Delhi District Court
State vs Lal Chand & Ors. on 20 May, 2011
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
FIR No. 375/07
State Vs Lal Chand & Ors.
Police Station Prasad Nagar
Under Section 498A/ 306/ 34 IPC
ORDER ON THE POINT OF SENTENCE
05.05.2011
Pre: Ld. APP for the state.
Ld. Counsel Sh. Jitender Sarin for all accused / convict persons
except accused / convict Ganesh.
Ld. counsel Sh. H K Aneja for accused Ganesh.
Ld. counsel Sh. Jitender Sarin in respect of accused Lal Chand
submits that he is aged about 75 years old and is suffering with
Ashthama and old age ailments. Ld. counsel again argued and submits
that he remained in jail for about 6 months during the course of pendency
of this case.
Ld. counsel Sh. Jitender Sarin in respect of accused Smt. Man
Devi submits that she is aged about 65 years old and she is also
suffering with old age ailments. Ld. counsel again argued and submits
that she remained in jail for about 15 months during the course of
pendency of this case.
FIR no. 375 / 07 State Vs Lal Cand etc
PS Parsad Nagar
1 /
Ld. counsel Sh. Jitender Sarin in respect of accused Amar Chand
submits that he is aged about 35 years old. He has a wife and minor
children to look after. He is the only member in his family to look after
them. He is driver by profession. Ld. counsel again argued and submits
that he also remained in jail for about 6 months during the course of
pendency of this case.
Ld. counsel Sh. Jitender Sarin in respect of accused Bharat
Bhushan submits that he is aged about 38 years old. Ld. counsel again
argued and submits that he is in jail for about 3 ½ years. He has minor
child and there is no one to look after his son except him since his wife
has expired in this incident. On these grounds ld. counsel for convict
persons requests for releasing the convict on probation of good conduct.
Ld. counsel Sh. H K Aneja in respect of accused Ganesh submits
that he is aged about 34 years old. Ld. counsel again argued and
submits that he remained in jail for about 2 months i.e. w.e.f. 01.10.2007
to 30.11.2007 during the course of pendency of this case. He has two
minor children aged about 6 years (son) and 4 years (girl) to look after.
Ld. counsel again submits that he is living separately from the other
accused / convict persons. He is the sole bread earner in his family. On
these grounds ld. counsel for accused Ganesh also prays for taking
lenient view at the time of awarding sentence.
FIR no. 375 / 07 State Vs Lal Cand etc
PS Parsad Nagar
2 /
Contrary to the submissions of ld. counsel for the convict, Ld.
APP submits that ld. court has convicted one of the accused persons
namely Bharat Bhushan for the offence u/s 498-A / 34 and 306 IPC
while other accused persons have been convicted for the offence
punishable u/s 498- A / 34 IPC only. On these grounds ld. APP submits
that accused persons/ convict persons be awarded severe sentence.
Keeping in view of the facts and circumstances of the case and
submissions of ld. counsel for convict persons, I am of the view that ends
of justice will be met if accused Lal Chand and Smt. Man Devi are
sentenced to undergo 2 years R.I. and fine of Rs.15,000/- each in default
6 months further R.I. for the offence u/s 498-A / 34 IPC. So long as the
accused Ganesh and Amar Chand are concerned, to my view ends of
justice will be met if they are sentenced to undergo 2 ½ years R.I. and
fine of Rs.20,000/- each in default further 1 year R.I. for the offence u/s
498-A/ 34 IPC.
So long as accused Bharat Bhushan is concerned, I do not find
any reason for leniency as he has been convicted for the offence
punishable u/s 498-A/ 34 IPC and 306 IPC. Therefore, to my view ends
of justice will be met if accused Bharat Bhushan is sentenced to undergo
10 years R.I. for the offence u/s 306 IPC and further to undergo 3 years
R.I. for the offence u/s 498 A/34 IPC and to pay a fine of Rs.25,000/- in
FIR no. 375 / 07 State Vs Lal Cand etc
PS Parsad Nagar
3 /
default one year R.I. for the offences.
Accordingly, convict persons Lal Chand
and Smt. Man Devi are sentenced to
undergo 2 years R.I. and fine of Rs.
15,000/- each in default 6 months further
R.I. for the offence u/s 498-A / 34 IPC.
Convict persons Ganesh and Amar
Chand are sentenced to undergo 2 ½
years R.I. and fine of Rs.20,000/- each in
default further 1 year R.I. for the offence
u/s 498-A/34 IPC.
Convict Bharat Bhushan is sentenced to
undergo 10 years R.I. for the offence u/s
306 IPC and further to undergo 3 years
R.I. for the offence u/s 498 A/34 IPC and
to pay a fine of Rs.25,000/- in default 1
year R.I. for the offences.
Benefit of section 428 Cr. PC be given to
the convict persons.
Both sentences shall run concurrently.
Out of the total fine recovered from the
convict persons, 50 % of fine be paid to
the kith and kin of the deceased Meera.
Copies of judgment along with sentence
order be given to the convict persons.
Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 05.05.2011
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
FIR no. 375 / 07 State Vs Lal Cand etc
PS Parsad Nagar
4 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Case ID Number. 0241R12892022007
Sessions Case No. 309/1/10
Assigned to Sessions. 29.02.2008
Arguments heard on 25.04.2011
Date of order. 30.04.2011
FIR No. 375/07
State Vs 1. Lal Chand s/o Narayan Das
2. Amar Chand s/o Lald Chand
3. Smt. Man Devi W/o Lal Chand
4. Bharat Bhushan s/o Lal Chand
All are R/o F3, Amritkaur Puri,
Tank Road, Karol Bagh, Delhi.
5.Ganesh s/o Ram Chander
R/o 16/630, Tank Road, Karol
Bagh, Delhi.
