Delhi District Court
State vs Saheer Devi on 26 October, 2012
State verus Saheer Devi
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 49/11
ID No: 02401R0511652011
FIR No. : 04/09
PS. : Anand Parbat
U/S : 498A/304B/174A IPC
STATE
VERSUS
Saheer Devi
W/o Sh. Om Prakash
H. No. F-94, Punjabi Basti Baljeet Nagar
Anand Parbat, New Delhi. ........Accused
Date of Institution : 31.10.2011
Date of Committal to Sessions Court : 21.11.2011
Date of judgment reserved on : 17.10.2012
Date of pronouncement of judgment : 26.10.2012
Present Sh. R.K. Tanwar, learned Additional Public Prosecutor for
the State
Sh. S.H. Khan Advocate, learned counsel for accused
JUDGEMENT:
1. Briefly stated facts of prosecution case are that on January 28, 2009 at about 08.28 PM, a telephonic information was received in police station Anand Parbat, apparently attributable to Om Parkash that his daughter-in-law (the deceased) had committed suicide by hanging. This information was routed through Police Control Room, where it was conveyed from telephone no. 20567159. Said information was recorded vide DD No. 30A (Ex. PW9/A) and was assigned to SI Hukam Singh, who along with constable Rakesh reached the first floor of H.No. F-94, Punjabi Basti, Baljeet Nagar, where he found the deceased woman SC No. 49/2011 Page No. 1 of24 State verus Saheer Devi hanging with the help of cloth tied with the ceiling fan. Crime team was summoned, spot was got photographed During investigation, it was revealed that the deceased was married on April 14, 2008, thus, intimation was sent to the SDM, Patel Nagar. After inspecting the spot, Sh. Parmod Kumar, SDM-Patel Nagar (PW15) directed the police to send the dead body for post-mortem to the Mortuary of DDU Hospital. SI Hukum Singh took the personal search of the deceased and intimation was sent to her parents and the said DD was kept pending.
2. It was alleged that on January 29, 2009, post-mortem was got conducted in the presence of family members of the deceased. It was alleged that Mr. Mukesh Kumar Bhargav (PW1), brother of deceased got recorded his statement to SDM, Patel Nagar alleging that the deceased was the youngest daughter of the family, which comprised of four siblings. The marriage had been solemnized at the instance of his brother-in-law named Sampat (PW3). After marriage, the deceased had stayed for 7-8 days in village Itwa, Bhadra, the native village of husband of deceased. Thereafter, deceased shifted to Delhi with her husband, Ravi Prakash. It was stated that sufficient dowry was given in marriage voluntarily by the family of deceased.
(i) It was alleged that after about 1 ½ or 2 months of marriage, Om Parkash, father-in-law of deceased had made a phone call to Mukesh Kumar asking him to come and take the deceased back. No clear answer was given as to the reason for this suggestion. When complainant visited her in-laws in Delhi, he had a talk with Ravi Prakash and Om Prakash and Saheer Devi and thereafter, he brought the deceased back with him to the parental home.
(ii) It was alleged that deceased had told her brother, complainant, that her husband was aggrieved with the arrangements SC No. 49/2011 Page No. 2 of24 State verus Saheer Devi made for the Barat at the time of marriage and had also complained about the quality of gifts given in marriage, particularly referring to press (iron) and cooler which had gone out of order. It was alleged that deceased had told the complainant that on these issues her husband and in-laws including mother-in-law used to beat her.
(iii) It was alleged that deceased remained with the parental family for about one and half months when her father-in-law Om Prakash along with his father visited their residence and on grievances being conveyed, they gave an assurance that such conduct would not be repeated, upon which, the deceased was again sent back with them to the matrimonial home.
(iv) It was alleged that after 10-15 days, deceased had made a phone call to the complainant telling him that her husband was asking for a motorcycle to be arranged. This was followed by a phone call from Om Parkash expressing dissatisfaction with the articles given in dowry as whatever article was opened, it was found to be out of order. It was alleged that thereafter whenever the deceased made a phone call, she informed that her husband had beaten her on petty issues and stated that he would turn her out.
