Delhi District Court
State vs Shailender Kumar Jain Anr on 22 November, 2024
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT - 01): SOUTH-
EAST DISTRICT : SAKET COURTS : NEW DELHI
SC No.1431/2016
STATE Vs Shailender Kumar Jain
FIR No.: 440/2002
U/S 498A/306/34 IPC
PS : Vasant Kunj
Particulars of the case
a) Date of offence : 16.05.1991-20/21.07.2002
b) Offence complained of : u/s 498A/306/34 IPC
c) Name of the complainant : Smt. Madhulika Jain
d) Name of the accused no.1 : Sh. B. P. Mittal
his parentage S/o Late Sh. Jaini Lal Jain,
his residential address : D-406, UNESCO Apartment,
Patparganj, Delhi.
his present address Flat No.508, Dubai Islamic Bank
Building, Abdul Nasser Street,
Sharjah, PO Box No.236367 (proceedings
abated on 31.05.2006)
Name of accused no.2 : Shailender Kumar Jain,
his parentage S/o Sh. B. P. Mittal,
His residential address : D-406, UNESCO apartment,
Patparganj, Delhi.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 1 of 86
FIR No. 440/2002
Present Address : Flat No.508, Dubai, Islamic Bank
Building, Abdul Nasser Street,
Sharjah, PO Box 236367.
Name of accused no.3 : Smt. Trishla Jain
her parentage/husband's name W/o Sh. B. P. Mittal
Her residential address D-406, UNESCO building,
Patparganj, Delhi.
Present Address : Flat No.508, Dubai, Islamic Bank
Building, Abdul Nasser Street,
Sharjah, PO Box 236367.
Name of accused no.4 : Munish Jain
his parentage S/o Sh. B. P. Mittal
his residential address R/o: D-406, UNESCO Apartment,
Patparganj, Delhi. (Discharged vide
order dt.11.07.2013 passed by
Hon'ble High Court of Delhi)
e) Plea of accused : Pleaded not guilty
f) Final order : Accused no. 2 & 3 acquitted
g) Date of Institution : 27.10.2009
h) Date of Judgment reserved on : 25.10.2024.
i) Date of Judgment : 22.11.2024.
j) Ld. Addl PP for State : Sh. Ashok Debbarma
k) Ld.Counsel for accused Shailender
Kumar Jain and Trishla Jain : Sh. R. D. Sharma
JUDGMENT
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 2 of 86 FIR No. 440/2002
1. CHARGESHEET 1.1 As per the charge-sheet, Ms. Madhulika Jain filed a complaint to SHO/Vasant Kunj, New Delhi against the accused persons for committing murder, demand of dowry, harassment and withholding of istridhan/dowry articles of her sister late Smt. Shalini Jain.
1.2 (a) Complainant alleged that her younger sister Smt. Shalini Jain @ Menu Jain was married at Delhi with accused Shailender Kumar Jain on 16.05.1991 as per Hindu rites and rituals. B.P. Mittal was her father in law, Smt. Trishla Jain was the mother in law and Sh. Munish Jain was the brother in law (devar) of her deceased sister. Her parents had invested more than Rs.4 lakhs in the marriage and all goods and articles including household articles were given in the marriage to Shailender Kumar Jain and his entire family members. Out of the said wedlock, two children namely Baby Varuni, aged 10 years and a son Mr. Uday, aged about 8 years were born. Her sister late Shalini Jain after her marriage with Shailender Kumar Jain lived for a couple of months at her in laws house where she was not properly treated by her in laws because the in laws of her deceased sister namely Smt. Shalini Jain were expecting much more dowry articles than what were given to her. During this period, she was not only humiliated and insulted but was also maltreated by her in laws and the said fact came to her knowledge and her parents as she visited 2-3 times to her house. After three months of the marriage, her sister went to Sharjah, UAE where her husband Shailender Kumar Jain was working with Dubai Police in their SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 3 of 86 FIR No. 440/2002 computer traffic section. Complainant alleged that it was presumed that he had got high resources with the Sharjah Police and other authorities also. 1.2(b) She alleged that her sister had been frequently calling her on telephone and even writing some letters and she was also contacting her through phone. Accordingly, she was informed by her deceased sister Shalini Jain that her husband for a considerable period kept her properly but all the times, he was under the influence of his parents, who used to frequently interfere and pressurize the husband of her deceased sister and as a result of the same, Sh. Shailender Kumar Jain used to threaten her sister that in case she wants to live happily, she must obey the directions and fulfill all the demands of his parents. Her deceased sister namely Smt. Shalini Jain was tortured and maltreated by her in-laws and when she used to come to India, there had been frequent demands of dowry and also his brother in law Munish kept on threatening, humiliating her late sister as a result of which her sister wrote a number of letters addressed to her at Delhi giving the details of cruelties of her husband and abetment by her in laws from India about their demands and also the manner in which they used to pressurize Shailender (letters).
1.2(c) Accordingly, complainant's parental family realized that the condition of her sister was not proper and as she was feeling danger to her life, complainant herself and her brother Mr. Rajeev Jain, who was Senior Manager Engineering with Airports Authority of India, New Delhi went to the house of her deceased sister in Sharjah on 19.03.2000 where they lived for about 07-08 SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 4 of 86 FIR No. 440/2002 days. During said period, she came to know that condition of her sister was not good as her husband Shailender was subjecting her to physical maltreatment. She also came to know that her in laws and brother in law Munish frequently made telephone calls to Shailender and also sent e-mails and had chats with Shailender instigating him against her deceased sister Smt. Shalini. Shalini told them that her in laws were making constant demands of dowry and used to threaten her that without fulfilling their demands, she cannot live with Shailender in Sharjah. Even in their presence, Shailender abused Shalini and criminally assaulted her when she disclosed all the atrocities committed by him at the behest of his parents and brother. Complainant stated that with great difficulty, they requested Shailender and convinced him that they will meet his parents in India and will try to fulfill their demands.
1.2(d) After coming to India, complainant and her brother met the parents and brother of Shailender at their residence where they misbehaved with them and repeated that if their demands were not met, her sister cannot remain happy in Sharjah. Although they misbehaved with them but still they requested them that they will try to fulfill their demands within their limits and advised their sister to give her best regards to them.
1.2(e) Complainant's sister came to India along with her husband and their two children in the month of August, 2000 which was her last visit. She lived for a few days at her parents' house and her house also and they could see her precarious conditions and signs of physical assaults and cruelties upon her SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 5 of 86 FIR No. 440/2002 person. Her sister disclosed that at the instigation of her in laws and brother in law, her husband was not only beating her but also insulting and humiliating her in the presence of children also. She also expressed her concern that she would be killed by her husband as he had nexus with underworld people also and he would use his Dubai Police connection where he was working. They assured her that they will speak to her in laws and take her care from India. 1.2(f) Thereafter, her sister left again for Dubai. She started getting regular telephonic calls from her where she disclosed that after coming here the atrocities by Shailender increased to the highest degree and hardly any day passed when she was not beaten by him and subjected to mental torture at the instance of her in laws and brother in law Munish from India.
They met the parents and brother of Shailender and requested them with folded hands not to instigate and upon this, Shailender insulted and humiliated her brother saying that unless their demands were not fulfilled, she will not live in peace at her matrimonial house either at Sharjah or Delhi.
Shailender had told her sister that since he had some problem in office, he may be out of job with Dubai police and would like to start a business for which he required Rs.10 lakh and same should be arrange from her parents. 1.2(g) On 20.07.2002, complainant's brother Mr. Rajeev Jain informed her that at about 2.20 pm, he had received a message from Mr. Ravi, a common friend working in Sharjah who informed that their sister Ms. Shalini had SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 6 of 86 FIR No. 440/2002 committed suicide and had received 100% burn injuries and neither Shailender nor his parents from Delhi gave any information about this incident.
On 21.07.2002 at about 06.00 am (IST) complainant's brother Rajeev received a message from one of the friend of Shailender saying that Smt. Shalini had died.
Since they were already suspicious of the behavior of the Shailender, his parents and his brother, complainant Madhulika Jain along with her brother Rajeev and cousin Neeraj Gupta left for Sharjah on 24.07.2002 and reached Sharjah in the night but with great difficulty they were able to contact Shailender. When they inquired about the death of their sister, he started making inconsistent and self contradictory statements. In spite of their repeated requests, he did not take them to the house where the incident took place saying that the keys of the flats were with local police. When they told him that they were going to call the Sharjah police station for verifying this fact and lodging their complaint with the Sharjah police regarding the murder of their sister, Shailender threatened them that if they dared to do so, they will not be able to go to India and they will be finished here. On their discreet inquiry, it was revealed that there was a big fight and her sister was tortured by her husband and was put to death by putting some inflammable material on her body and same was manipulated as a case of suicide as he himself was working with Dubai Police. There were hundred percent burns on the body of her sister and it appeared that Shailender had propagated a false story. On repeated questioning, he confessed SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 7 of 86 FIR No. 440/2002 having committed a mistake. During their conversation, master Uday was indicating about some fight between complainant's sister and Shailender. Upon this, Shailender snubbed the child and thereafter Uday kept mum. 1.2(h) The complainant alleged that Shailender had murdered her sister Shalini at the instance and abetment of his parents and brother Munish from India and in joint conspiracy of said persons, her sister was murdered. Her sister became victim of demands of her in laws which were partly fulfilled by her parents. All the istridhan/dowry articles of her sister also remained with them and they had not handed over the same to them. In view of above facts and circumstances, she requested for registration of the case against the accused persons.
1.3 Case was registered u/s 498A IPC and investigation was taken up by SI P. C. Yadav of police station Vasant Kunj, New Delhi. Accused Munish Jain was arrested by him and sent to judicial custody and later on released on bail under the orders of Hon'ble Delhi High Court.
1.4 On 23.10.2002 the investigation of the case was transferred from SI P.C. Yadav to SI Manoj Kumar of PS Vasant Kunj, who recorded statements of PWs Sh. Rajiv Jain/brother of deceased, Smt. Madhulika Jain/sister of deceased, Sh. S. K. Jain/father of deceased, Shanta Jain/mother of deceased, Smt. Pushpa Gupta and S. K. Gupta, relatives of deceased (Mausa and Mausi). 1.5 Sh. Rajiv Jain, brother of deceased Shalini Jain supported the allegations of the complainant.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 8 of 86 FIR No. 440/2002 Smt. Madhulika Jain, sister of Shalini Jain reiterated her allegations and she also produced original letter written by the deceased from Sharjah to her alleging different types of torture given to her by her husband. In the letters written by the deceased, it was mentioned that how her devar Munish Jain and her in laws were instigating and torturing her from Delhi and while coming to Dubai and Sharjah.
Sh. S.K. Jain, father and Smt. Shanti Jain, mother also levelled similar allegations.
Smt. Pushpa, Mausi of deceased and Sh. SK Gupta, Mausa of deceased also made allegations regarding cruelty on deceased by her in laws on account of dowry demands.
1.6 The letters sent by Smt. Shalini Jain from Sharjah to Smt. Madhulika Jain were seized and were sent to documents expert. As per the expert opinion, the letter so sent were in the handwriting of Smt. Shalini Jain. 1.7 During investigation, sanction u/s 188 CrPC was obtained from Government of India.
Thereafter, the investigation of the case was transferred to Crime Branch and taken over by SIT section on 26.04.2003 and remained under their investigation till 06.03.2004. After this Anti-Robbery Cell of Crime Branch took up the investigation of the case on 16.03.2004 and they moved for revised sanction u/s 188 CrPC and moved an application to the GNCT for sending Letter Rogatory to the UAE Government for supplying authenticated documents SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 9 of 86 FIR No. 440/2002 pertaining to the death of Smt. Shalini Jain at Sharjah. Thereafter, investigation of the case was transferred to Anti Homicide Section of Crime Branch on 01.07.2004 and the investigation was taken up on 06.07.2004.
During investigation, modified sanction u/s188 CrPC was obtained from Government of India vide order dated 29.10.2004. Letter Rogatory was sent to UAE Government through Ministry of External Affairs, New Delhi.
During investigation, open warrant of arrest against Shailender Kumar Jain was obtained from the Court on 19.07.2003 and despite best efforts, he could not be arrested so far as he was employed with Dubai Police and was not coming to India after registration of the case. He was absconding and his name was kept in column no.2 of the charge-sheet.
1.8 After obtaining permission from Government of India, MHA, New Delhi, IO Inspector Ram Pal Singh along with ACP Sh. R. S. Dahiya of Anti Homicide Section, Crime Branch visited Dubai and Sharjah from 14.10.2004 to 20.10.2004 for the investigation of the case. During investigation, Dubai and Sharjah authorities were requested through Consulate General of India at Dubai for supplying authenticated documents pertaining to the death of Smt. Shalini Jain and so long this team remained there, the concerned documents and connected evidence could not be obtained due to non clearance from UAE, Government at Abu Dhabi.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 10 of 86 FIR No. 440/2002 During investigation, the neighbors of Smt. Shalini Jain residing in the same apartment and the colleagues of the deceased in Our Own English High School were also joined in the investigation and examined.
Smt. Mini Tripathi, supervisor for KG-II classes in Our Own Indian High School Sharjah and Principal Dr. F. A. Wasil of the said school stated that Shalini Jain remained as teacher of KG-II from April 2001 to June 2002 and she was very innovative and full of new ideas. She never complained of any depression or any related disease.
Sh. Raj Prakash Verma and his wife Neeta Verma who were previously residing in the same apartment in which Shalini was residing were examined. They stated that they were having good relations with Shailender Kumar Jain and his wife Shalini. Shalini never complained them about any disease, depression etc. Both stated that Shalini Jain was not a lady to commit suicide like this and there was something more into her death. They also stated that Shailender Kumar Jain, her husband was a man of hot temperament.