Police Station Prasad Nagar
Under Section 498A/304B/ 34 IPC
JUDGEMENT
1. Briefly facts of the case are that deceased Meera was married to accused Bharat Bhushan. After her marriage, her inlaws used to quarrel with her for not brining sufficient dowry and particularly made demand of a motorcycle and a gold chain. She was also beaten by FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 5 / them. As per the statement of PW7 Manju who happens to be the Mausi/ Jethani of deceased Meera, in the evening of 30.09.2007, Meera had a quarrel with her husband and for that reason she did not even take food. On that night, when she was sleeping on the first floor of her house, there was a phone call for her husband in their room asking him to open the latch of the room in which Meera was sleeping. By the time, she and her husband went upstairs, they saw everybody screaming and found that Meera jumped from the roof.
2. In this regard, on 01.10.2007 at P.S. Prashad Nagar DD No. 2A vide Ex.PW21/A was recorded with regard to admission of a deceased woman in Jassa Ram Hospital by a person. This DD no. 2 A was marked to PW21 SI Surya Prakash, who alongwith Ct. Niranjan went at Jassa Ram Hospital, Karol Bagh. He collected MLC of deceased Smt. Meera w/o Bharat Bhushan and Bharat Bhushan. On the MLC of Smt. Meera, doctor has mentioned that patient is brought dead. Doctor at the hospital produced belongings of Smt. Meera i.e. tops one pair of golden colour, toe rings one pair of silver colour and nose pin of FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 6 / golden colored before I.O./PW21. He kept all these articles in a cloth parcel and it was sealed with the seal of SP and was taken into possession through seizure memo Ex. PW6/C. I.O. informed the parents of Smt. Meera, as well as the SDM.
3. A Tehrir against accused Bharat Bhushan u/s 309 IPC was also prepared and I.O. got registered a case u/s 309 IPC against accused Bharat Bhushan.
4. Thereafter, I.O. reached at the place of occurrence i.e. F3 Amritkaur Puri. Karol Bagh, Delhi. Ct. Niranjan also reached there. He inspected the spot and prepared site plan vide Ex. PW21/B. I.O. collected exhibits from the spot i.e. one bed sheet blood stained from a room situated at second floor, blood stained floor and floor without blood from each floor. All these exhibits were kept in separate parcel and were sealed with seal of SP and were taken into possession vide Ex. PW12/A. FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 7 /
5. SDM Sh. M.T. Kom came at the spot. Mother and other relatives of deceased Meera also reached there. Thereafter, they went at the PS. SDM recorded statement of Smt. Radha Devi who happens to be the mother of deceased Meera.
6. Thereafter, I.O. again went at the spot where Ct. Rajesh came there and gave him copy of the FIR and original tehrir. Thereafter, I.O. leaving behind Ct. Rajesh at the spot, went at JPN Mortuary.
7. Inquest papers were prepared and after the postmortem dead body was given in the custody of I.O. who after having recorded identification statements of Jai Kishore and Mukesh vide Ex. PW4/D and E, handed over the dead body to relatives of deceased vide dead body handing over memo Ex.PW6/D which bears his signatures at point D. Doctor had also given three sealed parcel and two sample seal. I.O. took the same into possession through seizure memo vide Ex.PW6/B.
8. Thereafter, I.O. came back to the Police Station and deposited the FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 8 / case property in the Malkhana. Thereafter, I.O. alongwith Ct. Jitender went at the spot and from there Ct. Niranjan was relieved after having recorded his statement.
9. I.O. recorded statement of Ghanshyam and Gauri Shankar brothers of deceased Meera. He also recorded statement of ManjuDevrani of Meera. Accused persons namely Lal Chand, Ganesh and Amarchand were arrested from F3, Amrit Kaur Puri vide their arrest memos and personal search memos Ex. PW9/A,B, C, D, E and F which bears his signatures at point B.
10.On 2.10.2007 accused Man Devi was arrested from her residence vide her arrest memo and personal search memo Ex. PW11/A and B.
11.On 3.10.2007 accused Bharat Bhushan was also arrested from the aforesaid address vide his arrest memo and personal search memo Ex. PW21/C and D. Investigating Officer / PW21 collected Postmortem report vide Ex.PW8/A. Accused persons were arrested FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 9 / and booked for the offences punishable u/s 498A/304B/ 34 IPC.
12.After the completion of the investigation which was conducted by the police officials the challan was filed to the court of ld. MM concerned and the same was committed to the court of Sessions which was received on 29.02.2008. Consequent upon the committal of the case to the Court of Sessions charge against accused persons namely 1.Lal Chand (being fatherinlaw), 2.Amar Chand (Being brotherinlaw),
3.Man Devi (being motherinlaw), 4.Bharat Bhushan(Being husband) and 5.Ganesh (Being relative of Husband Bharat Bhushan), was directed to be framed for the offences punishable under section 304B/498A/34 IPC vide court order dated 12.11.2008.
13.To prove and substantiate its case the prosecution has examined 21 witnesses namely PW1 Smt. Radha aged 60 years - mother of deceased; PW2 Gauri Shankar - brother of deceased Meera, PW3 Ghanshyam - brother of deceased, PW4 - M T Kom, the then SDM, PW5 - ASI Suman - formal witness being duty officer; PW6 - Ct. FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 10 / Niranjan Kasna - another formal witness who handed over the DD no. 2 A to SI Surya Prakash and he also went to the Jassa Ram hospital; PW7 - Manju - Mausi / devrani of deceased (she is hostile witness); PW8 - Dr. J V Kiran, Sr. Resident - (he conducted the postmortem on the body of deceased Meera); PW9 - Ct. Jitender Singh - (formal witness who accompanied the I.O. at the time of arrest of accused persons); PW10 - HC Jagdish Parsad - another witness with regard to arrest of accused persons; PW11 - Lady Ct. Mamta - witness with regard to arrest of accused Man Devi; PW12 - Ct. Virender Kumar - material witness who accompanied the I.O. at the spot on receiving DD no. 2A and they lifted the exhibits from the spot; PW13 Ct. Gopal - formal witness who got deposited 10 pulandas at FSL Rohini on 16.11.2007 at the direction of PW21 SI / IO; PW14 - Ct. Dinesh Kumar - formal witness being photographer who took photographs of the spot; PW15 - Ct. Lokender - another formal witness who also got deposited sealed parcel to FSL Rohini on 13.11.2007; PW16 - HC Balwant Ram - formal witness being MHC(M); PW17 Charan FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 11 / Singh, Medical Record Incharge from R B Seth Jessa Ram Hospital, Karol Bagh, Delhi who brought the record and proved the MLC as Ex.PW17/A of deceased Meera; PW18 - Insp. Yashpal - he was the member of Crime Team and prepared a report with respect to incident vide Ex.PW18/A; PW19 Amar Pal Singh - Sr. Scientific Officer, FSL Rohini, Delhi; PW20 Jai Kishore - formal witness who identified the dead body of his sister vide dead identification memo Ex.PW6/D and PW21 SI Surya Prakash Investigating Officer of this case.