(v) It was alleged that on the occasion of Deepwali, the deceased visited the parental family for two days, during the said visit, she informed that her husband had assaulted her and stated that he would not keep her and also stated that her husband had some relations with another girl for which reason, he was treating her as a "keep".
(vi) It was alleged that on January 28, 2009 between 1:00 PM to 2:00 PM there was a miss call from mobile phone no. 97113-57802 and when complainant called back and asked to be allowed to talk to his SC No. 49/2011 Page No. 3 of24 State verus Saheer Devi sister (the deceased), the latter came on the line and told him that she was being beaten like a dog by all members of her family. It was alleged that during the said telephonic conversation, he was able to hear the voices of her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law in the background. It was alleged that when he asked the deceased to get her mother-in-law on the line, the latter also spoke to him and asked him to take his sister back.
(vii) It was alleged that he had brought these facts to the knowledge of his father asking his advice as to whether he should visit Delhi, when he told him that he (his father) would himself talk. He alleged that in the evening at about 7:00 PM, his father had made a phone call on the said mobile phone No. (97113-57802), when the call was picked up by her sister-in-law, who informed that the deceased was sleeping while her mother-in-law had gone out. It was alleged that later on there was a missed call from the deceased on his mobile phone No. 90019-49864. It was alleged that when his father subsequently made a call, it was picked up by her father-in-law who informed that Meenu (the deceased) had died and that they should come and take her away.
(viii) It was alleged that complainant, his father and other five members of the family came to Delhi and went to police station.
Complainant concluded his statement before the SDM by raising suspicion that the deceased might have been killed before being hanged or may have committed suicide on account of the circumstances narrated by him.
3. On the basis of the statement of complainant, an FIR for the offence punishable under Section 498A/304B/34 IPC was registered.
4. After completing the investigation, a separate charge-sheet SC No. 49/2011 Page No. 4 of24 State verus Saheer Devi was filed qua husband, father-in-law, brother-in-law and sister-in-law of deceased. Since present accused i.e. mother-in-law of deceased was absconding, she was declared proclaimed offender on July 21, 2009. Said case was registered as Sessions Case No. 58 of 2009. Vide judgment dated February 26, 2011, all the accused except her husband Ravi Prakash were acquitted from all the charges, however, Ravi Prakash was held guilty for the offence punishable under Section 498A and 304B IPC and vide order on the point of sentence dated February 28, 2011, he was sentenced rigorous imprisonment for ten years for the offence punishable under Section 304B IPC and for the offence punishable under Section 498A IPC, he was sentenced rigorous imprisonment for three years and burdened with a fine of ` 10,000/- in default further rigorous imprisonment for six months. Both sentences shall be run concurrently and benefit of Section 428 Cr.P.C. was also given.
5. It was alleged that accused Saheer Devi was arrested on August 8, 2011. Since, she was declared proclaimed offender on July 21, 2009, Section 174A IPC was inserted. After interrogation, her disclosure was recorded. After completing the investigation, challan was filed against her for the offence punishable under Section 498A/304B/174A IPC.
6. After complying with the provisions of Section 207 Cr.P.C, case was committed to the Court of Sessions on October 31, 2011, thereafter case was assigned to this Court on November 21, 2011. Accordingly, case was registered as Sessions Case No. 49 of 2011.
7. Vide order dated January 6, 2012, a charge for the offence punishable under Section 498A/304B/174A IPC was framed to which she pleaded not guilty and claimed trial.
