Delhi District Court
State vs . Harsh Kapoor Page No. 1 on 22 September, 2014
IN THE COURT OF SH.ATUL KUMAR GARG, ASJ - 03,
(CENTRAL) TIS HAZARI COURTS: DELHI
SC No. 101/11
State ... Complainant
Versus
Harsh Kapoor
S/o Late Sh. Ram Dass
R/o H.No.F 262-263,
IVth Floor, Gandhi Vihar,
New Delhi ... Accused
FIR No. : 313/10
PS : Timar Pur
U/S : 498A/304 B IPC
Date of Institution : 07.05.2011
Date of Arguments : 18.09.2014
Date of Decision : 22.09.2014
JUDGMENT
1. Vide DD No. 14 A dated 14.8.2010 at about 11.00a.m.
Police was informed from Nulife hospital about a lady admitted in the hospital who had committed suicide by hanging. Above said information was assigned to ASI Manohar Lal for FIR No. 313/10 State Vs. Harsh Kapoor Page No. 1 preliminary enquiry. ASI Manohar Lal had reached to the hospital and collected the MLC of Anjali. SDM was called because marriage of the deceased was not lasted for seven years. SDM has recorded the statement of father, sister, mother and husband of the deceased. Dead body was got preserved. Crime team was called. DD No. 14 A was kept pending. Thereafter, again on 3.9.2010 mother, father, brother and sister gave their statement to the SDM making allegations of demand of dowry, cruelty and harassment. Thereafter, on 01.12.2010, a case was registered on the statement of Sh. Messey Masih. During the course of investigation, police collected the evidence, recorded the statement of witnesses and arrested the accused. After completion of the investigation, police filed the charge sheet in the court.
2. After being heard, vide order dated 25.5.2011, accused was charged for the offence punishable under Section 498A/304 B IPC and alternatively under Section 302 IPC. Accused FIR No. 313/10 State Vs. Harsh Kapoor Page No. 2 pleaded not guilty and claimed trial.
3. In order to substantiate the charge, prosecution has relied as many as twenty four witnesses namely Messey Masih, Smt. Asha, Anita, Anil Kumar, Anand Kumar, Smt. Shivani, Dr. Harish Kumar, Dr. S. Lal, Sh. Ashok Gupta, HC/DO Yogesh Kumar, SI Devender Purang, MHC(M), Ct. Hari Mohan, Ct. Rajesh Kumar, SI Mahesh Kumar, HC Dinesh Kumar, Ct. Ravinder, Ct. Sita Ram, HC Suresh Kumar, HC Manjeet, Nodal Officer, W/HC Kiran, ASI Manohar Lal, Inspector Rajnish Parmar. In fact, the prosecution had examined twenty two witnesses to prove its case.
4. Prosecution evidence consists of three sets of evidence.
First set of evidence consists of oral testimonies of Messey Masih, Asha Rani, Smt. Anita Kumar, Anil Kumar and Shiwani Uppal examined as PW 1, 2,3,4 and 6 respectively by the prosecution. Second Set of evidence consists of evidence of Dr. Harish Kumar, Dr.S. Lal examined as PW 5 and 7 respectively. FIR No. 313/10 State Vs. Harsh Kapoor Page No. 3 Remaining evidence are of police officials who had carried out the investigation.
5. PW 18 being the Duty Officer on 19.08.2010 has reduced the information received from the Nulife Hospital at 11.00 a.m. about the admission of the lady at Sr. No. 14 in Register A. PW 17 alongwith ASI Manohar Lal reached at Nulife Hospital. PW 21 ASI Manohar Lal had collected the MLC of the injured. Injured was declared dead. It has also come to his knowledge that the marriage of the deceased was not lasted upto seven years. ASI informed SHO as well as SDM, Civil Lines. PW 17 further deposed that dead body was sent to Subzi Mandi Mortuary. Dead body was got post mortemed. Viscera was taken into possession by ASI Manohar Lal. SDM has inquired the matter. SDM has recorded the statement of mother, father of the deceased. Information was kept pending and case was registered on 01.12.2010.
