Delhi District Court
State vs Vikas S/O Sh. Lokhinder on 31 March, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT,
SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR no. DLST01-000210-2013
SESSIONS CASE NO. 15/18 (6738/16)
FIR NO. 115/13
POLICE STATION : FATEHPUR BERI
UNDER SECTION : 498A/304B/34 IPC
AND U/S 6(2) OF THE DOWRY PROHIBITION ACT
State
Versus
1. Vikas s/o Sh. Lokhinder
r/o H.no. 25/3, Sultanpur Village,
MG Road, New Delhi.
2. Geeta w/o Sh. Lokhinder,
r/o H.no. 25/3, Sultanpur Village,
MG Road, New Delhi.
.... Accused Persons
DATE OF INSTITUTION : 13.08.2013
DATE OF PRONOUNCEMENT : 31.03.2023
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. As per the case of prosecution, DD no. 27A dated 14.05.2013 regarding suicide committed by a lady at Sultanpur Village was received. On receipt of the said information, SI Pradeep reached at the spot i.e. H.no. 21, near Chaupal, Sultanpur Village, New Delhi where they found one lady in hanging condition with 'chuni' with ceiling fan. On preliminary inquiry, it was found that deceased Poonam was married to Vikas one year FIR No. 115/13 State v. Vikas and other Page 1/53 ago so the information regarding the same was communicated to SDM, Mehrauli who inspected the spot. Thereafter, dead body was taken to AIIMS Hospital and on 15.05.2013 SDM conducted the proceedings u/s 176 Cr.P.C. and the post mortem of the deceased was conducted on his instructions. SDM recorded the statement of father and mother of deceased.
2. On the complaint of Sh. Karan Singh, father of the deceased, present FIR was registered on 15.05.2013 u/s 498A/304B/34 IPC. As per the contents of the complaint, Poonam was married to accused Vikas on 11.02.2012. After marriage, accused Vikas and his mother Geeta used to demand dowry and harass Poonam. Poonam was living at her parental home for last four months before her death in the matrimonial house. Allegedly, Poonam called and complained to her parents on several occassions that accused Vikas and Geeta used to demand dowry and used to beat her. On 14.05.2013 at 06.19 PM Sh. Karan Singh received a call stating that Poonam is not opening the door. After hearing this, the complainant reached at her in laws house and found dead body of Poonam hanging with ceiling fan having chunni around her neck.
3. After the conclusion of the investigation carried out in the FIR no. 115/13, police filed the present charge sheet against the accused persons namely Vikas and Geeta u/s 498A/304B/34 Indian Penal Code (hereinafter referred to as IPC) and u/s 6(2) of FIR No. 115/13 State v. Vikas and other Page 2/53 the Dowry Prohibition Act.
4. Vide Order dated 14.08.2013, Ld. Metropolitan Magistrate concerned took cognizance of offences u/s 498A/304B/34 IPC and u/s 6(2) of the Dowry Prohibition Act and the accused persons were called to face the trial. Both the accused persons were supplied with the charge sheet and other relevant documents in compliance to section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 21.10.2013.
CHARGE
5. Charge for the offences punishable u/s 498A/304B/34 IPC and u/s 6(2) of The Dowry Prohibition Act was framed by the Ld. Predecessor of this Court against both the accused persons, namely, Vikas and Geeta, who pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. The prosecution has examined 26 (twenty-six) prosecution witnesses (in short PW) in order to establish its case.
7. PW-1 Sh. Karan Singh, PW-2 Smt. Munesh, PW-8 Smt. FIR No. 115/13 State v. Vikas and other Page 3/53 Sangeeta, PW-10 Smt. Sarita, PW12 Sh. Amit Tanwar, PW-19 Sh. Surender Kumar, PW15 Sh. Kuldeep were the family members of the deceased girl who were examined and cross examined by the accused persons. PW11 Sh. Harkishan, PW13 Ms. Divya Sharma, PW14 Sh. Jagdamba Prasad, PW18 Prakash, PW20 Sh. Raj Kumar were the independent witnesses who had some knowledge about the relations of the deceased and the accused persons. Detailed testimony of the aforesaid witnesses shall be discussed in subsequent paragraphs.
