Delhi District Court
State vs (1) Ravi @ Ravinder S/O. Shri on 25 April, 2012
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.21/09.
U/S.498A/304B/406/34 IPC.
FIR No.193/08.
PSALIPUR.
STATE VS (1) RAVI @ RAVINDER S/O. SHRI
DAYANAND, R/O. VPOTAJPUR KALAN,
ALIPUR, DELHI.
(2) JAGBIR @ KALA S/O. SHRI DAYA
NAND @ DAYA RAM @ DAYA R/O. VPO
TAJPUR KALAN, ALIPUR, DELHI.
(3) DAYANAND @ DAYA s/O. LATE
SHRI SITA RAM, R/O. VPOTAJPUR
KALAN, ALIPUR, DELHI.
(4) BRAHMO DEVI W/O. DAYANAND,
R/O. VPOTAJPUR KALAN, ALIPUR,
DELHI.
Date of Institution in the Sessions Court :28.05.2009
Date of Arguments:10.04.2012
Date of Judgment :25.04.2012
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JUDGMENT:
1. The brief facts of the prosecution are Jyoti a young woman was admitted in the Satyawadi Raja Harishchandra Hospital (SRHC), Narela on 18.8.2008 where doctor has declared her brought dead. In the hospital , Rakesh Kumar, brother of deceased and Mother met with SDM and alleged that Jyoti was treated with cruelty by her husband and in laws for demand of dowry. SDM recorded statement of Rakesh Kumar and Smt. Kela Devi (mother of deceased).
Rakesh Kumar stated that her sister Jyoti was married on 11.2.2005 with accused Jagbir @ Kala and in the marriage they have given sufficient dowry. She was kept well for two months and thereafter her in laws started her harassing for bringing Rs.2 lakhs, which they could not give and only some of the amount given, therefore, accused persons continued to harass her. She was not taken back for 9 months after birth of the daughter of her sister. Thereafter, they took her under the social 3 pressure. Their they again treated her with cruelty. Her in laws levelled false allegations of theft of jewellery. On 18.8.2008 he received a call from his jija i.e. accused no.2 Jagbir @ Kala that his sister Jyoti had consumed something and she was admitted in the hospital, when they came to know that his sister had expired.
On the said statement present FIR No.193/08 under Section 498A/304B/406/34 IPC was registered at PS Alipur. During the investigations accused persons were arrested. Statement of witnesses were recorded. Postmortem of deceased was conducted. Doctor K. Goel after after seeing the Viscera Report opined that, "deceased had died due to consumption of organo phosphorus insecticide, which is a poison". Hence, after completion of the investigations, chargesheet was filed by the IO under Section 498A/304B/406/34 IPC before the ld. MM. The accused persons were put to trial.
2. After compliance of provision of Section 207 Cr.P.C. the 4 session case was committed to the court of Session, vide order dated 19.05.2009. Thereafter, same was assigned to this court for trial in accordance with the law.
3. Vide order dated 10.08.2009 my ld. Predecessor has framed the charges u/s. 406/498A/304B/34 IPC against all the accused persons to which they pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examined 19 witnesses.
PW1 Dr. Avdesh Kumar Bhagat has deposed that on 18.8.2009 he examined patient Jyoti, who was brought by her mother in law and husband. On examination he found her died. He prepared the MLC of the deceased Jyoti and he has proved the MLC as Ex.PW1/A. PW2 Rakesh Kumar is the complainant, as well as, brother of the deceased. PW2 Rakesh Kumar has deposed that on receiving the information from his Jija i.e. accused No.1 Jagbir @ Kala that his sister 5 Jyoti had consumed something. He reached at SRHC Hospital where he found his sister had already expired. Thereafter, he reported the matter to the police and later on SDM has recorded his statement Ex.PW2/A. PW2 has testified that deceased Jyoti was his younger sister and she was married with accused Jagbir @ Kala on 11.11.2005. On the demand of accused Dayanand (father in law) and Brahmo Devi (mother in law). They had given in dowry one motorcycle, 17 tola of gold articles and another domestic articles like TV, Fridge etc. The matrimonial life of his sister sail smoothly for about two months and thereafter his Jija started demanding Rs.2lakhs from his sister for purchasing car for themselves. But they told to the accused persons that they had already spent huge amount beyond their capacity and were not in a position to give Rs.2lakhs to them, despite that he had given Rs.25,000/ to accused Jagbir, but even thereafter, she was taunted by accused Brahmo Devi for bringing less dowry and asked his sister for more dowry and more dowry articles and they harassed her, 6 and despite tried to make understand the accused persons, not to harass their sister, but they did not pay any heed to their requests and continued to demand Rs.2 lakhs. On 05.01.2006, accused Jagbir took his sister to her parental house as he will not bear the expenses of her delivery. He bring her back and got admitted her in the Nursing Home at Bawana, where her sister gave a birth of female child, but despite information, nobody came from the family of her in laws and she remained in her parental house for about 9 months and only after social pressure, accused took Jyoti with them. But after reaching there they have increased torturing on his sister for not bringing Rs.2lakhs and said that, "who will bear the expenses of female child". One day accused persons have levelled false allegations of theft of gold ornaments against his sister and police was informed. Thereafter, accused felt apology. But even after they continued to torture for Rs.2 lakhs.
On 14.08.2008, her sister made a call to him that her in laws 7 were beating her for bringing for Rs.2 lakhs for the festival of Raksha Bandhan and saying that, 'if she will not bring the money, she need not to came back. On the next day they repeated same demand, when this fact were told to him and his brother and mother deceased Jyoti. On 17.08.2008 also he went to the house of accused and gave Rs.5000/ to her mother in law, but accused Jagbir @ Kala and brother in laws and her father in law started giving beating to his sister and also abused her and saying that, 'why she has came back and not brought Rs.2 lakhs. He requested them to give sometime and came back to the house on 18.8.2008. He received the information from accused Jagbir @ Kala that her sister consumed something. He reached at the hospital, where he found her sister dead.