6. PW 10 SI Devender Purang being the Incharge Mobile FIR No. 313/10 State Vs. Harsh Kapoor Page No. 4 Crime Team reached to the spot on 19.8.2010 alongwith team member and met ASI Manohar Lal. He inspected the scene of crime and proved his report prepared at the spot as Ex.PW 10/A. PW 19 had taken ten photographs of the room when reached on 19.8.2010 at the spot alongwith the crime team. He has proved the photographs as Ex.PW 19/A-1 to Ex.PW19/A-10.
7. PW 20 deposed that he witnessed the post mortem of the dead body. In is presence, viscera box and sample seal were handed to ASI Manohar Lal which was taken into possession vide seizure memo to this effect.
8. PW 12, 16, and 20 had witnessed the arrest of the accused on 05.02.2011. He was interrogated and arrested in the present case. In his presence, IO had recorded disclosure statement. PW 14 was the MHC(M) of PS Timar Pur. On 19.8.2010 ASI Manohar Lal has deposited two sealed pullanda. He has entered the same in Register No. 19 at Sr. No. 3491. On 16.9.2010, FIR No. 313/10 State Vs. Harsh Kapoor Page No. 5 exhibits of this case were sent to FSL Rohini through HC Suresh Kumar in sealed condition vide RC No. 127/21/10. He proved the copy of the register as Ex.PW 14/B and C. PW 15 had deposited the said exhibits in the FSL.
9. PW 22 is the IO of this case. He deposed that on 01.12.2010 SDM had ordered for registration of the case in a separate paper. He had taken out the statement of the complainant recorded by SDM on 19.8.2010 from the ASI Manohar Lal and endorsed th same for registration of the case. Investigation was taken out by him thereafter. He had inspected the spot alongwith ASI Manohar Lal. He prepared the site plan Ex.PW 22/A. Thereafter he has recorded the statement of Ms. Shivani Anand. He had also taken into possession all the inquest papers of this case which were in possession of ASI Manohar Lal. On 13.01.2011 complainant had appeared in the PS and handed over the list of articles of dowry and photocopy of the wedding card which he had taken into possession by making a FIR No. 313/10 State Vs. Harsh Kapoor Page No. 6 separate seizure memo Ex.PW 1/B. He further deposed that on 05.02.2011 on the basis of secret information received, the accused was arrested from his house bearing No. F 262-263,Fourth Floor. Accused was interrogated. Disclosure statement was recorded, he was medically examined and accused was taken to the PS and produced in the court. He further deposed that SI Mahesh Kumar had visited the spot alongwith ASI Manohar Lal, SI Mahesh Kumar took the measurement of the spot with his assistance. On 18.3.2011, ASI Manohar Lal was sent to mortuary Subzi Mandi for taking subsequent opinion alongwith the case property. Doctor gave the subsequent opinion vis-a-vis to the case property. The subsequent opinion is Ex.PW 7/B. Seizure memo of the case property i.e. Chunni and sample seal is Ex.PW 22/C. He proved the scaled site plan as Ex.PW 11/A.
10. PW 8 has scribed the FIR as Ex.PW 8/A being the Duty Officer. PW 9 is the SDM. He deposed that at 11.00a.m., ASI FIR No. 313/10 State Vs. Harsh Kapoor Page No. 7 Manohar lal came to his office and informed him that one lady Anjali was found hanging and she was taken to her house Gandhi Vihar and thereafter to hospital where she was declared dead. He further informed him that she was expired within seven years of her marriage. After sometime ASI Manohar brought Asha Rani and Anita, mother and sister of the deceased and he recorded their statement. After one or two hours, father of the deceased Messy Mersi came to his office and he also recorded his statement. He also recorded the statement of accused Harsh Kapoor Ex.PW 9/B. He conducted inquest proceedings on 20.8.2010 and postmortem on the dead body of deceased Anjali was got conducted on the same day and thereafter as per his instructions, the dead body of deceased was handed over to Harsh Kapoor and Massy Mersi vide receipt Ex.PW 1/D. On 03.02.2010 Asha Rani, Amita, Anita and Anil came to his office and requested to record their statements again. Accordingly, he recorded their statements which are FIR No. 313/10 State Vs. Harsh Kapoor Page No. 8 Ex.PW 4/A, Ex.PW 2/A, Ex.PW 3/A and Ex.PW 9/C. He deposed that he has sent the said statements to the PS with the instructions to investigation the matter as per the provisions of law.