8. PW-4 Ct. Anil, PW-5 HC Rajneesh, PW-9 Ct. Chander Bhan, PW-16 Ct. Dalip Kumar, PW23 Insp. Mahesh Kumar, PW24 W/SI Surekha, were the formal police witnesses who proved and exhibited on record various documents pertaining to dead body identification, registration of FIR and also making endorsement on the rukka. Same are exhibited as Ex. PW4/A, Ex. PW4/B, Ex. PW5/A, Ex. PW5/B, Ex. PW9/A to Ex. PW9/C, Ex. PW23/A. in the testimony of above witnesses respectively. All the witnesses were cross examined on behalf of accused persons.
9. PW7 Dr. Munish Sharma is the Forensic Expert who who proved and exhibited on record the Post Mortem report bearing no. 581/13 as Ex. PW7/A and also gave subsequent opinion dated 25.07.2013 as Ex. PW7/B. This witness also identified the chunni as Ex. PW7/P-1. PW25 Dr. Manish Narayan is the Senior Resident in AIIMS Hospital who proved and exhibited on record FIR No. 115/13 State v. Vikas and other Page 4/53 the attested copy of MLC of deceased as Ex. PW25/A which is already exhibited as Ex. PW22/C which is original one. Both these witnesses were cross examined on behalf of the accused persons.
10. PW-3 W/Ct. Usha Kumari, PW-6 Ct. Ajay Kumar, PW9 Ct. Chander Bhan, PW17 Ct. Ranbir Singh, PW22 SI Pradeep Kumar were the police witnesses who deposed qua their limited role in the investigation qua arresting the accused Geeta, collecting of viscera box, blood in gauze, FSL form and sample seal from MHC(M) and deposited the same at FSL, Rohini and returning back the copy of receipt to MHC(M), collecting of pullandas duly sealed with the seal of the hospital, four sample seals, blood in gauze of deceased and one viscera box and handed over the same to IO/Insp. Gurnam Singh in the PS and have exhibited various documents such as Ex. PW3/A, Ex. PW3/B, Ex. PW9/A, Ex. PW9/B and Ex. PW9/C. All these witnesses were cross examined on behalf of accused persons.
11. PW17 Ct. Ranbir Singh deposed that on 14.05.2013 at 06.15 PM, SI Pradeep received DD no. 27A which pertained to committal of suicide. PW17 accompanied SI Pradeep at H.no. 21, Chaupal, Village Sultanpur, Delhi. At the spot crime team was called and they inspected the spot. A nokia phone, an I phone, a pair of reebok chappal were found at the spot. The same were sealed and seized vide seizure memo Ex.PW17/A, Ex. PW17/B FIR No. 115/13 State v. Vikas and other Page 5/53 and Ex. PW17/C respectively. The witness correctly identified the case property i.e. Nokia C-3-00 as Ex. PW17/P-1, I Phone as Ex. PW17/P-2 and Reebok Chappal as Ex. PW17/P-3. This witness was cross examined by the accused.
12. PW22 SI Pradeep Kumar deposed qua his manner and involvement in the present matter. He deposed on the same lines as that of PW17. PW22 sealed and seized the mangalsutra and tabiz recovered from the neck of the deceased vide memo Ex. PW22/A. One slipper of deceased was also sealed and seized vide memo Ex. PW22/B. PW22 collected the MLC of deceased Poonam as Ex. PW22/C. An application was moved by PW22 qua preservation of body of deceased Poonam vide Ex. PW22/D. Copy of DD no. 27 is Ex. PW22/E. PW22 further exhibited on record the arrest memo, personal search and disclosure statement of accused Vikas as Ex. PW22/F, Ex. PW22/G and Ex. PW22/H respectively. PW22 exhibited on record negatives and photographs vide memo Ex. PW22/I. The negatives and photographs are Ex. P45 and P46 (Colly). This witness relied upon the documents exhibited by PW9 and PW17. This witness was cross examined on behalf of accused persons.
13. PW26 Insp. Gurnam Singh was the Investigating Officer who deposed qua the manner and his involvement in investigation of the present case. He more or less deposed on the same lines as that of PW22. PW26 relied upon documents FIR No. 115/13 State v. Vikas and other Page 6/53 already exhibited on record in the testimony of PW1, PW3 and PW22. This witness was also cross examined on behalf of accused persons.