He was confronted with respect to fact that Dayanand and Brahmo Devi had demanded Rs.1 lakh cash etc from his statement Ex.PW2/A where it was not mentioned that they gave Rs.1 lakh cash, 8 motorcycle etc., as no demand of Dayanand and Brahmo Devi. He stated that he do not remember whether he stated to SDM his Jija Jagbir and his younger brother Ravi @ Ravinder started Rs.2 lakhs from his sister for purchasing the car. He denied the suggestion that this fact was never told to him by his sister. He admitted that he did not state to SDM that he paid Rs.25,000/ to his Jija Jagbir and when he paid. He denied the suggestion that he did not state this fact, as no such amount was paid. He was also confronted to the fact that mother in law of Jyoti taunting his sister for bringing less dowry and that they tried to understood accused persons not harass her. That on 05.01.2006 his jija telephoned him to take his sister back, as they could not bear expenses of delivery or that on 06.01.2006 he brought his sister to his house and on next day admitted in the hospital or that after the delivery of child the accused persons started torturing his sister continuously for bringing Rs.2 lakhs. He denied the suggestion that he did not disclose true fact in his statement as no such incident had 9 happened. He admitted that he had not stated to the SDM that on 14.8.2008 his sister made a telephone call to him and disclosed that accused persons were beating her and she told him that accused persons had asked to bring Rs.2 lakhs as the testimony of Rakesh and Brahmo Devi. He denied the suggestion he did not disclose these facts as no such incident of bearting happened and his sister did not disclose the said facts. He stated that he does not remember whether he told to SDM that he brought his sister to his house on the occasion of Raksha Bandhan. He denied the suggestion that he did not bring his sister to his house on Raksha Bandhan. He also statede that he do not remember whether he told to SDM that on 17.8.2008 he went to the house of accused alongwith his sister and gave Rs.5000/ to the mother in law of his sister. He denied the suggestion that no such incident had happened. He admitted that he did not disclose that after sometime, accused Jagbir, father in law came and given beating to Jyoti and abused her and said that, if Rs.2lakhs have 10 not been arranged then what was the need to bring Jyoti.
PW3 Rupesh Kumar Gupta is the Jeweller. He has deposed that jewellery articles have been purchased by the deceased's parents vide receipts Ex.PW2/E, Ex.PW2/F and Ex.PW2/F1. In the cross examination he admitted that the abovesaid exhibited receipts are not bill but only rough estimates. He denied the suggestion that these documents were prepared on the behest of the complainant.
PW4 Deepak has also reiterated almost the same facts as deposed by PW2 Rakesh Kumar in his statement.
PW5 Sukhbir Singh was the then Executive Magistrate. He deposed on the instruction of SDM, he reached at hospital and recorded the statement of complainant. Rakesh Kumar, Deepak and brother of deceased and Kela Devi, Mother of deceased Ex.PW2/B, Ex.PW1/A and Ex.PW5/B respectively. In his cross examination he did not remember father of deceased was present at BJRM Hospital or not. 11
PW6 SI Ajit Singh is the duty officer, he recorded the FIR No. 193/08 Ex.PW6/A and also proved the DD No.30A. He was not cross examined.
PW7 SI Mohd. Ismail is the first IO of the case. He has deposed on 18.08.2008 on receiving the DD No.61B he has gone to the SRHC Hospital. He also called the SDM of the area and in his presence. Tehsildar Sukhvir, who was having power of Executive Magistrate came at BJRM Hospital and conducted inquest proceedings. He also recorded the statement of mother Kela Devi and brother Rakesh Kumar of the deceased. Doctor has handed over him pullandas containing Viscera, which he seized vide memo Ex.PW7/C. In his cross examination he stated that he received DD No.61B at 10pm. At about 10 a.m. on next day Tehsildar Sukhbir reached at the Hospital and remained there for about 45 minutes. He denied the suggestion that SDM did not record the statement of relative of the deceased.
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PW8 Ct. Naresh Kumar was the IO of the case. He has deposed that on 12.11.2008 in his presence, accused Dayanand was arrested vide Arrest Memo Ex.PW8/A and personal search was taken vide memo Ex.PW8/B. He was not cross examined.
PW9 Ct. Nandu Bhagat. He deposed that on 18.8.2008 he had shifted the dead body of the deceased from the SRHC Hospital to BJRM Hospital mortuary. He was not cross examined.
PW10 HC Kaushal Pratap. He has deposed that on 05.05.2008 recorded the DD No.15A Ex.PW10/A. He was not cross examined.
PW11 Dr. Rishi Parkash Singh deposed that on 19.08.2008 he had conducted the postmortem on the body of the deceased Jyoti. He proved the PM Report as Ex.PW11/A. In his cross examination he admitted that he was not sure of caused of death and due to said reason he preserved the viscera. He further stated that preservation of blood is 13 important. The blood was also preserved. He denied the suggestion that in case of poisoning there should be vomiting. He admitted that brain oedema and congestion can be present in case of epileptic fit. He further stated that mild atrophy cannot be rule out. There was no external injury.
PW12 HC Brijesh was the witness of arrest of accused Jagbir. He deposed that on 16.10.2008, he was the witness of arrest of accused Jagbir and proved the Arrest memo Ex.PW12/A in his presence and also accused got recovered Ishtridhan, which was seized vide memo Ex.PW2/K. In his cross examination he stated one day PC of accused was taken on 16.10.2008. He do not remember whether any neighbour was collected or not.