11. PW 5 Dr.Harish Kumar was the Director of Nulife Hospital. He deposed that on 19.8.2010 at about 11.00a.m., one injured was brought to his hospital. Anjali was declared dead. He prepared the MLC. There are ligature mark seen around the neck with bruising below the neck and below ear. He proved the MLC as Ex.PW 5/A.
12. PW 7 Dr. S. Lal was Specialist in Forensic Medicine. On 20.8.2010 he had conducted the post mortem on the dead body of 27 years female. Body was sent by ASI Manohar Lal and Executive Magistrate Ashok Gupta,Civil Line with alleged history of hanging and taken to Nulife Hospital vide MLC 18/2010 on 19.8.2010 at 11.00a.m. On examination following antimortem injuries were found:
FIR No. 313/10 State Vs. Harsh Kapoor Page No. 9
1. Ligature Mark - A dry reddish brown parchment type ligature mark present round the neck is incomplete and oblique.
In front - Ligature mark is 1 cm broad and placed 4 cm below the tip of chin.
Right side of Neck - It is 1 cm broad and placed 2 cm below angle of mandible and extent to mastoid process and merge in hair line.
Left side of neck - it is 1 cm broad and placed 1 cm below the angle of mandible and extent to mastoid area and merge in hair line.
Back of neck - Absent.
On internal examination, a skull and scalp were NAD. Meninges intact, brain congested.
On neck - on fine disection under lying sub cutaneous tissue is pale, white and glistening. No extra vassation of blood seen in soft tissue of neck, under lying thyroid and Hyoid cartilage are intact and tracheoal Mucosae is congested. All the viscera of the deceased were congested. The stomach was empty and mucosae was normal.
Opinion - The cause of death is asphyxia due to ante mortem hanging, however, viscera has been preserved as per request of IO for any intoxication. Time since death about 24 hours. FIR No. 313/10 State Vs. Harsh Kapoor Page No. 10 The detailed Post Mortem report is in his handwriting. He proved the report prepared by him as Ex. PW 7/A. Total number of inquest papers are 11 in number.
He further deposed that on 18.03.2011, he received an application from ASI Mahohar Lal along with all inquest papers and sealed parcel containing chunni used as ligature material as alleged. The sealed parcel containing 5 number of seal of MLJ and written DD no. 14A dated 19.08.2010, P.S- Timarpur and signatures of the IO. The IO of the case seeks following subsequent opinion as follows:
After opening the parcel two pieces of chunni (orange and white in colour) were recovered and examined by him. The detail of examination is given in his subsequent opinion Ex. PW 7/B. The IO of the case seeks following subsequent opinion as follows:
In his opinion, (1) no definate opinion can be given regarding manner of death i.e. homocidal / sucide; (2) the legiture mark present over the neck resulting handing could be possible to cause by this chunni (ligature material) produced before him for examination.
The same ligature material was re-sealed along with original covering under the seal of CMO Incharge, AAAGH and handed over to IO along with sample seal.
FIR No. 313/10 State Vs. Harsh Kapoor Page No. 11
13. PW 1, 2, 3, 4 and 6 are the material witnesses. PW 1 and 2 are the parents of the deceased. PW 3 and 4 are the sister and brother of the deceased. PW 6 is the sister of the accused. PW 1 deposed as per prosecution case. He deposed that deceased Anjali was his daughter. She got married with accused Harsh Kapoor on 05.05.2005. Though they were Christian but he had got married his daughter as per Hindu rites and ceremonies.
