized to him and upon which he had told them that apology should be given in writing and hence letter mark PW1/DA was written. He has denied that any quarrel took place between him and his wife on 30.03.2008 but has admitted that on 30.03.2008 he had called police at the house of his inlaws and thereafter he and his wife went to Police Station Kalyanpuri where he apologized for his mistake before the police to his wife and her family members.
The witness has deposed that he had stated in his statement to the police which is Ex.PW1/A that accused Yogesh used to harass his sister for demand of dowry in the shape of better sarees and cash but when confronted with statement Ex.PW1/A the said fact was not found mention but it was mentioned that cash used to be demanded at the time of festivals). He has further deposed that in his statement Ex.PW1/A he had told the police that accused Yogesh used to beat his sister on account of suspicion on her character but when confronted with statement Ex.PW1/A the aforesaid two facts of beating and suspicion on character were not mentioned together but they both occurred separately in the statement. The witness has also St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 11 of 52 deposed that in his statement Ex.PW1/A he had told the police that the character of his sister used to be suspected as she had studied from a regular college, so she must be having relations with other men. When confronted with statement Ex.PW1/A it was found that where was nothing mentioned about the regular college or any reference to her character qua the said fact of regular college but it mentioned that "Jaise Tare to kai yaar Rahe Honge, too Khoob Kheli Khai Hai". He has admitted that during the subsistence of matrimonial life of Parveen they did not lodge any complaint against the accused persons with any authority whatsoever despite the fact that they had come to know about the harassment meted out to her and has voluntarily added that they tried to put social pressure upon the accused persons by talking to their neighbourers and mediators. The witness has further deposed that he himself and his younger sister Mukti got married in the year 2006 and at that time the accused were residing at Nangloi and not at Nangloi Thakran. According to him, at that time the accused was having a car and the accused came to attend his marriage along with his sister but he is not aware about the marriage of his sister Mukti. He has testified that accused participated properly in his marriage but his sister Parveen was kept sitting inside the car and she was made to come out by the accused only at the time of eating food, even though accused was participating in the marriage. According to the witness, he did not go to his sister at that time as to why she was not getting down from the car. He has admitted that in his marriage there are photographs in which his sister was seen dancing and St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 12 of 52 she was happy. He has denied that at the time of his pheras ceremony accused and his sister were both present but has admitted that his sister Parveen had come to their house one day prior to his marriage, along with her kids and went back after completion of all ceremonies i.e after his wife came to their house and has again stated that her sister had gone back prior to arrival of doli to their house. The witness has admitted that during the stay of his sister at their house no quarrel of any nature took place. According to PW1, the expenses of delivery of first child of his sister Parveen was borne by him him and not by accused and has thereafter voluntarily added that there was not much expenses as the child was born in Safdarjung Hospital. He has admitted that accused was present all through the time of admission of Parveen in hospital. He has deposed that after delivery his sister was brought back to their house but there was no custom in their families that the first child is delivered at the parental house. According to him, till the time of birth of second child i.e. after about five years accused was residing still at Nangal Thakran but in the intervening time there were some disputes and no complaint regarding those disputes was made by them to any authority. The witness has testified that the second child was born at their house and the expenses were borne by them and the delivery also took place at Safdarjung Hospital. He does not remember as to how many days his sister remained at their house at the time of first delivery but at the time of second delivery she remained at their house for about one and a half month and thereafter accused came and took St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 13 of 52 her to her matrimonial home. He also does not remember the date, month or year when the incidents of consuming of phenyl and cutting of veins took place but states that they did not make any complaint to any authority in that regard. He has denied that they did not make any complaint as no such incident took place. According to him, his sister was not admitted in any hospital with respect to the aforesaid two incidents. He has testified that he had told almost all the facts to the police which have been stated by him the Court. According to PW1, till 10:00 PM on 04.01.2007 police had not arrested anyone in his presence. He has testified that the two letters Ex.PW1/D and PW1/E were in his possession which letter were written by his sister at the house of accused in the presence of accused Saroj Sharma. He has deposed that the letter Ex.PW1/D on both sides was written at one go but letter Ex.PW1/E was written after one day or so. According to him, he had gone to the house of accused as accused persons had given beating to his sister but at the time of writing these two letters accused Yogesh was not present and only his mother Saroj Sharma was present. The witness has further deposed that after he received those letters from Parveen, he showed them to his parents and the letters remained in the possession of their family. He has also deposed that while writing letters Ex.PW1/D and Ex.PW1/D there was no pressure upon his sister Parveen even though her mother inlaw was present there. PW1 Udit Bhardwaj has deposed that from 2001 to 2007 i.e till the death of Parveen he had not handed those two letters to any police officials. According to him, he had asked for a board of St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 14 of 52 doctors because when the body was initially shifted to SGM Hospital he overheard accused and his some friend talking about one doctor Jha who was supposed to carry out the postmortem examination and upon this he suspected that there might not be a fair postmortem examination, due to which reason he asked for constitution of a panel of doctors. He has denied the suggestion that he had lodged a false complaint Ex.PW1/A as he was more emotionally connected with his sister or that his sister was residing happily in her matrimonial alongwith her husband and there was no complaint. The witness has also denied that as his sister was residing happily at her matrimonial home, so they did not lodge any complaint during her matrimonial life but when she died they made a complaint. He has also denied the suggestion that she often get angry on minor issues or that she was of aggressive nature.