PW13 WCT Poonam is the witness of arrest of accused Brahmo Devi. She deposed that on 12.11.2008 accused Brahmo Devi was arrested and proved Arrest Memo Ex.PW13/A and her personal search was conducted vide memo Ex.PW13/B. She was not cross examined. 14
PW14 Ct. Surender is the witness of arrest of accused Ravi @ Ravinder. He deposed that on 12.11.2008 accused Ravi @ Ravinder was arrested vide Memo Ex.PW14/A and his personal was conducted vide memo Ex.PW14/B. He was not cross examined.
PW15 HC Ram Niwas has deposed that on 5.5.2008 he recorded the statement of deceased Jyoti during investigation on receipt of DD No.15A. In his cross examination he admitted that there was no allegation of theft against Jyoti. He denied the suggestion that he did not record statement of Jagbir, same is fabricated in his name.
PW16 Ct. Surya Prakash has deposed that on 18.8.2008 he has recorded the DD No.16B and proved the same as Ex.PW7/A. He was not cross examined.
PW17 SI Bharat Bhushan is the IO of the case and he has deposed that on 19.09.2008 investigation was assigned to him on 19.09.2009. He recorded statement Rakesh Kumar, Ddeepak and Smt. 15 Kela. On 19.09.2008 Rakesh has pointed one list of jewellery items Ex.PW2/D and receipt of purchase of jewellery Ex.PW2/E, PW2/F1, Ex.PW2/F and CD Ex.PW2/1 and thereafter CD Ex.PW2/5, which he seized vide seizure memo E.xPW2/C. On 16.10.2008 accused Jagbir surrendered before the court. He arrested accused Jagbir Ex.PW12/A, his disclosure statement Ex.PW12/C was recorded by him. One day PC was taken. He seized Istridhan of deceased vide Ex.PW2/K at the instance of accused Jagbir. He prepared list of unrecovered Istridhan Ex.PW2/C at the instance of Rakesh Kumar. He collected proceedings of May, 2008 incident i.e. DD No.15A, statement of Jyoti and Jagbir Ex.PW15/A and Ex.PW15/B respectively. On 12.11.2008 accused persons Brahmo Devi & Dayanand before the court. He admitted that he deposited viscera in FSL, Rohini on 29.10.2008. Collected the FSL Report Ex.PW17/A after subsequent opinion on cause of death of deceased from Dr. Kulbhushan Goel.
In his cross examination, he admitted that he did not examine 16 any neighbourer of the accused, as well as, complainant side. He denied the suggestion that neighbour told him that there was no harassment or demand of dowry. He did not seize any photograph of the marriage. He did not come to know marriage was simple affair. He did not sent Ex.PW2/H for FSL Examination for comparison. He did not seize any document, which can show that the dowry articles is mentioned in Ex.PW2/K were given to the accused persons nor examined any witness in this regard.
PW18 HC Desh Pal is the MHC(M), who proved that on 18.8.2008 Viscera was deposited with him and same was sent to FSL on 21.10.2008 and he proved the relevant record Ex.PW18/A. In his cross examination he admitted that entry Ex.PW18/A was not made in his presence or that entry at point X was not made in his presence and he is not familiar with handwriting of HC Mahender Singh.
PW19 Dr. K. Goel has given the subsequent opinion regarding caused of death on the Postmortem Report and proved the same as 17 Ex.PW11/A. In his cross examination he denied that there is any possibility that death can occur due to contamination and mixing with edible food. He stated that acute poisoning lead to death, sufficient quantity of poison is required .
5. Statement of accused persons u/s. 313 Cr.P.C. have been recorded separately, to which they pleaded their innocence and denied all the incriminating evidence put to them. But they did not prefer to lead any evidence in their defence.
6. Shri S.C. Sroai, ld. Addl. PP for the State has argued that from the statement of PW2 Rakesh Kumar and PW4 Deepak it is proved that accused persons have demanded Rs.2lakhs for purchasing the car and on nonfulfillment of the said demand they harassed the deceased Jyoti. The said harassment continued till her death. Hence, prosecution has been able to prove that there was demand of dowry soon before the death and deceased had died within seven years of her marriage unnatural death, 18 therefore, offences are proved against the accused persons.
7. On the other hand, Shri R.S. Malik, ld. Defence counsel has argued that testimony of PW2 Rakesh Kumar and PW4 Deepak so full of contradictions and improvements from their earlier testimonies recorded by the SDM and that cannot be relied at all. He further argued that from their statement recorded by the SDM, it is proved that there was no demand for dowry soon before death, hence, offence u/s. 304B IPC is not made out, as the incident deposed by them in their testimonies of 14 to 17.8.2008 for proving the demand of dowry soon before death are nothing, but improvements and same cannot be considered. He further argued that in the statement Ex.PW2/A no date or time has been mentioned when the alleged demand was made or when she was tortured for non fulfillment of demand of dowry, but in the testimony given in the court specific dates have been given regarding the demand of dowry by the accused persons to fill up the lacuna, as they were very well aware that from their statement 19 Ex.PW2/A, no offence u/s. 498A/304B IPC are made out. Therefore, these improvements made in the testimony cannot be considered at all and it make both the witnesses unreliable. He further argued that prosecution has deliberately held back mother of the deceased as she was not going to support the prosecution case, hence, benefit of her nonexamination will go to the accused persons. Ld. Counsel for the accused persons further argued that no date or time has been mentioned when the alleged dowry articles were entrusted to the accused persons or when they have demanded the same back. Hence, even offence u/s. 406 IPC is also not made out. Therefore, accused persons are entitled for acquittal.