14.In this case the most material witnesses are PW1 Smt. Radha aged 60 years - mother of deceased; PW2 Gauri Shankar - brother of deceased Meera; PW3 Ghanshyam - brother of deceased (another hostile witness) and PW7 Manju - Mausi of deceased (hostile witness) On careful perusal of their testimonies allegedly it has been found that during the period from the date of marriage to immediately before 01.10.2007, subjected deceased Meera (since deceased) to cruelty, for not bringing sufficient dowry, demanded one more motorcycle, a gold chain and used to say that deceased Meera is from cheap family i.e. FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 12 / "Ghatia Ghar Ki Ladki Aa Gai Hai, Ise Ghar Se Nikalo" and used to abuse deceased Meera. It has also come on record that accused Bharat Bhushan being husband of deceased Meera used to come in drunken condition, used to beat her, abused her and also used to say that she has brought less dowry. Accused was warned to mend his ways and once on his demand PW2 Gauri Shankar, brother of Meera gave an amount of RS.20,000/ but even then also he used to harass Meera a lot.
15.PW2 Gauri Shankar has also deposed that when deceased Meera visited second time she disclosed that her nanad openly used to abusing and taunting her like " Kangle Ghar Ki Aa Gai", " Manju Ko Dahej Kam Diya or Doli/Meera Ko Dahej Jyada". PW3 Ghanshyam
- another brother has also deposed on more or less similar lines. However, it has also come in the statement of PW3 that it did not come to their knowledge how Meera was killed or how she died. He does not know who is involved in the killing of his sister. PW3 was got declared hostile by ld. APP. This witness corrected himself while he was crossexamined by ld. APP.
FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 13 /
16.PW7 Manju - Mausi of deceased has also been got declared hostile by ld. APP.
17.All these witnesses have been crossexamined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
18.Another, material witness in this case is PW8 Dr. J V Kiran, Sr. Resident who conducted the postmortem on the dead body of deceased Meera. This witness opined the cause of death as Cranio Cerebral damage consequent to blunt force trauma to the head. He proved the postmortem report as Ex.PW8/A. This witness has not been crossexamined.
19.PW4 M T Kom, the then SDM appeared before the court and deposed that on 01.10.2007 he received telephonic message from police station FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 14 / Parsad Nagar with regard to some incident. Thereafter, he reached at the police station and asked police officials to produce the relative of deceased. Then, deceased's mother Smt. Radha Devi appeared whose statement was recorded. This witness affirmed the statement of Smt. Radha Devi - mother of deceased vide Ex.PW1/A which was endorsed by him vide Ex.PW4/A. He filled up the part of inquest proceedings qua unnatural death vide Ex.PW4/B. This witness further deposed that a request was made to the doctors of Maulana Azad Medical College for conducting postmortem of deceased Meera vide request Ex.PW4/C. This witness further deposed that dead body was identified by Jai Kishore and Mukesh and to this effect he recorded their statement vide Ex.PW4/D and PW4/E. This witness has been crossexamined at length. I have perused the same. Some minor type of contradictions appeared which are attributable due to the long duration of time and memory of a human being.
20.PW5 ASI Suman is formal witness being duty officer. She appeared before the court and deposed that she recorded the FIR no.375/2007 FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 15 / of this case got exhibited the endorsement made on rukka as Ex.PW5/A. She has also proved the computerized copy of the FIR as Ex.PW5/B. This witness has been crossexamined. In the cross examination it has come on record that FIR no.374/07 was also registered on 01.10.2007 at 3.50 a.m. under section 309 IPC against the accused Bharat Bhushan. The copy of the same FIR is Ex.PW5/DA.
21.PW6 - Ct. Niranjan Kasna formal witness who handed over the DD no. 2 A to SI Surya Prakash and he also went to the Jassa Ram hospital. He deposed that in hospital accused Bharat Bhushan was found admitted and MLC of injured was collected by the I.O. He had signed some papers which are mark A, B, C and D, except this he could not tell. Accordingly, this witness was crossexamined by the ld. APP. Thereafter, this witness corrected himself in cross examination done by ld. APP.
22.PW9 Ct. Jitender Singh and PW10 HC Jagdish are formal witnesses who accompanied the I.O. at the time of arrest of accused persons FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 16 / namely Amar Chand, Lal Chand and Ganesh. PW11 Lady Ct. Mamta is also formal witness in whose presence accused Man Devi was arrested. PW12 Ct. Virender Kumar is a also a formal witness who accompanied the I.O. at the spot on receiving DD no. 2A and they lifted the exhibits from the spot. PW13 Ct. Gopal is also formal witness who got deposited 10 pulandas at FSL Rohini on 16.11.2007 at the direction of PW21 SI / IO. I have perused their crossexamination. No contrary evidence has come on record which may go to the root of this case.
