Delhi District Court
State vs . on 23 October, 2018
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 05
EAST DISTRICT KARKARDOOMA COURTS:DELHI
FIR No.: 139/07
PS : Mayur Vihar
U/Ss. : 498A/304B IPC
S. C. No. : 1618/16
STATE
Vs.
1. Sumit Kumar Aggarwal
S/o R.S. Aggarwal
R/o 20 Nirman Apartment
Mayur Vihar, Phase I, Delhi.
2. Radhey Shyam Aggarwal
S/o Late R.R. Aggarwal
R/o 403B, White House Apartment
Budh Marg, Patna.
3. Smt. Kosalya Aggarwal
W/o R.S. Aggarwal
R/o 403B, White House Apartment
Budh Marg, Patna.
Date of Assignment : 30.11.2007
Date on Arguments : 26.09.2018
Date of Judgment : 23.10.2018
SC No. 1618/16 Page 1 / 55
JUDGMENT
1. The present case was registered on the complainant of Sh.
Ajay Kumar Tulsiyan, father of deceased Manisha. CASE OF THE PROSECUTION
2. As per the case of the prosecution, deceased Manisha was married to accused Sumit Aggarwal on 29.04.2004 as per Hindu rites and rituals. The marriage was solemnized at Hotel Maurya, Patna at the instance of the accused Radhey Shyam, which was beyond the reach of the complainant. At the time of said marriage, the complainant had given sufficient dowry articles to the family of accused persons and had incurred expenditure beyond his limits. It has been alleged that during the said marriage, the sisters of accused Sumit Aggarwal created scene and the complainant had to give gold chains and sarees to them, as per their demands. After two days of the marriage, accused Radhey Shyam called the complainant to his home and demanded Rs. Two Lacs from him on the pretext that same is required by accused Sumit Aggarwal. The complainant showed his inability to pay the said amount. The maternal uncle of the deceased also SC No. 1618/16 Page 2 / 55 explained accused Radhey Shyam about the financial status of the complainant. Enraged by the act of complainant of not giving the demanded amount, the accused Sumit Aggarwal left for Delhi alone and the deceased was left with her inlaws at Patna to be subjected to cruelty by them.
3. After fifteen days of her marriage, the deceased was taken to Delhi at the house where the accused Sumit Aggarwal was residing. It has been alleged that all the three accused persons used to harass and torture the deceased for not brining sufficient dowry and the accused Kaushalya Aggarwal used to taunt the deceased. Accused Sumit Aggarwal used to illtreat the deceased on the instigation of his mother. The deceased used to tell all the above said facts to the complainant.
4. The deceased visited her parental house after 45 months of her marriage, for the first time, but no one from her inlaws came to take her back nor showed any interest. The deceased was sent back to her matrimonial house by the complainant, as told by the accused persons. The sister of the accused Sumit Aggarwal asked the deceased to bring Rs. Two lacs, in order to lead a happy SC No. 1618/16 Page 3 / 55 matrimonial life. The complainant had sent Rs. 30,000/, Rs. 20,000/ and sometime Rs. 10,000/ to the inlaws of the deceased. It has been alleged that after 56 months of the marriage, deceased was sent to her parental house and accused Sumit Aggarwal had obtained signature of the complainant on some stamp paper upon which certain conditions were written. The complainant had to sign the same. On 27.03.2007, accused Sumit Kumar on the asking of her mother brutally beaten the deceased. The deceased had told about the said incident to him (PW1) on phone and further told that her nose was bleeding and there was injury on her chest. The deceased asked the complainant to give some money to accused persons, but the complainant could not arrange the money as he had met with an accident.
5. It has been alleged that the accused Kaushalya Aggarwal used to give threats to the deceased that after her murder, nothing would happen to them and that they had planned accordingly. In the morning of 17.04.2007, the deceased had called the complainant on phone and told him that accused Sumit Aggarwal SC No. 1618/16 Page 4 / 55 had told her that she had lost his (Sumit Aggarwal's) one paper and he would cut her into pieces. The complainant called the deceased at about 3.00 p.m. who told him to keep the phone down. The complainant heard accused Sumit Aggarwal shouting at that time. Thereafter, the complainant talked to accused Sumit Aggarwal who asked him to come to Delhi. The complainant told him that he would come to Delhi within two days along with money. It has been alleged that on 17.04.2007, at about 07.00 p.m. the complainant again talked to deceased on phone who told him that she had threat to her life. She told that mother of Sumit Aggarwal was calling her frequently and that probably the father of Sumit Aggarwal was in Delhi. On 18.04.2007, the complainant at about 3.34 a.m. received a call from the neighbour of deceased that his daughter had expired. The complainant immediately left for Delhi.
6. After registration of FIR, investigation was carried out by the police. After completion of investigation, chargesheet was filed against accused persons, namely, Sumit Aggarwal, Radhey Shyam Aggarwal and Kaushalya Aggarwal for the offences SC No. 1618/16 Page 5 / 55 punishable under sections 498A/304B/120B/34 IPC.
7. After supply of copies etc., Ld. M.M committed the case to the court of Sessions.
CHARGE
8. The predecessor Court vide order dated 31.01.2008, charged accused Sumit Aggarwal for the offences punishable under sections 498A/304B IPC. Accused persons Radhey Shyam Aggarwal and Kaushalya Aggarwal were charged for the offences punishable u/s 498A IPC. Accused persons pleaded not guilty to the charges against them and claimed trial.
PROSECUTION EVIDENCE
9. In support of its case, the prosecution examined twenty two witnesses.
10. PW1 is Sh. Ajay Kumar Tulsiyan. He is the complainant in this case and the father of deceased Manisha. He has deposed that deceased Manisha was married to accused Sumit Aggarwal on 29.04.2004. In the said marriage, Sh. Ajay Kumar Tulsiyan had given cash of Rs. 51000/, jewellery, clothes, furniture etc. to his daughter. Engagement ceremony of the deceased with SC No. 1618/16 Page 6 / 55 accused Sumit Aggarwal was solemnized in March 2004. PW1 Sh. Ajay Kumar has further deposed that accused Sh. Radhey Shyam Aggarwal, father in law of the deceased Manisha had asked and insisted upon the complainant to perform the marriage at Maurya Hotel, Patna despite knowing the inability of the complainant for performing the marriage at the said venue. Due to the pressure exerted by the father in law of the deceased, complainant agreed to perform the marriage at Maurya Hotel. Before solemnization of the marriage, accused Kaushalya Devi had also given her demands regarding the clothes and jewellery. On the day of the marriage, at the venue after arrival of the Barat, sisters in law of the deceased have also showed their displeasure towards the articles given by the complainant in the said marriage for the reason that they were of inferior quality and not meeting their expectations.