8. The accused persons have been charged for offence u/s. 498A/304B/406 IPC, vide order dated 10.08.2009.
Section 304B IPC 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 20 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 purposes of this subsection, "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 terms which shall not be less than seven years but which may extent to imprisonment for life.
A legal fiction has been created as per Section 304B IPC. If it is established that soon before the death, the deceased was subjected to cruelty or harassment by her husband or any of his relative, for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The Parliament has also inserted Section 113B in the Evidence Act, 1972 which reads as under : 113B Presumption as to dowry death When the question is whether a person has 21 committed the dowry demand of a woman and it is shown that soon before her death such woman had 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.
ExplanationFor the purposes of this section, "dowry death", shall have the same meaning as in Section 304B of the Indian Penal Code. The combined reading of Section 304B IPC and Section 113B, Evidence Act, 1872 reflects a presumption if the prosecution establishes the following circumstances as set out in Section 304B IPC:
i) The death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;
ii) Such death occurs within 7 years from the date of marriage;
iii)The victim was subjected to cruelty or harassment by her husband or relatives of her husband;
iv)Such cruelty or harassment should be for or in connection with demand of dowry; and
v) Such cruelty and harassment was made soon before her death.
Section 498A Section 498 reads as under : Husband or relative of husband of a woman subjecting her to cruelty: 22 Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation--for the purpose of this section, "cruelty" means--
a)any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
The object of introducing Chapter XXA containing section 498A IPC was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A IPC was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. It must be established that the cruelty or harassment to wife was to force her to cause bodily injury to herself or to commit suicide or the harassment was to 23 compel her to fulfill illegal demand for dowry.
9. The case of the prosecution is that victim Jyoti was married to the accused Accused No.2 Jagbir @ Kala and after the marriage, accused persons demanded Rs.2lakhs and due to non fulfillment of said demand they harassed the deceased, due to which she had committed suicide by consuming poison. Though in the chargesheet prosecution has cited 21 witnesses, but only 19 witnesses have been examined and out of which four witnesses were family members of the deceased, who were cited as witnesses, but only two witnesses i.e. Rakesh and Deepak, who were brothers of the deceased have been examined as PW2 and PW4 respectively.
10. It is not disputed by the accused persons that marriage of the deceased Jyoti and accused Jagbir was performed on 11.11.2005, whereas deceased had died on 18.8.2008. hence, deceased Jyoti had died within seven years of her marriage.
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11. The medical evidence led by the prosecution proved that deceased has not died under normal circumstances. PW11 Dr. Rishi Prakash had deposed that on 19.8.2008 he has conducted the postmortem examination on the dead body of deceased Jyoti had found following injuries on the body of deceased: EXTERNAL INJURIES No external ante mortem injuries were present on the body. INTERNAL INJURIES Brain was oedematous and congested. Both lungs were oedematous and congested. Petechial haemorrhages were present on the inter lobar surfaces. Petechial haemorrhages were present on ventricular surfaces of the heart. Liver, spleen, kidneys were congested. About 200ml of greyish colour fluid mixed with black particles was present. Walls were haemorrhagic and congested.
Cause of death in this case could only be given after receiving the Viscera Report.
12. In Viscera Report of the deceased Jyoti Ex.PW17/A, it is 25 mentioned Ex.1A, which is sample of stomach and piece of small intestine. Ex.1B i.e. pieces of liver, spleen and kidneys and Ex.1C i.e. blood sample find containing Organic Phosphorus pesticides, which is a poison. On the basis of said FSL Report PW19 Dr. K. Goel had opined in his report Ex.PW19/A that, 'the cause of death of deceased Jyoti was respiratory distress and cardiac anoxia consequent upon organo phosphorus poisoning'.
He was cross examined at length by the ld. Defence counsel and was asked following questions: Q Am I correct that in case of poisoning patient vomits with blood?
Ans Not always. It is correct that as per postmortem there was no blood discharge from mouth. There was no blood stained over the deceased clothes.
Q Am I correct that in case of poisoning there will be swelling and erosion of tongue and oesophagus?
Ans It is not correct in all types of poison. Q Have you gone through the brief facts of this case before giving the subsequent opinion? Ans No. Vol. My subsequent opinion is based on postmortem
findings observed by Dr. Rishi Prakash Singh and FSL report as this postmortem examination was not conducted by me.
26Q Am I correct that in case of poison there will be a foul smell from the mouth of the patient?
Ans Not always, except few poisons others have their particular abnormal smell which could be identified grossly sometimes. It is incorrect to suggest that in every case of poisoning there will be foul smell from the mouth of the body of the deceased. There is no smell is mentioned in the postmortem report ExPW 11/A. Q Am I correct that the Dr. who conducts the postmortem would be in a better position to give the cause of death rather than the Dr. who may go through the postmortem report and FSL?
Ans Yes. It is correct. Q Accidental poisoning leading to death can occur due to
contamination and mixing with edible food products like wheat, flour and sugar?
Ans Always such possibility is not likely because in acute poisoning leading to death, sufficient quantity of poison is required and a normal healthy person sometimes can smell the abnormality in the odour of the food products. It is correct that quantity of poison is not mentioned in the FSL report ExPW 17/A. On appreciation of the testimony of PW19 Dr. K.Goel, I found that there is nothing in the aforesaid cross examination, which could disprove the fact that deceased had died by consuming poison, which as per the FSL Report was Organo Phosphorus. In Modi's Medical Jurisprudence and Toxicology (Twenty Second Edition) in page no.88, symptom of organo phosphorus has been mentioned as under: 27 "Postmortem appearance suggest asphyxial death. M.R. Limya reporting on 76 necropsies, found congested face dried oronasal blood stained froath, acute pulmonary oedema and sometiems, soft flabby hard muscle. The stomach contents were sometimes blood stained, mucosa was congested and submucosa petechial haemorrhages were seen in many cases. In the brain, petechial haemorrhages were seen in eight cases and surface echymosis in three cases".