23.PW14 Ct. Dinesh Kumar is also formal witness being photographer who took photographs of the spot vide Ex.PW14/1 to Ex.PW14/19 and Ex.PW14/20. PW15 Ct. Lokender is another formal witness who also got deposited sealed parcel to FSL Rohini on 13.11.2007. These witnesses have also been crossexamined. I have perused the same. No major contradiction has come on record which may go to the root of this case.
FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 17 /
24.PW16 HC Balwant Ram is also formal witness being MHC(M). He got exhibited the photocopy of the depositing entry as Ex.PW16/A. This witness has also got exhibited the endorsement made on 13.11.2007 vide RC no.126/21/07 vide which he sent two sealed parcels to FSL Rohini through Ct. Lokender. He got exhibited the Road certificate in this regard as Ex.PW16/C. This witness has also got exhibited the acknowledgment as Ex.PW16/D. He further deposed that 9 parcels were sent through C. Gopal Krishan to FSL Rohini vide Ex.PW16/E and RC as Ex.PW16/F and its acknowledgment vide Ex.PW16/E. This witness further got exhibited the photocopy of Road Certificate vide Ex.PW16/F and acknowledgment of the same as Ex.PW16/G.
25.This witness further deposed that 9 parcels along with FSL result were brought by Ct. Gopal Krishan from FSL and same were deposited in the Malkhana vide photocopy of the same as Ex.PW16/H. This witness further deposed that as per record, result along with one sealed parcel was brought by Ct. Rajesh and entry was effected in the register no.19 and photocopy of the same is Ex.PW16/J. This witness has not been crossexamined.
FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 18 /
26.PW17 Charan Singh, Medical Record Incharge from R B Seth Jessa Ram Hospital, Karol Bagh, Delhi appeared before the court. He brought the record and proved the MLC as Ex.PW17/A in respect of deceased Meera. This witness has not been crossexamined.
27.PW18 Insp. Yashpal was the member of Crime Team and he prepared a report with respect to incident vide Ex.PW18/A.
28.PW19 Amar Pal Singh Sr. Scientific Officer, FSL Rohini, Delhi came in the witness box and got exhibited his detailed report as Ex.PW19/A which he prepared after examination of sealed parcels received to him. He has also got exhibited the FSL result as Ex.PW19/B bearing signatures of Sh. V. Sankaranarayan at point S1 and S2. He identified the signature of Sh. V. Sankarnarayan. This witness has not been crossexamined.
29.PW20 Jai Kishore is a formal witness who identified the dead body of FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 19 / his sister vide dead body identification memo Ex.PW6/D.
30.PW21 SI Surya Prakash, Investigating Officer of this case is the most material witness. For the sake of brevity and convenience his statement is being reproduced verbatim which is as under: "On 1.10.2007, I was posted at P.S. Prashad Nagar. On that day on receipt of DD No. 2A Ex.PW21/A, I alongwith Ct. Niranjan went at Jassa Ram Hospital Karol Bagh. I collected MLC of Smt. Meera w/o Bharat Bhushan and Bharat Bhushan. On the MLC of Smt. Meera, doctor has mentioned that patient is brought dead. Doctor at the hospital produced before me belongings of Smt. Meera i.e. tops one pair of golden colour, toe rings one pair of silver colour and nose pin of golden coloured. I kept all these articles in a cloth parcel and it was sealed with the seal of SP and was taken into possession through seizure memo Ex. PW6/C, which bears my signatures at point A. I informed parents of Smt. Meera, as well as the SDM.
I prepared Tehrir against accused Bharat Bhushan u/s 309 IPC and I gave Tehrir to Ct. Niranjan for getting the case registered. In the case u/s 309 IPC against accused Bharat Bhushan, the case has resulted into conviction.
Thereafter, I went at the place of occurrence i.e. F3 Amritkaur Puri. Karol Bagh , Delhi. Ct. Niranjan also reached there. I inspected the spot and prepared site plan Ex. PW21/B which bears my signatures at point A. I collected exhibits from the spot i.e. one bed sheet blood stained, from a room situated at second floor, blood stained floor and floor without blood from each floor. All these exhibits were kept in separate parcel and were sealed with seal of SP and were taken into possession Ex. PW12/A which bears my signatures at point B. SDM Sh. M.T. Kom came at the spot. Mother and other relatives of deceased Meera came there and thereafter we alongwith them came at the PS. SDM recorded statement of Smt. Radha Devi mother of deceased Meera. I again went at the spot. Ct. Rajesh came there and gave me copy of the FIR and original tehrir. I leaving behind Ct. Rajesh at the spot, went at JPN Mortuary. SDM prepared the inquest papers and after the postmortem dead body was given in my custody and after FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 20 / having recorded identification statements of Jai Kishore and Mukesh vide Ex. PW4/D and E which bears my signatures at point B, I handed over the dead body to relatives of deceased vide memo Ex. PW6/D which bears my signatures at point D. Doctor had given three sealed parcel and two sample seal and I had taken the same into my possession through seizure memo PW6/B bears my signatures at point B. Thereafter, I came back to the PS. I deposited the case property in the Malkhana. Thereafter, I alongwith Ct. Jitender went at the spot and from there Ct. Niranjan was relieved after having recorded his statement. HC Jagdish who was on area patrolling duty in the area also joined the investigation. I recorded statement of Ghanshyam and Gauri Shankar brothers of deceased Meera. I also recorded statement of Manju, Devrani of Meera. Accused persons namely Lal Chand, Ganesh and Amarchand were arrested from F3, Amrit Kaur Puri. I prepared their arrest memo and personal search memo vide Ex. PW9/A,B, C, D,E and F which bears my signatures at point B. Accused persons were got medically examined and thereafter they were kept in the lock up. I recorded statement of witnesses namely HC Jagdish and Ct. Jitender.
On 2.10.2007 accused Man Devi was arrested from her residence , in the presence of Lady Ct. Mamta. I prepared her arrest memo and personal search memo vide Ex. PW11/A and B, which bears my signatures at point A. All the four accused persons were produced before the concerned court and from there they were sent to J/C. I identify all the four accused persons present before the court.