11. PW1 has further deposed that after two days of the marriage, accused Radhey Shyam demanded Rs. Two Lacs from the complainant for settling Sumit Aggarwal in Delhi. In Delhi, deceased Manisha and the accused persons were residing at SC No. 1618/16 Page 7 / 55 Nirman Apartments. He has further deposed that deceased Manisha on telephone had told him that she had not been given in proper hands and her in laws were greedy people as they used to harass her with regard to the dowry articles given in the marriage. PW1 Sh. Ajay Kumar has also deposed that on being called by accused Sumit Aggarwal, he reached Delhi, in the month of November 2004, when deceased had told him that Sumit Aggarwal wanted to get rid of her and Sumit Aggarwal was doing so as per advice of her mother in law. When the deceased for the first time was brought to Delhi, the complainant had sent Rs. 30000/ through his son Tarun Kumar for shopping etc. which was given to accused Sumit Kumar. Earlier also, the complainant had given Rs. 20,000/ to the accused persons.
12. PW1 has further deposed that in May or June 2005, Sumit Aggarwal came to their home and as per the wish of Sumit Aggarwal and on the asking of his deceased daughter, complainant had signed certain documents which were brought by Sumit Aggarwal. He further deposed that Sumit Aggarwal had told him that those documents were mere formality and his SC No. 1618/16 Page 8 / 55 parents had directed him to get those documents signed from him and only then Manisha was to be brought back. He further deposed that in the month of November 2005 the complainant had performed marriage of his another daughter namely Annu. But none from the family of accused persons attended the same, nor the deceased was allowed to attend the said marriage. He further stated that only the complainant amongst his family members was allowed to meet the family members of Sumit Aggarwal as he used to give money to the family of accused persons on his visit. After the marriage of complainant's son, he had given cash of Rs. 50,000/, clothes and customary things to the deceased. He has also stated that on 23.01.2007, he had received two letters written by deceased Manisha wherein, she had requested for sending money. He has further stated that he had come to know through her another daughter Sonal Aggarwal that on 27.03.2007, Sumit Aggarwal had beaten the deceased very badly. The deceased Manisha had informed the said fact to Sonal, her sister, through email.
13. PW1 Sh. Ajay Kumar Tulsiyan has further deposed that SC No. 1618/16 Page 9 / 55 on 17.04.2007, he had received phone call from the deceased who told him that Sumit Aggarwal from his office had telephonically told her to search a paper which was missing from his file failing which she would be cut into pieces. The complainant had also received telegram from Sumit Aggarwal mentioning that mental condition of the deceased was not fit and she wanted to commit suicide. In the night of 17.04.2007, the complainant's son was informed by some neighbour about the death of Manisha. He made complaint Ex. PW1/A.
14. PW2 is Sh. Sita Ram Aggarwal. Deceased Manisha was the niece of PW2 Sh. Sita Ram Aggarwal. He has deposed that deceased was married to Sumit Aggarwal on 29.04.2004. He had attended the said marriage. Father of accused Sumit Aggarwal had pressurized the father of deceased to perform the marriage at Maurya Hotel, Patna. He deposed that on the day of marriage some altercation had taken place as the mother and sisters of the groom had not liked the gold chains, being light in weight, given to them by bride's family. He has further deposed that after 3 / 4 days of marriage, father of the deceased Sh. Ajay Tulsiyan, told SC No. 1618/16 Page 10 / 55 PW2 over phone that they were trapped in marriage and the father of Sumit Aggarwal was demanding Rs. Two Lacs to settle Sumit Aggarwal in Delhi. However, Sh. Ajay Tulsiyan had no money. PW2 Sh. Sita Ram Aggarwal was in constant touch with the father of the deceased on phone who used to tell him (PW2) about the harassment being suffered by deceased on account of dowry demands. The deceased had also requested him to help her father as his financial condition was not sound. The deceased had telephoned him from Delhi as well as from Patna. PW2 had helped the father of the deceased on one or two occasions.
15. PW2 Sh. Sita Ram Aggarwal, on the request of the father of the deceased, had also come to Delhi, to convince the inlaws of the deceased regarding his financial condition and the inability to meet out their demands. The inlaws of the deceased had asked for their help to settle Sumit Aggarwal in Delhi and in this regard they demanded money. PW2 at that time had given Rs. 50000/ to the sister in law of the deceased. He has stated that the deceased was not treated well by her inlaws and husband soon after her marriage. PW2 came to know about the death of Manisha on SC No. 1618/16 Page 11 / 55 18.04.2007 at about 4.00 a.m. through his son Deepak. He reached Delhi on the following day. During the time of cremation of the deceased, none from the side of inlaws of Manisha attended the cremation.
16. PW3 is Sh. Sanjay Kumar Singhania. The deceased Manisha was his niece (Bhanji). He has deposed on the similar lines of the complainant regarding the marriage of the deceased with Sumit Aggarwal and that after her marriage, she was subjected to harassment and cruelty by her inlaws and husband on account of bringing less dowry and demand for money. He has corroborated the testimony of PW1 Ajay Kumar Tulsiyan on all the material points.
17. PW4 is Smt. Renu Saxena. She is the neighbour of Sumit Aggarwal at Nirman Apartment, Mayur Vihar, Delhi. She stated that initially Sumit Aggarwal resided alone and thereafter his wife and parents started residing there with him. PW4 Smt. Renu Saxena used to supply tiffin / food to accused Sumit Aggarwal regularly, when he was residing alone. She also used to provide tiffin to accused Sumit when his family used to remain SC No. 1618/16 Page 12 / 55 sick. She further deposed that there used to be quarrels between Sumit and Manisha.
18. PW5 is Ct. Kailash Chand. He has deposed that after receiving the call in police station on 18.04.2007, he along with SI Anant Kumar reached the spot i.e. the house of accused Sumit Aggarwal. He saw the dead body of female lying on the bed. Some portion of chunni was hanging with the ceiling fan and some portion was tied around her neck. A pair of scissors was also lying near the dead body. IO conducted the proceedings there, gave him ruqqa and he got the case registered. Further examination of this witness was deferred. This witness was partly examined on 19.01.2009 and his testimony remained incomplete as he was never produced again by the prosecution for his statement. Therefore, his incomplete testimony cannot be read in evidence.
19. PW6 is Ct. Shiv Om. He deposed that on 18.04.2007, he was posted in East District Crime Team as Photographer. On that day, on the summoning of the IO of the case, he reached at the spot around 4.30 a.m. There he saw a dead body of a female SC No. 1618/16 Page 13 / 55 which was lying on the bed. He had taken 15 snaps of the spot which are Ex. PW6/A1 to PW6/A15. The negatives of the same are Ex. PW6/B1 to Ex. PW6/B15.