Sh. Samir Dev and his wife Sneha Dev, neighbors of Shalini Jain were also examined and they also gave similar statements as given by Raj Prakash Verma and his wife.
During investigation, travel record of accused persons Munish Jain, his father Sh. B.P. Mittal and mother Smt. Trishla Jain for their travel to Dubai from 01.01.1995 to 30.07.2004 was obtained from FRRO which showed that they were visiting Dubai and Sharjah to meet their son. Proof of marriage SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 11 of 86 FIR No. 440/2002 between Shailender Kumar Jain and Smt. Shalini Jain was obtained. The record of visits to Dubai by accused Manish Jain was also obtained from his employer i.e. Indian Ports Association, New Delhi. Proof of death of Shalini Jain was obtained by procuring copy of death certificate from Consulate General of India, Dubai which was supplied to them by Sharjah Police.
Report was obtained from Forensic Medicine Department, AIIMS regarding disease of Shalini Jain.
Authenticated documents asked through Letter Rogatory from UAE Government pertaining to the death of Smt. Shalini Jain including statements of various persons and exhibits from Sharjah authorities were still awaited.
Accused persons B. P. Mittal and his wife Smt. Trishla Jain were on anticipatory bail but they could not be arrested as they were not available in Delhi at their given address and were residing at Sharjah with their son Shailender Kumar Jain. Shailender Jain also could not be arrested as he was employed with Dubai Police and was not coming to India after registration of the case. Accused Munish Jain was on bail in the case. From the evidence collected on file, it was evident that all four accused persons instigated and compelled Shalini Jain to end her life.
After completion of investigation, chargesheet u/s 498A/306/120B IPC was filed against the accused persons Shailender Kumar Jain, Munish Jain, Bimal Prasad Mittal and Smt. Trishla Jain.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 12 of 86 FIR No. 440/2002 1.9 Subsequently, supplementary chargesheet was filed against the accused Shailender Kumar Jain, Trishla Jain and Munish Jain stating that accused Shailender Kumar Jain was residing in Sharjah and his arrest was stayed by Hon'ble High Court of Delhi till the next date of hearing i.e. 27.07.2005 and therefore he may be called through the relevant process.
2. CHARGE 2.1 After charge-sheet was filed before the concerned MM, summons were issued to all the accused persons. However, it was reported that accused B. P. Mittal has expired and thereafter vide order dated 31.05.2006, proceedings against said accused were abated. Later on matter qua other accused persons was committed to the Sessions Court and case was registered before the Sessions Court on 27.10.2009.
2.2 On the basis of the charge-sheet, charge u/s 498A/306/34 IPC was framed by the Sessions Court against all three accused namely Shailender Kumar Jain, Trishla Jain and Munish Jain. Accused persons pleaded not guilty to the said charge and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
However, during trial accused no.3 Munish Jain was discharged from the present case by Hon'ble High Court of Delhi vide order dated 11.07.2013.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 13 of 86 FIR No. 440/2002 Hence, the present judgment is only against accused no.1 Shailender Kumar and accused no.2 Trishla Jain.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 23 witnesses.
S. No. Name of the Nature of the evidence
witnesses
PW-1 Rajeev Jain Brother of the deceased Shalini Jain
PW-2 Madhulika Complainant/sister of the deceased
Jain Shalini Jain
PW-3 Dr. D.N. Doctor who proved the report of the
Bhardwaj Medical Board, constituted at AIIMS,
New Delhi for giving medical opinion
on the basis of treatment papers of the
deceased
PW-4 Dr. Tabin Ditto
Milo
PW-5 Dr. Kumar MLC of accused Munish Jain
Ravi
Bhushan
PW-6 HC Rajender Witness to arrest of accused Munish
Singh and seizure of one computer and CPU
from his house
PW-7 Dr. Rajesh Same as PW3 and PW4
Sagar
PW-8 Ct Suresh Witness to the arrest of accused
Kumar Munish Jain
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FIR No. 440/2002
PW-9 ASI Ashok Duty Officer who got the present case
Kumar FIR registered
PW-10 Shri Manas Official who identified the signatures Mandal, of Sh.Y. K. Baweja on the sanction Under order dt. 29.10.2004 u/s 188 CrPC Secretary, regarding prosecution of Sh. B.P. MHA Mittal and Smt. Trishla Jain for offence u/s 498A/34 IPC PW-11 Y. K. Baweja, Concerned Officer who sanctioned the Deputy prosecution of Sh. B.P.Mittal and Smt. Secretary, Trishla Jain u/s188 CrPC vide MHA Sanction order dated 29.10.2004.
PW-12 Mini Tripathi Supervisor of Own English High School, Sharjah where deceased Shalini Jain used to work as a teacher PW-13 Retired SI P. 1st IO who got the case registered on C. Yadav the complaint of Madhulika Jain, arrested accused Munish Jain and conducted initial investigation.
PW-14 Dr. Farooq Principal of Our Own High School in
Wasil Sharjah who had given appointment
letter to deceased Shalini Jain for
working as teacher in said school
PW-15 SI Manoj 2nd IO who applied for sanction u/s188
Kumar CrPC and also sent the letters of
deceased for examination by
handwriting expert and recorded
statement of witnesses.
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FIR No. 440/2002
PW-16 HC Manoj Police Official who accompanied IO
for depositing the documents to the
Handwriting Expert in the office of
GEQD, Shimla
PW-17 SI Jagdish Police Officials from FRRO who
Chandra proved the record regarding foreign
travel of Munish Jain, Bimal Mittal
and Smt. Trishla Jain for the period
from 01.01.995 to 30.07.2004
PW-18 Sh. Venu Additional Secretary (MHA), who
Gopal issued order dt. 24.12.2002 for
sanction u/s 188 CrPC against
Shailender Kumar Jain
PW-19 I. B. Karn The then Joint Secretary, Ministry of
Home Affairs who proved the
processing of Letter Rogatory
PW-20 Retired SI 3rd IO of the case
Rambir Singh
PW-21 Inspector 4th IO of the case who obtained
Satish Kumar warrants against accused Shailender
Kumar Jain and applied for sanction
u/s 188 Cr.P.C against other accused.
PW-22 Retired ACP 5th IO of the case who got letter
Ram Pal Rogatory issued and also conducted
Singh the investigation at Sharjah /Dubai
and prepared the charge-sheet
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PW-23 M. L. Sharma Government Handwriting Expert who examined the alleged handwritten letters of the deceased and after comparison with other documents gave his report on the issue 3.2 The prosecution has exhibited following documents/objects in support of its case:-
No. of Nature of exhibit
exhibits
Ex.PW2/A Letters written by deceased Shalini Jain to her sister/complainant Madhulika Jain complaining against her in laws Ex.PW2/B Written complaint by Madhulika Jain Ex.PW3/A Medical Board Report dated 14.08.2003 regarding diseases of Shalini Jain Ex.PW3/B Letter regarding sending of above mentioned report to DCP Crimes & Railways Ex.PW3/ Medical record (prior to the incident) of deceased C-1 to Shalini Jain Ex.PW3//C-
16SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 17 of 86 FIR No. 440/2002 Ex.PW3/D Letter received by Director AIIMS from DCP Crimes & Railways for giving opinion after examination of treatment papers (prior to the incident) of Shalini Jain Ex.PW5/A MLC of accused Munish Jain Ex.PW6/A Seizure memo of one computer and CPU of Intex Ex.PW8/A Arrest memo of accused Munish Jain Ex.PW8/B Personal search memo of accused Munish Jain Ex.PW9/A FIR Ex.PW9/B Endorsement on rukka and the complaint Ex.PW10/A Sanction order dt. 29.10.2004 u/s 188 CrPC for sanction of the prosecution in respect of Sh. B. P. Mittal and Smt. Trishla Jain for offence u/s 498-A/34 IPC Ex.PW11/A Letter conveying the above mentioned sanction to Commissioner of Police Ex.PW13/A Endorsement of PW13 on the complaint Ex.PW13/B Disclosure statement of accused Munish Jain Ex.PW13/C Letter written to Manager of ICICI Bank for obtaining the account opening form of Ms. Shalini Jain and other documents having her signature SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 18 of 86 FIR No. 440/2002 Ex.PW13/D Seizure memo of letters of deceased Shalini Jain obtained from her sister Madhulika Jain Ex.PW14/A Certificate showing employment of deceased Shalini Jain in Our Own English High School in Sharjah from 25.04.2001 to June, 2002 Ex.PW14/B Letter of appointment of deceased Shalini Jain as a teacher in Our Own English High School in Sharjah Ex.PW15/A Letter written to the Ministry of Home Affairs, Govt. of India seeking sanction u/s 188 CrPC Ex.PW15/B Sanction order granting sanction u/s 188 CrPC against accused Shailender Kumar Jain Ex.PW15/C Seizure memo of documents containing handwriting of the deceased i.e. Birthday greeting card dated 21.03.1997, its envelope, photograph and one yellow slip Ex.PW17/A FRRO Record regarding departure and arrival of Munish Jain, Bimal Mittal and Trishla Jain from India to abroad for the period from 01.01.995 to 30.07.2004 Ex.PW19/A Affidavit of Joint Secretary, Ministry of Home Affairs for processing the issuance of letter Rogatory to UAE SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 19 of 86 FIR No. 440/2002 Ex.PW19/B Letter dated 21.07.2004 for sending the aforesaid affidavit to Deputy Secretary (Home) for issuance of letter Rogatory Ex.PW22/A Application moved by Inspector, Anti Homicide, Crime Branch for getting Letter of Rogatory issued from the Ld. Magistrate for collection of evidence in Sharjah, UAE relating to death of Shalini Jain Ex.PW22/B Letter Rogatory issued by Ld. MM Ex.PW22/C No objection dated 30.09.2004 issued by MEA to Inspector Ram Pal Singh and ACP Rajender Singh for visiting Sharjah and Dubai for investigation of the case Ex.PW22/D Application moved by IO/ Inspector Ram Pal Singh to the Consulate General Dubai for obtaining documents received by Consulate from Sharjah Police regarding the death of Shalini Jain Ex.PW22/E Death certificate of Shalini Jain Ex.PW22/F Seizure memo of marriage card and photocopy of registration of marriage of Shalini Jain with Shailender Kumar Jain Ex.A-1 Marriage Certificate Ex.A-2 Marriage Card SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 20 of 86 FIR No. 440/2002 Ex.PW22/G Application moved by IO / Inspector Ram Pal Singh, for verification of marriage certificate Ex.PW23/A Two sheets containing reasons for the opinion given by Govt. Handwriting Expert Sh. ML Sharma 3.3 Though 23 witnesses have been examined by prosecution but the main witnesses of the case are:
i. PW-1 Rajeev Jain, brother of the deceased Shalini Jain; ii. PW-2 Madhulika Jain, complainant/sister of the deceased Shalini Jain;
iii. PW-13 Retired SI P. C. Yadav, Initial IO of the case; iv. PW-22 the IO who conducted investigation at Sharjah and prepared the charge-sheet.
3.4 PW-1 Rajeev Jain / brother of the deceased deposed that his sister Shalini Jain was married with Shailender Kumar Jain (accused) in December, 1991 and after marriage, she resided in India along with her husband. After some time, she went to Dubai along with her husband. Generally his sister used to talk to his other sister Madhulika Jain on phone and from her, he came to know that Shalini Jain remained in tension as her in laws were orthodox and there was strictness about the dress etc. which she had to wear there. His sister visited SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 21 of 86 FIR No. 440/2002 them in India one or two times in between. He also met her and found her in depression. He had not much talk with her.
On 20.07.2002 he received a phone of Shailender Kumar (accused) who told him that Shalini Jain was in critical condition and was admitted in hospital there. He also told that Shalini Jain had committed suicide. Shalini Jain had two children, one son and one daughter but as they were very small, he had rarely any talk with them.
After the death of his sister Shalini Jain, police came to him once or twice and interrogated him about the case. His statement was also recorded by the police. He went to ICICI Bank, Vasant Kunj along with police during investigation as Shalini Jain had an account in that bank. Police wanted to verify her signatures from her account in that bank.
Ld. Addl. PP for State put some leading questions to the witness as he resiled from his earlier statement to the police.
Thereafter, he admitted that Shalini Jain was married with Shailender Jain on 16.05.1991. However, he did not remember whether he disclosed to IO in his statement the fact that his sister (Shalini Jain) had told him that her in laws started harassing her or her parents in law and Munish Jain used to taunt her or that Shailender Kumar Jain started harassing her after some time of taking her to Dubai or that Shailender used to beat her on being induced by his parents or used to harass her demanding dowry or that she used to tell them that she wanted to adjust herself but could not or that whenever she came to their SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 22 of 86 FIR No. 440/2002 house in India, she used to blame that her in laws were very bad or her mother in law was the reason for all evils.
However, he admitted that when they went to the house of accused sometimes they demanded big gifts.
He did not remember whether he told to IO in his statement the fact that they gave some valuable gifts to the accused to save house of his sister. He did not remember that he had disclosed to IO in his statement that in October, 2000 Shalini Jain came to India. He did not remember that she was not interested in going back to Dubai but on the assurance given by her mother in law and brother in law she went back.
However, he admitted that he disclosed to IO in his statement the fact that he tried to mollify accused Shailender but he did not learn any lesson and he assaulted (pratarit) his sister in their presence.
He did not remember when they consoled Shalini Jain, it annoyed her in laws and they started harassing her more severely or that Shalini Jain disclosed to them that she may became mad and she had no faith in her husband i.e Shailender.