On 3.10.2007 accused Bharat Bhushan was also arrested from the aforesaid address. I prepared his arrest memo and personal search memo vide Ex. PW21/C and D, which bears my signatures at point A. Accused was produced before the concerned court and from there he was sent to J/C. I identify accused Bharat Bhushan present before the court.
I collected PM report, got the exhibits sent to FSL Rohini, recorded statement of witnesses and after completion of investigation challan was prepared. Now I remember that place of occurrence was also got inspected through Crime Team Officials, who after inspecting the spot gave me their reports, including the photographs.
At this stage MHC(M) produced one envelope sealed with the seal of court. Parcel is got opened and it is found containing, one bed sheet. This is same bed sheet which I seized from the place of occurrence. The bed sheet is Ex. PA.
Remaining case property i.e. blood stained floor and floor without blood which were lifted from the place of FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 21 / occurrence by me, have already been exhibited in the deposition of PW6 Ct. Niranjan.
XXX by Sh. Jitender Sareen, counsel for accused persons namely Lal Chand, Amar Chand, Bharat Bhushan and Man Devi.
There are 1012 flats in the block where flat of accused is situated. There were two storied flats ( i.e. ground, first and second floor) in that block. I cannot say if there are eight flats on each floor of that block. I do not remember the name of the owner or occupants of other flats on the first and second floor of that block where the flat of accused persons is situated. I had enquired from the occupants of the other flats situated in the block. I do not want to see the police file to refresh my memory. I had made inquiries from about two to three persons.
The flat where the deceased was residing is on the second floor, which consisted of two rooms. The bed room was on the rear side of the flat. There was a ventilator on the first room of the flat, size of same was of 1/ ½ 2 feet. I do not remember whether there was iron grill or glass or nothing affixed on the ventilator.
I have sent the rukka for the registration of case u/s 309 IPC against accused Bharat Bhushan after about one hour or my reaching the hospital. The injuries on accused Bharat Bhushan on the wrist and neck. I was the IO of this case. I do not remember the names of the witnesses whose statement I had recorded u/s 161 Cr.P.C. I do not remember that what articles were seized by me in that case.
When I had reached the hospital, the accused Amar Chand was present in the hospital. I had informed the parents of the deceased on telephone, the number of which was given by accused Amar Chand. I do not know whether the parents of deceased knew about the incident prior to my informing them on telephone.
It is incorrect to suggest that I did not carry out the investigation properly or that the accused have been falsely implicated.
XXX by Sh. H.K. Aneja, Counsel for accused Ganesh.
Smt. Radha, Gauri Shankar and Ghan Shaym were arrived in the hospital at about 3 am. SDM arrived at th spot at about 7 am. Statement of Radha was recorded by the SDM at the PS but I cannot tell the time for recording of her statement. When the statement of Smt. Radha was recorded I was not present in the PS. Statements of Ghanshyam and Gauri Shankar were recorded by me at the spot at about 07:30 08:00 PM. I do not remember whether Smt. Radha was present with Gauri Shankar and Ghanshyam when I recorded their statements at the spot. FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 22 / Lastly, I left the spot at about 10:15PM for the PS. Ganesh was present at the spot. No witness nearby the house of the accused persons were ready to give the statement in writing to me. I have not recorded their names and addresses of the persons who refused to give their statement in writing nor I took any proceeding against them. There were 2030 persons were collected at the spot when we reached there. It is correct that the accused Ganesh was not residing in the block of the accused persons. He residing at a distance of 100150 meter away from the house of accused at H16/350, Bapa Nagar, Karol Bagh, New Delhi. I have not seen the ration card, I card of the accused. I have inquired from the neighbors that he is residing at this flat with his family members. Ganesh is relative of other accused. It is wrong to suggest that Ganesh was not on visiting terms with the accused persons. I cannot say regarding any interference of accused Ganesh with the family of other accused persons. It is wrong to suggest that the accused Ganesh went to the police station with the medicine and food for the accused Lal Chand as he was not well or that witnesses Ghanshyam, Gaursi Shankar and their other family members got annoyed for this help or they implicated the accused Ganesh in this false case. It is incorrect to suggest that I am deposing falsely against the accused Ganesh."
31.I have perused the testimony of this witness very carefully. This witness has conducted the investigation. He has arrested the accused persons. He has also lifted the exhibits from the spot. Ld. defence counsel has crossexamined him at length. Having gone through his crossexamination I found some contradictions which are bound to be occurred due to lapse of time and memory of a human being.
32.After closing prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. Accused persons have denied all the FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 23 / allegations and deposed that they have been falsely implicated in this case. They deposed that they had never demanded any dowry. They also pleaded that they had never tortured the deceased. They are innocent and they have been falsely implicated in this case. However, they did not lead any defence evidence in their defence.
33.Thereafter, case was fixed for final arguments. During the course of arguments ld. counsel for the accused persons argued and submitted that the prosecution case is based on 21 witnesses, out of which only PW1 , PW2 and PW3 have made allegations regarding the alleged cruelty or harassment meted out to the deceased. Ld. counsel for accused persons further submitted that all the said witnesses have made material improvements in their examinationinchief and were duly confronted with their previous statements recorded during the investigations. Ld. counsel further argued and submitted that testimonies of the said three witnesses do not inspire any confidence and rather the falsity of allegations is clearly revealed in their respective crossexaminations. Apparently, the deceased was leading FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 24 / a normal matrimonial life and was not subjected to any sort of harassment or cruelty at the hands of the accused persons. It has also been argued and submitted that son of the deceased was born in private hospital and her husband/ accused borne all the expenditure amounting to Rs.30,000/. After delivery, she was advised to take rest of three months and during the period her motherinlaw took care of her and prepared the meals etc. Ld. counsel further argued that after that period she went to her house, and there is no allegation of any harassment or cruelty at that time. Ld. counsel further argued and submitted that inlaws of the deceased had organized a function on the occasion of the birth of the child of deceased (Kuan Poojan). Ld. counsel further submitted that deceased and her husband had gone to Mata Vaishno Devi after about one month of their marriage.