14. PW-21 Sh. Rajeev Singh, ADM, was the concerned SDM who conducted the inquest proceedings and recorded the statements of the PWs Karan Singh and Smt. Munesh, parents of the deceased Poonam, on the basis of which the criminal case was registered. The postmortem of the dead body was conducted by the doctors and the inquest report consisting of unnatural death report, site plan of the spot prepared by PW21 which are Ex. PW21/C and Ex. PW21/D. The IO was also directed to handover the body of the deceased to the family of the deceased after postmortem and in this regard endorsement of PW21 was made on Ex. PW21/A and Ex. PW21/B. Request of PW21 for conducting postmortem is Ex. PW21/D. This witness was cross examined on behalf of the accused persons.
15. Now coming to the detailed testimony of material witnesses that are the family members of the deceased and the independent public witnesses examined by the prosecution.
16. PW1 Sh. Karan Singh is the star witness and complainant in the present case who deposed that his youngest daughter Poonam was married to Vikas on 11.02.2012 in their village at FIR No. 115/13 State v. Vikas and other Page 7/53 Fatehpur Beri, as they had relations with the family of accused Vikas for about 25 years. PW1 deposed qua the expenses incurred on the marriage of deceased Poonam and the details were given as Rs. 31.75 Lakhs in cash for purchase of Audi car, Rs. 21 Lakhs as 'Kanyadaan', Rs. 2.51 Lakhs on 'Lagan', Rs. 1.51 Lakhs on 'Chithhi', Rs. 1.51 Lakhs when they first went to bring back Poonam to their house after marriage, Rs. 2.51 Lakhs in 'Godbharai', 80 tola gold worth Rs. 24 Lakhs, two diamond sets worth Rs. 8.25 Lakhs, four diamond rings worth Rs. 1.10 Lakhs, clothes worth Rs. 4 Lakhs. PW1 also spent Rs. 12 Lakhs on reception of barrat, Rs. 2.5 Lakhs on tent decorations. PW1 deposed qua the fact of subjecting Poonam to harassment and cruelty by the accused persons in relation to demand of dowry. PW1 deposed that there was demand of Rs. 1 crore cash and car worth Rs. 1 crore, for which her daughter was tortured. It is further deposed that whenever Poonam used to come to their house, she used to complain about her harassment for dowry. PW1 deposed that they suspected that accused Vikas had extra marital relations and used to tell Poonam that unless the demand of accused were met, he would not have marital relations with his daughter. It is further deposed that in the month of December, 2012, PW1 brought his daughter to his house and she lived with them for about four months. On 14.04.2013, accused Vikas and his Jija Satpal came to the house of PW1 and took Poonam with them on assurance that she would not be harassed further, however, their conduct remains the same even thereafter. On FIR No. 115/13 State v. Vikas and other Page 8/53 13.05.2013, there was a Pooja in the house of PW1 where accused Vikas and his family were invited but except Poonam none of the family member came. Poonam looked disturbed and complained her mother that there was no change in the behaviour of accused persons. After Pooja, brother of PW1 Kuldeep accompanied Poonam to drop her back to her matrimonial house. There, accused Geeta told Kuldeep 'hamari naak mat katwao, hame dahej aur do, jisse ki ilaqe me hamari ijjat bani rahe'. Kuldeep told about this fact to PW1. On 14.05.2013, PW1 received call from a lady at 06.19 PM from the mobile phone of Lokender, father of accused who stated that 'tum jaldi Sultanpur aa jao, Poonam darwaja nahi khol rahi hai'. PW1 immediately rushed to her daughter's matrimonial house where she was found to be dead (hanging from the ceiling fan). Statement of PW1 was recorded by SDM as Ex. PW1/A. Marriage photographs, marriage card were seized vide seizure memo Ex. PW1/B. Bills along with photographs of dowry articles were also handed over to the IO which were seized vide seizure memo Ex. PW1/C. The original bills of jewellery articles which were 6 in number are marked as Mark PW1/X-1 to X6. Photographs of marriage are Ex. PW1/D1 to D-5. The other photographs of dowry articles including photograph of Audi car is marked as Mark PW1/Y1 to Y-6. The marriage card is Ex. PW1/E. List of dowry articles which was given at the time of marriage is Ex. PW1/F. PW1 identified both the accused persons before the court during trial. This witness was cross examined on behalf of the accused FIR No. 115/13 State v. Vikas and other Page 9/53 persons.