He denied the suggestion that he was deposing falsely being won over by the accused.
PW1 was duly cross examined by Ld. Counsel for both accused. 3.5 PW2 Ms. Madhulika Jain deposed that Shalini Jain was her sister. She was married with Shailender Kumar Jain (accused) in the year 1991 or SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 23 of 86 FIR No. 440/2002 1992. After about 2-3 days of marriage, her in laws started harassing her. She was more concerned with her brother in law Munish Jain, who tried to provoke her husband against her by writing letters, sending e-mails and on phone and same created bickerings between the couple i.e. Shalini Jain and her husband. Shalini Jain could not tolerate all that behavior.
After her marriage, Shalini went to Sharjah to join her husband where he was working. Whenever Shalini came to them, she told about Munish Jain, who used to induce her husband. PW2 remembered two of Shalini's visits to India after going to Sharjah. Shalini complained only against Munish Jain and had no problem from her husband. She had problems also from her father in law and mother in law, for not giving proper gifts on occasions. Shalini wrote several letters to her, levelling allegations against her brother in law i.e Munish Jain. One of these letters is Ex.PW2/A. Shalini told her that her parents in law used to raise demand for some petty articles from her due to which differences cropped up between her and her husband. PW2 tried to pacify them. She and her brother Rajeev Jain went to Sharjah to attend some festival as well as to see Shalini Jain and they tried to pacify both of them i.e. Shalini Jain and her husband. They stayed there for 7-8 days.
On 20.07.2002 Rajeev Jain (his brother) got a message about death of Shalini Jain and they went there. They had interaction with them. They could not know the cause of death of Shalini Jain. She died of burning at her matrimonial house. When they went to her, they found that her face was SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 24 of 86 FIR No. 440/2002 completely burnt and she was not able to speak. She lodged a complaint Ex.PW2/B to the police after returning to India. She did not remember whether police met her after lodging that complaint.
Ld. Addl. PP for State put some leading questions to the witness as she was resiling from her earlier statement given to the police.
However, she did not remember whether police recorded her statement four times in this case. However she admitted that she had stated to the police that after about 2-3 months of her marriage, Shalini went to Sharjah and her parents in law as well as brother in law Munish Jain used to taunt her for bringing dowry below their standard. She did not remember whether she stated to the police that after some time Shalini returned to Delhi. She did not remember whether she told to the IO that parents in law of Shalini as well as brother in law Munish Jain felt sorry to Shalini Jain and assured that such behavior will not be repeated.
However, she admitted that she stated to the police that whenever Munish Jain or Trishla Jain (mother in law of Shalini) called the latter on phone from Delhi, her husband treated her like a demon. She also admitted that they offered Shalini Jain to come here and live with them but she refused referring her children. She also admitted that they tried to placate Shailender Kumar Jain (accused) and the latter assured not to behave in that manner in future.
She did not remember whether she told to the IO in her statement that Shalini returned to India in October, 2000 and said that she will not return to SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 25 of 86 FIR No. 440/2002 Sharjah. However, she admitted that after hearing all this, parents in law of Shalini Jain came and assured that no untoward will happen in future. On that assurance, Shalini Jain returned to Sharjah. She did not remember whether she told to IO in her statement that after returning to Sharjah, Shalini Jain was treated with more cruelty and that she was frustrated so much and found no other option or that Shalini Jain expressed that she may not become mad.
However, she admitted that after death of Shalini Jain, her in laws did not give any information to them in that regard, rather said fact was told to her by her brother Rajeev Jain. She did not remember whether she had told to the IO that she handed over to the police one letter and some other documents in relation to death of Shalini Jain. However, she admitted that Shailender Kumar Jain was also treating Shalini Jain with cruelty demanding dowry. She voluntarily stated that whatever all he was doing, was doing at the instance of his brother Munish Jain. She admitted that Shailender Kumar Jain used to humiliate Shalini Jain in presence of her children. She did not remember when Shailender Kumar Jain came to India, her parents tried to pacify him but he threatened that if his demands were not met, Shalini Jain cannot live in peace at Sharjah.
PW2 was duly cross examined by Ld. Counsel for both accused. 3.6 PW-13 Retired SI P. C. Yadav, 1 st/initial IO of the case deposed as per the contents of the charge-sheet.
PW13 was duly cross examined by Ld. Counsel for the accused.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 26 of 86 FIR No. 440/2002 3.7 PW-22 Retired ACP Ram Pal Singh, 5 th/Last IO of the case, deposed as per the contents of the charge-sheet.
PW22 was duly cross examined by Ld. Counsel for accused.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused Shailender Kumar Jain was questioned u/s 313 Cr.P.C. regarding incriminating circumstances appearing against him. He stated that he is innocent and has been falsely implicated in the present case.
4.2 Accused admitted that he got married to Shalini Jain on 16.05.1991 and that she went with him to Dubai. Accused stated that he called PW1 Rajeev Jain when he had taken Shalini Jain to hospital and he again called him after Shalini Jain had died. Accused admitted that Shalini Jain had committed suicide and was admitted in hospital in critical condition. Accused had himself called the police at Sharjah, took her to the hospital in police ambulance and he accompanied her in the ambulance. Accused stated that at the instructions of complainant or her brother, the ICICI Bank account was freezed.
Accused stated that after her marriage he learnt that the family i.e. his in laws were financially weak and he was supporting them financially on regular basis and documents to said effect were submitted by him to the police officials who visited Dubai for investigation of present case and same was SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 27 of 86 FIR No. 440/2002 recorded in his statement. Accused stated that he himself and his wife had called his in laws for a pleasure trip to Sharjah.
Accused stated that he had been giving major contributions to the family of his in laws including the complainant Ms. Madhulika Jain to the extent that even one week before Shalini passed away, there was a contribution sent to Madhulika Jain. Rather the constant demands from his in laws was a cause of depression for late Shalini Jain. Accused admitted that Shalini Jain died of burning. He had informed Rajiv Jain about the incident. After he got permission from the local court for cremation as an FIR was registered regarding the incident in Sharjah also. Accused called his in laws for attending the cremation. Even he arranged for the visa, transportation and stay of his in laws.
Accused stated that Madhulika Jain may be instigating Shalini to write letters containing allegation of cruelty against him. His in laws including Madhulika Jain had a cordial visit to Sharjah at the time of cremation. When they returned to India, after few days he received a call from Rajiv Jain who asked him to hand over his children and transfer his parental flat/house to Rajeev. When accused refused to do that, he was threatened that he shall be prepared to face the consequences and after that present case FIR was got registered. Rather before the FIR, they filed a written complaint to Indian Consulate and Sharjah Police, the Court case at Sharjah proceeded and even forensic evidence was collected. Accused was found innocent and case was closed therein. After that, he was allowed to cremate the body. It took 6-7 days SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 28 of 86 FIR No. 440/2002 to conclude the said proceedings. The FIR of present case had been registered as he refused the demand of Rajeev Jain.
Accused stated that he handed over the medical documents of Shalini Jain to show that she was already in deep depression and she started her medication for the same in 1997. She was being treated for depression in Dubai Police Hospital as he was working as IT Specialist in Dubai Police.
Accused claimed that sanction was given wrongly and was politically motivated. At that time Rajeev Jain was working as an OSD to Mr. Dalip Gandhi who was Minister of State for Shipping.
Accused stated that Munish Jain handed over complete court file of Sharjah to the police officials and the same included the payments that he made, the photographs of the pleasure trip of his in laws to Sharjah, statement of eye witnesses who were present at the time of incident. Both his children were present and their family friend Anand Jain and his wife Farida Jain were also present, however, Delhi Police did not incorporate such documents along with the chargesheet.
Accused admitted that the IO Ram Pal Singh had gone to UAE for doing the investigation. In fact, he collected all the case related documents from him as well as Indian Embassy at Dubai. The documents were handed over by the Embassy in his presence.
Accused stated that his wife Shalini Jain was suffering from depression and she was having sleepless nights and fluctuating BP because of SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 29 of 86 FIR No. 440/2002 which they consulted the doctor and she was diagnosed with depression. At the time of incident, both his children were present, one was six and a half years and other was nine years. Even they were inquired separately and they did not make any allegations regarding death of Shalini Jain against him. 4.3 Accused Trishla Jain was exempted from appearance during the trial and answers to questionnaire of accused Trishla Jain u/s 313 CrPC were filed u/s 313(5) CrPC by her counsel. In her answers accused admitted the marriage of the deceased with Shailender Jain. She stated that later on Shalini became ill. She stated that she does not remember other facts. However, she stated that she never stopped Shalini from anything. She never demanded anything. Police met her and her grand children. She claimed that she had not done anything wrong.
5. DEFENCE EVIDENCE 5.01 Accused Shailender Kumar Jain chose to lead defence evidence and examined 12 defence witnesses.
5.02 Accused Shailender Kumar Jain examined himself as DW1. He deposed that he was working with Computer Maintenance Corporation in Delhi and it was a big department under the Ministry of Electronics. He joined said job in 1982. In July, 1983, he quit said job and joined a new job at company called Gulf Computer Services at Sharjah with salary of Rs.70,000/- approximately. In June, 1984 he changed his job and joined as Systems Analyst SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 30 of 86 FIR No. 440/2002 with Dubai Traffic Police Department at salary of Rs. 1 lakh per month with other benefits i.e. house, car, petrol expenses etc. He deposed that in the year 1990, during his visit to Delhi his family was approached by the family of Shalini Jain for marriage proposal. That proposal materialized and they got married on 16.05.1991 in Delhi. It was an arranged marriage and low profile marriage where no gifts or articles were provided by family of bride and for the said reason, they have been unable to provide any list of articles during investigation of the present case. In August, 1991 his wife Shalini joined him in Dubai and such visit was also referred in her passport, the copy of relevant entry is Ex.DW1/1. From their wedlock they were blessed with two children namely elder daughter Dr. Varuni Jain born on 23.02.1993 in Dubai and younger son Udai Jain born on 10.10.1995 in Delhi. Ten days after her son was born, he was asked by parents of Shalini Jain to visit Bombay so that they can see the child as they were in Bombay. Subsequently, after 20 days of the birth, they returned to Sharjah. After 3-4 months, he started realizing that Shalini was having sleepless nights and she was having hypertension (varied blood pressure). Initially, they took it lightly but then in the year 1996 they visited the doctors in Dubai hospital and she was diagnosed with depression. The record of her medical treatment is Ex.PW3/C1 to Ex.PW3/C16. After lot of conversations with her, it was known that she was suffering from depression due to certain demands of money from her parents. He noticed that whenever her wife spoke to her sister Madhulika or her parents SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 31 of 86 FIR No. 440/2002 or her brother, she used to go in depression. Initially, he was not aware that there was demand for money from the family of his wife but when he got to know about such demands being made to his wife, he arranged money.
On 07.02.1997 Rs. 18,000/- were paid to Sanjeet Jain w/o Sh. Rajeev Jain by him by way of bank draft. One gift deed was prepared probably for income tax purposes, regarding said bank draft Mark DW1/2. Further, on 01.08.1998 Rs. 5 lakhs were paid by him to father of his wife namely Satish Kumar Jain vide a cheque bearing no. 011323 dated 01.08.1998 drawn on Canara Bank, NRI Branch Barakhambha Road, New Delhi Mark DW1/3. On 09.02.2000 Rs.3,85,000/- were paid by him to Shanta Rani Jain (mother of his wife) vide bank draft bearing no. 03702206 dated 09.02.2000 drawn on Vijaya Bank, Barakhamba Road, New Delhi vide Ex.DW1/4. On 03.10.2001 Rs.20,000/- were paid by him to Madhulika Jain by way of bank draft dated 03.10.2001 drawn on Canara Bank and the deposit receipt for issuing said bank draft is Ex.DW1/5.
He had purchased some SBI Dollar Bonds worth 6000 US dollars in the name of his wife Shalini Jain. The same were transferred to his wife's mother Shanta Rani Jain without his knowledge when she visited India in the year 1999. He got to know about the same when he approached the SBI, Mumbai for not transferring the same to anyone after his wife's death vide letter dated 28.12.2002. However, in the reply to said letter he was informed vide letter dated 14.01.2003 that said certificates have been transferred by way of gift SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 32 of 86 FIR No. 440/2002 in the name of Mrs. Shanta Rani Jain (mother of his wife) on 10.08.1999 vide a transfer application dated 09.07.1999. The copy of said correspondence is Mark DW1/6. On 13.07.2002 seven days before Shalini died, another sum of Rs.30,000/- was sent to Madhulika Jain by him by way of draft dated 13.07.2002. The deposit slip for issuance of said draft is Ex.DW1/7. The counter foil of the draft is Ex.DW1/8 and the counter receipt regarding sending of said draft to Madhulika Jain is Ex.DW1/9. He had done a lot of investment in his wife's name and he had purchased seven IDBI bonds worth Rs.2 lakhs each Mark DW1/10.
He deposed that he earned handsome salary and had sufficient bank balance and investments and there was no need for money so he had no cause to demand any monetary help from the family of Shalini Jain as dowry or otherwise.
Since her depression was continuing in 1996 he informed her family member i.e. Rajeev Jain that she was suffering from depression. However, the demand from the family continued till her death. Due to her depression, in 1997 the doctors put her on medication. In 1998, the doctors advised him to give her change of environment which may uplift her mood. Therefore in the year 1999, he decided to take her on a trip to far east countries i.e. Singapore, Malaysia, Thailand. Copy of relevant entries in the passport of his wife is Ex.DW1/11. When they were on their trip he ensured that she does not communicate with her family or even his family so that she was not SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 33 of 86 FIR No. 440/2002 distracted. On their return, they found that her health was improved but after two months again her health started deteriorating. They again visited Oman in the year 2000 for the same reason. The copy of relevant entry in her passport is Ex.DW1/12.