34.Ld. counsel for accused persons further argued and submitted that PW2 has admitted in his crossexamination that Meera used to frequently visit their house and generally as it happens in families sometimes they used to drop and picked up her and sometimes it was FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 25 / done someone from the inlaws side.
35.Ld. counsel for the accused persons further argued and submitted that even on the last visit of the deceased to her mother's residence, i.e. a week prior to 25.09.2007, accused Bharat had left deceased Meera with a request to the mother - PW1, to drop her after a week as he was busy in the office. After a week, PW1 (mother of deceased Meera) dropped the deceased at her matrimonial house and had met the motherinlaw and fatherinlaw there, who saluted her 'Ram Ram' and requested to take some refreshment. There is no allegation of any harassment or cruelty during this period.
36.Ld. counsel further argued and submitted that niece of deceased, namely Manju (PW7) was married with the accused Amar Chand, who is brother of accused Bharat Bhushan. She is still living in the same family without any grievance. In her crossexamination dated 12.08.2009 she claimed that there was some altercation between the deceased and her husband about 2/3 days prior to the incident but FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 26 / could not say whether the deceased was insisting for abortion. This is precisely the defence of the accused that he opposed to the insistence of deceased for abortion, which ultimately led her to take the extreme step. Ld. counsel again submitted that accused cannot be said to have committed any offence by not agreeing to the desire of the deceased to get her pregnancy terminated. Ld. counsel for the accused persons further argued and submitted that allegations of demanding one more motorcycle and gold chain are false. Ld. counsel again submitted that on the date of incident deceased was insisting for abortion on getting the pregnancy but her husband i.e. accused Bharat Bhushan refused for abortion, she flared up and ran outside her house and jumped from the common staircase. Ld. counsel further submitted that all other allegations are false and fabricated and accused are innocent. They have been falsely implicated in the case.
37.Ld. counsel further argued and submitted that witnesses have failed to detail specific instances with approximate dates and particulars, as is FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 27 / the requirement to prove the offence of cruelty for the purpose of proving the offence u/s 498A or 304 B IPC. In this regard, ld. counsel for accused persons argued and submitted that in the FIR, PW1 has made general statement with regard to the demand of motorcycle and chain by the "inlaws". The specifications with regard to the date, place or even person is missing. It is also argued that when PW1 was examined she made material improvements in the case. In her deposition, she has brought out a new story that the in laws were given a gold chain and motorcycle in dowry and they were asking for another chain and motorcycle. However, she has not named any of the accused with regard to the said demand and has merely stated that deceased had claimed that "inlaws" are harassing her for demand of dowry or she was giving taunting.
38.Ld. counsel for accused persons again argued and submitted that allegations leveled by PW2, the brother of deceased , are contradictory to the allegations made by PW1. PW2 has nowhere stated about the alleged demand of a motorcycle or chain and only leveled allegations FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 28 / that deceased was harassed on account of bringing insufficient dowry. PW2 has also made material improvements in his deposition and was duly confronted with his statement recorded under section 161 Cr. PC. PW2 introduced several new facts, which were not the part of the investigations and are not corroborated with any independent evidence. This makes the entire deposition of PW2 as false and motivated. Moreover, the court also recorded the observation with regard to the demeanor of PW2 at page 13 of the statement dated 05.06.2009 (prelunch sessions).
39.Ld. counsel for accused persons again argued and submitted that the deposition of PW3 is not in consonance with the case of the prosecution. While recording the examination - in chief , the court recorded his demeanor on several occasions.
40.Ld. counsel for accused persons further submitted that in addition to the above, one of the basic ingredients to establish the offence of section 304 B IPC is that the harassment or cruelty should have been FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 29 / for or in connection with demand of dowry. In this regard, ld. counsel submitted that in crossexamination of PW1 , while being confronted with regard to not having mentioned about giving one motorcycle in dowry and demand of one more motorcycle and chain, PW1 volunteered and said that one more chain and motorcycle was being asked for accused Amar. It is reiterated that a niece of the deceased, namely PW7 (Manju) was married to accused Amar Chand on the same date. If any such demand was to be made, it would have been made to the parents of Manju, who admittedly, were financially better than the parents of the deceased. However, no such allegations have been made by the Manju or her family. This fact also brings out the falsity of the allegations leveled by PW1.
41.In support of his contentions ld. counsel has also relied upon the following judgments which are as under:
i) '2010 (2) JCC 943 (Delhi - DB) - Jagdish & Others Vs. State' wherein it has been observed that :
"Sec 498 A IPC General allegations of demand of dowry and beatings without detailing specific instances with approximate dates and particular - Accused entitled to benefit of doubt."
FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 30 /
ii) '2010 (3) JCC 1852 (SC) - Durga Prasad & Anr. Vs State of M P' it has been observed that : "Sec 304B/498A IPC - Bald statements alleging cruelty and harassment. Not sufficient to lead evidence showing cruelty or harassment - but that such treatment was in connection with the demand for dowry."