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State verus Saheer Devi
8. In order to bring home the guilt of accused, prosecution had examined as many as following seventeen witnesses:-
PW1 Mr. Mukesh Kumar Bhargav, complainant
PW2 Smt. Vimla Devi, mother of deceased
PW3 Sh. Sampat Kumar Bhargav, jija of
deceased
PW4 Constable Dinesh Kumar, photographer
PW5 Inspector Parmod Kumar, in-charge of
crime team
PW6 HC Rakesh Kumar, joined investigation
with SI Hukum Singh
PW7 SI Dharam Pal, conducted partly
investigation relating to the post-mortem on the dead body PW8 SI Hukam Singh, first investigating officer PW9 HC Shamsher Singh, duty officer, proved DD No. 30A PW10 HC Mange Ram, duty officer, proved the FIR PW11 SI Mahesh Kumar, draughtsman, proved the scaled site plan PW12 Constable Parveen, joined investigation with PW13 PW13 Inspector B.K. Singh, investigating officer, proved the arrest of accused Saheer Devi PW14 Inspector Raghubir Singh, 2nd investigating officer PW15 Sh. Parmod Kumar, Deputy Secretary, the then SDM, Patel Nagar, proved the statement of complainant SC No. 49/2011 Page No. 6 of24 State verus Saheer Devi PW16 SI Suresh Chand, formal witness, recorded the statement of PW2 at her village PW17 Dr. B.N. Mishra, proved the Autopsy Report
9. After prosecution had rested its case, statement of accused under Section 313 Cr.P.C was recorded wherein she admitted that deceased was her daughter-in-law and she was married with her son Ravi Parkash on April 14, 2008 and deceased had stayed 7-8 days at village Itwa Bhadra and thereafter shifted to Delhi and the parents of deceased had given Daan Dahej voluntarily and PW1 had taken back the deceased after about 1 ½ to 2 months of marriage. She further admitted that after the incident, police visited their house and apprehended her son Ravi Prakash and further admitted that her daughter-in-law had committed suicide by hanging herself with the hook of ceiling fan with her chunni. She further admitted that police had arrested her on August 8, 2011 but stated that she had not made any disclosure statement. Except the above, she either denied all other evidence led by prosecution or expressed her ignorance about the same. She took the plea that she had been falsely implicated in this case. However, she preferred not to lead any evidence in her defence.
10. Learned counsel appearing for the accused vigorously contended that the testimony of PW1 and PW2 are not sufficient to bring home the guilt of accused. It was urged that their deposition shows that the demand, if any, was made by Ravi Prakash, husband of deceased and not by the accused. It was submitted that both the witnesses made general and vague allegations against the accused that deceased was being harassed and subjected to cruelty for bringing dowry articles inferior in quality. It was contended that no witness had deposed that accused had demanded any dowry either before the marriage or thereafter. The alleged demand of motorcycle, if any, was made by Ravi SC No. 49/2011 Page No. 7 of24 State verus Saheer Devi Prakash and not by the accused. It was further contended that there is material contradiction between the deposition of PW1 and PW2 as PW2 had deposed about the jewellery articles whereas PW1 did not utter even a single word in this regard. It was submitted that PW1 in his deposition admitted that he had met with the accused only once, which proves that accused had no occasion to make any demand from him. It was further submitted that PW2 had made substantial improvements from his previous statement made in the Court. It was further contended that PW3 Sampat Kumar had not deposed even a single word against the accused. It was argued that accused had been falsely implicated being the mother of Ravi Prakash. It was further submitted that other accused persons namely father-in-law, brother-in-law and sister-in-law of deceased had already been acquitted on the ground that the deposition of witnesses examined by prosecution qua them was not sufficient to prove their guilt.
11. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that once prosecution succeeded in establishing that the deceased was died under circumstances other than normal within seven years of her marriage; and that there was some demand of dowry soon before her death; under Section 113B of Indian Evidence Act, presumption shall be drawn in favour of the prosecution that it was a dowry death. It was contended that in the instant case, it is undisputed fact that deceased had died within seven years of her marriage and her death was under the circumstances other than normal. It was submitted that from the deposition of PW1 and PW2, it is established that soon before her death, motorcycle was demanded from her and when she failed to fulfil their demand, she was beaten badly on the date of incident. It was further contended that PW1 and PW2 also deposed that even prior to the date of incident, deceased was subjected to cruelty for not bringing sufficient dowry and for bringing inferior quality of articles.
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State verus Saheer Devi
12. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that neither of them had either raised any question of law or cited any case law.