20. PW7 is Ct. Amar Singh. He deposed that on 21.04.2007, he had taken the dead body of Manisha Aggarwal from mortuary of LBS Hospital and deposited the same in mortuary of GTB Hospital. He further stated that on the said day, postmortem on the body of deceased was conducted and thereafter it was given to the relatives of the deceased vide receipt Ex. PW1/N.
21. PW8 is Ct. Sushil Kumar. During the investigation of the case, he had collected five parcels from Malkhana of PS Mayur Vihar and deposited the same at FSL Rohini in intact condition. He had handed over the receipt of deposit with Malkhana Moharar.
22. PW9 is SI Dheeraj Singh. He stated that on 18.04.2007 at about 4.30 a.m., after receiving the information , he along with his crime team officials reached the spot. There he saw SI Anant Kumar with staff. It was ground floor of the house and the door of the same was opened. He saw a lady was lying dead on bed, a SC No. 1618/16 Page 14 / 55 dupatta was found hanging with the ceiling fan and its part was lying near the dead body. Three papers of suicide note along with scissors and a plastic chair was also lying there. He instructed the IO to collect exhibits from the spot and to call SDM. He submitted his report Ex. PW9/A.
23. PW10 is Amit Kumar Bijpuria. He is the husband of the younger sister of deceased Manisha. He has also deposed on the similar lines as deposed by the complainant in his evidence with regard to the matrimonial life of Manisha and that the inlaws and husband of deceased used to harass and torture her for demand of dowry. He has also stated that on 18.04.2007 between 3.15 to 3.30 a.m., he had received a phone call from Sumit Aggarwal informing that Manisha was no more in this world. On 01.05.2007 he along with the complainant reached the house of Sumit from where dowry articles were seized by the police vide seizure list Ex. PW1/D.
24. PW11 is Manish Aggarwal. Deceased Manisha was his sisterinlaw (Sali). He stated that since the marriage of deceased with Sumit Aggarwal, behaviour of her inlaws and husband was SC No. 1618/16 Page 15 / 55 not good towards her. There was dispute on the point of dowry articles at the time of marriage. Manisha used to talk to him over phone and used to tell him that she had been given in wrong hands and her inlaws were greedy people. They used to mount pressure on her by saying that their daughter (sister of accused Sumit Aggarwal) was married to a person who is employed at PMO and the deceased cannot do anything against them as they can get things managed.
25. PW11 has further deposed that on 28.03.2007, he had received email from the deceased wherein she had stated that Sumit Aggarwal had beaten her severely by inserting a cloth in her mouth and she had been threatened not to disclose these things to her parents. On 14.04.2007, deceased had called PW11 Manish Aggarwal from PCO booth and told him that she would chat through laptop of Sumit Aggarwal. Consequently, he and his wife had chat with the deceased and came to know that her in laws required more money. On the said date, PW11 had told the father of the deceased telephonically that deceased Manisha was in deep trouble and asked him to sort out the problem. SC No. 1618/16 Page 16 / 55
26. On 16.04.2007, father of the deceased reached the house of PW11 who had delivered the copies of email chat to him and requested him to arrange money and to reach Delhi. On 18.04.2007 at about 3.30 a.m., he came to know telephonically that Manisha had died. He along with his wife reached Delhi at about 7.00 p.m., by that time dead body of Manisha had been deposited in mortuary. At the time of cremation of the deceased, none from her inlaws was present. On 28.04.2007 Sumit Aggarwal was brought to Patna in police custody and the dowry articles were seized vide memo Ex. PW1/C from the house of Sumit in Patna. The record of chatting i.e. Ex. PW11/B and Ex. PW11/C were seized vide memo Ex. PW11/A. PW11 Sh. Manish Aggarwal has further stated that during the last 15 days prior to her death, deceased was harassed and tortured a lot by Sumit Aggarwal as deceased had told him that Sumit was not having any talks with her.
27. PW12 is Smt. Sudha Tulsiyan. She is the mother of the deceased Manisha. She has deposed on the same lines as deposed by the complainant qua the marriage of deceased Manisha with SC No. 1618/16 Page 17 / 55 Sumit Aggrawal and about the atrocities which the deceased used to bear at the hands of her inlaws and her husband on this account. She also deposed that her husband gave Rs. 20,000 30,000/ to the parents of accused Sumit Aggarwal. She has corroborated the testimony of PW1 on all the material points.
28. PW13 is Ms. Sonal Aggarwal. She is the elder sister of deceased Manisha. She has deposed that after her marriage, she was being harassed and tortured by her inlaws and husband. She has further stated that on 28.03.2007 the deceased had informed her that on the asking of her mother in law, her husband had beaten her severely by inserting a cloth in her mouth and her hands were also tied by Sumit Aggarwal. She further deposed that one day prior to her death, when PW Sonal Aggarwal had called her and had asked as to what she was doing, deceased replied that she had seen a chapter opened by Sumit Aggarwal showing easy ways to commit suicide. On 17/18.04.2007 at about 3.00 a.m., she came to know about the death of Manisha in Delhi, through her younger sister.
29. PW14 is Sh. Radha Charan the then SDM Preet Vihar, SC No. 1618/16 Page 18 / 55 Delhi. He deposed that on 18.04.2007, after receiving a call from SHO PS Mayur Vihar, he had reached the spot at about 10.00 a.m. and inspected the same. He had seen a dead body of a deceased Manisha lying on the bed. A part of chhuni was hanging with the ceiling fan of the room and the remaining part of chunni was tied around the neck of the dead body. The latch of the room was in normal condition and the door was not found locked from inside. The dead body of Manisha was then taken to mortuary of LBS Hospital. He also asked the police to inform the parents of the deceased. He had recorded the statement of father of the deceased which is Ex. PW1/A. On the request of parents of the deceased, postmortem of body of Manisha was conducted by medical board. The copy of requisition is Ex. PW14/A. Ex. PW14/B is the brief facts recorded by PW14. Ex. PW14/C is the death report and request for postmortem is Ex. PW14/D. The dead body was identified by Tarun Tulsiyan and Ajay Tulsiyan vide their statements Ex. PW14/E and Ex. PW1/M, respectively. After postmortem dead body of deceased was handed over to her parents.
SC No. 1618/16 Page 19 / 55
30. PW15 is Sh. Tarun Kumar Aggarwal. He is the brother of deceased Manisha. He deposed that after 23 months of marriage of deceased with Sumit Aggarwal, he had visited the house of deceased at Delhi and had given Rs. 30,000/ to Sumit. The said amount was given to Tarun Aggarwal by his father (the complainant) to deliver the same to Sumit Aggarwal or to his mother. After receiving the said amount, the accused persons had insulted Tarun Kumar for bringing such a meager amount for them. He has deposed that at that time, he had sensed that inlaws of Manisha were not up to the mark and some unwarranted incident my take place with his sister Manisha. On 18.04.2007, around 3.30 a.m. or 4.00 a.m. he received a phone call regarding the death of Manisha. By boarding a morning flight he along with his father reached Delhi. He has corroborated the testimony of PW1 Sh. Ajay Kumar Tulsiyan, on material points.