Same of the symptoms as mentioned above have been mentioned in the Postmortem Report Ex.PW11/A of deceased Jyoti, hence, it is proved that deceased die due to consuming organo phosphorus poison. Therefore, it is proved that she had died other than normal circumstances.
13. Now the next and most important ingredient of Section 304B IPC whether soon before death of deceased was subjected to cruelty or harassment by her husband or any relative of her husband in connection with the demand of dowry. If prosecution is able to prove that soon before death deceased was subjected to cruelty for demand of dowry mere 28 then presumption u/s. 113 B of the Indian Evidence Act shall be raised against the accused persons that they had caused dowry death. But initial burden to prove that she was subjected to cruelty is on prosecution.
14. Soon before the death depend upon the facts and circumstances of each case. No definite interpretation of soon before death can be given. It normally conveys that the interval should not be much between cruelty harassment and the death in question. There must be proximity and live link between the cruelty caused due to dowry demand and death of deceased. In this case it is alleged by the prosecution that after two months of marriage, accused persons started demanding Rs. 2lakhs for purchasing the car and that demand continued till her death.
15. Whether their demands comes in the dowry or not is to be seen. The word dowry in Section 304B IPC has to be understood, as it is defined in Section 2 of the Dowry Prohibition Act, 1961, 'the word dowry means any property or valuable security given or agreed to be given either 29 directly or indirectly ; (i) by one party of the marriage to the other party of the marriage, (ii) by the parents of either party to a marriage or by any other persons but either party to the marriage or to any other person.
16. In Satvir Singh & Others Vs. State of Punjab and Anr. [2009 SCC 633] it is held that, 'there are three occasions related to the dowry, one is before the marriage, second is at the time of marriage and third is at any time after the marriage. The third occasion may appear to be a unending period. But the crucial words are that, "in connection with the marriage of the said party". This means that giving or agreeing to give any property or valuable security or any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment or giving property as between the spouses. For example customary payments in connection with birth of a child or other like ceremonies are proceeded in different societies. Such payments are not enveloped within the ambit of dowry.
Hence, the dowry mentioned in the Section 304B IPC should 30 be any property or valuable security given or agreed to be given in connection with the marriage.
In Hira Lal and Others V State (Govt of NCT) Delhi, (2003) 8 SCC 80, the Supreme Court of India observed that the expression "soon before her death" used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it 31 would be of no consequence. if Section 304 IPC is to be invoked. But it should have happened "soon before her death". The said phrase no doubt is an elastic expression and can refer to a period either emotionally before her death or within few days or few weeks before it. But proximity to her death. No definite period has been indicated and expression "soon before"
is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before"
would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based 32 on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
The same opinion was expressed by the same learned Judge in Kaliya Perumal and Another V. State of Tamil Nadu, [(2004) 9 SCC 388, 157 Para 4] and Kamlesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar. [(2005) 2SCC 388, Para 10] also in State of A.P. v. Raj Gopal Asawa and Another, [(2004) 4 SCC 470.
17. Now in the light of the aforesaid provisions of law and pronouncement made by the Hon'ble Higher Courts, I shall appreciate the testimony of PW2 Rakesh Kumar and PW4 Deepak.
PW2 Rakesh Kumar has testified that his sister was married on 11.2.2005 and on the demand of accused persons Dayanand and Brahmo Devi they have given Rs.1 lakh cash and other domestic articles i.e. TV, Fridge etc. and after two months accused persons started 33 demanding Rs.2 lakhs for purchasing the car. But he has given Rs. 25,000/, thereafter, he stated that on 5.1.2006, his Jija asked him to take her sister back, as he could not bear the expenses of delivery and, therefore, he brought Jyoti to his house and admitted her in the Inder Nursing Home. Further, he has stated that on 14.8.2008, his sister made a telephone call to him that her in laws are beating to him for bringing Rs.2/ lakhs and on next day, he brought his sister to his house on the occasion of Raksha Bandhan and at that time, accused persons repeated their demands for Rs.2 lakhs. On 17.8.2008, he went to the house of accused alongwith his sister Jyoti and gave Rs.5,000/ to mother in law of his sister and after some time accused Jagbir, father in law and Devar came and started giving beating to Jyoti and also abused him. On perusal of his testimony I find that same is full of contradictions and improvements from his previous statement Ex.PW2/A, which he has given before the Executive Magistrate. In the statement Ex.PW2/A he has not mentioned that Rs.1lakh 34 cash, motorcycle, 15 tola gold etc. were given on the demand of Dayanand and Brahmo Devi, father in law and mother in law of deceased; as stated by him in his testimony. He has also not mentioned in the statement Ex.PW2/A that domestic articles like TV, Sofa, Fridge, Cooler etc. were given at the time of marriage. He has also not stated in his statement Ex.PW2/A that Rs.25,000/ were given in March, 2005, though, he only stated that some amount was given and also not stated that same was given in the month of March. Further he has not mentioned in statement Ex.PW2/A that Rs.2lakhs were demanded for purchasing the car by accused persons Ravi @ Ravinder and Jagbir @ Kala. He has only stated that his sister's in laws started harassing her for bringing Rs.2 lakhs. Further he did not give specific date 05.01.2006, when accused Jagbir @ Kala asked him to take back deceased Jyoti in his statement Ex.PW2/A, he only says that one day prior to her delivery, accused Jagbir made a call in this regard. The most important omission in his statement Ex.PW2/A is that 35 PW2 has not narrated the incident of 14.08.2008,15.08.08 & 17.08.2008, which is the most important part of his testimony to prove that soon before death deceased Jyoti was subjected to cruelty for dowry demand. On perusal of the statement Ex.PW2/A given to the Executive Magistrate by the PW2 Rakesh Kumar.