PW13 Smt. Gulab Devi is the mother of the deceased who has deposed that on 03.01.2007 a phone had come from SI Puran Chand who informed her that her daughter Praveen was serious and admitted in some hospital after which they went to the Hospital where they found that her daughter was lying on the ventilator and thereafter she was declared dead. According to her, she had given her statement to the Police in which she raised suspicion against the accused Yogesh who is her son in law and husband of her daughter but is unable to give any reason for her suspicion except that it was because of his behaviour when she was alive. Witness has further deposed that the accused used to have suspicion on the character of St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 15 of 52 her daughter and often told her that during her college dates she was having affairs with others and whenever they used to make call to her daughter or any of her friends called she was not allowed to attend the call. She has testified that she had six children i.e. four daughters and two sons and the deceased was her third daughter and was MA. B.Ed. According to PW13, her daughter was initially a teacher in a school and used to give tuition and was married with the accused Yogesh in the year 1996 which marriage got solemnized through mediator who was the resident of the village of the accused Yogesh. The witness has also deposed that the mediator had asked for a scooter to be given in the marriage to which she had stated that they have four daughters and if they gave the scooter to the accused , Yogesh they would have to give scooter in the marriage of other daughters also and hence they did not give the said scooter in the marriage.
The said witness was declared by the Addl. PP for the State since she was resiling from her previous statement made to the police under Section 161 Cr.P.C. In her crossexamination by the Ld. Addl. PP for the State, the witness has deposed that she does not remember whether her daughter had informed her about the conduct of accused when she came to their house after the marriage for the first time. She has admitted that Yogesh took her daughter to his house after 15 days and that the parents of accused Yogesh wanted a boy from her daughter therefore, her daughter was got aborted for about six times and her daughter Praveen gave birth to a male Child. The witness has also admitted that Yogesh was habitual of St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 16 of 52 drinking liquor and used to beat her daughter and whenever she used to came to their house she informed them about the aforesaid facts. She has correctly identified all the accused persons in the Court.
In his cross examination by Ld. Defence counsel the witness has admitted that Yogesh was having a private job at the time of his marriage and the fact of demand of scooter was never made by the accused persons rather it was the mediator who put the facts before them. He has also admitted that at the time of marriage the accused persons were residing in the village but thereafter, a house was constructed at Nangloi and started living therein and that the parents of accused Yogesh used to reside in the village and Yogesh and Praveen used to reside in the constructed house at Nangloi. According to her, no demand was made from the side of the accused at any time even at the time of construction of their house at Nangloi. She has also admitted that her daughter was short tempered and that that when she used to loose her temper she become violent and she used not to spare anybody and used to even threaten to commit suicide. The witness has deposed that her daughter delivered three children who were all residing with the accused persons. PW13 has admitted that all the things happened in suspicious manner and that she reported the matter to the police under suspicion and her daughter used to otherwise live happily in the house of the accused. The witness has further admitted that her daughter might have committed suicide St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 17 of 52 due to her hot temper.
PW14 Sh. Ved Prakash is the father of the deceased who has deposed that he is retired from Indian Audit & Accounts Department and was having six children and his deceased daughter was his third issue who was M.A. B.Ed. and was married to Yogesh in the year 1997. According to him, when they used to go to the house of the accused in their vehicle both the parents of accused Yogesh used to taunt by saying that "gadi to itni badi le aye aur saman kuch nahin lae". He has alleged that Yogesh used to beat her daughter Praveen after taking liquor and the accused persons had killed her daughter. Witness has further deposed that even prior to death of her daughter there were two incidents when on one occasion the wrist of her daughter was slashed and on another occasion her daughter told her that she was pushed from the roof and he was told her daughter that she was being regularly beaten and when they went to her house to clear the facts the accused used to ask them for forgiveness on which they used to return. The witness has also deposed that on 03.01.2007 at about 10:15 PM he received a telephone call from his son in law Yogesh and there was an exchange of greetings for the new year and there was normal conversation and also asked him the telephone number of elder son in law which could not provide to him as he did not have. He has deposed that it was at about 12:30 to 12:45 AM (midnight) that he received a call from the behnoi of Yogesh informing him that Praveen had tried to commit suicide by consuming Celphos and had been taken to the Hospital. According to him, at about St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 18 of 52 2:30 AM he received a call from Police Station Nangloi informing him that his daughter had tried to commit suicide by consuming Celphos and was admitted in Maharaja Agarsen Hospital after which he sent his elder son, elder son in law and her brother in law to the Hospital and he himself also went to the hospital in the morning where he found that his daughter already dead. He has proved that on 6.2.2007 he handed over the sample handwriting of his daughter from the file of her B.Ed. which was seized by the Investigating Officer vide memo Ex.PW11/A. According to him, after the postmortem he received the dead body of his daughter vide memo Ex.PW14/A. The witness has also correctly identified all the accused persons.
With the permission of the Court Ld. Addl. PP for the State put some leading questions to the witness wherein he has deposed that his daughter Praveen had done her graduation from Gargi College and her B.Ed. from Maharishi Dayanand University, Rohtak and he had told the police that his son in law Yogesh was an alcoholic and used to beat her daughter after consuming alcohol. He has admitted that he used to have suspicion on her character and when his daughter Praveen used to came to his house she told them that Yogesh, his parents, Girvar Dutt and Saroj used to harass her on small things like sarees which she had brought were not proper or the sweets given by them were not up to the mark and used to tell her that instead of sweets they should gave money.