31. PW16 is Dr. Vijay Dhankar. He was one of the doctor of the medical board who conducted postmortem on the dead body of the deceased Manisha. He stated that the board was consisted of three doctors including him. He had remained SC No. 1618/16 Page 20 / 55 present during the postmortem examination with the other members of Board. He concurred with the opinion of the Board regarding the cause of death of Manisha and other particulars noted in postmortem report. The postmortem report was prepared by Dr. Anil Kohli which is Ex. PW16/A.
32. PW17 is Dr. Anil Kohli. He had conducted the autopsy on the dead body of Manisha. The postmortem on the dead body of Manisha was conducted by him, Dr. Vijay Dhankar and Dr. Upender Kishore. He had prepared the postmortem report Ex. PW16/A. In the report it has been opined that the time of death was about 31/2 days and the cause of death was asphyxia due to antemortem hanging.
33. PW18 is HC Vijender. He has deposed that on 18.04.2007 HC Vijay was working as MHC(M) PS Mayur Vihar. On that day Insp. Sarabjeet Singh had deposited one suicide note, register sealed with the seal of AKS in different envelopes, one mobile phone Nokia 3310 in sealed condition, 9 sealed parcels containing various articles seized from the place of occurrence, one laptop make HP in a black bag, ATM Debit Card of A/c No. SC No. 1618/16 Page 21 / 55 4801, black colour Nokia charger, diaries of year 2003, one telephone diary, one corporate diary of year 2001, viscera box with blood sample, clothes of deceased in a sealed condition and personal search memo of Sumit Kumar in Malkhana after making entry in register no. 19. The copy of same is Ex. PW18/A. On 30.05.2007, the exhibits were sent to FSL Rohini for examination through Ct. Sushil Kumar. On 08.05.2008, FSL result was deposited in Malkhana by Ct. Vijay vide entry Ex. PW18/B.
34. PW19 is ASI Krishan Pal. He being Duty Officer had recorded the FIR of this case on 18.04.2017 on receipt of Ruqqa from Ct. Kailash. FIR is Ex. PW19/A. After registration of the FIR, he made endorsement Ex. PW19/B on the ruqqa. Thereafter, he handed over the Ruqqa and copy of FIR to Ct. Kailash for handing over the same to IO for investigation.
35. PW20 is Ct. Pawan Kumar. On 27.04.20047, he along with IO / SI Anant Kumar and accused Sumit Aggarwal went to the house of accused in Patna, from where the dowry articles were seized vide memo Ex. PW1/C. They also searched for the other two coaccused persons in Patna, but they could not be found. SC No. 1618/16 Page 22 / 55 Statement of sister of Sumit Aggarwal was recorded by the IO. On 30.04.2007, they along with case property (Ex. PW20/Article 1 (colly.)) returned back to Delhi and deposited the same in Malkhana PS Mayur Vihar. Vide memo Ex. PW1/B, the IO collected email letters and other documents from the father of the deceased. The copies of said documents are Ex. PW20/A. Vide memo Ex. PW1/D some articles were also recovered from the flat of accused. The accused was got medically examined and was sent to J/C.
36. PW21 is SI Anant Kumar. He deposed that on receipt of DD No. 5A (Ex. PW22/A), he along with Ct. Kailash reached at the spot. He entered the house and noticed a dead body of a lady lying on the bed and mattress were half folded. The face of the body was towards the roof and a wooden chair was lying near the head of the dead body. Half piece of chunni was lying on the bed and the other part of the said chuuni was tied with the ceiling fan, a pair of scissors was lying on the bed. Accused Sumit Aggarwal was also present at the spot who upon inquiry told that his wife had committed suicide by hanging herself with the ceiling fan and SC No. 1618/16 Page 23 / 55 he had removed her dead body after cutting the chunni by scissors from ceiling fan. On inspection, he found suicide note running into three pages and one notebook lying on the table adjacent to double bed. After knowing that deceased had committed suicide within three year of her marriage, he informed the SDM on telephone to reach the spot. He also informed the crime team along with photographer and also made call to parents of deceased. The parents of the deceased reached the spot at about 2.00 p.m. The dead body and scene of crime was got photographed, articles from the spot were seized and sealed and were taken into possession vide memo Ex. PW21/A. Thereafter, dead body was removed to mortuary of LBS Hospital. SDM recorded the statement Ex. PW1/A of the father of the deceased. Ex. PW21/B is his endorsement on statement Ex. PW1/A. Thereafter, FIR of the case was got registered through Ct. Kailash Chand. The site plan of the spot was prepared by SI Sarbjeet Singh at his instance which is Ex. PW21/C. The suicide note and notebook / register were taken into possession vide memo Ex. PW21/D. Some other articles pertaining to this case were also SC No. 1618/16 Page 24 / 55 seized by the IO vide memos Ex. PW1/K, PW1/L, PW1/H, Ex. PW1/J. Accused Sumit Aggarwal was arrested vide memo Ex. PW21/E and his personal search was conducted vide memo Ex. PW21/F. The dead body was preserved for about 72 hours in the custody of Ct. Anil. Vide Ex. PW21/G viscera box, blood sample and clothes of the deceased were taken into possession. On 27.04.2007, he had joined the investigation of the case. Accused Sumit Aggarwal got recovered 28 articles mentioned in the list of seizure memo, from his parental house at Patna, and the same were taken into possession vide memo Ex. PW1/C. Despite search, coaccused could not be traced. He had recorded the statements of the witnesses. He further stated that on 01.05.2007, he along with father of the deceased came back to Delhi and thereafter, went to the spot from where 18 articles as mentioned in the seizure memo were taken into possession vide memo Ex. PW1/D. One relative of complainant namely Sh. Amit Bijpuria also joined the investigation and recorded his statement. Thereafter accused was sent to J/C and the file was handed over to Inspector Sarabjeet Singh.