13. Before proceeding further, I deem it appropriate to have a look over the settled proportion of law.
14. Section 304B of the Indian Penal Code reads as under :
"304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. - For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
15. The essential ingredients of the said offence are : (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have been occurred within seven years of marriage (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted SC No. 49/2011 Page No. 9 of24 State verus Saheer Devi out to the woman soon before her death.
Explanation appended to Section 304B defines dowry to have the same meaning as contained in Section 2 of the Dowry Prohibition Act, 1961, which reads as under :
"2. Definition of 'dowry'. - In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applied."
16. Parliament has inserted Section 113B in the 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)"
17. The necessity for insertion of the two provisions has been amply stated by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform".
Keeping in view the impediments in the pre-existing law in securing evidence to prove dowry-related deaths, the Parliament in its wisdom thought to insert a provision SC No. 49/2011 Page No. 10 of24 State verus Saheer Devi relating to presumption of dowry death on proof of certain essentials. It is in this background that a provision of presumptive evidence by way of Section 113B in the Evidence Act has been inserted.
18. As per the definition of "dowry death" in Section 304B, IPC and the wording in the presumptive provision of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, is that the 'woman' must have been "soon before her death" subjected to cruelty or harassment "for, or in connection with, the demand for dowry".
19. In Tarsem Singh v. State of Punjab, AIR 2009 SC 1454 it has been laid down that:-
Presumption in terms of Section 113B is one of 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.
20. In Kans Raj v. State of Punjab, AIR 2000 SC 2324, it was held that:
"..........For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusation SC No. 49/2011 Page No. 11 of24 State verus Saheer Devi are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
21. In the light of above settled proposition of law, the deposition of prosecution witnesses will be analysed to ascertain as to whether the same are sufficient to prove the guilt of accused for the offence punishable under Section 304B IPC with the aid of Section 113B of Indian Evidence Act.
22. Though prosecution has examined as many as seventeen witnesses, yet only three witnesses namely PW1 Mukesh Kumar Bhargav, PW2 Smt. Vimla Devi and PW3 Sampat Kumar Bhargav are the star witnesses of prosecution. Before analysing their testimonies, it is pertinent to state that during arguments, learned defence counsel has not disputed that the deceased was the daughter-in-law of accused and she was married with her son Ravi Prakash on April 14, 2008 and died on January 28, 2009, thus, she died within ten months of her marriage. Learned defence counsel has also fairly conceded that since she had committed suicide, her death was otherwise than under normal circumstances, thus fulfils the first two ingredients of Section 304B IPC.
23. Now question arises as to whether the testimony of witnesses examined by the prosecution are sufficient to fulfil the other SC No. 49/2011 Page No. 12 of24 State verus Saheer Devi ingredients of Section 304B IPC or not?
24. Since, PW3 Sampat Kumar Bhargav, jija of the deceased had played the role of middleman in the marriage, I start the discussion with his testimony. In his examination-in-chief, he deposed that in the marriage, as per custom daan-dahej was given to the deceased. He further deposed that after marriage, he had talked with the deceased when she visited her parents house in the month of Sawan and also talked with her on phone and she told him that Ravi was not happy for the arrangements made in the marriage function and also demanded motorcycle in the dowry. He further deposed that deceased had not made any complaint against any other member of her-in laws family. Thus, it is manifested that PW3 had not uttered even a single word against the accused, thus his testimony is not helpful to the prosecution to prove the culpability of the accused.
25. Now coming to the deposition of PW2 Smt. Vimla Devi, mother of deceased. In her examination-in-chief, she deposed that after two months of marriage, when her daughter visited her parents house, she made a complaint that her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law used to harass her for not bringing sufficient dowry and taunted her for the same. Prior to that she had also made the same complaint on phone. She further deposed that her mother-in-law used to taunt her for not giving good quality dresses. She further deposed that, her-in-laws and husband had thrown out Meena from her matrimonial house after giving beating to her on account of not bringing dowry. She further deposed that on January 28, 2009 she had talked with deceased on phone when her husband had made a call to her and at that time Meenu told her that her-in-laws were beating her.