17. PW2 Smt. Munesh is the mother of deceased and deposed more or less on the same lines as that of PW1. Statement of PW2 was recorded by SDM which is Ex. PW2/A. PW2 relied upon the documents exhibited on record by PW1. PW12 Amit Tanwar, brother of the deceased also deposed more or less on the same lines as that of PW1 and PW2. Both these witnesses were cross examined on behalf of the accused persons.
18. PW8 Sangeeta is the elder sister of deceased Poonam. PW8 deposed that after the marriage, Poonam told her that she was being tortured/mentally harassed by her husband Vikas and her mother-in-law Geeta for dowry. On 14.05.2013, Poonam was killed by the accused persons due to harassment and demand of dowry. PW8 identified both the accused persons before the court during trial. This witness was also cross examined on behalf of the accused persons.
19. PW10 Sarita is also the elder sister of deceased Poonam. PW10 deposed that Poonam used to tell her that after her marriage she was harassed by accused persons for bringing insufficient dowry. Poonam was given beatings by accused persons. On 13.05.2013, Poonam telephoned PW10 for taking her to Puja at their paternal home. On asking her, why her husband and in laws are not attending the puja, she replied that FIR No. 115/13 State v. Vikas and other Page 10/53 unless their demands are not met, they would not come. PW10 further deposed that on 14.05.2013 at about 11-11.30 AM, she had a telephonic talk with Poonam who stated that accused Vikas had again quarreled with her and things have gone out of control and she cannot tolerate it further and started weeping on telephone. PW10 stated that she consoled her and stated that things will get normal. It is further deposed that on the same evening at about 06/07.00 PM, she came to know that Poonam had expired. PW10 correctly identified both the accused persons before the court during trial. This witness was also cross examined on behalf of the accused persons.
20. PW11 Harkishan who is the great grandfather in distant relation of deceased Poonam deposed that Karan Singh married Poonam with Vikas in the year 2012. PW11 deposed that after 1 ½ month, Karan Singh told him that Poonam is being harassed by her husband and in laws and told that her in laws demand a car worth Rs. 1 Crore and cash of Rs. 1 Crore. PW11 advised Karan Singh to speak with Lokender (Father of accused Vikas) in this regard. It is further deposed that on 14.05.2013, he along with Karan Singh and Kali Ram went to the matrimonial house of Poonam where she was found hanging with ceiling fan and her feet were bent. This witness was also cross examined on behalf of the accused persons.
21. PW13 Ms. Divya Sharma, was the facebook friend of FIR No. 115/13 State v. Vikas and other Page 11/53 deceased Poonam. It is deposed by PW13 that deceased Poonam used to share her family problems with her over telephone and she was told by Poonam that her husband and her mother in law used to torture and harass her. As per PW13 whenever Poonam used to go out of the house her husband and her mother in law used to ask her to arrange car from her parents. It is further deposed that on 14.05.2013 at 12.30 PM, PW13 had last telephonic talk with deceased Poonam whereby she told that she was very disturbed and will commit suicide. Thereafter, at about 03.00 PM, PW13 called her but her telephone was switched off. Next day, PW13 received a phone call from Inspector who informed about Poonam committing suicide. PW13 deposed that on 20.05.2013, police made inquiries from her and recorded her statement. This witness was cross examined on behalf of accused persons.
22. PW-14 Sh. Jagdamba Prasad was the Astrologer by profession and also performed pujas at the paternal house of deceased Poonam. PW14 deposed that he knew deceased Poonam through Manisha and he had performed puja at Poonam's house at Fatehpur on 13.05.2013. On 14.05.2013, deceased Poonam called PW14 and told him that her husband does not listen to her and that she had asked her husband to get another SIM card reduced in size, but he did not agree to that. PW14 further deposed that in the evening Sarita, sister of deceased Poonam called him and told about the death of Poonam.
FIR No. 115/13 State v. Vikas and other Page 12/53This witness was cross examined on behalf of the accused persons.