His wife was a post graduate in Zoology so he suggested her to take a job so that she can deviate from negative thoughts. She joined a job in Our Own English High School at Sharjah around July, 2001 at a salary of 1500 dirhams. Whatever she earned from her job, the said money remained in her account. Copy of her bank statement is mark DW1/13. She continued the said job till the date of her death.
In March, 2000 they invited Madhulika Jain and Rajeev Jain to Sharjah to attend a Dubai Shopping Festival. During their visit, accused and his wife had no issues. The moment they landed at airport, they wanted to go to shopping (instead of visiting their house) at Goldsouk. He recorded various moments of their trips on his camera and the video of said trip was in the two CDs. The CDs are Ex.DW1/14 and Ex.DW1/15. In the end of the said videos, it is seen that Rajeev Jain was stating to his sister Madhulika " pandit tu sara dubai samet kar lay jaa raha hai". When they arrived, they had one suitcase each and one handbag and when they returned, he had to carry their stuff in two cars. The said cars had two suitcases, two handbags, two or three boxes as their belongings. They had also bought jewellery and silver items, watches, music system etc. in the grab of gifts from him. He had paid for said jewellery, silver SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 34 of 86 FIR No. 440/2002 items, watches, music system etc. He paid for said items by way of cash but he does not have any documentary proof i.e. bills etc. regarding the same but the total cash amount spent by him regarding such items purchased for them was above 10,000 dirhams and as on today it would be about 2 lakh in Indian Currency.
On 20.07.2002 at about 07.00 am he was praying in their puja room. Suddenly both of his children came to him saying that their mother is saying that she wants to die. He rushed to her in the bedroom. He tried to console her and while he was doing this, their children frantically made phone calls to their family friend Anand Jain. A short while later both Anand Jain and his wife Farida Jain staying 01 km away from their house arrived at around 08.00am. The four of them sat down in the Drawing Room and tried to console her and they told her that all her financial needs shall be met. Few minutes later she sounded bit normal and she excused herself to got to the washroom. They suddenly heard her screams and they rushed to see what has happened and they found her standing outside the washroom, engulfed in flames. She had lit her inside the washroom and had come outside. He himself and Anand Jain tried to extinguish the fire by pouring water on her. Farida Jain was taking care of the children as they were very scared and they were not leaving her. He immediately called police by phone and their opposite flat neighbors arrived. The police arrived with the ambulance within 7-8 minutes of the calls. They took her to the hospital in police ambulance and he accompanied her in the ambulance. While SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 35 of 86 FIR No. 440/2002 he himself and Anand Jain were trying to extinguish the fire, he also suffered some burns on his hand and legs and Anand Jain suffered some burns on his forehead and his legs. After they reached the Kuwaiti hospital, he himself and Anand were taken by the police officials to a different room and Shalini Jain along with senior official and the doctor were taken to emergency ward. Therein, they were not allowed to visit Shalini after that. He himself and Anand were asked to strip and the police was doing its investigation and he himself and Anand were taken to the police station for investigation. They were detained there for quite some time and were released in the evening. While they were in the police station, the CID department of the Sharjah police was investigating at their home along with Forensic Department. When they asked the police about Shalini, they were told that she was not in a talking position but she has given statement to the doctor. He got to know said statement subsequently and she told the doctor that whatever had happened she had done herself and nobody had instigated her. When they had asked her why she had done this, she probably said nobody loves her.
After he was released from the police station, he made phone call to Rajeev Jain and apprised him of the situation. He heard it and put the phone down. Accused went to the hospital and waited outside the hospital. About 3.30 am on 21.07.2002 he was called by the hospital and he went inside and he was told that his wife had passed away. He requested them to see her body but he was told that there was a police cover and he was not allowed to see the body.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 36 of 86 FIR No. 440/2002 The body was then sent to the mortuary. After he came back from the hospital, he again called Rajeev Jain and informed him about death of his wife on phone. He asked him about the cause of death and he explained him the entire sequence of events. On 21st morning, he also informed his parents about death of his wife. Certain procedures had to be followed in Sharjah. As the court proceedings were on, the court and the police continued the postmortem, forensic examination etc. He was continuously approaching the authorities for handing over the dead body to him for the final rites and it took around 06 days to complete the court case. He went to the court and the Judge therein said that he was found innocent and the proceedings were concluded and they handed him a paper to allow him for cremating the body. It was a pre-printed format wherein it was stated that he was allowed to cremate the body. He was supposed to make arrangements for the cremation and book a slot for the cremation and return to the court. Once he made the preparations for cremation, the police was to be informed. He also informed the family of Shalini about the date fixed for cremation. He informed them two days prior to said date. Rajeev informed him that he shall be coming along with Madhulika and their cousin Neeraj Gupta. He arranged for their visas and made payment for the visas. He had paid for their visas, even for their earlier shopping trip. They arrived one night prior to the cremation date. He received them at the airport and took them to hotel. He arranged for their transport, food, accommodation and visas and made payment for the same. Next morning, police brought the body in the mortuary van and SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 37 of 86 FIR No. 440/2002 cremation was done. It was a very cordial visit by the family members. They left the same night and he saw them off at the airport. During their stay, they met his children also.
Two days after their departure, he received a phone call from Rajeev Jain demanding the custody of his children, his parental house at Delhi, a shop in Delhi which was bought by him in the name of Shalini and a cash of Rs.1 crore but he refused. He was financially capable to take care of his children. While this conversation was taking place, his children were with him and they were listening to the conversation. They were quite scared and threatened by the call. He assured them that they will remain with him. In the same call, Rajeev also threatened that he should be prepared to face the consequences if he does not accept their demand. After about a week or so Madhulika filed a complaint in Sharjah with the Sharjah police, Sharjah Court and the Indian Consulate at Dubai and also at Indian Embassy at Abu Dhabi complaining that Shalini Jain had been murdered by him in regard to dowry demand. In the said complaint, besides him even Anand Jain, Farida Jain and his parents and his younger brother were made accused. The Sharjah police reopened the case and reinvestigation was done. The police again made submissions before the court that the case was not fit for registration of case. The copy of letter dated 11.09.2002 Ex.DW1/16 written by the Sharjah police to Consulate of India and Dubai regarding the fact that no case was made out. He approached the Sharjah Court to provide him the copy of proceedings. Same is SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 38 of 86 FIR No. 440/2002 Ex.DW1/17. He also applied for case closure certificate from the court and same is Ex.DW1/18.
After the family members of Shalini learnt that no case has been filed against him regarding her death at Sharjah, they made efforts to file a case against him in India and complaint was made by Madhulika Jain in India on the basis of which the present case FIR was registered. However, the allegation made by Madhulika Jain against him were of murder in the complaint given at Sharjah but the allegations were changed to dowry demand/dowry death in the complaint given in India. In the complaint given at Sharjah, Anand and Farida Jain were also mentioned as accused in murder whereas in the present case no accusation was made against them. Rajeev Jain made all efforts including political efforts to incarcerate him and his family in the present case. There was lot of correspondence from India to the Indian Consulate at Dubai regarding the present case allegations. At that time Rajeev Jain was an OSD with Mr. Dalip Gandhi, Minister of State for Shipping. Accused filed an RTI with Indian Consulate at Dubai to get the copy of details regarding the correspondence from India received at Indian Consulate at Dubai regarding the present case. The copy of his RTI application showing the receipt by the Indian Consulate is Ex.DW1/19. The receipts issued by Consulate General of India along with reply and copy of documents is Ex.DW1/20. The complaint given by Madhulika to the Sharjah police is part of Ex.DW1/21. The said reply was annexed with various documents and one of the document is an order dated 14.08.2002 written SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 39 of 86 FIR No. 440/2002 by Dalip Gandhi where Madhulika Jain was mentioned as a close family friend. Accused made number of representations to Union Home Minister, Minister of External Affairs, Prime Minister of India and President of India through Counsel Manav Hansda but same were returned to him vide letter dated 12.04.2024. The said letter along with four envelopes are Ex.DW1/21.
In 2002 accused himself and his family moved a writ petition before Hon'ble High Court of Delhi for quashing of the present case FIR. Though the FIR was not quashed but directions were given to Delhi Police to visit Sharjah and make investigation of the case from there. Copy of said order is part of Ex.PW22/D1(collectively). In this regard, ACP R. S. Dahiya and Inspector Rampal Singh visited Sharjah for investigation of present case. He requested them to visit the spot of incident but they refused. They had not taken any permission from the local administration for conducting the investigation. They simply called him, his parents and his children at Indian Consulate at Dubai. They also called Anand and Farida Jain at Indian Consulate and recorded their statements which are part of Ex.DW1/20 but they did not make any inquiries thereon regarding those documents. For the first time they obtained the death certificate of Shalini Jain at that time. He handed over the documents including the money given by him to the family members of his wife, to Inspector Rampal but same were not made part of the present case file. Even his brother in Delhi handed over various documents to the police including the one which accused has referred in his examination but the police did not make them the part of SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 40 of 86 FIR No. 440/2002 present case file. Since ACP R. S. Dahiya was found known to Mr. Rajeev Jain, Hon'ble High Court of Delhi while dealing with the quashing petition also passed direction that he shall not be associated with the investigation of the present case vide order Ex.PW22/D1 (collectively). Accused was still struggling with the present case despite committing no crime.
Accused was further examined u/s 311 CrPC and he referred to the directions given by Hon'ble High Court of Delhi to the Delhi Police to visit Sharjah and make investigation of the case from there vide order Ex.PW22/DC.
Further, certified copy of status report filed by DCP, Crime and Railway, Delhi before Hon'ble High Court of Delhi in regard to Writ Petition No. 890/2003 was exhibited by DW1 as Ex.DW1/22.
Further, accused produced the original letter dated 11.09.2002 written by the Sharjah Police to Consulate of India and Dubai and same was exhibited as Ex.DW1/16. He produced the letter dt. 14.01.2003 issued by State Bank of India, NRI Branch, Mumbai addressed to him mentioning that certificates Ex.DW1/23 in the name of his wife Mrs. Shalini Jain were transferred by gift in the name of Mrs. Shanta Rani Jain on 10.08.1999. He also produced the copy of application form for issuance of Resurgent of India Bonds, State Bank of India for the amount of 6000 US dollars vide Mark DW1/23. The corresponding original receipt dated 24.08.1998 regarding the said application from was exhibited as Ex.DW1/24.
DW1 was duly cross examined by Ld. Addl. PP for State.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 41 of 86 FIR No. 440/2002 5.03 DW2 Anil Kumar Jain deposed that deceased Shalini Jain was his cousin (Mausi's daughter) and he knows Shailender Kumar Jain since his marriage with Shalini Jain. Shailender's brother Munish is his saadu. He attended all the marriage functions of Sh. Shailender Kumar Jain and deceased Shalini Jain. He knows deceased Shalini Jain since her childhood. Her family comprised of her father namely Sh. Satish Kumar Jain, mother namely Mrs. Shanti Jain, her elder sister namely Ms. Madhulika Jain (nick name Molly Jain) and her brother namely Sh. Rajeev Jain (nick name Machchu Jain). The marriage functions were not lavish and it was an average marriage. As per his knowledge, no demand for any dowry was made by any family member of accused Sh. Shailender Kumar Jain. The relations between both families were cordial. The relations between Shailender Kumar Jain and deceased Shalini Jain were normal. None of the family members of deceased Shalini Jain ever complained about Shailender Kumar Jain. They used to meet Shailender Kumar Jain and deceased Shalini Jain when they visited India from Sharjah. Shalini Jain never personally complained to him about Shailender Kumar Jain or any of his family members. He had good relations with Ms. Madhulika Jain, Sh. Rajeev Jain and other family members of deceased Shalini Jain. His parents had financially helped Sh. Rajeev Jain for his education. The health of Shalini Jain was normal but once or twice she mentioned that she had been under tension. However, she did not disclose the reason for such tension and stated that sometimes she feels depressed. He was called by the police regarding this case SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 42 of 86 FIR No. 440/2002 and his statement was also recorded by the police. As per his knowledge, accused Shailender Kumar Jain or his family never harassed his deceased cousin Shalini Jain, physically or financially.
DW2 was duly cross examined by Ld. Addl. PP for the State. 5.04 DW3 Udai Jain (son of accused Shailender Jain) deposed that he was born on 10th October, 1995 and he was raised in UAE. He did his entire schooling from DPS Sharjah and completed his petroleum engineering from UPES, Dehradun. As far as he remembers, they have always been a happy and loving family and his parents loved each other as much as they loved them. He always looked to his father coming back from his office and after that he would go to the health club at Radison Hotel, Sharjah. All of them i.e. his father, his mother, his sister and himself used to go there and had good family time.
His parents had a loving relationship with each other and he had never seen them in a bitter state with each other. He had never seen them in any quarrel or in any altercation ever.
He had seen his mother crying when she used to talk to his Mama namely Rajeev and his Mausi Madhulika @ Mouli. Her mother would cry after she had telephonic conversation with his Mama or his Mausi or his Nani. Thereafter, his father used to sit with her and thereafter she used to become normal and happy.