After marriage, his daughter had gone to her matrimonial home in Gandi Vihar where she started living with her husband/accused Harsh Kapoor and his parents. He had given enough dowry articles in the marriage of his daughter Anjali. His daughter Anjali remained well in her matrimonial home for few days and thereafter she was maltreated and beaten up by her husband for the demand of dowry. He further deposed that in the year 2006, he had given Rs.Two Lacs cash to the accused and his daughter Anjali for opening of a beauty parlour. His daughter had opened a beauty parlour at Wazirabad. On FIR No. 313/10 State Vs. Harsh Kapoor Page No. 12 18.8.2010, his daughter had telephoned to his son Anil at his residence saying that accused had been demanding a cash of Rs.two lacs. On 19.8.2010, his son Anil had telephoned accused Harsh Kapoor at about 9.30 am/10.00a.m. But accused did not pick up the phone. Thereafter, his son had left for his work and he had gone somewhere for his personal work. On the same day at 11.00a.m., accused telephoned at his residence saying that Anjali was not keeping well and asked them to visit the hospital at Kingsway Camp immediately. He called up Harsh Kapoor but he did not pick up the phone. Thereafter, he tried to contact Anjali on her mobile phone, which was attended by the sister of accused who informed him to visit PS Civil Lines. He immediately reached to PS Civil Lines where he was informed by the police officials, that his daughter Anjali was died after hanging herself. Thereafter he telephoned his son Anil who asked him to visit the SDM Office. He reached SDM office where his wife, his daughter Amita and son Anil and accused FIR No. 313/10 State Vs. Harsh Kapoor Page No. 13 Harsh Kapoor alongwith his family members were already present. Enquiries were conducted by SDM and his statement alongwith the statement of his wife, daughter Amita were recorded by the SDM. His statement was recorded by the SDM is Ex.PW 1/C. On 19.8.2010 police officials ASI Manohar Lal did not let the statement of his son Amit recorded by SDM. Police did not register any case. He made complaint to the higher police authorities and in the month of December, 2010, this case was registered.
14. PW 2 Smt. Asha Rani was the mother of the deceased.
She did not support the prosecution case. PW 3 Smt. Anita Kumari did not support the case of the prosecution. PW 4 deposed that deceased was his younger sister and married with accused Harsh Kapoor. He deposed that his sister used to work at Beauty Parlour situated at Kamla Nagar. He further deposed that after six months of the marriage of accused Harsh Kapoor with his sister Anjali, he asked Anjali to leave her job. Accused FIR No. 313/10 State Vs. Harsh Kapoor Page No. 14 pressurized her to bring Rs.Two Lacs from her parents for opening a beauty parlor. After about one year of their marriage, we collected Rs.two lacs and handed over the same to Anjali and accused Harsh Kapoor for opening the beauty parlour. On 19.8.2010, he was informed about the death of his sister. PW 6 Ms. Shiwani is the sister of accused. She also did not support the prosecution case.
15. In order to afford an opportunity to explain the circumstances appearing in the evidence, accused was examined under Section 313CrPC. Entire incriminating evidence was put to the accused. Accused claimed innocence and false implication.
16. On behalf of the State, Sh. Atul Srivastava, ld. Addl. PP has presented the fact and stated that PW 1 and 4 deposed categorically in their examination that accused has demanded money on several occasions just after the marriage and for this deceased was forced to commit suicide. According to him, as FIR No. 313/10 State Vs. Harsh Kapoor Page No. 15 per postmortem examination Ex.PW7/A, the cause of death is asphyxia due to antemortem hanging and prosecution has proved the fact that the deceased was died in unnatural circumstances and the marriage of deceased was not lasted upto seven years and she was subjected to cruelty just before the death on account of demand of dowry. He submits that prosecution has proved the ingredient for the offence U/S 498A/304B IPC as such accused deserves to be convicted.