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 19 of 52 During his cross examination by the Ld. Defence counsel the witness has deposed that he had stated to the Police that the accused persons used to taunt "gadi to badi laye ho par saman kuch nahin lay" or that on this account his daughter used to be beaten but when confronted with his statement Ex.PW14/PX1 the aforesaid facts were not found specifically mentioned and it is only mentioned that his daughter used to be beaten as Yogesh was an alcoholic and he used to beat her after consuming alcohol and used to doubt her character but not that she used to be beaten without any reason. According to the witness, he had told the police in his statement about two prior incidents i.e. when her wrist was slashed and when she was pushed from the roof; or that on the date of incident Yogesh had called him at 10.15 PM for exchange of greetings and asked him about the telephone number of hid elder son in law which he could not provide as he was not aware of the same; or that about 12.3012.45 he had received a telephone call from the brother in law of Yogesh informing him that his daughter had consumed Celphos and had tried to commit suicide and was being taken to hospital. However, when confronted with his statement Ex.PW14/PX1 the aforesaid facts were not found recorded. He has admitted that the accused persons i.e. Yogesh and his parents never demanded anything from him directly and that at the time of marriage the accused persons were residing in the village. He has also admitted that prior to the incident Yogesh had constructed his house at Nangloi and he was residing there with his children and his wife Praveen and St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 20 of 52 states that the accused was not residing along with his wife in the newly constructed house but was residing somewhere else in Nangloi. According to him, the accused was having one motor cycle which was allotted to him from his department. He has admitted that during the construction of the house no demand of money was made from him by Yogesh or his family. He has denied the suggestion that his daughter was hot tempered or that after loosing her temper she never heard anybody and used to do what she wanted and has voluntarily stated that she never lost her tamper. PW14 has also denied denied the suggestion that he was making false allegations against all the accused persons being aggrieved by his daughter's death. Or that no prior incident as mentioned by him had even taken place. He has further denied that his elder son is living separately as his wife is not getting along well his wife but has admitted that they are residing separately from them. The witness has denied the suggestion that in the matrimonial dispute pending between his elder son and his wife allegations have been made against him and his wife regarding demand of dowry or that after the marriage his daughter along with his husband was living and gave birth to three children who are living with the accused.
PW15 Sh. Sat Narain Bhardwaj has deposed that by profession he is an advocate and on 11.01.2007 he had gone to MAMC Mortuary where he identified the dead body of Parveen W/o Sh. Yogesh and his statement to this effect was recorded vide Ex.PW15/A. According to him, after getting the postmortem conducted the dead body was handed St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 21 of 52 over to Sh. Ved Parkash Bhardwaj father of the deceased in his presence vide receipt Ex.PW14/A. In his cross examination by Ld. Defence counsel the witness has deposed that he had been going to the house of accused Yogesh and he always found Yogesh and his wife living happily. According to him, he had attended the marriage of Yogesh and there was no demand from the side of Yogesh or any body else.
Medical witnesses/ evidence:
PW2 Dr. Anupam Gaur has deposed that on 04.01.2007 he was on night duty in the ICU of the Maharaja Agarsen Hospital, Punjabi Bagh and one patient Mrs. Parveen was in the ICU and was on ventilator by support and isotropic support but her B.P. was not recordable. According to him, at 10.30 PM the patient had cardiopulmonary arrest and she expired at 11:15 PM. He has proved having prepared the death summary which is Ex.PW2/A. In his cross examination the witness has deposed that the patient was admitted in the hospital by her husband as per record but he is unable to tell whether her husband remained in the hospital or not. He has admitted that nobody was allowed to enter the ICU and usually the relatives used to be present there.
PW4 Dr. Ashish Bansal has deposed on behalf of Dr. Shivanand Gupta. He has proved the MLC bearing no. 467 of Praveen W/o Yogesh, age 28 years, female who was brought to the hospital on 04.01.200 St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 22 of 52 with the alleged history of Celphas poisoning at home on 03.01.2007 at 11.50PM. According to him the patient was examined by Dr. Shivanand Gupta and as per MLC Ex.PW4/A, on examination the patient was in gasping condition, at that time with BP not recordable, pulse rate not pulpable and saturation of oxygen was 60% and smell of Celphos poisoning present at at that time. The said witness has not been crossexamined by the accused and hence his testimony has gone uncontroverted.
PW5 Dr. Akash Jhanjee has deposed that on 11.1.2007 at about 3:45 PM the Medical Board comprising of himself, Dr. Anil Kumar and Dr. Anil Kohli conducted postmortem examination on the dead body of the deceased Praveen which was brought by SI Puran Chand of Police Station Nangloi. According to him, on external examination there were no external injuries on the body of the deceased and on internal examination neck structure was intact; in the chest ribs were intact and both lugs were congested and edematous. No abnormality was detected in heart; abdomen contained around 50 ml. Of reddish liquid material with patchy hemorrhagic areas at the fundal portion of the wall; intestinal loops were intact and were containing gases at placed; terminal part of the descending colon showed hemorrhagic congestion. Liver, spleen and both kidneys were congested; in pelvis no fractures of pelvic bones was present; the spinal column was intact; no abnormality was detected in the head; no fractures of skull bones was present and brain was congested. The witness has testified that after completing the postmortem examination the Medical Board sealed St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 23 of 52 and preserved the viscera for chemical analysis and kept the cause of death pending. He has proved the postmortem report bearing no. 31/2007 which is Ex.PW5/A bearing the signatures of the members of the Medical Board. He has not been crossexamined by the accused and hence, his testimony has gone uncontroverted.
Police/ official witnesses:
PW3 HC Rohtash Kumar has deposed that on 04.01.2007 he was posted as duty officer at police station Nangloi and was on duty from 4:00 PM to 12 night and on that day at about 11:20 PM Dr. Anoop from Maharaja Agarsain Hospital informed that Parveen W/o Yogesh admitted in the hospital and expired. He has proved having recorded the information vide DD No. 33A copy of which is Ex.PW3/A which was handed over to SI Puran Chand for further necessary action. The witness has also deposed that again on 09.01.2007 he was posted as Duty Officer in police station Nangloi from 4:00 PM to 12 midnight and on that day at about 10:05 PM SI Puran Chand handed over to him complaint which is Ex.PW1/A on the basis of that he recorded FIR No.32/07, under Section 498A/306/34 IPC copy of which is Ex.PW3/A and after registration of the FIR on the direction of SHO the investigation was handed over to SI Puran Chand. According to him, he also mentioned the particulars of the FIR on complaint at point X and recorded DD No. 26A regarding registration of the case by him.