26. There are several contradictions between the deposition of PW1 and PW2, which I shall discuss later on. From the testimony of PW2 SC No. 49/2011 Page No. 13 of24 State verus Saheer Devi it is evident that she had made vague allegations against the accused. Though she deposed that her mother-in-law also used to harass the deceased for not bringing sufficient dowry, yet she did not depose that in- laws had ever demanded dowry or any specific article at the time of marriage. Unless that demand is made, it is not clear on what account she was being harassed. So far the demand of motorcycle is concerned, she categorically deposed that the demand was made by her husband and not by the accused and the same was made after the marriage. Thus, to my mind, said part of deposition is vague, hence no reliance can be placed thereon. Similarly, she deposed that her mother-in-law used to taunt her for not giving good quality of dresses. It means that some dresses were given whereas PW1 deposed that her mother-in-law was annoyed with deceased for not bringing customary 'Orjaria dress' for her mother-in-law. There is no evidence what dresses were given to the deceased, thus, the question of quality of dresses does not arise. Moreover, there is no evidence how her mother-in-law used to taunt her and when and what she taunted her. Thus, to my mind, said part of deposition is also vague and does not inspire any confidence. Though PW2 deposed that her-in-laws and her husband had thrown out from her matrimonial house after beating her and on January 28, 2009 also she was beaten by her-in-laws, but she did not specifically deposed that her mother-in-law had beaten her and threw her out from matrimonial house and she was beaten by her mother-in-law on January 28, 2009. Thus, to my mind, said part of deposition is not only vague but general in nature.
27. At last but not least, PW2 in her cross-examination deposed that after the death of Meenu she never visited Delhi and further deposed that she had not made any statement before the police in Delhi and further deposed that no police official had ever visited her village to record her statement. If her statement was not recorded by the police, question arises how her statement was recorded by the police under SC No. 49/2011 Page No. 14 of24 State verus Saheer Devi section 161 Cr.P.C. Though prosecution case is that PW16 SI Suresh Kumar was deputed to interrogate and record the statement of Smt. Vimla, but his deposition is self contradictory. PW16 in his testimony deposed that the investigation of the case was assigned to him on April 6, 2009, accordingly, he along with constable Ashok reached the house of Smt. Vimla. But in his cross-examination, he deposed that he left for the native village of Smt. Vimla on April 4, 2009. Prosecution failed to convince the Court how he left for the village on April 4, 2009 when first time investigation was assigned to him on April 6, 2009. Further, he admitted that he did not report to the local police. Nor he met with the Pradhan of the village. Thus, there is no documentary evidence to establish that he had visited the said village. Further, he deposed that he had purchased the rail ticket but did not claim reimbursement. It is not clear when he visited the village in connection with the investigation why he had borne the travelling expenses from his own pocket. If PW16 had visited the village of Smt. Vimla and he recorded her statement, there was no occasion for her to hide this fact but she categorically deposed that no police official had ever visited her village to record her statement. This falsifies the claim of the prosecution that PW16 had visited her village to record her statement.
28. From the above, I am of the considered opinion that the deposition of PW2 is not sufficient to prove the culpability of the accused.
29. Now, coming to the star witness of the prosecution i.e. PW1 Mukesh Kumar Bhargav, brother of the deceased.
30. In his examination-in-chief, he made the deposition against the present accused that he had received a phone call from the father-in- law of deceased after 1 ½ month of the marriage and asked him to take back the deceased. Accordingly, he visited the matrimonial house of SC No. 49/2011 Page No. 15 of24 State verus Saheer Devi deceased and met with her-in-laws including mother-in-law. He deposed that at that time, deceased told him that her-in-laws were not happy with the dowry items given by them in her marriage and her-in-laws were also not happy for the food served in the marriage function. He further deposed that deceased told him that the cooler was not of good quality and the iron press was also of inferior quality. He further deposed that deceased told him that her mother-in-law used to taunt her for bringing sub-standardized items in the marriage. She further told that her mother- in-law was annoyed as they had not given 'Ojariya Dress' (customary dress of Rajasthan) to her mother-in-law and she used to taunt her for the same. He deposed that thereafter he along with deceased come back to Jaipur. At that time, deceased told that her husband, mother-in-law, father-in-law, dever and sister-in-law used to beat her for not bringing sufficient dowry. As per his deposition, deceased was sent to her matrimonial house after about 1 ½ months on the assurance of father of father-in-law of the deceased. According to his testimony, after about 10-15 days, deceased had made a phone call to PW1 and informed him that her in-laws and her husband were taunting her for sub-standard dowry items. He deposed that on the eve of Deepwali, deceased visited her parents house along with her brother-in-law and at that time she told that the behaviour of Ravi Prakash was not good towards her. He further deposed that when on January 28, 2009, he talked with the deceased on phone, she told him that all the accused including her mother-in-law were beating her like a dog. She was weeping and crying on the phone and when he talked with her mother-in-law, she asked him to take back the deceased. He further deposed that he met with the accused only once after marriage.