17. On behalf of accused, Sh. Ratnesh Bansal, ld. Counsel for the defence has stated that the case of the prosecution is doubtful since beginning. On 19.8.2010, the statements of witnesses namely Mrs. Asha Rani, Amita Kumar, wife of Amardass and Harsh Kapoor were recorded by SDM. On that very day Smt. Asha Rani and Smt. Amita Kumar, the mother and sister of the deceased have not stated anything to the SDM about any foul play in the death of the deceased. SDM unnecessarily kept the enquiry pending till 01.12.2010. He FIR No. 313/10 State Vs. Harsh Kapoor Page No. 16 further submits that SDM had recorded the statement of witness again on 03.9.2010 where the witness Anil Kumar, Asha Rani and Amita Kumar were recorded where they had alleged that the demand of dowry as well as the beatings were given to the deceased and for this reason, the deceased had committed suicide. Even the witness PW1 father of deceased, Messy Mersi, on whose statement the case was registered has not supported the prosecution case in his cross examination. PW 2 Asha Rani and PW 3 Amit Kumar W/o Rattan Kumar have also not supported the prosecution case in toto. Even PW9 had deposed and admitted that he had never gone through post mortem report and MLC of the deceased Anjali before directing the police to register the case. He further admitted that he did not conduct the enquiry from the complainant regarding the contradictory statement of his wife and daughter. Even PW 21 SI Manohar Lal who reached to the spot admitted that DD No. 14 A now Ex.PW 21/DB has been written by him where he has FIR No. 313/10 State Vs. Harsh Kapoor Page No. 17 stated that SDM reached at the spot and he has recorded the statement of husband, mother, father and sister of the deceased. He has further admitted that SDM has also asked them to wait because all the witnesses have not blamed anyone and have not given any contradictory statement. He further admitted that in DD No. 54B now Ex.PW 22/DA, it has been mentioned that further proceedings be conducted U/S 176 CrPC only after obtaining the result of viscera. He further admitted that he had not seen the visera till he got registered the case by endorsing the statement of Massy Masih. He further admitted that he has not shown any viscera report to the SDM.
18. I have heard the arguments, perused the record and analyze the evidence. Accused has been charged for the offence punishable U/S 498-A and 304-B of IPC or alternatively under Section 302 IPC. Section 498-A IPC and 304-B IPC are require to be reproduced herein.
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the FIR No. 313/10 State Vs. Harsh Kapoor Page No. 18 husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
"304-B Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death."
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
19. Virtually there is no direct or indirect evidence on judicial record connecting the accused with the charge of murder. It is the accused who had taken the deceased to the hospital after coming to know from her sister that the deceased was not opening the door. He is the person who had found the dead body hanging and thereafter he has brought the deceased to the hospital where she was declared brought dead. Now, the FIR No. 313/10 State Vs. Harsh Kapoor Page No. 19 prosecution case rest upon the presumption about the dowry death punishable under Section 304 IPC.
20. In order to constitute offense U/S 304-B of IPC the prosecution has to prove that (1) a women had died in abnormal circumstances. (2) death have been occurred within seven years of marriage. Such women was subjected to cruelty or harassment by her husband or by relative of husband. Such cruelty of harassment was in connection with the demand of dowry. Such cruelty of harassment was soon before death.
21. In order to substantiate the above said charge, prosecution had examined twenty two witnesses in all. It has not been disputed that the deceased was died by asphyxia due to the ante mortem hanging. However Viscera was sent to the FSL. As per the FSL report no poison was found in Ex. 1-A, 1-B and 1-C. Therefore it has been proved that death was caused by asphyxia due to ante mortem hanging.
22. Now come to the facts and evidence of this case. The FIR No. 313/10 State Vs. Harsh Kapoor Page No. 20 deceased had committed suicide on 19.08.2010. Deceased was taken to the hospital by her husband on 19.08.2010. SDM was called. On 19.08.2010, SDM had recorded the statement of the father, mother, sister of the deceased and accused. Except Messey Masih, father of the deceased, nobody had blamed the accused for the death of the deceased on 19.08.2010. In view of the contradictory stand taken by the relatives of the deceased, the above said information was kept pending. On 31.08.2010, DD entry No.54-B Ex.PW21/DA was recorded in the police station where it has been mentioned that postmortem report was shown to the SDM and SDM has stated that the proceedings further has to be initiated only after obtaining the result of the viscera. Thereafter on 03.09.2010, SDM had again recorded the statement of Anil Kumar, brother of deceased and Anita sister of the deceased. Suddenly, the police had woken up and got registered the case on 01.12.2010 on the recommendation of the SDM. Even by then the result of the viscera has not been FIR No. 313/10 State Vs. Harsh Kapoor Page No. 21 obtained.