In the year 2002, when said incident happened, he was about six and a half years of age. Date of 20.07.2002 was the last date when he saw his SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 43 of 86 FIR No. 440/2002 mother Shalini Jain. As far as he remember, he woke up to his mother crying. He ran and sat down next to her and asked her what had happened. She just kept on saying that she wants to die. He was scared and ran to his father who was doing pooja in the kitchen area. He ran to his father since his mother used to be normal when she was crying after father sat with her. He also woke up his sister and took her to the room where his mother was crying. They both asked her as to why she was crying and she kept on saying that she wants to die. They both got extremely scared and they ran back to the kitchen to call their father. Earlier, he had seen his father in the kitchen doing pooja but he had not called him. However, then they called their father. He went to their mother and he sat down with her. He asked her as to why she was crying but still their mother kept on saying that she wants to die. DW3's sister ran towards the drawing room and he followed her. His sister dialed their close family friends namely Anand Jain and Farida Jain whom they used to call as Tau ji and Tai ji and they arrived shortly after the phone call. All of them sat down in the drawing room with their mother. As far as he remembers they were telling her that all shall be fine and she does not need to worry. She stopped crying and stopped saying that she wants to die. She appeared normal after that. She got up stating that she wants to go to washroom and left the drawing room. After that they heard loud screams and they rushed out of drawing (room) to the gallery and there they saw her in front of bathroom in flames. The bathroom and drawing room opened into the same gallery. His father immediately rushed to the kitchen and he brought a big bottle SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 44 of 86 FIR No. 440/2002 (like the bisleri water bottle kept in water dispensers) and poured water on his mother. Following their father he and his sister also brought water bottles and threw water to douse the flames. Tai ji held him and his sister and kept them back. Tau ji rushed into the bedroom and brought a blanket and wrapped his mother using the same. The fire got extinguished at that point of time. He and his sister were in a state of shock and they were crying and holding on to their Tai ji who took them into the drawing room and sat with them. The next thing that he remember is that police officials had come to the apartment and went around the apartment and spoke to Tai ji and him and his sister. He told the state of events to the police. After that, the police officials left and their Tai ji took him and his sister with her to her room. That was the last day on which he saw his mother.
On the next day, when his father came to Tai ji's house, he saw that he was having bandages on his hands and legs. His father came and hugged his sister and him very hard. At that moment, his heart sank and he told them that their mother was no more. It took some time to regain their composure and they cried for some time.
Few days later, his father took them to Sharjah police station where the police made some inquiries from him and his sister in a dark room. They asked them about the relationship between their parents and the events that transpired on the date of incident and he told them the facts.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 45 of 86 FIR No. 440/2002 After few years, a team of policemen from India visited Dubai and his father took his grandfather, grandmother, his sister and him to the Indian Embassy in Dubai. The two policemen who came from India had asked questions about the incident and he shared the same details with them.
He deposed that his father is innocent and has no role to play in the death of his mother.
DW3 was duly cross examined by Ld. Addl. PP for State.
5.05 DW4 Vaaruni Jain deposed that she is the daughter of accused Shailender Kumar Jain. As far she remembers, they were a very happy family without any discord. She had never seen her parents having any quarrel or arguments. Her mother and she were quite close and she used to share her day to day activities. Whenever DW-4 used to come from school at lunch, she used to discuss her day with her and her mother also shared if she had something on her mind. She remembers that her mother was visiting a doctor in Dubai Police Clinic. Sometimes she would take her along with her and sometime she would go with Papa. Her mother would always made her sit outside the doctor's room whenever they visited the doctor. It was a separate building from the rest of the clinic. Outside the building, it was written "Psychiatric Department". They used to come to India in summer and winter vacations and most of the times they used to stay at their Dadi's house. For a few days, they would also go to their Nani's house also. Their stay at Dadi's house was very pleasant. They were pampered quite a lot at Dadi's house. Her Chacha Munish Jain and Dadi Ms. SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 46 of 86 FIR No. 440/2002 Trishla Jain took them out for outing and shopping. Her stay at Nani's house was not that pleasant. She always found the atmosphere very tense and very uncomfortable there. They were always screaming, very rude and not something she found to be nice or comfortable. She had seen her mother also to be upset over there at Nani's house and she had seen her crying also at Nani's house. She asked her once why she was upset and what happened. She said that they wanted her to do things that she did not want to do. She said that she would explain it to her once she become little older and then she will understand.
Witness was asked a court question about her age at that time to which she replied that she thinks she must have been around 06 years old. Her date of birth was 23rd February, 1993.
She further deposed that the year 2000 was the last time they came to India before her mother's death. That was one trip that she will never forget. They had gone to Nani's house and she was not very comfortable staying the night at Nani's house, so most of the times she used to go to Mausi's house (Mausi namely Madhulika Jain) which was near to Nani's house. If they had gone to Nani's house, she used to stay at night at Mausi's house. She woke up at night one day because of a nightmare and she went to look for Mausi but she could not find her in her room. Mausa ji was also not there in the room so she went to look for them in the house and she could hear Mausi speaking in the balcony. She was saying that " hum shalini se kahengy wo apne or bachon ke passport manga legi, phir hum shailender se paise or property mangegey agar SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 47 of 86 FIR No. 440/2002 hamey nahin diya to hum unhe dekh lenge". She got scared after listening to this. She went back to bed and on the next day, she got up early in the morning and asked Mausa ji to take her to Mummy. She went back to her Mummy, hugged her and she told her what she had overheard. Her mother hugged him and she made her promise that she shall never mention this to anyone. Her mother told her not to mention this to Papa. Her mother told her not to worry and that they would never come back to India. Her mother immediately called Papa and in the evening Papa took them away to Dadi's house. After this she got into a habit that whenever Mausi or Mama would call on their landline at Sharjah, she would pick up the parallel line and listen to their conversation. She was not very comfortable with her mother speaking to them after what she had overheard in India. Most of the times, her mother got to know that she had picked the line and she would disconnect the call. Her mother used to scold her a lot for doing this. A few times, she did manage to hear some of their conversation. Most of the times, Mausi used to be telling Mummy to create fights with Chacha, Dadi and Dada. Mummy always said that there was nothing worrying in the family and everything was going well. There was no need to fight but they would keep insisting that she should do so. They even asked her mother when she would come back to India next. Her mother said that she would let them know whenever she come. DW-4 remembered that even before this when they would go to India on summer vacations, Mausi would call them and Mummy would sit down and she would make a list of things that they had to SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 48 of 86 FIR No. 440/2002 buy for them. They would go and get all such things for them. She would ask Mummy why do they need to take so many things to them. They never gave them anything when they go to them and Mummy replied that they were poor.
On 20.07.2002 she was in Sharjah at their home. His brother woke her up in the morning. He was panicked and he told that Mummy was crying and saying that she wants to die. They went to her and DW-4 asked her mother what happened but she kept on repeating that she wanted to die. They went to Papa who was in the kitchen and praying at that time. They told him what her mother was saying. His father sat down with her mother and hugged her. He asked her what has happened but her mother kept on crying and kept repeating that she wants to die. Papa told her to get a glass of water for her mother and mix ORS for her which her mother used to take frequently. DW-4 went to the kitchen but instead decided to call Tauji Mr. Anand Jain and Tai ji Farida Jain, she made a phone call to them and asked them to come as soon as possible. They came as soon as they could and they all sat down with Mummy in the living room. They spoke to her mother and her Mummy calmed down after that. Then, her mother wanted to go to the washroom. After that DW-4 remembers hearing her screams from near the washroom. Papa went to the kitchen and got five gallon water bottle/can from the kitchen which they used for drinking purpose and such water bottles were found in every household in UAE. Papa poured that over her mother. They used to have small bottles filled and kept around the house and they and his brother poured the same on their mother. However, Tai ji pulled SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 49 of 86 FIR No. 440/2002 herself and her brother away from her Mummy so that they may not get burn. Tauji brought blanket from the bedroom and wrapped it around Mummy and that finally put the flames off. Papa called the police and the ambulance. Tauji took them to the living room and sat down with them on the sofa. They were in the state of shock. After some time, police came to their home and they questioned them. They looked around the house. Then they told Taiji to take them away from there. Taiji took them to her house and they stayed the night there. Next day in the morning Papa came to Taiji house. He was crying and he had bandages on his hands and legs. They all cried a lot on that day. After few days, Papa took them to Sharjah police station. There they questioned them in a dark room about her mother's death.
After few days Papa took them to Indian Consulate in Dubai. There were few Indian police officers there. They questioned them again about their mother's death.
DW4 was duly cross examined by Ld. Addl. PP for the State. 5.06 DW5 Vijai Dube, Manager from Tata Asset Management Private Limited deposed that he was summoned to produce the investment details of Shailender Kumar Jain having folio no. 4305589 and 169829 (joint holder) with TATA Mutual Funds and the authority letter Ex.DW5/A authorizing him to appear in this matter was issued by the Legal Officer of said firm. He also produced the account statement of the folio no. 169829 and 4305589.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 50 of 86 FIR No. 440/2002 The folio no. 169829 was earlier a joint folio of Shailender Kumar Jain and Shalini Jain and thereafter application was moved by Shailender Kumar Jain to remove Shalini Jain from the folio due to her death. The copy of said application and the documents filed are Mark D5. The original of the said documents are with the office of Registrar, CAMS (Computer Age Management Services), Chennai and the copy of his ID proof is Ex.DW5/D. DW5 was duly cross examined by Ld. Addl. PP for the State. 5.07 DW6 AR Prakhar Vashisth, Assistant Manager on behalf of KFIN Technologies Limited deposed that KFIN technologies was the registrar and share transfer agent of IDBI Bank Retirement bonds. The copy of his authority letter is Mark D6/A and copy of his ID card is Ex.DW6/A. He had brought the record regarding the IDBI bonds. He also furnished the details regarding the Folio NO. RMB50100012 of Shailender Kumar Jain. The said transfer was done after submission of record by Shailender Kumar Jain on 15.07.2021 along with the requisite documents. Shailender Kumar Jain was also the second holder (joint holder) in the said folio number of Shalini Jain as per the company record. The redemption amount had already been paid as per the schedule. The detailed written submission on behalf of KFIN technologies regarding the aforementioned folios is Ex.DW6/B. DW-6 on seeing the copy of IDBI bonds mark DW1/10 stated that the said bonds are the same as referred in his written submission as Ex.DW6/B. DW6 was cross examined nil by Ld. Addl. PP for the State.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 51 of 86 FIR No. 440/2002 5.08 DW7 Mr. Pradeep Bhatia, Manager, UTI deposed that summons were received from the present court for furnishing details of the bonds in the name of Shalini Jain and Shailender Kumar Jain. Copy of his ID is Ex.DW7/A and the detailed reply is Ex.DW7/B. DW7 was cross examined nil by Ld. Addl. PP for the State.
5.09 DW8 Mr. Ranveer Singh Jakhar deposed that he was authorized to appear as a witness in regard to summons issued to Bank of Baroda by the Assistant General Manager vide letter dated 03.11.2023 Ex.DW8/A and copy of his ID is Ex.DW8/B. The court had summoned for the record of Vijaya Bank branch (merged into Bank of Baroda), however, the said record pertains to year 2000 and the banks were supposed to maintain record for 10 years and they were unable to retrieve information regarding the demand draft no. 37022006 issued by Emirates Bank International Limited drawn on Vijaya Bank Barakhamba Road, New Delhi dated 09.02.2000. The reply of Assistant Manger in this regard is Ex.DW8/C. DW8 was cross examined nil by Ld. Addl. PP for the State.
5.10 DW9 Dheeraj was the official from Canara Bank, NRI Branch, Barakhamba Road, Delhi. He was summoned by the defence for proving the receipt of demand draft, issued by AI Razouki Int'l Exchange (LLC), Sharjah, UAE, transaction no. 000246 dated 03.10.2001 of Rs.20,000/- issued in favour of Madhulika Jain payable at Canara Bank, Foreign Department, Delhi and also for proving demand draft #818873 dated 06.02.1997 drawn on Canara Bank, SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 52 of 86 FIR No. 440/2002 International Division, Atlanta, 11th floor, Nariman Point Mumbai for Rs. 18,000/- gifted to Mrs. Sanjeeta Jain (w/o Rajeev Jain).
He deposed that the above mentioned record pertains to the year 1997-1998, 2000 and 2001 and was not available with the bank as per their preservation of their old record policy. The report in this regard was given by Manager, NRI Branch, Canara Bank, Barakhamba Road, New Delhi vide Ex.DW9/1.
DW9 was duly cross examined by Ld. Addl. PP for the State. 5.11 DW10 Ankit Yadav was the official from MEA but he was partly examined by the defence and therefore his testimony cannot be read in favor of defence.
5.12 DW - 11 Sh. Aaditya Poonia deposed that he is working as Section Officer, Consular II, Ministry of External Affairs. Copy of his official ID is Ex.DW11/P1 (OSR). The letter No. T415/08/2023 dated 16.02.2024 and letter No. T415/08/2023 dated 24.04.2024 have been issued by CPV Division, Patiala House Annexe, Tilak Marg, New Delhi, by Sh. Naresh Kumar, Joint Secretary (CPV-II) and Sh. Neeraj Agarwal, Director (CPV-II) respectively.
The letter dated 16.02.2024 is Ex.DW11/P2 bearing signatures of Sh. Naresh Kumar at Point A. The letter dated 24.04.2024 is Ex.DW11/P3 bearing signatures of Sh. Neeraj Agarwal at Point A. As per said letters, the Ministry of External Affairs has stated that the Consulate General of India, Dubai had verified the authenticity of Consulate's stamps and signatures of SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 53 of 86 FIR No. 440/2002 Consulate's Officers on the documents No. Ex.DW1-16, Ex.DW1-17, Ex.DW1- 20 and Ex.DW1-21.