31. The deposition of PW1 to the extent that after reaching Jaipur, deceased told him that she was used to be beaten by her husband, mother-in-law, father-in-law, dever and sister-in-law for not SC No. 49/2011 Page No. 16 of24 State verus Saheer Devi bringing sufficient dowry, was duly confronted in his cross-examination with his previous statement Ex. PW1/A, which he made before the SDM wherein it was not recorded so. He further admitted in his cross- examination that he did not state before the SDM in his statement Ex. PW1/A that deceased told him that her in-laws and husband taunted her for bringing sub-standard dowry items. He further deposed that he did not remember the date and month and year when deceased told him the said fact to him. He failed to furnish any explanation why he had not recited the above incriminating facts before the SDM. In the absence of any just and reasonable explanation, I am of the view that PW1 had made improvements in his deposition by adding the above incriminating facts, thus, no reliance should be place thereon.
32. His deposition against the accused to the extent that deceased told him that her mother-in-law used to taunt her for bringing sub-standardized items in the marriage and she was annoyed as they had not given 'Ojariya Dress' (customary dress of Rajasthan) to her mother-in-law and she used to taunt her for the same are general in nature as he failed to deposed how and what manner accused used to taunt the deceased. Moreover, there is contradiction between the testimony of PW1 and PW2 in this regard. PW1 deposed that her mother-in-law was annoyed as they had not given the 'Ojariya dress' in the marriage whereas PW2 deposed that her mother-in-law used to taunt her for not giving good quality dresses. Neither PW1 nor PW2 deposed about any other dresses. PW2 did not depose that accused used to taunt her for not bringing the 'Ojariya dress'. Though PW2 deposed that after Deepwali, deceased was thrown out from her matrimonial house after giving beating, PW1 did not utter even a single word about the said incident. On the converse, PW1 deposed that deceased visited her parents house on the eve of Deepwali along with her dever, but PW2 did not depose of her said visit.
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33. Similarly, PW1 had made substantial improvement in his deposition by inserting the facts that when he visited the deceased at village Itawa, Bhadal, deceased had made a complaint about the dowry and harassment caused to her by in her-in-laws and husband. But this fact he neither recited in his statement Ex. PW1/A, nor before the police, nor he informed about the said incident to his parents. On the contrary, he deposed that when he along with others visited the village, they were attended properly by the in-laws of deceased. He further deposed that he did not make any complaint to the in-laws of deceased at that time. In these circumstances, I am of the opinion that PW1 had made substantial improvement in this regard in his deposition, thus, same does not inspire any confidence.
34. PW1 in his examination-in-chief deposed that when on January 28, 2009 he talked with the deceased, she told him that all the accused namely her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law were beating her like a dog. It means that five persons were beating her very badly. But this portion of his deposition does not get strength from the autopsy report exhibited as Ex. PW17/A wherein it is mentioned that deceased has sustained two abrasion marks on the right side of face and right side of ear besides the ligature marks on the neck. Except the above injuries, no other injury was found on the entire body of the deceased. If deceased was beaten by five persons like a dog as deposed by PW1, there should have been more injuries on the dead body of deceased. These two abrasions reddish in colour could be caused due to hanging. In the absence of any corroborative evidence, I am of the view, it will not be safe to rely upon the above testimony of PW1.