SC No. 1618/16 Page 25 / 55
37. PW22 is Inspector Sarabjeet Singh. He has deposed that on 18.04.2017, he was posted at PS Mayur Vihar as Inspector Investigation. In the morning time of 18.04.2007, he had received information regarding suicide committed by Manisha wife of accused Sumit, at 20 Nirman Apartment, Mayur Vihar, Delhi. When he reached the spot, he saw SI Anant Kumar was already present there who had already conducted the proceedings there and had sent the dead body of deceased Manisha to LBS Hospital. SI Anant Kumar had gone to hospital and had returned back to the spot at about 3.40 p.m. and had handed over the copy of FIR, original ruqqa and seizure memo to him (PW22), at the spot. At the instance of SI Anant Kumar, he (PW22) had prepared the site plan Ex. PW 21/C. The DD No. 5A vide which SI Anant Kumar had reached the spot is Ex. PW 22/A and the same was handed over to him (PW22) by SI Anant Kumar. He deposed that he had collected two pages of Internet chat vide memo Ex. PW11/A. He has further deposed that he had found a suicide note in three pages kept in an envelope on a table, in the second room adjoining the room of the flat, in which Manisha had committed suicide and the SC No. 1618/16 Page 26 / 55 same was taken into possession vide memo Ex. PW 20/D. Vide memo Ex. PW1/H, mobile phone model 3310 along with one SIM Card of Idea was seized and was taken into possession in the presence of the father of the deceased. The said mobile phone belonged to deceased as identified by the father of the deceased. Coaccused Radhey Shyam Aggarwal and Koshalya Aggarwal were formally arrested. PW22 was suspended on 08.07.2007 and the case file was handed over to MHC(R).
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.
38. Statements of the accused persons were recorded under section 313 Cr.P.C., wherein, they denied the allegations against them and stated that they are innocent and have been falsely implicated in this case.
39. Accused Radhey Shyam Aggarwal and Kaushalya Aggarwal further stated that they are permanent resident of Patna. At the time of alleged incident, they were residing in Patna.
40. Accused Sumit Aggarwal in his statement u/s 313 Cr.P.C.
has further stated that he wanted to take divorce from Manisha and when she came to know about the same she continuously SC No. 1618/16 Page 27 / 55 threatened him to commit suicide. Sumit Aggarwal had informed the complainant and other relatives about the threats given by Manisha. But his inlaws did not take any action, therefore, Sumit Aggarwal on 17.01.2007 lodged a complaint at PS Mayur Vihar. The police visited the flat of the accused regarding his complaint and the deceased came to know about filing of the said complaint by him. Thereafter deceased called her parents and on the directions of her parents, she created false evidence against accused Sumit Aggarwal by sending two letters dated 18.01.2007 and 20.01.2007.
DEFENCE EVIDENCE
41. In defence, the accused persons examined three witnesses.
42. Sh. Mohd. Ehtesham was examined as DW1. He deposed that he had attended the marriage of the accused Sumit Aggarwal with the deceased on 29.04.2004 and the same took place smoothly in happy atmosphere.
43. ASI Shankar Sharma was examined as DW2. At the relevant time, he was posted in PS Mayur Vihar. He stated that on 17.01.2007 accused Sumit Aggarwal had lodged a complaint in SC No. 1618/16 Page 28 / 55 PS Mayur Vihar which is mentioned in the complaint Register of the year 2007 at Srl. No. 51. The photocopy of the said entry in complaint register is Ex. DW2/A. The said complaint was marked to SI Dharmender Kumar for investigation.
44. ASI Murlidharan was examined as DW3. He has deposed that the first entry on Ex. DW2/A made in complaint register is in his handwriting and the complaint dated 17.01.2017 made by accused Sumit Aggarwal is Ex. DW 3/C.
45. I have heard Sh. Gaurav Pandey Addl. P.P for the State and Sh. Maninder Singh Advocate for all the three accused persons. I have also gone through the case file, the written synopsis of arguments and the case law filed on behalf of the complainant and the accused persons.
ARGUMENTS ON BEHALF OF PROSECUTION
46. The Ld. Addl. PP for the State submitted that deceased Manisha, the wife of accused Sumit Aggarwal and daughter in law of accused Radhey Shyam Aggarwal and Kaushalya was found dead in the house of accused persons in unnatural circumstances within three years of her marriage. The FIR in this SC No. 1618/16 Page 29 / 55 case been registered on the complaint of father of deceased Manisha. It was contended that that marriage of accused Sumit Aggarwal was fixed with deceased Manisha. After fixation of marriage, accused Radhey Shyam Aggarwal in connivance with other accused persons pressurized the parents of deceased to solemnize the marriage at Maurya Hotel, Patna which was beyond the financial capacity of the father of the deceased. Therefore, on the demands of accused persons the marriage was performed at Maurya Hotel Patna on 29.04.2004. Accused Kaushalya Devi had also placed demand of gold jewelry and costly clothes before the parents of the deceased. The said marriage incurred expenditure beyond the limits of complainant.
47. It was contended that since after the marriage of the deceased Manisha with accused Sumit Aggarwal, she was subjected to cruelty by the accused persons. It has been alleged that in the year 2004 the accused Radhey Shyam had demanded Rs. Two Lacs from the complainant, father of the deceased Manisha for settling the accused Sumit Aggarwal in Delhi, but the complainant could manage to pay Rs. 50,000/ in parts in SC No. 1618/16 Page 30 / 55 response to the said demand. The husband of the deceased Manisha and her in laws were annoyed with the deceased and her parents on account of not giving the remaining amount out of demand of Rs. Two lacs. They did not attend the marriage of brother and younger sister of deceased Manisha. It was submitted that in June 2005 accused Sumit Aggarwal had obtained the signature of deceased Manisha on some blank and stamp papers by emotionally blackmailing her at her parental house. Ld. Addl. PP contended that these were the papers which have been relied upon by the defence as suicide notes of deceased Manisha, in order to prove their innocence. Ld. Addl. PP for the State further contended that deceased Manisha was not allowed to attend the last rituals of her grandfather who had expired in November 2006 nor her inlaws attended the same.
48. It has further been contended that on 13.04.2007 and 14.04.2007, accused Sumit Aggarwal had sent two telegrams to the father of deceased Manisha demanding money from him, on the false pretext of ill mental health of deceased Manisha. It has also been submitted that on the day of her death i.e. on SC No. 1618/16 Page 31 / 55 17.04.2007 deceased Manisha had told her father on telephone about the threats given by accused Sumit Aggarwal to kill her on the false pretext of missing paper. On the same day, the father of deceased Manisha had called accused Sumit Aggarwal requesting him to stop harassing the deceased with cruelty. He also told accused Sumit Aggarwal that he was arranging the demanded money. It was contended that few hours before her death, deceased Manisha had told her father on phone that she had apprehension that something wrong may happen as the accused Sumit Aggarwal was frequently talking to his parents and his Advocate on phone. It was submitted that at about 3.30 a.m. on 18.04.2007, the complainant had been informed by some neighbour of accused Sumit Aggarwal about the death of Manisha, which proves the guilt of accused persons as they did not inform the parents of the deceased Manisha about her death.
49. The Ld. Addl. P.P. for the State submitted that the case of the prosecution stands proved from the statements of witnesses that the deceased was being subjected to cruelty by her husband and inlaws for unfulfilled demand of Rs. Two Lacs and also for SC No. 1618/16 Page 32 / 55 her lower education. For these reasons accused Sumit Aggarwal wanted to get rid of deceased Manisha and she had been driven to commit suicide. It was contended that once at the instance of accused Kaushalya Aggarwal, she had been beaten mercilessly by accused Sumit Aggarwal and she bleeded heavily and had sustained injuries. It was submitted by Ld. Addl. P.P. that all the witnesses are consistent and corroborative and hence, there is no reason to disbelieve their versions.