23. Now, look at the evidence. In the present case, there are four material witnesses. Messey Masih, father of the deceased had not supported the case of the prosecution. In the cross examination, he had admitted that his daughter was living happily in her matrimonial home with her husband. There was no complaint of his daughter of being beatings by the accused. He further admitted that his daughter might have got fertility treatment for having child. He further admitted that she was depressed due to not having children of her own. PW2 Asha Rani had also not stated anything against the accused. Same is the statement of Anita Kumar, sister of the deceased. Only available evidence in the present case is of Anil Kumar. It is Anil Kumar, who had deposed that accused used to beat and torture his sister after the marriage and pressurized her to bring cash of Rs.Two lacs from her parents. After about two years of marriage, his parents gave Rs.Two lacs in cash to the accused FIR No. 313/10 State Vs. Harsh Kapoor Page No. 22 Harsh Kapoor. From that cash, accused Harsh Kapoor wants to open one beauty parlour whereas his sister used to work. Even thereafter, accused Harsh Kapoor used to torture and beat her. Accused used to take earnings from the parlour. About two months prior to the death of his sister, his father had given Rs. 45,000/- to her husband as he was demanding the same.
24. In the cross examination, this witness deposed that he has not made any complaint to the police or any other authority about the said beatings. The witness had deposed only about of giving of Rs.Two lacs to the accused for opening a beauty parlour. By no stretch of imagination, it can be said that the demand of Rs.Two lacs was on account of dowry. Even, if it is presumed that Rs.Two lacs were given, it was for opening a beauty parlour and nothing else. Amount of Rs.45,000/- has not been proved by any witness. Marriage has been lasted for five years and demand of the amount of Rs.Two lacs was made just within two years of the marriage. Therefore, the ingredients that FIR No. 313/10 State Vs. Harsh Kapoor Page No. 23 the demand was made just soon before the death, has not been meted out. Moreover, it is the fact that there was undue delay in registering the case. The death was occurred on 19.8.2010 and case was registered on 01.12.2010. It was mentioned by the ASI Manohar Lal that he had shown the postmortem report to the SDM and SDM has stated that the proceedings will be initiated only after obtaining the result of the viscera. It is also the matter of fact that viscera result has not been obtained till 01.12.2010. Inspite of this SDM had ordered to register the FIR on 01.12.2010. Moreover, on record there is another development. PW21 and PW22 had admitted that compromise talks were going on between the parties. It was evident from the DD No. 25-A dated 15.10.2010 which is Ex.PW21/DA. On 15.10.2010, ASI Manohar Lal had mentioned in the DD entry that there was talk of the accused and his in-laws. Even the accused had given phone to the ASI and ASI had talked to the Messey Masih. Even SHO of the police station had also talked to Messey Masih and FIR No. 313/10 State Vs. Harsh Kapoor Page No. 24 the parties had stated that they did not want to get register the case even by 15.10.2012. Even thereafter, there was continuous talk of the parties and only for that reason, the delay has been caused in registering the FIR.
25. In view of the above discussions, I am of the view that the prosecution has failed to prove that any demand of dowry what to say just soon before the death was made by the accused and for that reason, the deceased has committed suicide. Benefit of doubt is given to the accused. Accused is acquitted from the charge under Section 498-A/304-B IPC or alternatively for the offence punishable under Section 302 IPC. His bail bond and surety bond stands cancelled and discharged. File is consigned to record room.
Announced in open court on 22.09.2014.
(ATUL KUMAR GARG) Addl. Sessions Judge-03 (Central) Delhi FIR No. 313/10 State Vs. Harsh Kapoor Page No. 25 FIR No. 313/10 PS : Timarpur State Vs. Harsh Kapoor 22.09.2014 Present : Sh. Atul Srivastava, Ld. Addl. PP for the State.
Accused is present on bail.
Vide my separate order dictated and announced in open court, Accused is acquitted from the charge under Section 498-A/304- B IPC or alternatively for the offense punishable under Section 302 IPC. Bail bond and surety bond of the accused Harsh Kapoor stands cancelled and discharged. File is consigned to record room. However accused is directed to furnish the bail bond in terms of Section 437A of Cr.PC.
(Atul Kumar Garg) ASJ-3 (Central)/22.09.2014 FIR No. 313/10 State Vs. Harsh Kapoor Page No. 26