35. In his cross-examination, PW1 deposed that he had made a SC No. 49/2011 Page No. 18 of24 State verus Saheer Devi phone call to deceased on January 28, 2009 at about between 1:30 PM to 2:00 PM and thereafter he informed his father, who was in village at that time whereas PW1 was in his office in Jaipur. He further deposed that on that day he went to his village in the evening as per his daily routine. If his sister informed him on phone that she was beaten like a dog by five members of her-in-laws family, but he did not deem even fit to rush to his house to decide the further action, rather, he preferred to follow his daily routine. The conduct of PW1 further casts a doubt as to whether deceased had informed him that she was beaten like a dog by her-in-laws including accused.
36. PW2 deposed that on January 28, 2009 she had also talked with the deceased. CDR of phone no. 97113-57802 exhibited as Ex. PW14/E reveals that phone call was received from 90019-49864 thrice on January 28, 2009 between 14:27:13 hours to 15:08:55 hours and talked about 1267 seconds. As per prosecution case, former mobile phone belonged to the in-laws of deceased whereas the latter one belonged to the husband of PW2. From Ex. PW14/E, it also reveals that PW1 had made two calls; first at 13:56:55 hours and second time at 14:24:43 hours and talked firstly about 2 minutes and thereafter at about 144 seconds. It means that PW1 and PW2 had talked with deceased from 13:56:55 hours to 15:08:55 hours. Since PW1 and PW2 deposed that when they talked with deceased, she told them that she was being beaten by her husband and all in-laws including accused. It looks quite absurd that on the one hand, accused were beating her and simultaneously she was talking with her brother and mother. It is pertinent to state that witnesses did not depose that deceased told them that the accused had beaten her earlier, rather, they deposed that accused were beating her. It is also undisputed fact that the said phone did not belong to the deceased but belonged to the father-in-law of deceased. PW1 in her cross-examination admitted that deceased used to SC No. 49/2011 Page No. 19 of24 State verus Saheer Devi talk from the mobile phone of her in-laws. If it was so, it is seldom to believe that in such a situation her father-in-law would give his phone to the deceased to talk with her parents. Assuming for the sake of arguments that deceased was beaten when PW1 and PW2 made a phone call to her. But in that situation, there must be some ostensible injuries on her body, which were missing during the autopsy. Thus, the testimony of PW1 and PW2 to the extent that when they talked with deceased on phone, she told that she was beaten badly like a dog, does not inspire any confidence.
37. Further, from Ex PW14/E it is evident that PW2 and her husband had talked with deceased and her father-in-law for 1267 seconds, it means more than 21 minutes. It means that they had talked with deceased and her father-in-law for long time. Despite that she failed to depose what exactly had been conversed between her and deceased and between her husband and father-in-law of deceased. This further casts a doubt over the deposition of PW2 that deceased had told that that she was being beaten by her-in-laws.
38. PW1 in his cross-examination attempted to establish that the dowry articles were purchased by him when he deposed that at the time of Bidai, they had given one double bed, fridge, T.V., washing machine, cooler, fan, stitching machine, iron press, ovan, mixer suit-case and other items. He further deposed that all the above articles were purchased from Jaipur and he had taken the receipt of all the items but did not handover the same to the police as police did not ask for the same. On the contrary his mother PW2 deposed that her brother had gifted fridge, her one dever gifted almirah and another dever gifted cooler. Thus, as per the testimony of PW2 most of the items were gifted by the relatives of PW2 and not purchased by PW1 as deposed by him. Further, PW2 deposed that she had given gold and silver items to the deceased SC No. 49/2011 Page No. 20 of24 State verus Saheer Devi but PW1 did not utter even a single word; nor it was a prosecution case.
39. Indisputably, both the parties were not financially sound. Due to that reason, PW1 admitted in his cross-examination that no special menu was prepared at the time of marriage function and deposed that only two sweets, namkeen, puri-sabzi and raita were served in the marriage party. He further deposed that he did not know what gifts were given to the bridegroom and his relatives at the time of engagement and further deposed that he did not know whether any gift was given to them in the marriage or not. There is no evidence that at the time of marriage, accused or her husband had made any demand of dowry. Whatever articles were given by the relatives of deceased, were given voluntarily. In these circumstances, it looks quite improbable that accused would harass the deceased for not bringing sufficient or sub-standard items to that extent that Meenu would decide to end her life.