23. PW15 Sh. Kuldeep was the paternal uncle of deceased Poonam. It is deposed by PW15 that lot of money was spent in the marriage of Poonam. PW15 deposed that he and his brother sold their land to perform the marriage lavishly as per desires of the inlaws of Poonam. He deposed that on 13.05.2013 he went to the matrimonial house of Poonam to drop her where her mother in law told him that 'samdhi ji, hamari naak mat katwao, kuch aur dahej de do, taaki illaqe mei aur gaon mei hamara naam ho jaye. Mai aur mera beta Vikas kum dahej ki vajah se naaraj hai'. PW15 further deposed that mother in law of Poonam and Vikas used to harass Poonam for dowry. It is further deposed that they have tortured his niece Poonam. This witness was cross examined on behalf of the accused persons.
24. PW18 Prakash was the village nai who had taken lagan and letter (chithi) at village Sultanpur relating to the marriage of Poonam with Vikas. PW18 deposed that he had taken several items of dowry including jewellery as well as cash. PW18 further deposed that he was told by Karan Singh that jewellery items all together weighed 80 tolas of gold and the items which could be seen including rings, necklace etc. He deposed that at the time of marriage of Poonam and Vikas, Rs. 21 lacs were given as 'kanyadaan' by Karan Singh. One Audi car was also given as FIR No. 115/13 State v. Vikas and other Page 13/53 dowry. This witness was cross examined on behalf of accused persons.
25. PW19 Sh. Surender Kumar deposed that deceased Poonam was her sister in law. As per him, Poonam required a SIM card but she was not having any identity proof so he provided copy of his PAN card and license. This witness was also cross examined on behalf of accused persons.
26. PW20 Sh. Raj Kumar is the photographer who exhibited and proved on record photographs of bathroom from all the angles as guided by the police officials of a lady who was hanging by her dupatta. The said photographs are exhibited as Ex. P1 to P44. This witness was cross examined on behalf of Ld. Additional PP for the state regarding the name of the deceased as Poonam. This witness was also cross examined on behalf of accused persons.
27. During trial, Ld. Additional PP for the state tendered viscera report as well as biological and serological report which are Ex. X and Ex. Y-1 and Ex. Y2 received from the FSL regarding the exhibits seized in the present case and sent to FSL Rohini, being admissible in evidence u/s 293 Cr.P.C.
28. No other PW was left to be examined, hence PE was closed.
FIR No. 115/13 State v. Vikas and other Page 14/53STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.
29. Statements of Accused persons u/s 313 Cr.P.C. namely, Vikas and Geeta were recorded separately in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them. The accused persons stated that they have been falsely implicated in the present matter and the present case is fabricated. Probably, lodged against them by the family members of Poonam, in order to save themselves from social stigma as the marriage had been solemnized against her wish and that she was elder by 2 years to Vikas. It is further stated that later it was revealed that Poonam was not in favour of this marriage as she was more educated then Vikas. She had to succumb to the pressure of her father who has been a close friend of father of the accused Vikas for past 25 years. After the marriage, till the death of Poonam no one ever made any allegation, which have come up only after the death of Poonam probably due to anguish and intention to escape social stigma. Poonam was not having any complaint regarding demand or ill treatment for the same. The allegations are false, concocted and after thought. Accused persons opted to lead DE.
DEFENCE EVIDENCE:
30. Accused persons in order to prove their plea of defence, FIR No. 115/13 State v. Vikas and other Page 15/53 examined five defence witnesses (herein short referred as DW):
31. DW-1 Sh. Mahender Singh was an independent witness related to both the families who deposed that deceased Poonam got married in his community with accused Vikas s/o Lokender, r/o Village Sultanpuri. DW1 deposed that he had interactions with both the families and even attended all the functions. It is deposed that Karan Singh, father of deceased used to attend all the functions celebrated by the family of Lokender prior to the incident. As per this witness, Karan Singh or his family members never made any complaint of any nature against accused family to DW1. DW1 deposed that he was never informed about any ill treatment or demand etc by accused and his family members. This witness was cross examined by the Ld. Additional PP for the state.