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 24 of 52 During his cross examination by Ld. Defence counsel the witness has deposed that SI Puran Chand had not made separate departure entry while remaining in police station and the DD entry was handed over to SI Puran Chand. Witness has admitted that departure entry was not made through DD No. 33A. On a specific question put by Ld. Defence counsel witness initially stated that he made the endorsement on the rukka at point X prior to registration of the FIR but after seeing the endorsement he stated that this was made later and he first registered the FIR.
PW6 Sh. Amarpal Singh, Senior Scientific Officer (Chemistry), FSL, has deposed that on 09.02.2007 one parcel was received in FSL through Ct. Rajender Singh which was marked to him for examination and the parcel (one wooden box ) was marked 1 which was properly sealed with the seal of "DEPTT. OF FORENSIC MEDICINE, MAM COLLEGE" and was labeled PMR No. 31/07, Viscera of Parveen containing exhibits marked 1A to 1D in the jars respectively. According to him, on chemical examination (i) Ex.1A was found to contain Aluminum Phosphide; (ii) Ex.1B and Ex.1C were found to contain phosphide; (iii) Ex.1D gave negative tests for chemical poisons. He has testified that the remnants of the exhibits had been sealed with the seal of "APS FSL DELHI". He has proved the report given by him which is Ex.PW6/A. This witness has not been crossexamined by the accused and hence his testimony has gone uncontroverted.
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 25 of 52 PW7 HC Rajender has deposed that on 09.02.2007 he was posted at Police Station Nangloi and on that day he took one box containing viscera, one envelop and one sample duly sealed to FSL Rohini which he got deposited in FSL Rohini and after getting the same deposited he handed over the copy of receipt to MHC(M). He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
PW8 HC Balwan has deposed that on 11.01.2007 he was posted at Police station Nangloi as MHC(M) and on that day he took two sealed parcels and one sample seal from SI Puran Singh duly sealed and took the same into possession vide entry no. 4653 of register no. 19 copy of which is Ex.PW8/A. According to him, on 09.02.07 he sent the same to FSL Rohini through Ct. Rajender vide RC No. 46/21 and on 20.02.2007 he also received one envelop containing documents from Ct. Sanjay sent by SI Puran Singh vide RC No.57/21. The witness has further deposed that on 03.11.08 he received one envelop containing report and one box duly sealed with the seal of FSL from Ct. Pramod Kumar vide same entry. He has placed on record the copies of RC which are Ex.PW8/B, Ex.PW8/C & Ex.PW8/D. During his cross examination by Ld. Defence counsel the witness has deposed that he used to maintain the register no. 19 as MHC(M). He has admitted that on the entry Ex.PW8/A there is over writing at points B & C. St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 26 of 52 PW9 Ct. Sanjay has deposed that on 20.02.2007 he was posted at Police Station Nangloi and on that day he took the documents from MHC(M) and took the same to FSL Rohini vide RC No. 57/21 and got deposited the same in FSL Rohini. He has proved that no tampering was done while same remained in his possession. This witness has not been crossexamined by the Ld. Defence counsel.
PW10 ASI Baljeet Singh has deposed that on the intervening night of 34.01.2007 he was posted at Police Station Nangloi as HC and on that day at about 12 night he received PCR call vide DD No.45A after which he reached Mahraja Agrasen Hospital where he found the injured Praveen W/o Yogesh admitted and collected her MLC. According to him she was unfit for giving her statement and he informed father of Praveen on telephone regarding the incident. This witness has not been crossexamined by the Ld. Defence counsel.
PW11 HC Pratap Singh has deposed that on 06.02.07 he was posted at Police Station Nangloi and on that day he was posted at Police Post Tikri Border and on that day, he along with Investigating Officer were busy in the investigation of this case when father of Praveen namely Sh. Ved Prakash came to the Police Post and handed over a file containing 18 pages to Investigating officer SI Puran Chandra regarding hand writing of the deceased. He has proved that the Investigating Officer took the same into possession vide seizure memo Ex.PW11/A. St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 27 of 52 In his cross examination by Ld. Defence counsel the witness has deposed that he was not aware about the contents of those documents and Ved Prakash came to the Police Post at about 1112 noon who remained there for about one hour.
PW12 Ct. Ashok Singh has deposed that on 31.01.2007 he was posted at Police Station Nangloi Police Post Tikari Boarder and on that day the accused Yogesh Kumar had surrendered to the Police Post at about 10.00 AM. According to the witness, the accused had also brought the photographs of his marriage and investigating officer verified about his identity after which the accused was arrested in this case vide memo Ex.PW12/A and his personal search was conducted vide memo Ex.PW12/B. The witness has deposed that the statement of accused Yogesh was recorded after which he was taken to the SGM Hospital for his medical examination and thereafter he was produced before the concerned court and was sent to judicial custody. He has correctly identified the accused in the court. This witness has not been crossexamined by the Ld. Defence counsel and his testimony has gone uncontroverted.