40. As held in Kans Raj (supra), it appears more plausible that accused's name had been inserted in the case being the mother of bridegroom Ravi Prakash without attributing any specific role to accused in the incident as there is tendency in such type of cases to rope in all the family members of husband.
41. Pondering over the ongoing discussion, I am of the considered opinion that the testimony of PW1 to PW3 are not sufficient to bring home the guilt of accused within the four corners of Section 304B and 498A IPC.
42. Indisputably, accused was declared proclaimed offender on July 21, 2009 by the Court of Sh. Ashu Garg, learned Metropolitan Magistrate. PW14 proved this fact. Thereafter, accused surrendered herself before the Court by moving an application on August 8, 2011.
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State verus Saheer Devi
Thereafter, PW13 arrested the accused after taking permission from the Court. In order to save the accused from conviction, learned defence counsel submitted that accused was not aware that she was wanted in this case otherwise she would herself surrender before the police or Court. But the said contention is without any substance. It is admitted case of the accused that all her family members were facing trial in the said case and their case was contested by none else but by Sh. S.H. Khan Advocate. Despite that he took the plea that accused was not aware that she was wanted in this case. In my opinion the said contention is devoid of merit. Since, accused was declared proclaimed offender, I am of the view that accused is guilty for the offence punishable under Section 174A IPC.
43. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Saheer Devi beyond the shadow of all reasonable doubts for the offence punishable under Sections 304B read with 498A IPC, thus, I hereby acquit her thereunder. However, prosecution has succeeded to establish the guilt of accused Saheer Devi under Section 174A IPC beyond the shadow of all reasonable doubts, thus, I hereby hold the accused Saheer Devi guilty for the offence punishable under Section 174A IPC.
Announced in the open Court On 26th day of October 2012 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central District, Tis Hazari Courts Delhi SC No. 49/2011 Page No. 22 of24 State verus Saheer Devi IN THE COURT OF SH. PAWAN KUMAR JAIN, ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI SC No. 49/11 ID No: 02401R0511652011 FIR No. : 04/09 PS. : Anand Parbat U/S : 498A/304B/174A IPC STATE VERSUS Saheer Devi W/o Sh. Om Prakash H. No. F-94, Punjabi Basti Baljeet Nagar Anand Parbat, New Delhi.
........Convict Present Sh. R.K. Tanwar, learned Additional Public Prosecutor for the State Sh. S.H. Khan Advocate, learned counsel for convict ORDER ON THE POINT OF SENTENCE (ORAL):
1. Vide separate judgment dated October 26, 2012, accused Saheer Devi has been held guilty for the offence punishable under Section 174A IPC.
2. Learned counsel for convict requests to take a lenient view on the grounds that she was arrested on August 8, 2011 and released on bail on June 2, 2012, thus remained almost about eight months in SC No. 49/2011 Page No. 23 of24 State verus Saheer Devi custody after excluding the period of interim bail. It is further submitted that she has no criminal antecedents and she is an old lady of about 55 years of age. Learned counsel requested to release the convict for the period already undergone.
3. Per contra, learned Addl. P. P. requests for some substantial punishment on the ground that she deliberately evaded the trial.
4. I have heard rival submissions advanced by the counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. No doubt, the convict evaded the trial by absconding, however considering the fact that she has been acquitted from the substantial charges, I am of the considered view that ends of justice will be met, if convict be sentenced for the period already undergone. Thus, I hereby sentence the convict Saheer Devi for the period already undergone for the offence punishable under Section 174A IPC.
6. Copy of judgment along with order on the point of sentence be given to the convict/her counsel free of cost.
7. File be consigned to record room.
Announced in the open Court On this 26rd day of October, 2012 (PAWAN KUMAR JAIN) Additional Sessions Judge Central-01/THC/DELHI SC No. 49/2011 Page No. 24 of24