Thus, it is evident from the statement Ex.PW2/A that accused persons have not made any demand for dowry after they took back deceased Jyoti after 9 months on delivery of child. Further, PW2 has not stated that her sister was tortured or harassed for demand of Rs.2 lakhs after the said period. If it is considered that on 05.01.2006 Rakesh brought his sister to his home as stated by him in his testimony and after nine months Jyoti was taken back to her matrimonial home by accused. It means that in the year 2006 itself Jyoti was taken back to her matrimonial home and thus there is no demand for dowry in the year 2007 and also in the year 2008 till she died i.e. on 18.8.2008. Hence, from his statement 36 Ex.PW2/A it is evident that there is no demand of dowry soon before death of his sister. PW2 has tried to cover up this lacunae in his testimony recorded before the court, but the reasoning given by him that not mentioning the incident on 14.08.2008, 15.08.2008 and 17.08.2008 did not appear to be satisfactory. When he was confronted to the omissions of the incident of aforesaid dates by the ld. Defence counsel, he has voluntarily explaned that his statement was recorded on the next date of death of his sister Jyoti and her cremation was to be done on that day itself, therefore, he was perturbed and could not tell the whole facts to the SDM. But in my view the said explanation is not satisfactory. The incident of just one or two days prior to the death of the deceased cannot be forgotten by the PW2. It is highly unlikely that he forgotten to disclose to the SDM the incident of 17.8.2008, which happened just previous day of his sister's death in his presence. Hence, it creates doubt about the happening of incident on 14.08.2008, 15.08.2008 and 17.08.2008. It appears that later on under 37 some advise PW2 has tried to fill up the said lacunae by inserting the incident on 14.8.2008,15.08.2008 and 17.8.2008 in his statement u/s. 161 Cr.PC. recorded by the IO, so that, it could be proved that soon before the death, his sister Jyoti was subjected to cruelty for demand of dowry. He has deposed in his testimony that just one day before her death i.e. on 17.08.2008 in his present Jyoti's father in law and Devar gave beating to Jyoti, but from the MLC and the Postmortem Report of Jyoti, it is evident that no external injuries have been found on her body. If she was given beating just one day prior to her death then there must have some injuries on her bodies. He has stated that on 14.08.2008, Jyoti made a call to him and said, accused persons are beating her but no call details have been produced on record by the prosecution to prove that on 14.08.2008, deceased had made telephone call to the PW2 Rakesh Kumar. In my view statement of deceased Jyoti Ex.PW15/A relied upon by prosecution itself, make it clear that, though, deceased was subjected to illtreatment and 38 harassment at her in laws house, but, same was not for demand of dowry, as in her statement, she has not made any allegations against her in laws that they are treating her with cruelty for demand of dowry. Hence, in such circumstances, I do not find testimony of PW2 Rakesh Kumar is reliable. He is an interested witness being the brother of deceased Jyoti, who had died under suspicious circumstances in the house of her in laws, therefore, he has every reason to think that her in laws are responsible for her death and it cannot be ruled out that due to said reason, he has deposed against them.
18. As stated above, PW4 Deepak also almost deposed same facts as stated by PW2 Rakesh in his examination in chief. He has corroborated the statement of PW2 Rakesh Kumar on the aspect that his brother has given Rs.25,000/ to accused Jagbir in May 2005 or that on 14.8.2008, deceased Jyoti had called PW2 Rakesh Kumar her brother or on 17.8.2008 PW2 has went to the house of Jyoti, where accused persons 39 quarreled with PW2 Rakesh. Hence, aforesaid incident deposed by him are hearsay statement told to him by PW2 Rakesh, therefore, not admissible in evidence.
19. No other independent witness has been examined by the prosecution to corroborate the testimony of PW2 and PW4 to prove that accused persons demanded dowry. Further on perusal of marriage photographs Ex.PW2/1 and Ex.PW2/2 it is evident that marriage has been performed in a home, where even no Pandal has been installed. No photo album or video cassette has been placed by the prosecution to prove that the articles as alleged by PW2 and PW4 were given in dowry. In such a simple marriage it is highly unlikely that parents of deceased Jyoti had given Rs.1lakh in cash besides 15 tola of gold and other articles as claimed by PW2. No document has been placed on record by prosecution to prove from where the amount of Rs.1 lakh cash and the other amount to purchase the aforesaid articles were arranged by the parents or family 40 members of the deceased. Neither any bill of purchase of TV, Fridge, Motorcycle, Sofa Set etc. have been placed on record, which creates doubts whether these articles have been given in the marriage or not. As far as bills Ex.PW2/E, F and F1 which allegedly pertain to the purchase of jewellery articles is concerned, these are nothing more than the rough estimates. Even PW3 Shri Rupesh Kumar the jeweller from whom said jewellery articles have been purchased has admitted in his cross examination that the document Ex.PW2/E, F and F1 are rough estimates. Even, if for the sake of arguments, I admit the arguments of ld. APP that these are not the rough estimates , but actual bills, as people tend to purchase the jewellery articles on kacha bill, like estimates as in this case to avoid payment of Sales Tax. But, in my view in the absence of any bill number, it would not be appropriate to rely upon on those bills, as it cannot be verified, whether these bills were issued on the date as mentioned on those bills. Further, PW3 has not placed on record any document to prove 41 that he has entered the amount of said bill in any book. Further, it is generally seen in the marriage that whenever these articles are given, same are displayed in the public, therefore, if same would have been given then there must have been the photographs of the said articles. Further no independent witness i.e. neighbourer or relatives have been examined by the prosecution to prove that these articles were given in the marriage or deceased Jyoti was harassed for demand of dowry by her in laws. Hence, in the absence of the same and in view of the contradictions and improvements testimony of PW2 and PW4 does not inspire much confidence and I do not find the same trustworthy to rely upon.