PW16 SI Puran Chand is the Investigating Officer of the present case who has deposed that on 05.01.2007 he was posted at Police Station Nangloi and on that day the inquiry of this case was handed over to him from HC Baljeet, after the death of the deceased Poonam in Maharaja Agarsain Hospital. The witness has deposed that he got transferred the dead body from Maharaja Agarsain Hospital to the mortuary of SGM Hospital St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 28 of 52 and a request for constitution of Medical Board was made by the father of the deceased Sh. Ved Parkash, after which a request was sent for constitution of medical board to GNCT of Delhi. He has testified that on 09.01.2007 he made an endorsement on the complaint of Sh. Udit Bhardwaj, brother of the deceased vide Ex.PW16/A and the case was accordingly registered vide FIR Ex.PW3/B. According to the witness, he along with complainant went to house No. D108 Extension II, Nangloi and prepared site plan at the instance of complainant vide Ex.PW16/B and recorded the supplementary statement of the complainant. The witness has further testified that he again wrote a letter to DCP West for constitution of Medical Board and on 10.01.2007 medical board was constituted. He has deposed that on 11.01.2007 body of deceased was shifted from SGM hospital to MAMC hospital for postmortem after which the dead body was handed over to the father of the deceased Sh. Ved Parkash and the Viscera as handed over by the doctor, was taken over in police possession vide memo Ex.PW16/C. He has proved having collected the postmortem report vide Ex.PW5/A; having prepared the brief facts and death report which are Ex.PW16/PX; having collected the death summary prepared by the doctor which is Ex.PW2/A; having recorded the statement of witnesses regarding identification of the dead body which are Ex.PW1/B and Ex.PW15/A and having collected the medical record/investigation report from Maharaja Agarsain Hospital vide Mark X1 collectively. According to the witness, on 21.01.2007 complainant Udit Bhardwaj produced three photographs of the St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 29 of 52 marriage of deceased and two letters allegedly written by deceased which were taken into possession vide memo Ex.PW1/C which letters are Ex.PW1/D and Ex.PW1/E and the photographs are Ex.P1 to P3. He has testified that father of the deceased had provided the admitted handwriting of the deceased which were also taken out from the same envelope Mark X which are mark A1 to A17. He has proved having recorded the statement of Sh. Ved Parkash father of the deceased, Smt. Gulab Devi mother of the deceased, Smt. Poonam and other witness under Section 161 Cr. P.C. and supplementary statement of Udit Narain Bhardwaj. He has also deposed that on 31.01.2007 accused Yogesh surrendered at Police Post Tikri Border before him and he tallied his identity with the photograph already available on file after which he interrogated the accused and arrested him vide memo Ex.PW12/A and personally searched vide memo Ex.PW12/B. The witness has testified that on 09.02.2007 viscera of the deceased was sent to FSL through Ct. Rajender and he prepared the charge sheet and filed in the court. According to the witness, on 20.02.2007 two letters allegedly written by the deceased along with admitted handwriting were sent to FSL for expert opinion and he collected the FSL report which is Ex.PW6/A regarding viscera and FSL report regarding handwriting of the deceased vide Ex.PW16/PX2 running into two pages. He has testified that on 26.04.2007 accused Girwar Dutt and Smt. Saroj were arrested vide memos Ex.PW16/D and Ex.PW16/E and personally searched vide memos Ex.PW16/F and St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 30 of 52 Ex.PW16/G. He has proved having prepared the supplementary charge sheet and filed the same before the Court. He has correctly identified all the accused persons in the Court.
During his cross examination by the Ld. Defence Counsel the witness has admitted that during the investigations he had recorded the statements of neighbours Sh. Rajesh Kaushik, Ishwar Singh, Bhagwat Dayal, Bachhu Lal Meena, Shri Ram Sharma correctly and as per their statement they had mentioned that the deceased was living happily with the accused Yogesh at Nangloi. He has admitted that he had deposed after reading the notes made by him which is Ex.PW16/DA and whatsoever he had deposed above was as per his notes and his memory. He does not remember whether PW 1 Udit Narain met him on 04.01.2007 or not and on which date application was given, however an application was given for constitution of medical board. According to the witness, no application filed by the father of the deceased requesting for constitution of medical board is on record and has denied the suggestion that no such application was given and therefore the same is not on record. He has also admitted that an application was given to him by the father of the deceased on 04.01.2007. The witness has admitted that after the receipt of the application dated 04.01.2007 by the father of the deceased he held the inquiry and recorded the statement of different witnesses. According to him, for the purpose of evidence FIR was registered on 09.01.2007 and thereafter investigation was taken of and since the matter was under inquiry, St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 31 of 52 therefore no FIR was registered on 04.01.2007. He has denied that the application dated 05.01.2007 moved by the brother of the deceased was moved on his behest. He does not remember the date on which the statement of Diksha was recorded and has voluntarily added that he remember having recorded the statement. He also does not remember the date when he recorded the statement of Saroj Kumari, motherinlaw of the deceased. He has admitted that Diksha had not made any allegations in her statement against the accused persons. PW16 has deposed that he had not collected any evidence regarding the date of writing of those letters which were received by him during the investigation allegedly written by the deceased and he had recorded the statement of Udit Narain three times, that is first complaint, regarding preparing the site plan and third time when he produced the photograph and the two letters. The witness has also deposed that he made inquires as to when the aforesaid two letters were recorded by the deceased from Udit Narain whose statement was recorded separately in this regard, however it has come on the record that the letters were written in the year 20012002. He is unable to tell the exact date when the parents of the deceased for the first time met him. He has denied the suggestion that during the investigations he had came to know that the deceased was of hot temperament. Witness has further deposed that from the statement of the neighbours he had came to know that the deceased was living happily with her children and her husband in that house. He has denied the suggestion that he had not conducted the investigation properly or that the St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 32 of 52 investigation was tainted under the influence of the parents or that he had guided the parents to write the application against the accused persons for the purpose of framing a false case against them.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
After completion of prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to them which they have denied. The accused Yogesh Kumar has stated that after the marriage he along with his wife had been going for outing to various out stations which is evident from the photographs Ex.D1 to Ex.D6 and his father after retirement had out of love and affection got property purchased in the name of Parveen through the registry, photocopy of which is Ex.D7. According to the accused, his wife was hot temperament and used to get annoyed on petty matters. He has further stated that at the time of construction of his house, he had shifted to Nangloi along with his wife and on 3.1.1997 his wife had asked him to come early in the house but due to exigency of work in the office he could not come early and thereafter due to a party he had gone there. He has further stated that when he returned home at night his wife showed her annoyance and he explained her the reasons after which she went to sleep in another room with he along with his son and daughters slept in another room. After some time he heard as if she was vomiting on which he rushed to that room and asked her about the reason when she disclosed that she had consumed St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 33 of 52 Celphos. According to the accused, he immediately took her to nearby nursing home namely Satya Bama Hospital but after giving the first aid they asked her to shift some other hospital after which she was taken to Maharaja Agarsen hospital where she was admitted and treated. He has stated that he brought all the medicines as asked by the doctors and looked after her but she could not be saved. The accused has further stated that after getting her admitted in the hospital he informed his father in law but nobody came. According to the accused even in the year 2003 when she had fallen sick, the doctor advised for giving blood to her and he donated the same. The accused Yogesh has stated that he is innocent and false allegations have been levelled against him due to the parent's emotions and aggressions.