50. Ld. Addl. PP for the State has argued that the letter written by accused Sumit Aggarwal to the SHO PS Mayur Vihar about suicidal tendency of the deceased is also against him as the same had been prepared by the accused Sumit to commit the offence, as no medical document has been shown or placed on record by the accused persons in order to show that the deceased Manisha had tendency to commit suicide.
51. The prosecution has also relied upon the following case law in support of its case: a. (2009) 12 Supreme Court Cases 498 b. (2013) 15 Supreme Court Cases 315 SC No. 1618/16 Page 33 / 55 ARGUMENTS ON BEHALF OF ACCUSED PERSONS
52. On the other hand, Ld. Counsel for the accused persons submitted that the accused persons are innocent and they have been falsely implicated in this case. It was contended that deceased Manisha, the wife of the accused Sumit Aggarwal, was impulsive and noncooperating in nature. Since the inception of her marriage she used to threaten the accused persons of committing suicide and to implicate them in a false case. It was contended that the accused Sumit Aggarwal had discussed the said problems of the deceased with her and her family members, but there was no improvement in her behaviour. Ld. Defence Counsel submitted that being aggrieved and harassed with the suicide threats and the threats of false implication by the deceased, accused Sumit Aggarwal, filed a complaint dated 17.01.2007 in PS Mayur Vihar, against the deceased.
53. It was contended by the defence counsel that during the investigation of the case, the police had recovered three suicide notes left by the deceased which clearly show that Manisha, the SC No. 1618/16 Page 34 / 55 wife of accused Sumit Aggarwal had committed suicide. The deceased Manisha has neither blamed any of the accused person nor anyone else for her death in her suicidal notes. Nor in the said suicide notes she had levelled allegations of harassment, physical or mental torture by her husband or inlaws, with regard to cruelty for demand of dowry soon before her death. It was contended that due to the suicidal tendencies of the deceased, Sumit Aggarwal had decided to take divorce from his wife, but she was not mentally prepared to accept the situation and committed suicide.
54. It was submitted that accused persons namely Radhey Shyam Aggarwal and Kaushalya Aggarwal were residing at Patna, Bihar at the time of alleged incident and it is a settled law that the parents or relatives living separately cannot be convicted for cruelty. It was contended that the prosecution has failed to produce any witness to prove the allegations against both the said accused persons.
55. Ld. Defence Counsel argued that the prosecution has failed to prove its case beyond reasonable doubt against the accused SC No. 1618/16 Page 35 / 55 persons, therefore, the accused persons deserve acquittal. It was contended that unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on record, the accused cannot be convicted for an offence. Reliance in this regard has been placed upon Narender Kumar Vs. State (NCT of Delhi) (2012) 7 SCC 171.
56. It was contended that there are material contradictions in the statements of the prosecution witnesses and the same cannot be relied upon. It was argued that it is a settled principle of law that when on the basis of the evidence on record, two views could be taken i.e. one in favour of the accused and the other against the accused, the one favouring the accused should always be accepted. Reliance in this regard has been placed upon State of U.P. Vs. Nandu Vishwakarma (2009) 14 SCC 501.
57. The Ld. Defence Counsel has submitted that the accused persons are liable to be acquitted as the prosecution has failed to prove the charges against them keeping in view the settled law on the ingredients of Dowry Death, Section 32 of Indian Evidence Act, Section 65 B of Indian Evidence Act, presumption of SC No. 1618/16 Page 36 / 55 innocence, two views, prosecution to stand on its own legs, defence witness treated at par with the prosecution witnesses and the other pleas raised by the accused persons.
58. The Ld. Defence Counsel has also relied upon the following case law in support of his case: a. State Govt. of NCT of Delhi Vs. Ram Gopal 2017 (4) JCC 2649.
b. Appasaheb and Another Vs. State of Maharashtra (2007) 9 SCC 721.
c. M. Srinivasulu Vs. State of A.P. (2007) 12 SC 443. d. Sans Pal Singh Vs. State of Delhi (1998) 2 SCC 371. e. Sahib Singh Vs. State of Punjab (1996) 11 SCC 685. f. Kailash Gour Vs. State of Assam (2012) 2 SCC 34. g. Ashish Bathman Vs. State of M.P. (2002) 7 SCC 317. h. Dudh Nath Pandey Vs. State of U.P. (1981) 2 SCC 166. i. Param Pal Singh Gandhi VS. State of Bihar 2017 (1) Crimes 370 (Pat.) j. The State of Maharashtra Vs. Anil @ Raju Namdeo Patil 2005 SCC Online Bom 1360.
k. Anvar P.V. Vs. P.K. Basheer & Ors. (2014) 10 SCC 473. l. Mintu Mia Vs. State 2013 SCC Online Cal 9714. SC No. 1618/16 Page 37 / 55 DISCUSSION AND CONCLUSION
59. The first charge against the accused persons is u/s 498A IPC. The case of the prosecution is that the accused persons have treated the deceased Manisha with cruelty for demand of dowry also harassed her for the same and caused her death.
60. To prove this charge, the material witnesses examined by the prosecution are complainant PW1 Sh. Ajay Kumar Tulsiyan (father of deceased Manisha), PW2 Sh. Sita Ram Aggarwal (uncle / mama of deceased Manisha), PW3 Sanjay Kumar Singhania (uncle / mama of deceased Manisha), PW4 Smt. Renu Saxena (she used to supply tiffin / food in the house of accused Sumit Aggarwal), PW10 Sh. Amit Kumar Bijpuria (brother in law (jija) of deceased Manisha), PW11 Sh. Manish Aggarwal (brother in law (jija) of deceased Manisha), PW12 Smt. Sudha Tulsiyan (mother of deceased Manisha), PW13 Smt. Sonal Aggarwal (sister of deceased) and PW15 Sh. Tarun Kumar Aggarwal (brother of deceased).
61. From the scrutiny of the statements of the above mentioned SC No. 1618/16 Page 38 / 55 witnesses, it is revealed that the evidence which has come on record against the accused persons in respect of charge u/s 498 A IPC is as under: The accused persons insisted that the marriage should be performed at Maurya Hotel Patna which was beyond the financial capacity of the parents of the deceased Manisha. During the discussion for the details of the marriage, the accused Kaushalya Devi raised demand regarding clothes and jewelry.
At the time of marriage of decease Manisha, accused Kaushalya and her daughters namely Seema and Sushma were annoyed for the reason that the articles given to them were of inferior quality and were not up to their expectations. The weight of the gold chain was less. They also complained that sarees given to them were of low quality.