DW-11 was duly cross examined by Ld. Addl. PP for the State. 5.13 DW12 Manish Jain deposed that he is the brother of the accused Shailender Kumar Jain. He is son of accused Trishla Jain. He was working with India Ports Association around 1984. Around the year 2003, Indian Ports Association had initiated a Departmental Inquiry against him alleging that he has wrongly claimed the LTC Bill of his father. He was suspended in the said Departmental Inquiry. Further the Indian Port Association issued a charge-sheet to him regarding the said matter. During that period Rajiv Jain was Officer on Special Duty to Minister of State for Shipping Mr. Dilip Gandhi. Rajiv Jain is the brother-in-law of accused Shailender Kumar Jain. Rajiv Jain is also a prosecution witness in the present case. DW-12 further deposed that he was aware that all this has happened because of Rajeev Jain as he exercised his power on DW-12's office for getting him charge-sheeted. Thereafter DW-12 filed the civil writ petition no. 6378 of 2003 against Indian Port Association and its MD. He is filing the certified copy of order dated 13.11.2003 Ex.DW12/D1 and order dated 23.02.2004 Ex.DW12/D2 passed in the said matter by the Hon'ble High Court of Delhi.
In the year 2013, DW-12 filed RTI application to Director (Judicial), Ministry of Home Affairs seeking information regarding the sanction u/s 188 Cr.P.C. granted in regard to the present case. The signed copy of the said SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 54 of 86 FIR No. 440/2002 RTI application along with receipt of speed post and the copy of Indian Postal Order sent with the application is Ex.DW12/D3 (Collectively) bearing his signatures at point A. He received reply dated 17.09.2013 by speed post to his application. Said reply issued by Sh. J. P. Aggarwal, Joint Secretary (Judicial) and CPIO along with envelope through which the said reply was received is Ex.DW12/D4 (Collectively). The copy of said reply and sanction guidelines furnished in the said reply are already Ex.PW11/DC and Ex.PW11/DB.
DW-12 was duly cross examined by Ld. Addl. PP for the State.
6. ARGUMENTS 6.1 Ld. Counsel for accused has argued that the present case is an example of malicious prosecution where the complainant and her family even used political connections to harass the accused. He argued that the sanction itself is invalid as there was no sufficient material to grant sanction under section 188 Cr.P.C. for the trial. Further, even the mandatory guidelines were not followed while granting the sanction. Moreover, only sanction for offence under section 498A IPC was given but accused has been charged for the offence under section 306 IPC also. Further, the testimony of complainant and her brother reveals that their allegations were highly exaggerated. Rather the testimony of complainant and her brother does not prove any of the alleged offence. There is no proof of any dowry demand or any cruelty related to such demand. Even the SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 55 of 86 FIR No. 440/2002 alleged letters of the deceased do not mention about any dowry demand or related cruelty. Even the alleged letters have not been proved in the handwriting of deceased as per the mandate of law as the 'admitted' documents were never proved as per procedure. The defence has been led to the effect that accused was well to do and had good financial capacity rather the evidence shows that payments/monetary gifts were made by him/his wife to his in-laws. Further, the children of deceased who were residing with her have been examined as defence witnesses and they have categorically deposed about the innocence of the accused. On the contrary, they have deposed against the complainant and the other family members of the deceased. Further, the accused has led defence evidence regarding the investigation/proceedings conducted by the Sharjah police and the same shows that the last dying declaration of the deceased held nobody accountable for her death. Ld. Counsel has also argued that even otherwise the alleged conduct of accused (in the letters) cannot be said to the one which falls within the rigors of section 306 IPC or 498A IPC. Ld. Counsel has relied on various judicial precedents as to what kind of conduct amounts to cruelty under section 498A IPC or instigation under section 306 IPC and has argued that the alleged conduct cannot be said to be instigation/cruelty. Accordingly, Ld. Counsel has argued that accused is entitled to be acquitted though he has already suffered prolonged trial of about 20 years due to vendetta of the complainant.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 56 of 86 FIR No. 440/2002 6.2 On the other hand, Ld. Additional PP has argued that complainant and her brother have deposed against the accused and further the letters of the deceased have been proved to be in her handwriting and the said letters refer to certain incidents of cruelty by the accused against her. He has argued that it is not disputed that the accused Shailender was married to deceased and that she died by suicide. It is submitted that there was no cause for the deceased to commit suicide unless she had some grave reason for the same. There is no definite evidence that she was suffering from depression. Further, the defence evidence is not reliable. The testimony of the children of the deceased has to be seen in the light of the fact that they are children of accused also and they have been raised up by the accused and therefore, they are interested witnesses. Moreover, they were too young i.e. around 6 & 9 years of age at the time of incident and they would not have known the actual state of affairs between their parents. Accordingly, Ld. APP has argued that prosecution has proved its case beyond reasonable doubts.
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in the present case are reproduced herewith:
Section 498A IPC provides "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 57 of 86 FIR No. 440/2002 Explanation:- For the purpose of this section, "cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.";
Section 306 IPC "if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine";
Section 34 IPC provides - "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
7.2 Thus, from the facts of the case, defence of the accused, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether the testimony of complainant Madhulika Jain is credible?
2. Whether the testimony of Sh. Rajeev Jain/brother of deceased is credible and provide sufficient corroboration to the allegations?
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 58 of 86 FIR No. 440/2002
3. Whether the alleged letters of deceased have been duly proved to be in her handwriting and whether the same provide any incriminating evidence against the accused?
4. Whether the defence of accused is probable?
5. Whether the alleged sanction order is defective and if so, effect thereof?
6. Whether the accused are liable to be convicted for the alleged offences?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.01 The main witness of the case is complainant i.e. PW-2 Madhulika Jain. She has made grave allegations in her complaint to the police vide Ex.PW2/B. In her complaint, she has made allegations regarding ill treatment of deceased Shalini Jain by her in laws when the deceased was living at her in laws house (in Delhi) on account of giving insufficient dowry. However, the details of such ill treatment have not been mentioned in the complaint or even in her examination-in-chief. Rather in her examination-in-chief, she has only deposed that after about 2-3 days of marriage her in laws started harassing her. Therein, She did not even mention anything about insufficient dowry being cause of such harassment.
Further, she has deposed that Shalini was more concerned with her brother in law Munish Jain who used to provoke her husband against her by SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 59 of 86 FIR No. 440/2002 sending emails and by phone. Rather she has also deposed in her examination in chief that Shalini complained "only" against Munish Jain and had "no problems"
from her husband. Thus, it appears that the thrust of allegations is against Munish Jain but said accused stands discharged in the case. At the same time, PW-2 appears to have softened her stand against accused Shailender Jain after levelling serious allegations against him in her complaint.
The complainant/PW-2 has also deposed that Shalini had also problem from her father in law and mother-in-law for not giving proper gifts on occasions. However, no further details regarding such gifts or such occasions have been mentioned by the complainant in her testimony. Further, she has deposed that Shalini told her that her parents in law used to raise demand for some "petty" articles from her. This assertion is in contradiction to the testimony of PW-1 Rajeev Jain who has deposed that sometimes when he went to the house of accused, they demanded 'big' gifts.
Further, in her complaint Ex.PW2/B, Madhulika Jain has alleged that when Shalini used to come to India there were 'frequent' demands of dowry. However, the timing, nature and other details of said demands are not mentioned in the entire complaint or even in the examination-in-chief of complainant. There is reference to only one specific demand of Rs.10 lakh in her complaint and testimony. Said demand is alleged to have been raised after the visit of Shalini to India in August, 2000. It may be noted that the deceased Shalini and the accused Shailender got married in 1991. Therefore, no specific demand of SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 60 of 86 FIR No. 440/2002 any item or any particular sum of money have been mentioned during the period from 1991 to August, 2000 and only generic allegations of dowry demands have been made in the complaint. Further, in the alleged letters Ex.PW2/A of the deceased Shalini Jain, she has discussed in detail about her life and her relationship with her husband and in laws. However, there is not a single mention of any dowry demand of Rs.10 lakh or otherwise in the said letters.
Further complainant/PW-2 has alleged in her complaint Ex.PW2/B that the accused Shailender used to 'threaten' her sister that in case she wants to live happily she must fulfill all demands of his parents. She also alleged that the in laws of her sister made constant demands of dowry and used to 'threaten' her that without fulfilling their demands she cannot live with Mr. Shailender in Sharjah. She also alleged in her complaint that even during their (her and her brother Rajeev) visit to Sharjah, in their presence Mr. Shailender abused Shalini and criminally assaulted her when she was disclosing all the atrocities committed by Shailender at the behest of his parents and brother. However, during her examination-in-chief, PW-2 Madhulika Jain did not depose about any threats by the in laws of Shalini or her husband for non-fulfillment of their demands. She did not even mention about the alleged criminal assault by accused Shailender during their visit to Sharjah. It was only during her cross- examination by prosecution by way of leading questions that she deposed about such allegations. It is trite to remark that if a witness has to be led by the prosecution on material facts, the credibility of witness about said facts is SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 61 of 86 FIR No. 440/2002 diminished. Moreover, even in her cross-examination by the prosecution she failed to recall that she had stated to police that after returning to Sharjah, Shalini Jain was treated with more cruelty. Though in her cross-examination by the prosecution she deposed that Shailender Jain was treating Shalini Jain with cruelty demanding dowry, however, as mentioned above, in the alleged letters of deceased there is no mention of any cruelty by accused Shailender on account of dowry demand.
Further, in her complaint, PW-2 Madhulika Jain has alleged that during the visit of Shalini to India in August, 2000, she disclosed to PW-2 that Mr. Shailender was not only beating her but was insulting and humiliating her in the presence of children also. However, it may be noted that no such fact of beating have been mentioned in the entire examination-in-chief of PW-2 or even in the cross-examination by Ld. APP. Thus, testimony of PW2 do not correspond to her own complaint. Moreover, both the children of deceased have been examined by accused as defence witnesses and they have deposed against the case of prosecution.
Proceeding further, even the cross-examination of PW-2 by the Defence create doubts about her credibility. In her cross-examination, she has specifically deposed that she does not know any Dalip Gandhi who was MP of India at the time of the death of Shalini. It may be noted that the counsel for accused has vehemently argued that the complainant used her political connections through Mr. Dalip Gandhi for getting sanction order against the SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 62 of 86 FIR No. 440/2002 accused and for controlling the investigation of the case. It may be noted that the defence has proved the documents received from Consulate General of India, Dubai vide Ex.DW1/20 (78 pages) in reply to the RTI application of accused. Ex.DW1/20 includes one letter dated 14.08.2002 written by Mr. Dalip Gandhi to the Minister of External Affairs for investigation of the case and therein Mr. Gandhi has referred Mrs. Madhulika Jain as "a close family friend".
Accordingly, it appears that the complainant has not been truthful even about collateral facts.
Further, during her cross-examination PW-2 failed to recall that she has lodged a complaint to Indian Embassy, Abudhabi (UAE) on 31.07.2022 demanding legal action against accused persons for killing Shalini Jain at Sharjah. However, the defence documents i.e. Ex.DW1/20 show such complaint dated 31.07.2002 being made by PW-2 to the Indian Embassy, Abudhabi (UAE).
Further, in her complaint PW-2/B, PW-2 Madhulika Jain has alleged that the information of death of Shalini was conveyed to her brother Rajeev Jain by their friend Ravi whereas accused Shailender Jain or his family members did not convey such information to them. However, PW-1 Rajeev Jain has himself deposed that on 20.07.2002, he received phone call from Shailender Jain that Shalini Jain was in critical condition in hospital and that she had committed suicide. Further, in her complaint Ex.PW2/B, PW-2 has alleged that they reached Sharjah in the night of 24.07.2002 and with grave difficulty they were able to contact Mr. Shailender. However, in her cross-examination she has deposed that SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 63 of 86 FIR No. 440/2002 Shailender Jain had received them at the airport and that he had arranged for their stay etc. at Sharjah (UAE). Thus, the allegations of PW-2 have been contradicted by the testimony of her brother and even her own testimony. Further, she has alleged in her complaint Ex.PW2/A that when they went to Sharjah after the death of Shalini and she questioned Shailender Jain about the circumstances of the death, he gave inconsistent and contradictory statements. However, no such facts have been stated by her during her entire examination- in-chief.
Further, she has also alleged in her complaint Ex.PW2/B that when she told Shailender that they shall call Sharjah police station for verification of facts and for lodging complaint regarding murder of her sister, Mr. Shailender threatened them that if they dare to do so they will not be able to go to India and will be finished here. However, no such fact have been stated by her during her testimony. She has also alleged in her complaint Ex.PW2/B that on discreet enquiry she came to know that there was a big fight and her sister was tortured by her husband and was put to death by putting some inflammable material on her body. However, neither source of such enquiry have been mentioned in the complaint nor such discreet enquiry has been referred in her entire testimony. Further, she has referred in her complaint that the demands of accused persons were partly fulfilled by her parents. However, no details of such part fulfillment has been mentioned in her complaint i.e. monetary payment or gifting of any item. Moreover, this fact is not even mentioned in her entire examination-in-
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 64 of 86 FIR No. 440/2002 chief. During her cross-examination she also failed to recall whether she had blamed Anand and Farida also for the murder of Shalini Jain in her complaint lodged to Sharjah police. However, the said complaint which is part of Ex.DW1/20 shows that allegations were made against said persons also for hushing up the matter and misreporting the circumstances of death. Further, they were specifically named as the persons involved in the murder of Shalini Jain. Further, PW-2 Madhulika Jain has alleged in her complaint Ex.PW2/B that since her sister was being ill treated and she was even feeling danger to her life, PW2 along with her brother visited Shalini at Sharjah on 19.03.2000 when they stayed for 7-8 days. However, during her cross-examination she admitted that they went for shopping straight from the airport of Sharjah. It is highly unlikely that if there was serious discord between Shalini and her husband/in laws, and PW-2 had gone to meet her regarding such issue, she would have gone for shopping from the airport only. It may be noted that in her complaint Ex.PW2/B the complainant has alleged that her parents invested more than Rs.4 lakhs in the marriage and all goods and articles including household articles were given in the marriage to accused Shailender Jain and his entire family members. However, during her cross-examination PW-2 stated that she does not know what articles were given in the marriage.