The accused Saroj has stated that after her marriage Praveen stayed in their house for some time and thereafter she along with her son (accused Yogesh) had shifted at Nangloi. According to the accused Parveen was given full love and affection from their side and they never made any distinction between her daughters and Parveen. The accused has also stated that her husband even purchased a house at the time of his retirement out of his own money in the name of Parveen and she had been also going for outing to out stations with her son. She has further stated that she is innocent and false allegations have been lodged. According to the accused, Parveen was hot temperament and used to show her anger even on little things but she was always consoled.
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 34 of 52 Similarly the accused Girvar Dutt has stated that he is innocent and has been falsely implicated. According to him, after the marriage Parveen stayed in their house for some time and thereafter she alongwith his son (accused Yogesh Kumar) shifted at Nangloi. He has stated that Parveen was given full love and affection from their side and they never made any distinction between his daughters and Parveen and he even purchased a house at the time of his retirement out of his own money in the name of Parveen.
The accused Yogesh Kumar has examined himself in his defence as DW1 wherein he has tendered the copy of the MA degree obtained by his wife Praveen Bhardwaj during the time she was living with him in the year 1999, copy of which is Mark DW1/A. FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. My findings are as under: Identity of the accused:
In so far as the identity of the accused is concerned, the same is not disputed. The accused Yogesh Kumar is the husband of the deceased; accused Saroj is the mother in law of the deceased and the accused Girvat Dutt is the father in law of the deceased Praveen. All the accused have not St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 35 of 52 only been named in the FIR but also duly identified in the Court. Hence, I hereby hold that the identity of the accused stands established. Death of the deceased after seven years of marriage:
It is an admitted case of the prosecution that the death of the deceased had not occurred after seven years of marriage and hence the presumption under Section 113B of Indian Evidence Act does not apply. The marriage of Praveen (deceased) with the accused Yogesh was solemnized on 16.2.1997 and she had allegedly consumed Celphos on 3.1.2007 and expired in late night hours on 4.1.2007 and hence the death of Praveen had occurred after about nine years and eleven months of her marriage.
Cause of death:
The case of the prosecution is that the death of the deceased was on account of consuming Celphos. Dr. Akash Jhanjhi (PW5) has duly proved the postmortem report of the deceased which is Ex.PW5/A prepared by the Medical Board also bearing the signatures of other two doctors that is Dr. Anil Kumar and Dr. Anil Kohli at points B and C on which aspect there is no dispute. Sh. Amarpal Singh (PW6) has proved the Viscera Report Ex.PW6/A according to which Exhibit 1A that is stomach and piece of small intestine with contents was found to contain Aluminum Phosphide; Exhibit 1B that is pieces of liver, spleen and kidney and Exhibit 1C that is blood sample were found to contain Phosphide. Hence, it stands established St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 36 of 52 that the death of the deceased was on account of consuming Celphos/ Aluminum Phosphide.
Allegations under Section 498A IPC:
In order to succeed in charge under Section 498A of the Indian Penal Code, the prosecution is required to prove that the accused had subjected the deceased to cruelty, as defined in the explanation to the section. It is not every cruelty which is punishable under Section 498A of the Indian Penal Code. The cruelty, so as to attract penal provisions, contained in Section 498A of Indian Penal Code, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to Section 498A of Indian Penal Code indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonably expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 37 of 52 intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A of Indian Penal Code.
The expression "Cruelty" takes in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498A of Indian Penal Code.
If the woman has been harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498A of IPC. The expression "harassment" has not been defined in Section 498 A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. However, it is not harassment of every nature which is punishable under section 498A of IPC. In order to attract criminal liability, there should be St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 38 of 52 torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.
Applying the settled principles of law to the facts of the present case it is evident that the allegations against the accused are of causing cruelty on account of demand of dowry and specifically against the accused Yogesh Kumar of causing physical harassment as he was suspicious of her character. Udit Bhardwaj (PW1) the brother of the deceased who himself is facing proceedings in his matrimonial dispute with his wife Swati Bhardwaj has orally testified that all the three accused used to harass the deceased for demand of dowry in the form of better sarees, cash etc. He has further deposed that the accused Yogesh Kumar used to beat the deceased being suspicious of her character as she had studied from a regularly college and the accused suspected her relations with other man. He has also alleged that in his marriage the deceased was made to sit in a car and she was not permitted to participate in his wedding and she had only come out of the car to take food. He has further alleged that at the time of the birth of two daughters of his sister that is first in the year 1999 and second after five years, she was left at her father's house and it was his father who had taken care of the delivery expenses. He has also alleged that the deceased was regularly being taunted by the accused for giving birth to female child and had six abortions. He has also deposed that attempts were made to kill his St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 39 of 52 sister on two earlier occasions that is on first occasion she was made to consume phenyl whereas on the other occasion her veins of her wrist had been cut.