32. DW-2 Sh. Lokender Singh is the father of accused Vikas and husband of accused Geeta. He deposed that matrimonial tie up between accused Vikas and Poonam was an outcome of friendship of DW2 and Karan Singh who is father of deceased Poonam. It is deposed that Poonam never made any complaint to DW2. Since there was a relationship and long term friendship also there was no occasion for any demand in the marriage or otherwise. This witness was cross examined by Ld. Additional PP for the state.
FIR No. 115/13 State v. Vikas and other Page 16/5333. DW3 Sh. Saurabh Aggarwal is the nodal officer in Vodafone mobile services. It is deposed by DW3 that the call detail records is confidential record and the information/CDR cannot be divulged to anybody without due authority. He further deposed that even the law enforcing agencies send a written request in terms of 91/92 Cr.P.C. or equivalent provision. This witness was cross examined by Ld. Additional PP for the state.
34. DW4 Sh. Satpal Bedi deposed that Vikas is the cousin brother of his wife who accompanied accused Vikas to village Fatehpur Beri to the house of his inlaws. DW-4 deposed that they stayed there for about an hour and as long as they remained there, no special discussion of any kind took place. This witness has been cross examined by Ld. Additional PP for the state.
35. DW5 Sh. Harinder Singh is the brother of Lokender who deposed that Karan Singh is his brother in law. He stated that till the date of incident, he did not receive any complaint of any sort from the wife of Karan Singh or Karan Singh. DW5 and his family had visiting terms with the family of Karan Singh. Lokender also knew Karan Singh through him. DW5 deposed that a proposal of marriage came and he expressed no objection for that marriage. Lokender and Karan Singh also used to meet each other. They used to travel together outside also. Before the incident, in April/May, they had gone together outside. This FIR No. 115/13 State v. Vikas and other Page 17/53 witness was cross examined by Ld. Additional PP for the state.
36. No other defence witness examined by the accused persons, hence DE was closed vide order dated 17.01.2019.
ARGUMENTS :
37. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony has remained unrebutted. It is argued that a young lady committed suicide within 7 years of marriage on account of cruelty and harassment caused by the accused persons and the accused persons have failed to rebutt the presumptions of law which proves their guilt. That on a combined reading of testimony of prosecution witnesses, offence U/s 498A/304B/34 IPC and u/s 6(2) of the Dowry Prohibition Act is proved beyond doubt.
38. Ld. Counsel for the accused persons argued that the prosecution has failed to prove on record the guilt of the accused persons as no substantial evidence has been lead on record. It is argued that the family members of the deceased are the interested witnesses who have deposed falsely without any substance and have failed to prove the essential elements to attract the offences charged against the accused persons. The main ingredients for the offences u/s 498A IPC and 304 B IPC have not been fulfilled as the prosecution has failed to prove the cruelty, demand of dowry FIR No. 115/13 State v. Vikas and other Page 18/53 by the accused persons and also the connection that the deceased was subjected to cruelty soon before her death by the accused persons. Learned defence counsel contended that the prosecution is obliged to prove the existence of all the essential ingredients of the offence under Section 304B IPC, beyond reasonable doubt and only then the presumption under Section 113 B of the Evidence Act can be raised against the accused. In the instant case, the prosecution has failed to prove their case, hence, accused persons are entitled to be acquitted. In support of his arguments, the defence has relied upon following judgments