Accordingly, the testimony of PW-2 is far from being consistent or reliable.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 65 of 86 FIR No. 440/2002 8.02 Let us proceed further to examine the testimony of the next important witness i.e. PW-1 Rajeev Jain. In the complaint Ex.PW2/B, it is alleged that after the marriage of Shalini with Shailender Kumar she was not treated properly by her in laws as they were expecting more dowry articles. She was not only humiliated but was also maltreated by her in laws. However, during his examination-in-chief PW-1 has not uttered a word about such harassment after the marriage. Even in his cross-examination by the prosecution he failed to recall whether he had made incriminating statements to the police about harassment of Shalini by the accused persons/her in laws or about any beatings to Shalini by Shailender. Thus, he has not supported the case of prosecution about the dowry demands or harassment regarding the same. PW-1 was the real brother of deceased. Therefore, his statement further diminishes the reliability of complainant about dowry demands and related harassment of deceased. In his cross-examination by the prosecution PW-1 Rajeev Jain only admitted that sometimes accused persons demanded big gifts when he used to visit their house. However, he failed to recall that he had stated to the police that they had given some valuable gifts to accused to save the house of his sister. He also failed to recall whether Shalini was not interested in going back to Dubai during his visit to India in October, 2000 and whether on the assurance given by her mother in law and brother in law she returned to India. Thus, PW-1 has not supported the allegations made in the complaint in substantial terms and rather has diluted the allegations.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 66 of 86 FIR No. 440/2002 Further, it may be noted that it is one of the defence of the accused that Shalini Jain committed suicide as she was undergoing depression. Though, PW-2 Madhulika Jain has denied that Shalini was suffering from depression, however, PW-1 Rajeev Jain has himself deposed in his examination-in-chief that when he met Shalini during her visit to India he found her in depression. It may be noted that the IO himself had taken medical opinion from a Board of doctors of AIIMS regarding the medical condition of Shalini Jain as evident from her medical treatment papers (prior to her death). The report of the Board is Ex.PW3/A. It shows that Shalini Jain was having complaints of various ailments including mixed depression and anxiety. During their cross-examination, the members of said Board (PW3 Dr. D. N. Bhardwaj, PW4 Dr. Tabin Milo and PW7 Dr. Rajesh Sagar) have deposed that expression 'mixed depression' includes clinical depression. Therefore, the testimony of PW-1 regarding the deceased being in depression is reflected in her medical treatment papers also.
During his cross-examination PW-1 Rajeev Jain has admitted that he along with his sister Madhulika went to Dubai on 19.03.2000 and participated in Dubai shopping festival. He admitted that they were invited by Shalini Jain to participate in Dubai Shopping festival. Though he has deposed that they had gone to ensure that Shalini and Shailender were living amicably and has denied the fact that they were residing happily but at the same time he has admitted that Shalini Jain had never complained to him against the accused. He has deposed that he came to know about their differences from his sister Madhulika.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 67 of 86 FIR No. 440/2002 However, it is surprising that if Shalini Jain was having serious discord with her husband for more than 10 years, why she did not share it with her real brother PW-1 Rajeev Jain.
8.03 The prosecution has also relied upon certain letters allegedly written by deceased Shalini Jain to her sister Madhulika Jain/complainant to prove that she was being ill treated by the accused persons. Ld. Counsel has argued that prosecution has failed to prove the letters to be in the handwriting of Shalini Jain. He has argued that neither PW-1 Rajeev Jain nor PW-2 Madhulika Jain has specifically deposed that they identify the handwriting of the deceased in the said letters. Moreover, even the alleged 'admitted' documents used by handwriting expert for comparison are not proved to be in the handwriting of deceased Shalini Jain. I have considered his arguments. Indeed neither PW-1 nor PW-2 have deposed specifically that they can identify the handwriting/signatures of deceased Shalini Jain and thereby they can claim the said letters to be in her handwriting. Even the 'admitted' documents used for handwriting comparison are one greeting card, bank account opening form, envelope of a letter/card, a small hand written yellow color slip. However, no bank official has been examined in whose presence the said account opening form was filled and no evidence has been led regarding the greeting card, envelope and the yellow slip to be in the handwriting of Shalini Jain. Moreover, the alleged letters (Ex.PW2/A) are primarily written in Hindi only and English words are interspersed in between, whereas 'admitted' documents used for comparison are SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 68 of 86 FIR No. 440/2002 in English only. Therefore, the evidence of the prosecution regarding the proof that the said letters were in the handwriting of Shalini Jain has very low probative value.
Even otherwise, the circumstances under which the said letters were written do not correspond to normal conduct of a person in the given circumstances. Defence evidence has been led that Shailender Jain was having a phone in his house at Sharjah. Even complainant herself has mentioned in her complaint Ex.PW2/B that she was frequently in touch with Shalini on telephone. In such circumstances, the writing of letters by deceased Shalini to her sister Madhulika appear unusual. Moreover, in her cross-examination complainant/PW-2 Madhulika Jain has deposed that she does not recall whether she replied to the letter sent by Shalini Jain to her. This shows that there was no exchange of letters from either side (complainant & deceased) and it was one way communication. Further, the timing of the letters and even the manner and the material on which letters were written is unusual. Ex.PW2/A consist of 3 letters dated 09.02.2000, 29.03.2000 & 21.05.2000. As per complainant, she herself visited Shalini Jain at Sharjah on 19.03.2000 and stayed there for 7-8 days. Thus, it is highly unnatural that Shalini Jain would be writing a detailed letter to her sister Madhulika on 29.03.2000 when her sister had just left her around 26/27.03.2000 after staying for 7-8 days. Further, the letters are written on big register size pages which are not normally used for letter writing. Further, only one postal envelope has been produced and that too regarding letter dated SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 69 of 86 FIR No. 440/2002 29.03.2000 only. Thus, Court is of the opinion that even if letters are presumed to be in handwritings of Shalini, same were not written in ordinary course of nature but probably with an intent to create a record for future litigation. When a person writes a letter with such mindset to create evidence, then the genuineness of the contents of the letter cannot be readily accepted. Here it may be noted that the complaint Ex.PW2/B was filed with 5 enclosures and the first enclosure is referred as letter 'A'. Though said letter has not been exhibited but it has been filed along with charge-sheet (page no. 23). The said letter is stated by the complainant to have been written by the deceased. In the said letter, it has been written 'Moli you should keep my passport copy and this letter of Munish safely with you. This is proof that these people instigate Shailender. I will send other similar things to you. You shall maintain separate packet for the same. Passport copy shall remain with you and also my marriage certificate copy'. Thus, the said letter also indicates that things were being done with a mindset to prepare evidence against the in laws of Shalini.
Further, even if content of said letters is considered same does not disclose about any dowry demand or related harassment of the deceased. Rather the instances mentioned in the letters appear to be normal wear and tear of life between any married couple. The letter dated 21.05.2000 primarily contains disparaging remarks against Munish Jain only (since discharged). In the letter dated 09.02.2000 the grievances of Shalini Jain are primarily against her mother- in-law. However, such grievances are the normal differences between a modern SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 70 of 86 FIR No. 440/2002 bride and a traditional/orthodox in laws regarding general way of living and the non-fulfillment of expectations from each other. In regard to the conduct of Shailender Jain the primary grievance of Shalini Jain in said letters appear to be that he used to give precedence to the desires of his parents over the desires of his wife/Shalini. In the said letter Shalini Jain had referred to a specific incident wherein she had verbal altercation with Shailender Jain while travelling in a car, wherein he drove the car like a mad man even with their kids in the car. However, both the kids of Shalini Jain have been examined as defence witnesses and both of them denied any such rash driving by their father ever. In reference to the said incident itself, Shalini Jain had referred in her letter that Shailender caught her neck after reaching their home. However, from the narration in the letter it appears that it was the only violent act ever done by accused Shailender Jain against Shalini Jain. However, in the same letter it is mentioned that after counseling by Mr. Anand, Shailender expressed sorry for his behavior. He also expressed sorry for his violent act. Therefore, even if the said letters are presumed to be written by Shalini Jain there was only one violent act by Shailender Jain and apparently same was settled between the couple. Thus, the alleged letters are neither duly proved to be in the handwriting of Shalini Jain nor otherwise provide any concrete evidence of cruelty by the accused persons on account of dowry or even otherwise. It may also be noted that the alleged letters are of the year 2000 whereas the incident in question happened in July, SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 71 of 86 FIR No. 440/2002 2002 and therefore the letters do not indicate the state of affairs immediately before the incident in question.
8.04 Besides PW-1 and PW-2, in the charge-sheet, the prosecution has referred to the other witnesses from the family and neighborhood of deceased. However, two of such witnesses i.e. Shanta Jain (mother of deceased) and Pushpa Gupta (Mausi of deceased) were not examined by the prosecution due to their advanced age and their decreased cognitive abilities and they were dropped by the prosecution on 27.05.2016. Further, PW S. K. Gupta (Mausa of deceased) had died before he could be examined. Even summons to PW Mr. S. K. Jain (father of deceased) were returned with the report that he has expired. PW Raj Prakash Verma, Neeta Verma, Sameer Dev and Sneha Dev (neighbors of deceased at Sharjah) could not be served even through the Office of the DCP despite repeated summons and ultimately the proceedings to serve the witnesses was stopped vide order dated 10.07.2019.
The only other public witnesses examined by prosecution were PW-12 Mini Tripathi and PW-14 Dr. Farooq Wasil. However, PW-12 was the Supervisor at the school where Shalini Jain was working. She did not depose anything incriminating against any accused. She only deposed that there was nothing peculiar in the behavior of Shalini Jain during her working in school. However, at the same time, in her cross-examination she deposed that she was not aware about personal life of Shalini. Likewise, PW-14 was the Principal of 'Our Own English High School' at Sharjah and he only deposed that Shalini Jain SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 72 of 86 FIR No. 440/2002 was an intelligent teacher and never complained about any ailment like depression etc. Apparently, PW-12 and PW-14 were cited as a witness by the prosecution to prove that Shalini Jain was hale and hearty and therefore could not have committed suicide due to depression (as claimed by accused). However, as observed earlier the medical treatment papers show that Shalini Jain got treatment for mild depression. Even her own brother PW-1 has deposed about her depression. Further, even in her letters Ex.PW2/A there are references to depression. Though it is mentioned in the letters that Shalini Jain is not presently suffering from depression but it implies that she suffered from depression at some point of time.
8.05 As discussed in preceding paras, the evidence against accused Trishla Jain is only oblique. The bulk of allegations are against Munish Jain. However, the accused Munish Jain stands discharged. As far as accused Shailender Jain is concerned, even if the allegations in the letters of the deceased are deemed to be correct same fall short of the requirements under section 498A and 306 IPC. It has been held by Hon'ble Supreme Court of India in Manju Ram Kalita Vs State of Assam criminal appeal no. 299/03, date of decision 29.05.2009 that " 'cruelty' for the purpose of section 498A Cr.P.C. is to be established in the context of section 498A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of a man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 73 of 86 FIR No. 440/2002 established that the woman has been subjected to cruelty continuously/persistently at least in close proximity of time in lodging the complaint. Petty quarrels cannot be terms as cruelty to attract the provisions of section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as 'cruelty'."
Further, Hon'ble High Court of Kerala has held in Cyriac and Anr. Vs The Sub-Inspector of Police and Anr. Crl. MC no. 6318/02 date of decision 13.07.2005 that 'the act or conduct of the accused, however insulting and abusive those may be, will not by themselves suffice to constitute abetment of commission of suicide, unless those are reasonably of capable of suggesting that the accused intended by such acts consequence of suicide. Even if the words uttered by the accused or his conduct in public are sufficient to demean or humiliate the deceased and even to drive him to suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused intended by acts, consequence of a suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide.
An indirect influence or an oblique impact which the acts or utterances of the accused caused or created in the mind of the deceased and which drove him to suicide will not be sufficient to constitute offence of abetment of suicide. A fatal impulse or an ill-fated thought of the deceased, however, unfortunate and touchy it may be, cannot unfortunately, touch the SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 74 of 86 FIR No. 440/2002 issue. Those cannot fray the fabric of the provisions contained in section 306 IPC. In short, it is not what the deceased 'felt' but the accused 'intended' by his act which is more important in this context. Of course, the deceased's frail psychology which forced him to the suicide also may become relevant, but it is only after establishing the requisite intention of accused.
Similar observations were made by Hon'ble High Court of Mumbai in Mr. Shivaji Shitole and Ors. Vs State of Maharashtra and Anr. Criminal Writ Petition no.1113/11, date of decision 26.04.2012. It was held that 'even if a person would commit suicide because of the torments of an accused, the accused cannot be said to have abetted the commission of suicide by the deceased, unless the accused would intend, while causing torments to the victim/deceased, that he should commit suicide. Even if the rigor of this preposition is diluted, still, the least that would be required is, that it should be shown that the accused could reasonably foresee that because of his conduct, the victims was almost certain or at least quite likely to commit suicide'.
However, in the present case the prosecution has miserably failed to prove any evidence which can satisfy the aforesaid requirements for the offence under section 498A and 306 IPC.