20. Another issue which is under consideration that whether the demand of Rs.2 lakhs for purchasing the car is covered within the ambit of Section 2 of Dowry Prohibition Act 1961. As per Section 2 of the Dowry Prohibition Act, 1961, the demand must be made in connection with the 42 marriage of said party. It means the giving or agreeing to give any property or valuable security should have been in connection with the marriage of the parties. Both PW2 Rakesh Kumar and PW4 Deepak have deposed in their testimony that at the time of marriage, accused persons were dissatisfied with the dowry articles given by them. It is the case of the prosecution that their sister was kept very well for two months after the marriage and only after two months demand of Rs.2 lakhs for purchasing the car was made by the accused Jagbir and accused Ravi @ Ravinder. The demand of Rs.2 lakhs cash for purchasing car, thus, cannot be termed as dowry demand within the meaning of Section 2 of the Dowry Prohibition Act 1961. In case of Appa Saheb and Another Vs. State of Maharashtra (2007) (1) RCR (Criminal) 747 it was held that, 'the giving or taking of property or valuable security must have been some connection of the marriage of the parties and good relations between giving or taking of property or valuable security with the marriage of the parties essential'. 43 Hence, cruelty if at all allegedly committed cannot be considered as committed for the purpose of demand of dowry.
In view of the above facts and circumstances I held that prosecution has failed to prove that accused persons have committed any cruelty soon before the death for demand of dowry. Therefore, no presumption u/s. 113 B of the Indian Evidence Act can be raised against the accused persons. Hence, I held that prosecution has failed to prove its case beyond reasonable doubts u/s. 304B IPC.
21. The cruelty u/s. 498A IPC not only covered cruelty committed against a woman for demand of dowry, but, as per Explanation (a) of the said Section it also covers cruelty caused by her husband or his relative, which is of such a nature that, it would or likely to drive the woman to commit suicide or to cause grave injuries to her.
From the testimony of PW2, it is proved that deceased Jyoti had remained at her parents house for nine months, after delivery of child. 44 No suggestion has been given by the ld. Counsel for the accused persons that deceased Jyoti had not remained in her parental house for about nine months. No woman will stay at her parental house, after delivery of child for such a long period of nine months, which clearly proved that accused persons and Jyoti have some disputes due to which she was not taken back by the accused. Deserting a lady for such a long period at her parental house also amounts cruelty which could lead her the suicide. Further from the incident of 05.05.2008, it is proved that accused Jagbir and other in laws were not treating deceased Jyoti properly, as they were levelling false allegations against her. In this regard prosecution has proved DD No.15A Ex.PW10/A. No suggestion has been given by the accused persons that the said DD was not recorded on the information given by accused Daya Nand. Further, PW15 HC Ram Niwas has proved that on receiving the said DD, he went to the house of accused Daya Ram 45 and found the information of theft false. He also deposed that he has recorded the statement of deceased Jyoti Ex.PW15/A and that of accused Jagbir Singh Ex.PW15/B. In her statement Ex.PW15/A deceased Jyoti, has stated that "she was residing at the said house (accused persons house) and she has married three years ago with accused Jagbir and she has one female child after the said wedlock and since the marriage of her Devar (brother in law) Ravi @ Ravinder; mother in law Brahmo Devi and accused Jagbir are harassing her. Her husband Jagbir Singh used to beat her on small things and many times has levelled false allegations of theft. Her mother in law had levelled false allegations that, she has committed theft of jewellery articles whereas, she has not committed theft of any jewellery and they used to beat her on small things. Today her brother, sister and maternal uncle have come and accused persons have also misbehaved with them and thrown them out of the house by pulling their hands".
No suggestion has been given to PW15 HC Ram Niwas she 46 has not given statement Ex.PW15/A. There is no reason to disbelieve the said statement of deceased Jyoti given by her three months prior to her death. Hence, it is proved that deceased was subjected to cruelty in her in laws house. It is correct that in the said statement, there is no allegations that demand of dowry, but definitely there are allegations of cruelty, which could drive a woman to commit suicide as stated above, which are fully covered in Explanation (a) of cruelty u/s.498A IPC. In the statement of deceased Jyoti Ex.PW15/A, there is no allegations against the accused Dayanand that he harassed her. Whereas there is no allegations of beating by accused Ravi @ Ravinder, only allegations against the accused Ravi is that he alongwith accused Jagbir and accused Brahmo Devi used to harass her. But, what harassment he has caused to deceased Jyoti has not been explained in her statement. Therefore, in my view it cannot be said that he has harassed her to such an extent that it could drive her to commit suicide. Hence, I give benefit of doubt to accused Ravi @ 47 Ravinder. Since there are specific allegations of beatings and levelling false allegations of theft by accused persons Jagbir and Brahmo Devi against her, which can driver a woman to commit suicide. Since in this case also, deceased had died under circumstances which are not normal and most probably, she had committed suicide. Hence, in my view the offence of cruelty u/s. 498A IPC as explained in Expression (a) is proved beyond reasonable doubts against accused persons Jagbir and Brahmo Devi.