Two days after the marriage, accused Radhey Shyam telephonically called the complainant Ajay Kumar, father of deceased Manisha to his residence and then demanded a sum of Rs. Two lacs for settling accused Sumit Aggarwal in Delhi. SC No. 1618/16 Page 39 / 55 The accused persons were greedy, they used to taunt Manisha and used to make objections regarding dowry articles given to them.
The deceased Manisha was not sent by the accused persons to her parental house on the occasion of Rakhi festival. The accused persons did not send deceased Manisha to her parental house on the occasion of the marriage of her sister. The parents of deceased Manisha gave gifts to the accused persons on the marriage of their son.
On 27.03.2007 deceased Manisha was mercilessly beaten by accused Summit Aggarwal.
PW4 Smt. Renu Saxena who used to supply tiffin / food to the house of accused Sumit Aggarwal deposed that their used to be quarrel in the matrimonial house of deceased Manisha. The parents of the deceased have given cash of Rs. 20,000/ and Rs. 30,000/ to the inlaws of the deceased Manisha as a part of demand of Rs. Two Lacs for settling accused Sumit Aggarwal in Delhi.
62. The Hon'ble High Court of Delhi in a case reported as SC No. 1618/16 Page 40 / 55 Mahavir Kumar & Ors. Vs. State MANU/DE/1321/2014 has held as under:
"44. A bare reading of Section 498A goes to show that the term cruelty which has been made punishable under the Section, has been defined in the explanation appended to the said section. Therefore, the consequences of cruelty, which are either 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 harassment of the woman where such harassment is with a view to coerce 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, are required to be established in order to prove an offence under Section 498 A IPC."
63. The Hon'ble Delhi High Court in a case titled as Hansraj Sharma and Ors. Vs. State reported as MANU/DE/0476/2010 has held as under:
"10........It is not every cruelty which is punishable under Section 498A of IPC. The cruelty, as defined in the explanation to 498A of IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so as to attract penal provisions, contained in Section 498A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of expression 'willful' in the explanation to Section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his SC No. 1618/16 Page 41 / 55 conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequence of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behaviour. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A of IPC. Of course, the expression "cruelty" would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498A of IPC."
64. The scrutiny of the prosecution evidence show that the allegations regarding demand of dowry and harassment are not specific rather the same are vague. The said allegations do not meet the requirement of the offence under Section 498A IPC as mentioned in the judgments Mahavir Kumar & Ors. Vs. State (supra) and Hansraj Sharma and Ors. Vs. State (supra). SC No. 1618/16 Page 42 / 55
65. As regards the allegation of beating the deceased Manisha is concerned, the same has been made by the complainant PW1 Ajay Kumar Tulsiyan, PW11 Manish Aggarwal and PW13 Sonal Aggarwal in the Court. No medical examination of Manisha was ever got conducted in this regard. Nor any complaint was ever made in this regard by Manisha or by her parents before the death of Manisha.
66. So far as the demand of Rs. Two Lacs is concerned, it does not fall in the category of dowry demand. Reliance in this regard can be placed upon a judgement of Hon'ble Supreme Court reported as Appasaheb and Anr. v. State of Maharastra AIR 2007 SC 763 wherein the Hon'ble Supreme Court has held as under: "In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. SC No. 1618/16 Page 43 / 55 It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
67. So far as testimony of PW4 Ms. Renu Saxena is concerned, it is not covered under the torture. PW4 Ms. Renu Saxena has stated that there used to be quarrel between Sumit Aggarwal and deceased Manisha. This cannot be equated with 'torture'. Reliance in this regard can be placed upon the judgment of Mintu Mia Vs. State reported as 2013 SCC Online Cal. 9714.
68. Therefore, in view of the evidence discussed above and the judgments referred above, I am of the considered opinion that the prosecution has failed to prove its case beyond doubt against the accused persons for the offence punishable under Section 498A IPC.
69. The next charge against the accused Sumit Aggarwal is for SC No. 1618/16 Page 44 / 55 the offence under Section 304B IPC.
70. The Hon'ble Delhi High Court in the case of Hansraj Sharma and Ors. Vs. State (supra) has held that before a person can be convicted under this Section, which deals with what is described as "dowry death", the prosecution must necessarily prove the following ingredients: i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstance; ii. Such death must have occurred within seven years of her marriage;
iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
iv. Such cruelty or harassment must be for or in connection with demand for dowry;
v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.
71. Admittedly, the death of Manisha took place otherwise than under normal circumstances and she died within seven years of her marriage.
72. The next ingredients of Section 304B IPC are that soon SC No. 1618/16 Page 45 / 55 before her death the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband and such cruelty or harassment must be for or in connection with demand for dowry.
73. Section 2 of Dowry Prohibition Act defines dowry as under:
2. Definition of 'dowry'. In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage, or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applies.
74. In Satvir Singh and Ors. Vs. State of Punjab and Anr.
2001 (4) Crimes, 45 while dealing with this issue, the Hon'ble Supreme Court, inter alia, observed as under:
"Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in SC No. 1618/16 Page 46 / 55 connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."
75. To prove the charge u/s 304B IPC, the prosecution has relied upon the statement of the complainant PW1 Ajay Kumar Tulsiyan who has stated that on being pressurized by the accused Radhey Shyam, complainant had performed the marriage of her deceased with accused Sumit Aggarwal at Maurya Hotel in Patna, however, the said hotel was beyond the financial reach of the complainant. Accused Kaushalya Devi and accused Sumit Aggarwal had raised demands of clothes and jewellery and at the time of marriage, mother and sisters of accused Sumit Aggarwal were annoyed with the complainant for the reason that the articles given to them were of inferior quality. After solemnization of marriage, accused Radhey Shyam had demanded Rs. Two Lacs from the complainant for settling accused Sumit Aggarwal in Delhi. However, the complainant could manage to give SC No. 1618/16 Page 47 / 55 Rs. 20,000/ and Rs. 30,000/ against the said demand of Rs. Two Lacs.
76. To prove that soon before her death, deceased Manisha was harassed by the accused Sumit Aggarwal, the prosecution relies heavily on the statement of PW1 Sh. Ajay Kumar Tulsiyan who has deposed that on 17.04.2018 at around 7.00 p.m. he had talked to Manisha on telephone i.e. soon before her death. At that time she was scared and she had told PW1 that she had apprehension that something wrong may happen as the accused Summit Aggarwal was constantly talking to his parents on phone in Patna.
77. The case of prosecution is that at about 11 a.m. and 7.00 p.m. on 17.04.2007 phone calls were exchanged between deceased Manisha and her father PW1 Sh. Ajay Kumar Tulsiyan. It is important to note that neither the complainant has disclosed in his statement that from which phone number he had received the phone call nor he has disclosed his own number on which he has received the phone call. The prosecution has also failed to produce the Call Detail Record regarding the same. To prove the afore mentioned phone calls, the Call Detail Record was the best SC No. 1618/16 Page 48 / 55 evidence which the prosecution has withheld without assigning the reason. This creates a doubt in the prosecution story.