8.06 The accused Shailender Jain has led defence evidence in detail and examined himself and both of his children as defence witnesses. Shailender Jain as well his children Uday and Vaaruni have deposed in detail and have been cross-examined at length by the Ld. Additional PP. Rather, in the present case, SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 75 of 86 FIR No. 440/2002 the defence evidence far exceeds the prosecution evidence in quantity as well as quality. Both the children have explained in detail as to what happened on the fateful day and have given consistent narration of the events. They have stood the test of detailed cross-examination without any serious infirmity. Ld. APP has argued that both the children were of tender age i.e. six and half years and 9 years at the time of incident and therefore, they were not mature enough to understand equation between their parents and the circumstances in the house. Further, both of the children were raised and brought up by accused Shailender Jain and therefore they were partial towards their father.
I have considered his arguments. Firstly, the children of accused were not of such young age that they could not have understood the events in the house. Rather, the daughter Vaaruni was 9 years of age and children of such age can even catch the non verbal cues about any tension between their parents. Further, the children had lost their mother and were the real sufferers of the incident. Moreover, when they were examined in Court, both of them were grown up and settled in their own lives. Thus, it cannot be said that they were under the influence of their father. Moreover, the defence evidence show that both children were examined by Sharjah police not once but twice. Even Delhi police made enquiry from the children during investigation but none of them made any allegation against the accused Shailender Jain. 8.07 Even documentary evidence has been led by the accused to show that certain payments were made from his income to the family of Shalini SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 76 of 86 FIR No. 440/2002 Jain/his in laws. It is admitted case that accused Shailender Jain was having a regular job at Sharjah. There is no evidence of Shalini Jain doing any job except a job of a teacher but that job was started in 2001 only (as reflected in testimony of PW-14). Thus, it is apparent that Shailender Jain was the only earning member in family at Sharjah till 2001. Accused has led documentary evidence regarding following payments:-
Document Amount Date Beneficiary
Mark DW1/3 Rs.5,00,000/- 01.08.1998 Satish Kumar Jain
(copy of cheque (father of Shalini
dated 01.08.1998 Jain)
drawn on Canara
bank, NRI branch,
Barahkhamba
road, Delhi)
Ex.DW1/4 (bank Rs.3,85,000/- 09.02.2000 Shanta Ravi Jain
draft drawn on (mother of Shalini
Emirates bank) Jain)
Ex.DW1/5 Rs.20,000/- 03.10.2001 Madhulika Jain
(deposit receipt (complainant/sister
issued by Al of Shalini Jain)
Razouki
International
Exchange
Company for bank
draft payable at
Canara bank)
Ex.DW1/7 Rs.30,000/- 13.07.2002 Madhulika Jain
(deposit receipt (complainant/sister
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 77 of 86
FIR No. 440/2002
issued by Emirates of Shalini Jain)
India International
Exchange for
demand draft
payable at SBI,
Overseas Branch,
New Delhi)
Though, only the copy of cheque Mark DW1/3 was filed by the accused, however, the accused summoned the official from the Canara bank but DW-9 i.e., the official of said bank filed the report of the manager of the bank Ex.DW9/1 that the record pertaining to 1997, 1998, 2000, 2001 is not available with the bank as per preservation of old records policy. Thus, since original record was not available despite efforts by the accused, even the copies of the documents can be considered as secondary evidence by virtue of section 65 of Indian Evidence Act.
Moreover, in his cross-examination PW-1 Rajeev Jain has admitted that Shalini used to send money from Dubai to his family members including his wife. Though he tried to explain the payments by deposing that Shalini had insecurity about her life in her mind, however, since Shalini was not having any regular job/source of income prior to 2001, it does not appear possible that she would have sent money to her family from her own earnings. PW-1 Rajeev Jain also offered an explanation in his cross-examination that accused Shailender Jain had purchased a property at Bangalore and PW-1/his family assisted him in making of payment of sale consideration. However, he failed to recall the details SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 78 of 86 FIR No. 440/2002 of said property. Thus, in the given circumstances, said monetary transactions appear to be inconsistent with the allegations that accused Shailender/his family were making dowry demands from the family of Shalini Jain. 8.08 The accused has also examined DW-2 Anil Kumar Jain to prove that there was no dowry demand by accused and that the relations between accused Shailender and his wife Shalini were normal. It may be noted that deceased Shalini was the cousin of DW-2. Therefore, he was a near relative of deceased and ought to have known the dowry demands/ill treatment of Shalini if there were such demands/harassment. He has deposed that he had good relations even with complainant, Rajeev Jain and other family members of deceased. There appears no reason as to why said witness shall depose falsely regarding the state of relations between deceased Shalini and her husband i.e. accused Shailender. Even though he has deposed that Munish Jain (brother of Shailender Jain) was his saadu but the same does not diminish his credibility. Rather, it shows that he was a person who would have been in knowledge of the affairs of both the families i.e. Shailender as well Shalini due to his relations with both the families. Even he has deposed that Shalini stated that sometimes she feels depressed. Said statement finds corroboration from the other facts as discussed earlier.
8.09 It may be noted that the most crucial piece of evidence led by the accused Shailender is the documents of the Sharjah police investigation/Sharjah court enquiry. Same have been exhibited by accused as Ex.DW1/17. Same SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 79 of 86 FIR No. 440/2002 contains the dying declaration of deceased Shalini at page no. 07. Said declaration depicts that it was prepared by one Ali Obeid Rashid, first lieutenant no. 2274. It states that 'On Saturday 20.07.2002, and at approximately nine thirty in the morning, a report was submitted by the Police Operations, on the finding of a woman of Indian Nationality, at the Kuwaiti Hospital in Sharjah, all parts of her body were burnt, and that she was brought in by the Police Ambulance, after the report we went to the Kuwaiti Hospital in Sharjah and immediately inquired on the victims condition from the Doctor on duty, she reported that her condition was very dangerous and the she was suffering from second degree burns on all parts of her body and immediately, I questioned the patient named Shalini Jain, 36 years of age, Indian Nationality, on the reason of burning herself, she told me that she wanted to get rid of this world by burning herself and that she was the one who did this and no body provoked her, or ordered her into doing this or did this to her and she burnt herself by pouring Kerosene and lighting herself. After which she became silent due to the severity of her condition. The doctor on duty told us that the patient cannot speak and that her condition was very serious. Accordingly, I submit this report, as per the patients statements to me, the named Shalini Jain, Indian Nationality'.
Thus, the said dying declaration completely exonerates the accused persons from any wrong doing. Ld. APP has submitted that since accused Shailender was working with the Dubai police, therefore, said dying declaration could have been managed due to his influence. I have considered his SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 80 of 86 FIR No. 440/2002 submissions. However, it is not the case that accused Shailender Jain was working as a police officer himself. As per his own testimony, he was working as System Analyst with Dubai Police, Traffic Department. Said fact has not been disputed in his cross-examination. Even otherwise, the dying declaration cannot be doubted on the said ground alone. Rather, not only accused but both of his children and even the two other persons who were present at the spot during the unfortunate incident i.e. Farida Jain and Anand Jain also did not state any role of the accused in the said incident. The IO of the case PW-22 Retd. ACP Ram Pal Singh has deposed in his cross-examination that statement of Farida Jain and Anand Jain was recorded vide Ex.PW22/DE and Ex.PW22/DF and both bears their signatures. Perusal of said statements show that same were recorded at the the Indian Consulate General Office, Dubai on 17.10.2004. In the said statements, both of said witnesses have deposed about the sequence of events on the fateful day as deposed by accused Shailender and his children Uday and Vaaruni. Thus, the overall circumstances lean heavily towards the genuineness of the aforesaid dying declaration. Here it may also be pointed out that in the letters of the deceased relied by the prosecution itself vide Ex.PW2/A, the deceased referred the postal address of Farida and the phone number of Farida and Anand and mentioned that she may be contacted on the same. This shows that the deceased was in very close relationship of trust and faith with said persons. Accordingly, it does not appear that said persons would have deposed falsely regarding circumstances of her death.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 81 of 86 FIR No. 440/2002 8.10 Ld. Counsel for accused has also challenged the sanction under section 188 Cr.P.C. I have considered his arguments. Since the ingredients of any of the alleged offences are not made out in the present case, the said issue becomes academic. However, since it has been argued by Ld. Defence counsel, Court is dealing with the same.
The prosecution has examined PW-18 Venu Gopal the then Director (Judicial), MHA to prove the sanction dated 24.12.2002 Ex.PW15/B against the accused Shailender Jain. The prosecution has examined PW-11 Y. K. Baweja, the then Deputy Secretary, MHA to prove the sanction dated 29.10.2004 against the accused Sh. B. P. Mittal (since expired) and Smt. Trishla Jain. However, PW-18 failed to recall what documents were received by him along with the request letter for the sanction. Even PW-11 could not tell the details of all the documents considered before granting the sanction. Rather he mentioned about 'copy of suicide note' being part of such document. However, there is no suicide note in the documents of prosecution. Be that as it may, the sanction orders were passed on 24.12.2002 and 29.10.2004. However, the investigation of the case was concluded in the year 2005 only. Rather all the investigation at Sharjah, Dubai was done from 14.10.2004 to 21.10.2004 (as deposed by PW-22/Inspector Rampal). PW-21 Insp. Satish Sharma has deposed that he applied for revised sanction under section 188 Cr.P.C. and that he investigated this case from 02.07.2003 till March 2004. Thus, it is established that the documents collected during investigation at Sharjah were never the part of the material considered SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 82 of 86 FIR No. 440/2002 while granting the sanction. It may be noted that the sanction granted under section 188 Cr.P.C. is not for initiating the investigation for the case but for the enquiry/trial of the offence. Thus, the sanctioning authority has to consider all the relevant material which is collected during the investigation. Hence, any exculpatory material collected during the investigation is also to be considered by the Sanctioning Authority to have an informed decision on the issue after full knowledge of the facts (ref: Karim Bux Vs Rex AIR 1959 ALL 494). However, the exculpatory statements i.e. statement of Farida Jain, Anand Jain and the interrogation from the children of the accused were not the part of the file put up for getting the sanction. Accordingly, the Court is of the view that the sanction stands vitiated on this ground.
Further, the defence has proved that by way of an RTI application to the Ministry of Home Affairs (MHA), the guidelines regarding the grant of sanction under section 188 Cr.P.C. were obtained. Said guidelines have been exhibited as Ex.DW12/D4 (collectively).
Said guidelines are reproduced hereunder:-
i) Every request for grant of such sanction for prosecution should be accompanied by a copy of the police report (FIR) lodged in the country where the offence was committed. If no FIR was lodged, the reason thereof may be explained.
ii) Requests for sanction must be made within a reasonable time.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 83 of 86 FIR No. 440/2002
iii) Requests for sanction must be accompanied by a statement from the person making the application giving the following facts:
a) Whether the act in question is an offence under the law in force in that country;
b) What action was taken by the foreign government on the police report;
c) Whether the person alleged to have committed the crime, was tried by any court in that country and if so, with what results; and
d) the substance of evidence that the Indian citizen committed the alleged offence.
iv) The investigation requirement in the case i.e basic information relating to procedure employed by the organization in dealing with with such situations.
The Consulate General of India in that country shall countersign the documents and also examine the request at their end to offer its opinion as to whether the case in question is a fit case to be tried in India for the offence committed abroad.
Copy of said guidelines vide Ex.DW11/PB were even put to the sanctioning authority PW11 Y. K. Baweja (who issued revised sanction against accused Trishla Jain and B. P. Mittal) during his cross-examination. He deposed that he had followed the guidelines for granting sanction under section 188 Cr.P.C., however, he failed to tell if the guidelines shown in Ex.DW11/DB are SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 84 of 86 FIR No. 440/2002 the same which were considered by him at the time of grant of sanction. He also failed to recall if these guidelines were enforced in 2004. It may also be noted that it has come in the cross-examination of PW11 that the file of the case (sanction file) was not traceable in the Ministry. The said copy of guidelines was also put to PW18 Sh. Venu Gopal, the then Additional Secretary, MHA who granted the initial sanction (against accused Shailender Jain), during his cross- examination. He deposed that he might have followed all the guidelines mentioned in Ex.PW11/DB. However, he could not tell whether the act in question was an offence under the law enforced in that country. He could not recollect whether the person for whom the sanction was sought was tried by Court in that country i.e. Sharjah. Therefore, the answers given by PW11 and PW18 do not prove that said guidelines were followed.
As discussed earlier, since the investigation was done at Sharjah after having applied for sanction and further IO/PW22 Insp. Ram Pal Singh has deposed in his cross-examination that he filed the charge-sheet in the case without obtaining the document and information through the LR (letter rogatory) from Sharjah, UAE, it is apparent that the guidelines could not have been followed when the complete documents from the Sharjah regarding the investigation of the case therein were not put before the Sanctioning Authority. Thus, the Court is of the opinion that due procedure was not followed for grant of sanction and accordingly, the sanction order is vitiated.
SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 85 of 86 FIR No. 440/2002
9. CONCLUSION 9.1 Thus, in view of the above said discussion no point for determination can be decided in favor of prosecution. Hence, both accused Shailender Jain and Trishla Jain are acquitted from all the charges framed against them.
(Announced in the Open Court on
22nd November, 2024) Digitally signed
by SACHIN
SACHIN SANGWAN
SANGWAN Date:
2024.11.22
16:28:56 +0530
(Sachin Sangwan)
Additional Sessions Judge (FTC-01):
South East: Saket District Court: New Delhi/22.11.2024 SC No. 1431/2016 State v. Shailender Kumar Jain & Ors. Page no. 86 of 86 FIR No. 440/2002