Similarly, Ved Prakash (PW14) father of the deceased has deposed that the deceased was being regularly subjected to taunts by the accused Yogesh who said that"gadi to itni badi le aye aur saman kuch nahin lae". He has also corroborated the testimony of Udit Bhardwaj (PW1) to the extent that on two earlier occasions there were attempts to kill his daughter, on first occasion her wrist was slashed whereas on the second occasion she was pushed from the roof. He has also deposed that accused Yogesh was alcoholic and used to beat his daughter as he was having suspicion on the character of the deceased. Here, I may add that Smt. Gulab Devi (PW13) the mother of the deceased has not supported the version given by PW1 or PW14 and in her crossexamination she has admitted that the deceased was happily residing with her husband at Nangloi. She has admitted that no demand had been made by the accused either at the time of the marriage or thereafter and that the accused Yogesh and Praveen used to reside in the constructed house at Nangloi. She has also admitted that her daughter was short tempered and whenever she lost her temper she became violent and did not spare anybody and had even attempted suicide. She has further admitted that at the time of death of the deceased she had made a statement being suspicious of the accused but has now deposed before the Court that the deceased was otherwise living happily with the accused and St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 40 of 52 she might have committed suicide due to her loose/ hot temper.
Now coming to the analysis of the testimonies of Udit Bhardwaj (PW1) and Ved Prakash (PW14). It is evident that it is for the first time that the allegations with regard to the slashing of the wrist of the deceased; consuming of phenyl or pushing her from the roof have been made in the Court which is a total improvement over the earlier statements made by these witnesses before the police. Here, I may add that had these incidents regarding the consumption of phenyl, slashing of wrist or even pushing the deceased from the roof been happened, reflection of the same could have been found in the postmortem report of the deceased which is not the case. Phenyl is highly acidic in nature and even a small quantity of phenyl cause extensive damage to human body. The postmortem report of the deceased does not reflect any such damage. Further, in case of slashing of wrist the indication in the form of scratch marks would have been evidence and specifically mentioned in the postmortem report which is again not the case. Had the deceased been thrown of the roof again she would have suffered extensive physical injuries and in all the above instances would have been treated by some medical practitioner whose names and treatment records would have been available and should have been placed on record which again has not been done so much so that Udit Bhardwaj (PW1) states that she was never taken to a doctor or treated which appears to be impossible. Further, no complaint to the police or any other authority had ever been made in respect of any of the aforesaid instances St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 41 of 52 and therefore, under these circumstances it is difficult to place reliance on the testimony of Udit Bhardwaj (PW1) and Ved Prakash (PW14).
Coming First to the aspect of demand of dowry by all the three accused that is demand of saress and cash. I may observe that in his cross examination PW1 Udit Bhardwaj has specifically admitted that whatever had been given by them in the marriage was voluntarily and out of love and affection. I may further observe that these allegations with regard to sarees and cash are vague and no specific instances have been cited thereof.
Secondly in so far as the allegations with regard to the accused Yogesh giving physical beatings to the deceased being alcoholic as he was suspicious of her relations with other men as the deceased having studied from a regular college, are concerned I may observe that these allegations are vague and no specific instances with regard to the aforesaid have been cited. The marriage between the accused Yogesh and deceased had been subsisted for almost 10 years and had this been the background the indications with regard to the harassment as above would have been writ large which again is not the case. Rather, on the contrary the accused Yogesh Kumar has placed before the Court number of photographs which are Ex.D1 to Ex.D6 showing that during this period of subsistence of marriage she appeared happy and had been regularly visiting places with the accused. There are photographs of the deceased taken at Taj Mahal and at various hill stations and on various occasions including at the marriage of Udit Bhardwaj (PW1) showing that she had participated in the same a fact St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 42 of 52 which PW1 has admitted in his crossexamination. This demolishes the allegations that the deceased was not happy during the subsistence of marriage or that she was not permitted to speak anybody.
Thirdly it is an admitted case of Udit Bhardwaj (PW1), Smt. Gulab Devi (PW13) and Ved Prakash (PW14) that about seven months prior to the incident, a separate house had been constructed at Nangloi where accused Yogesh Kumar was residing along with the deceased Praveen and his children and no demand whatsoever had been made by the accused for construction of this house. It is further admitted by PW1 Udit Bhardwaj that deceased was qualified being M.A. B.Ed. and was working at a school as Teacher and had a separate bank account.
Lastly I have gone through the alleged letters/ writings of the deceased which are Ex.PW1/D and Ex.PW1/E. It is evident from the same that they are self contradictory. At one place it has been mentioned that the accused was having suspicion on the character of the deceased whereas at another place she had mentioned that she was taken good care by him and he loved her very much. Daily ups and downs of a matrimonial life cannot be taken as harassments and tortures and the evidence on record reflects her hypersensitive nature. There being no independent corroboration forthcoming on the above aspects it will not be safe to hold the accused guilty solely on the basis of the alleged writings of the deceased.
In view of my aforesaid discussion I hereby hold that the allegations of cruelty either on account of demand of dowry or on account St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 43 of 52 of the accused Yogesh having suspicion on her character of the deceased, does not stand establishes and proved beyond reasonable doubt. Section 306 IPC:
The case of the prosecution is that on account of the cruelty inflicted by the accused upon the deceased, she had committed suicide and hence they are liable for abetment to the same. Before coming to the facts of the case it is necessary to discuss the law relating to abetment.