78. PW1 Ajay Kumar Tulsiyan has stated that during the said phone calls between him and his deceased daughter, he observed that his daughter was scared as accused Sumit Aggarwal has told her daughter to search out some missing document otherwise she would be cut into pieces. This allegation does not pertain to the dowry demand. However, during arguments it was argued that Manisha was being harassed on account of some missing document, but in fact the harassment was on account of the payment of remaining amount of Rs. 1.5 Lacs out of Rs. Two Lacs demanded by father of accused Sumit for settling Sumit in Delhi. Even this demand does not fall within the scope of dowry demand as per the law laid down by Hon'ble Sumpreme Court in the case of Appasaheb and Anr. v. State of Maharastra (supra).
79. The prosecution has relied upon two letters. PW1 Sh.
Ajay Kumar has further stated that he had received two letters dated 18.01.2007 and 20.01.2007 written by his deceased daughter, whereby she had requested regarding sending the SC No. 1618/16 Page 49 / 55 money.
80. The letters dated 18.01.2007 and 20.01.2007 are photocopies. Originals of these letters have not been produced. The delivery of the same and mode of sending the same have also not been proved. Moreover, the said letters were allegedly sent in January and deceased Manisha committed suicide in April. Meaning thereby the said letters were sent three months prior to suicide and do not come within the purview of "soon before death".
81. The complainant PW1 Sh. Ajay Kumar Tulsiyan has stated that on 27.03.2007 deceased Manisha was badly beaten by her husband Sumit Aggarwal and this fact was conveyed to PW1 through her another daughter Sonal Aggarwal (PW13) who had been informed about the said incident by deceased Manisha by way of email. PW11 Manish Aggarwal (Jija of deceased Manisha) in his deposition has stated that on 28.03.2007, he had received email from Manisha wherein, she mentioned that she had been severely beaten by accused Sumit Aggarwal. There is no medical document on record ascertaining the said allegation of SC No. 1618/16 Page 50 / 55 beatings given by accused Sumit Aggarwal to deceased Manisha. The said email is Ex. PW 11/DB. PW11 has stated it to be correct that from the said email, it cannot be inferred by whom this email has been sent nor it can be said as to who was the receiver of said email. He also admitted that no date and time is mentioned in the said email. It has also come on record that apart from PW11, his wife was also using the said laptop, wherein this email was received. There is no certificate u/s 65 B of Indian Evidence Act. Therefore, under these circumstances, it is clear that the email has not been proved in accordance with law and cannot be relied upon.
82. Therefore, in view of the above discussion and having regard to the law laid down by the Hon'ble Supreme Court in the case of Hansraj Sharma and Ors. Vs. State (supra), the ingredients of Section 304B IPC are not proved.
83. As per the case of the prosecution, three suicide notes were found in the room where the deceased Manish committed suicide. PW21 SI Anant Kumar who had visited the spot first of all, after receipt of DD NO. 5A, has stated that he found suicide note SC No. 1618/16 Page 51 / 55 running into three pages at the spot. The case of the accused is that deceased Manisha did not level any allegation on any person in respect of her suicide. The suicide notes left by deceased Manisha she had given clean chit to the accused persons. It is also the case of the defence that the said suicide notes were concealed by the IO. PW21 SI Anant Kumar has stated in his crossexamination that he had handed over the suicide notes to the SDM at the spot. On the other hand, PW14 Sh. Radha Charan has not deposed regarding this fact.
84. The complainant PW1 Sh. Ajay Kumar Tulsiyan in his crossexamination has admitted that the suicidal notes Ex. PW 21/Article 1 to Ex. PW21/Article 3 were in the handwriting of his deceased daughter Manisha. He has further stated that the said suicide notes were not in his (complainant's) knowledge when he had given statement before SDM as the same had not been shown to him by the Investigating Officer of the case during the investigation. In the said three suicidal notes, deceased Manisha has no where stated that she had been harassed by any of the accused person for dowry demands. As per suicide notes od SC No. 1618/16 Page 52 / 55 deceased Manisha no one was responsible for her death. Meaning thereby, she had given clean chit to all the three accused persons. The complainant (PW1) has also deposed in his cross examination that had the said three suicidal notes were made available to him at the initial stage of investigation, he would not have lodged his complaint (Ex. PW1/A) as the same had been lodged by him as he was in mental shock and trauma and also under the influence of opinion of his family members and relatives. It was argued by the prosecution that the said suicide notes were got prepared from Manisha by accused Sumit Aggarwal under pressure. However, no evidence has been collected by the prosecution in this regard. From the statement of PW1 Ajay Kumar Tulsiyan, it is clear that said suicidal notes were concealed by the IO. In the present case, deceased Manisha herself had given the clean chit to the accused persons and in view of this it is held that prosecution has failed to prove the case beyond reasonable doubt. Reliance in this regard can be placed upon the judgment of Hon'ble Delhi High Court in the case of Mahavir Kumar & Ors. Vs. State (Supra).
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85. So far as the presumption u/s 113B of Indian Evidence Act is concerned, this presumption is firstly, rebuttable and secondly, it comes into play only when it has been proved that the deceased was subjected to cruelty or harassment on account of demand of dowry soon before her death. When the prosecution fails to prove the basic ingredients of this Section, the application of this presumption does not arise at all. Reliance in this regard can be placed upon the Judgment of the Hon'ble Supreme Court of India in the case of Sher Singh Vs. State of Haryana reported as AIR 2015 SC 980. In the present case the prosecution has failed to prove the ingredients of the offence under Section 304B IPC and therefore, the presumption under Section 113B of Indian Evidence Act is of no help to the prosecution.
86. Thus, in view of the discussion above and the case laws discussed above, I am of the considered opinion that prosecution has failed to prove that deceased Manisha was harassed and subjected to cruelty by the accused for or in connection with dowry soon before her death. Therefore, the charge under Section 304B IPC cannot be sustained against the accused Sumit SC No. 1618/16 Page 54 / 55 Aggarwal.
87. In view of the above discussions, all the three accused persons are acquitted of the charges. Their bailbonds are cancelled and sureties are discharged.
88. File be consigned to Record Room.
(This judgment has been typed directly by the Sr. P.A. on my dictation). Digitally signed by
SURINDER SURINDER
Announced in open Court on KUMAR KUMAR SHARMA
Date: 2018.10.23
SHARMA
23.10.2018. 15:59:53 +0530
(SURINDER KUMAR SHARMA)
Additional Sessions Judge 05
East District, KKD Courts, Delhi(ch)
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