"Section 304 B IPC It has also to be shown that soon before her death, she was subjected to cruelty or harassment for or in connection with the demand for dowry and only the death can be called a "dowry death".
iii)'2007 (2) JCC 959 (SC) - Biswajit Halder @ Babu Halder & Ors. Vs State of W.B.' the following observations was made : "Section 304 B IPC Mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304 B IPC. It has to be shown in addition that such cruelty or harassment was for on in in connection with the demand for dowry."
iv)'2009 Crl. L J 3034 (SC) - Raman Kumar Versus State of Punjab' it has been observed that : "Sec 304 B/ 498 A IPC - Expression 'soon before her death' - 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."
v) ''2007 (3) JCC 1988 (SC) - Hazari Lal Versus State of M.P.' the following observation was made: "Section 498 A/ 304 B IPC The conclusion of High Court that because the deceased committed suicide there must be some harassment and cruelty in supportable and indefensible There is a vast difference between "could have been", "
must have been" and "has been".
vi)'2005 Crl. L J 3625 (Bombay - DB) - State of Maharashtra Vs. Vivek Gangadhar Thakare & Ors.' it has been observed that: "Sec. 498 A/ 300 IPC No eye witness to substantiate torture - fact that deceased went to FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 31 / her parental home on two occasions in five months of marriage falsified story of torture. No complaint was made against alleged torture . No possibility of deceased being tortured - Acquittal proper."
vii)'2010 (4) JCC 2373 (Delhi) - Narender Singh Arora Vs State Govt. of NCT of Delhi ) & Ors.' it was observed that : "Sec. 498 A/ 304B/ 302 There is no presumption that every suicide committed by a married woman in her inlaws house or at her parents' house has to be because she was suffering harassment at the hands of her husband or her in - laws.
Mentality which is now taking grip of parents of a deceased wife in the criminal cases is whenever a woman dies an unnatural death within seven years of her marriage at inlaws house, whatever be the cause of death, the inlaws must be hanged."
viii)'1997 Crl. LJ 3761 (SC) - State of Mahrashtra Vs. Ashok Chotelal Shukla' it was observed that : "Sec. 498 A IPC - Evidence showing that after apology tendered by the husband she again went to live with him - No incidence of either demand of money or ill treatment shown to have taken place thereafter, Offence not proved."
On these grounds ld. counsel for the accused persons prayed for acquittal of accused persons since prosecution has failed to prove the ingredients of section 498A and 304 B/ 34 IPC.
42.Ld. counsel Sh. H.K. Aneja, for accused Ganesh also argued at length and submitted that no witness from nearby the house of the FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 32 / accused persons was ready to give the statement. I.O. did not record their names and addresses of the persons who refused to give their statement nor he took any proceeding against them. There 2030 persons collected at the spot when I.O. and other police officials reached there. Ld. counsel for accused Ganesh again submitted that accused Ganesh was not residing in the block of the accused persons and he is residing at a distance of 100150 meter away from the house of accused persons at H16/350, Bapa Nagar, Karol Bagh, New Delhi. Ld. counsel for accused Ganesh again argued and submitted that when accused Ganesh went to the police station with the medicine and food for accused Lal Chand as he was not well, witnesses namely Ghanshyam, Gaursi Shankar and their other family members got annoyed for this help therefore, they implicated the accused Ganesh in this false case.
43.Contrary to the submissions of ld. counsel for the accused persons, ld. APP argued and submitted that death of deceased is unnatural death. Ld. APP again argued and submitted that prosecution has FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 33 / successfully proved its case against accused persons for causing cruelty and demand of dowry and unnatural death of deceased. He further argued and submitted that contradictions which have come on record are of minor nature. On these grounds he prayed for convicting the accused persons for the offences u/s 498A/ 304B / 34 IPC.
44.Having gone through the whole case file and arguments of both sides. I would like to discuss the Section 113 B of the Evidence Act which is also relevant for the case in hand. Both Sections 304 B IPC and Section 113 B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B which reads as follows : "113 B : 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 304 B of the Indian Penal Code (45 of 1860)."
FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 34 /
44.The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 B in the Evidence Act has been inserted. As per the definition of `dowry death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". Presumption under Section 113 B is a presumption of law. One 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 :
FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 35 / (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 304 B 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.
45.A conjoint reading of Section 113 B of the Evidence Act and Section 304 B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113 B of the Evidence Act and Section 304 B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 36 / the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304B IPC and Section 113 B 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. A reference to 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 has received the goods knowing them to be stolen, unless he can account for his 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 concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 37 / the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
46.The presumption u/s 113B of the Evidence Act for the purpose of section 304B can only be used when the death of deceased must have been "soon before her death subjected to cruelty or harassment" "for or in connection with the demand of dowry". Presumption u/s 113 B is a presumption of law. The Hon'ble Apex Court in 'Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, (SC)' reiterating and elaborating the similar principles defining section 498 A IPC and 304 B IPC observed that:
"12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 38 / having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred with seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh, 1991(3) RCR(Crl.) 97 (SC) : AIR 1991 SC 1142). Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
"13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 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 mehr in the case of persons to whom the Muslim personal law (Shariat) applies.
Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
"14. The word "dowry" in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) :
2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."
FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 39 /
47.Careful perusal of the aforesaid citations one of the most ingredients of the offence u/s 304 B IPC is that cruelty and harassment must be on account of demand for dowry.
48.In light of the above discussion the findings of this Court are as follows:
(a) The marriage of deceased Meera took place about 1 ½ years prior to 01.10.2007 i.e. date of incident;
(b) Deceased was subjected to cruelty by accused persons vide depositions of PW1, PW2 and PW3.
(c) She died at the house of her husband and sustained multiple injuries vide postmortem report Ex.PW8/A;
(d) Deceased expired within 18 months of her marriage;
(e) The death of deceased Meera is unnatural death;
(f) Deceased Meera was having apprehension of fear of torture and harassment by accused persons; and
(g) PW2 Gauri Shankar, brother of Meera gave an amount of Rs.20,000/ to the accused but even then also he used to harass Meera a lot.
51.Coming to the case in hand after careful perusal of the case file and testimonies of PW1, PW2, PW3, PW4 SDM, PW7 Manju and PW21 I.O. who appear to be most material witnesses. The presumption u/s FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 40 / 113 B of the Indian Evidence Act for the offence u/s 304 B IPC for dowry death can only be assumed when the prosecution proves on record that the deceased was subjected to harassment and cruelty on account of dowry demand soon before the death as a result of which deceased would have suffered death. In the present case it has come on record in the deposition of PW1 who happens to be the mother of deceased that "Ghatia Ghar Ki Ladki Aa Gai Hai, Ise Ghar Se Nikalo" and used to abuse deceased Meera and this fact has been corroborated by PW2 in the like terms. So long as the attribute of soon before the death is concerned in this regard no specific allegations of continuous harassment and dowry with regard to time, place and knowledge has come on record in concrete shape. So the prosecution has failed to prove on record beyond reasonable doubt the factum of harassment, cruelty and dowry of demand soon before the death. Thus, the presumption of dowry death u/s 304 B IPC read with Sec. 113 B of Evidence Act is ruled out.