As per the provisions of Section 306 Indian Penal Code if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The word 'Suicide' in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and required no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
Suicide by itself is not an offence under either English or Indian criminal Law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types.
➔ Degradation of corpse of deceased by burying it on the highway with a stake through its chest.
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 44 of 52 ➔ Forfeiture of property of deceased by the State.
This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide had been abrogated.
In our country, while suicide in itself is not an offence, considering that the successful offence is beyond to the reach of law, attempt to suicide is an offence under section 309 of IPC.
'Abetment' has been defined under section 107 of the Indian Penal Code which provides that:
"107. Abetment of a thing - A person abets the doing of a thing, who First - Instigates any person to do that thing; or Secondly engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing."
Explanation 2 which has been inserted alongwith Section 107 reads as under :
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 45 of 52 "Explanation 2 - whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to be and the doing of that act."
The Hon'ble Supreme Court in the case of Ramesh Kumar vs. State of Chhattisgarh, reported in VII (2001)SLT 356 has in paragraph 20 has examined different shades of the meaning of "instigation" as under:
"20. Instigation is to goad, urge forwards, provoke, incite of encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been interred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
In State of West Bengal Vs. Orilal Jaiswal & Another, reported in IV(1993)CCR392(SC)=(1994)DMC138 (SC)=(1994)SCC 73 the Hon'ble Apex Court has cautioned that the Court should be extremely St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 46 of 52 careful in assessing the facts and circumstances of each case and the evidence adduced in the trail for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
Further, in the case of Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) reported in VI (2009) SlT 584 = III(2009)DLT (Crl.)1011 (SC) = IV (2009)CCR 1 (SC) = 162(2009)DLT 257 (SC) = 2009(11) SCALE 24 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 47 of 52 the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It is also required an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.
Also in the case of Mamta Sahu (Smt.) Vs. State of Delhi reported in 124 (2005) DLT 300 the Hon'ble Supreme Court has highlighted the ingredients of Section 306 of the Indian Penal Code i.e. the offence of abetment of suicide in the following words:
"When Section 107 of the Indian Penal Code is read carefully, it is clear that for constituting abetment, the accused should either instigate any person to do the thing or engages with one or more other person or persons in any conspiracy for the doing of that thing of intentionally aid by any act of omission the doing of that thing. There are two explanations to this Section. A person who by willful misrepresentation, or by willful concealment of a material fact can be said to have instigated the thing which is done on account of such concealment or misrepresentation. Explanation 2 prescribes that an abetment can be done either prior to or at the time of the commission of that act. In the present case, there is nothing to suggest that the accused had instigated or aided the deceased in commission of suicide. Nor is there any evidence to St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 48 of 52 show that she had engaged with some other person or persons for doing any act. There is no evidence that any concealment or misrepresentation on her part had led the deceased to commit suicide. There is no evident hat she in any way did anything to facilitate the commission of suicide by the deceased."
Applying the settled principles of law to the facts of the present case it is evident that the only evidence on record is with regard to the allegations of regular taunts being made by the accused upon the deceased raising a question on her character and for demand of dowry. This court has already observed that the prosecution has failed to prove and substantiate the allegations of demand of dowry and the allegations of accused having a suspicion on the character of the deceased. Even otherwise, mere oral allegations cannot be taken as circumstances to infer that the accused had hatched a conspiracy to abet the commission of suicide by Praveen or that in furtherance of that conspiracy they had abetted the offence of suicide. In the present case there is no instigation on behalf of the accused Yogesh Kumar, Saroj and Girvar Dutt which denotes inciting or urging Praveen to do some drastic or inadvisable act or to stimulate or incite her to commit suicide. It is not borne out from the record by any cogent evidence that there was any heated exchange of conversation, accused had any intention to provoke, incite, urge or encourage the deceased to commit suicide. [Ref.:
Ramesh Kumar Vs. State of Chattisgarh, AIR 2001 SC 3837; M. Mohan Vs. State, (2011) 3 SCC 626; Beeraj Gupta Vs. State, 2006 VI AD (Delhi) St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 49 of 52 839 and Rohtash Singh & Ors. Vs. State & Anr., 2011 II AD (Crl.) (DHC) 389].
Conviction of an accused under Section 306 IPC merely on basis of allegation of harassment of deceased is unsustainable in law. No evidence and material available on record where from an inference of accused having abetted commission of offence may be drawn. Deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in day to day life. Different people behave differently in same situation and in the present case the prosecution has failed to place on record sufficient evidence to prove the allegations against the accused under Section 306 IPC beyond reasonable doubt. FINAL CONCLUSIONS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622 the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 50 of 52
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case, it is evident that the identity of the accused stands established. The accused Yogesh Kumar is the husband of the deceased Praveen and the accused Smt. Saroj is the mother in law of the deceased. It stands established that the marriage between the accused Yogesh Kumar and the deceased Praveen was solemnized on 16.2.1997. It has also been established that she had allegedly consumed Celphos on 3.1.2007 and expired in late night hours on 4.1.2007 and hence the death of Praveen had occurred after about nine years and eleven months of her marriage. However, the allegations against the accused Yogesh Kumar and Saroj of causing harassment to the deceased in connection with demand of dowry and of the accused Yogesh suspecting the character of the deceased do not stand established beyond reasonable doubt. Further, it is not borne out from the record by any cogent evidence that there was any heated exchange of conversation, accused had any intention to provoke, incite, urge or encourage the deceased to commit suicide. St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 51 of 52 I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence.
Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Yogesh Kumar and Saroj, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 498A/306 Indian Penal Code. Their sureties be discharged as per rules.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 3.1.2012 ASJII(NW)/ ROHINI St. Vs. Yogesh Kumar Etc., FIR No. 32/07, PS Nangloi Page No. 52 of 52