22. As far as offence punishable under Section 406 IPC is concerned which is reproduced as under : Punishment for criminal breach of trust Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
As far as offence punishable u/s. 406 IPC is concerned the basic ingredients is that there must be entrustment of dowry articles. Secondly it must be proved that accused persons have misappropriated or converted 48 the entrusted property for their own use or dishonestly used or disposed off the entrusted property. Thirdly the said property was not returned to the person who entrusted the same when demanded. In order to prove its case again prosecution has relied upon the testimony of PW2 Rakesh Kumar and PW4 Deepak. PW2 and PW4 in their testimonies have stated that on the demand of Dayanand (father in law) Brahmo Devi (mother in law), they have given one motor cycle, 15 colas gold ornament, Rs.1lakh and other domestic items like TV, Fridge, Sofa Set, Double Bed, cooler, utensils, cloths etc. Prosecution has relied upon the list of dowry articles Ex.PW2/L, which was not recovered. It consists of one gold chain and gold ring (given to bride groom), one gold necklace, two pairs of ear rings (jhumke), one gold ring and gold chain (given to bride/deceased Jyoti) and Rs.1lakh cash. Hence, ld. Addl. PP for the State has argued that offence u/s. 406 IPC is not made out against the accused persons.
But, on perusal of the testimony of PW2 & PW4, it is evient 49 that neither any date, time or place has been mentioned in the statement when the said articles were given by them or who has given the said articles. The allegations are general in nature and cannot be relied upon. Further, in the statement Ex.PW2/A, PW2 has not stated that the articles are given on the demand of Dayanand and Brahmo Devi. Hence, it is an improvement, hence, cannot be relied upon. As far as the reliance of the prosecution on the list of articles given in dowry Ex.PWPW2/L is concerned, in my view same is irrelevant as it has not been prepared at the time of marriage or delivery of the articles mentioned in the said list, but same has been prepared during investigations by the IO at the instance of PW2. Further, the contention of ld. Addl. PP for the State that, in the conversation between accused Dayanand and PW2 Rakesh, recoded in CD Ex.PW2/H, it is proved that dowry articles were not returned by the accused persons. I am of the view that since voice in the CD has not been compared with the voice of accused Dayanand by the prosecution. 50 Therefore, it is not proved that CD contains the voice of accused Dayanand.
In view of the aforesaid facts and circumstances, I held that prosecution has failed to prove that any articles have been entrusted to the accused persons which they have misappropriated or dishonestly converted for their own use. If at all any articles have been given same may have been given by the parents and family members of the deceased to her as Istridhan, which police has recovered. Hence, in such circumstances, I am of the view that prosecution has failed to prove its case of criminal breach of trust punishable u/s. 406 IPC against the accused persons.
CONCLUSION.
23. In view of the aforesaid facts and circumstances discussed above I held that prosecution has failed to prove beyond reasonable doubts any charges against the accused persons Ravi @ Ravinder and 51 Dayanand. Therefore, I acquit them. Their bail bond and surety bond are cancelled and sureties are discharged.
Further, prosecution has failed to prove the charges u/s 304 B IPC and 406 IPC against the accused persons Brahmo Devi and Jagbir @ Kala and only able to prove the case for offence punishable u/s. 498A IPC against the accused persons Jagbir @ Kala and Brahmo Devi. Therefore, I acquit the accused persons Jagbir @ Kala and Brahmo Devi for offence punishable u/s. 304B/34 IPC and 406/34 IPC. But, convict them for offence punishable under Section 498A/34 IPC.
Now to come up for order on sentence.
Announced in the open court (SANJEEV KUMAR)
On 25.04.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
52
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI SC No.21/09.
FIR No.193/08.
PSALIPUR.
STATE VS (1)JAGBIR @ KALA S/O. SHRI DAYA
NAND @ DAYA RAM @ DAYA R/O. VPO
TAJPUR KALAN, ALIPUR, DELHI.
(2) BRAHMO DEVI W/O. DAYANAND,
R/O. VPOTAJPUR KALAN, ALIPUR,
DELHI.
Present: Shri S.C. Sroai, ld. Addl. PP for the State.
Accused persons Brahmo Devi and Jagbir @ Kala are in JC. Accused persons Ravi @ Ravinder and Dayanand are on bail. Shri Rajbir Malik, ld. Counsel for all the accused persons.
ORDER ON SENTENCE Arguments also heard on sentence.
It is submitted by ld. Defence counsel for the accused persons that the maximum punishment provided u/s. 498A IPC is three years and 53 accused persons are in JC for more than three years. Hence, they be released from JC, if not required in any other case.
Considering the facts and circumstances, I convict the accused persons Brahmo Devi and Jagbir @ Kala and sentenced them to undergo Rigorous Imprisonment for three years.
On perusal of the file it appears that accused Jagbir @ Kala is in JC since 16.10.2008 and accused Brahmo Devi is in JC since 12.11.2008 and she has remained on interim bail w.e.f. 21.12.2011 to 12.01.2012.
Since both accused persons are in JC for more than three years, hence, they have already undergone in JC the maximum sentence. Since they are entitled for benefit of Section 428 Cr.PC, therefore, I order that accused persons Brahmo Devi and Jagbir @ Kala be released from JC forthwith, if not required in any other case.
54
All the accused persons are directed to furnish their personal bond in the sum of Rs.10,000/ with one surety of like amount in compliance of provision u/s. 437 A Cr.P.C. within one week.
File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 25.04.2012 Addl. Sessions Judge
Rohini Courts: Delhi.