52.The accused / deceased husband Bharat Bhushan in his statement FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 41 / recorded u/s 313 Cr PC has stated that after having suffered from the incident of this case he himself cut his own neck and wrist for which a case was registered against him and he was convicted u/s 309 IPC by the court concerned. He expressed his willingness to lead DE in his statement u/s 313 Cr. PC recoded on 23.03.2011 but vide court order dated 28.03.2011 he refused to lead Defence evidence in this regard. This answer of accused in the statement recoded u/s 313 Cr. PC cannot come to his rescue with regard to the alleged incident since it has come on record in the deposition of PW21 I.O. that he collected the exhibits from the spot i.e. one bed sheet blood stained, from a room situated at second floor, blood stained floor and floor without blood from each floor vide Ex. PW12/A, which reflects something else.
53.Observing in such like cases Hon'ble Supreme Court in case 'Wajir Chand State of Haryana AIR 1989 SC 378' it was observed that in order to convict any person for instigating any person to commit suicide, it is to be established that the victim committed suicide. It was further held in 'Gurbachan Singh Vs Satpal Singh AIR 1990 SC 209 FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 42 / Cr. L J 562' that if the facts and circumstances establish suicide and there is dowry demand section 306 IPC is attracted. Similarly, in 'Ramesh Kumar Vs State of Chhatishgarh (2001) 9 SCC 618: 2002 SCC (Cri) 1088' It was observed that:
"Section 498 A, 306 IP Code are independent and constitute different offences, though , depending on the facts and circumstances of an individual case subjecting woman to cruelty may amount an offence u/s 498A and may also if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide amount to abatement to commit suicide, however, merely because an accused has been held liable to punish u/s 498A, IP Code it does not follow that on the same evidence he must also and necessarily be held guilty of having abated the commission of suicide by the woman concerned."
54.In the present case deceased Meera had jumped over from the roof vide testimony of PW7 Manju which is Ex.PW7/DA and deceased Meera received multiple injuries vide her postmortem report Ex.PW8/A. Though, she has not seen her directly while jumping from the roof which further put a mark of spark on the death of deceased. Therefore, the aforesaid findings of the case sufficiently indicate that deceased was subjected to harassment and cruelty vide depositions of PW1 Smt. Radha - mother of deceased; PW2 Gauri Shankar - brother of FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 43 / deceased and PW3 Ghanshyam - another brother of deceased. PW2 Gauri Shankar, brother of Meera had given an amount of Rs. 20,000/ but even then also accused/ husband of deceased used to harass Meera a lot. On careful perusal of their testimonies it has also been found that during the period from the date of marriage till 01.10.2007, deceased Meera was subjected to cruelty, for not bringing sufficient dowry by her inlaws and other accused persons and demanded one more motorcycle, a gold chain and used to say that deceased Meera is from cheap family i.e. "Ghatia Ghar Ki Ladki Aa Gai Hai, Ise Ghar Se Nikalo" and used to abuse deceased Meera. It has also come on record that accused Bharat Bhushan being husband of deceased Meera used to come in drunken condition, used to beat her, abused her and also used to say that she has brought less dowry. So long as the question of giving Rs.20,000/ is concerned, in this regard no specific date has been proved which can establish the attributes of demand for dowry soon before the death. But it is on record that deceased Meera was subjected to cruelty by accused persons as per the depositions of PW1 , PW2 and PW3 and the factum FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 44 / of death of deceased within 18 months of her marriage directly reflects that she had been subjected to torture and harassment at the hands of the accused persons as a result of which having found no way for her dignity she suffered death under the mysterious circumstances. This conclusion can be drawn from the deposition of PW7 Manju who happens to be the Mausi/ Jethani of deceased Meera, vide her statement Ex.PW7/DA that in the evening of 30.09.2007, Meera had a quarrel with her husband and for that reason she did not even take food. On that night, when she was sleeping on the first floor of her house, there was a phone call for her husband in their room asking him to open the latch of the room in which Meera was sleeping. By the time, she and her husband went upstairs, they saw everybody screaming and found that Meera had jumped from the roof. The citations relied upon by the ld. counsel as discussed in the preceding para no.41 are not applicable in the present case since facts of the cases and the present case are entirely different. In these facts and circumstances of the case and judgments 'Ramesh Kumar Vs State of Chhatishgarh (2001) 9 SCC 618: 2002 SCC (Cri) 1088' ; 'Wajir Chand FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 45 / State of Haryana AIR 1989 SC 378' ; and 'Gurbachan Singh Vs Satpal Singh AIR 1990 SC 209 Cr. L J 562' (supra), I am of the view that prosecution has successfully proved its case against accused persons for the offence u/s 498 A / 34 IPC in respect of accused persons namely 1.Lal Chand, 2.Amar Chand, 3.Smt. Man Devi and 4.Ganesh and for the offences u/s 498 A / 34 and 306 IPC in respect of accused 5. Bharat Bhushan: Accordingly, I hold accused persons namely Lal Chand, Amar Chand, Smt. Man Devi and Ganesh guilty for the offence u/s 498 A / 34 IPC; and I hold accused Bharat Bhushan guilty for the offence punishable u/s 498A/ 34 IPC and 306 IPC All accused persons are acquitted from the offence u/s 304 B IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 30.04.2011 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi FIR no. 375 / 07 State Vs Lal Cand etc PS Parsad Nagar 46 /