1. Narender Singh Arora v. State (Govt. of NCT Delhi) and ors 2010 SCC Online DEL 2980.
2. Ramesh Chander v. State of Delhi 2016 SCC Onlline Del 6473.
3. Umed Singh and ors v. The State NCT of Delhi, 2014 SCC Online DEL 3492.
4. Rohtash v. State of Haryana (2012) 6 SCC 589.
5. Sunil Kumar Sambhudayal Gupta (Dr.) & ors. v. State of Maharashtra, (2010) 13 SCC 657.
6. State (NCT of Delhi) v. Naresh and ors (2014) 3 High Court Cases (DEL) 25.
7. Kashi Ram Pujari v. State of (NCT) and ors. 2012 SCC Online DEL 2586.
8. Naveen v. The State (GNCT of Delhi), 2014 SCC Online Del 4355.
9. Baijnath and ors. v. State of Madhya Pradesh, (2017) 1 SCC 101
10. Mahavir Kumar and ors. v. State, 2014 SCC OnLINE DEL FIR No. 115/13 State v. Vikas and other Page 19/53 3079.
11. State of NCT of Delhi v. Rakesh and ors., 2012 SCC onLine DEL2816.
12. Neeraj Kumar v. Suraj Prakash & ors. 2015 SCC Online DEL 7994.
13. Ajay Pal and ors v. State 2017 SCC Online DEL 8058.
14. Ranjit Singh v. State of Punjab (2011) 15 SCC 285.
15. Pankaj Bibhuti & ors. v. State of Jharkhand 2005 SCC Online JHAR 439.
16. Satyawati and ors v. State, 2017 SCC Online DEL 8324.
17. Shiv Kumar v. State 2012 SCC Online DEL 1993.s FINDINGS:
39. Arguments adduced by Ld. Additional APP for State and Ld. Defence Counsel for the accused persons have been heard.
Evidences and documents on record perused carefully.
40. Before adverting to the facts of the present case and the rival contentions raised, let the provisions of law be reproduced and the essential ingredient be enumerated that were required to be proved by the prosecution in order to prove the guilt of the accused persons.
Section 304B of IPC says:
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon FIR No. 115/13 State v. Vikas and other Page 20/53 before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection, with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
(2) ........
Section 113B of Indian Evidence Act says:
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Section 498A of IPC says:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this section, "Cruelty" means-
(a) any 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 FIR No. 115/13 State v. Vikas and other Page 21/53 meet such demand.
41. For proving the offence u/s 498A IPC, the prosecution was required to establish that woman was subjected to cruelty or harassment either by husband of the woman or by the relative of the husband. For the purpose of this section, cruelty means that any willful conduct which is of such nature as is likely to drive a woman to commit suicide or to cause grave injury to her or 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 is on account of failure by her to make that demand. Cruelty for the purpose of constituting the offence u/s 498A IPC need not be physical. Even mental torture in a given case would be case of cruelty within the meaning of section 498A IPC.
42. The prosecution was required to prove the foundational facts before presumption of law is attracted and the burden of proof is shifted upon the accused. Presumption under section 113B is a presumption of law that shall be raised only on proof of the following essentials;
(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
(ii) Such death must have occurred within seven years of her marriage.
(iii) The woman was subjected to cruelty or harassment by her husband or her relatives.
FIR No. 115/13 State v. Vikas and other Page 22/53(iv) Such cruelty or harassment was for, or in connection with any demand for dowry.
(v) The woman is subjected to such cruelty or harassment soon before her death.
43. Now this Court shall proceed on to deal with the five aspects / essentials enumerated above one by one to see whether the prosecution has been able to prove the same.
(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
44. It is the admitted case that the deceased Poonam died otherwise than under normal circumstances. The postmortem report of deceased i.e. Ex. PW7/A that has been duly proved on record proves that the death of the deceased Poonam was unnatural and was not under normal circumstances. The testimony of ADM, PW-21, who conducted Inquest proceedings also proves the same as reflected in report Ex. PW21/C.
(ii) Such death must have occurred with in seven years of her marriage.
45. It is also admitted case that deceased Poonam died within 1 ½ years of her marriage which means within seven years of her marriage, hence, this aspect also stands duly proved.
FIR No. 115/13 State v. Vikas and other Page 23/53(iii) The woman was subjected to cruelty or harassment by her husband or her relatives and
(iv) Such cruelty or harassment was for, or in connection with any demand for dowry.
46. Both the aforesaid aspects are taken together being inter connected for the purpose of discussion and findings. There are ten material prosecution witnesses on the basis of which case of prosecution lies. Six are the family members of deceased i.e. PW1 Karan Singh (father), PW2 Munesh (mother), PW8 Sangeeta (sister), PW10 Sarita (sister), PW12 Amit Tanwar (brother) and PW15 Kuldeep (paternal uncle) and four are the independent public witnesses that are PW11 Sh. Harkishan, PW13 Divya Sharma and PW14 Sh. Jagdamba Prasad and PW18 Prakash. It is to seen from the testimony of these witnesses as to whether they have been able to establish the fact of causing of cruelty/harassment to deceased by accused persons to meet the demand of dowry which driven the deceased to commit suicide. The testimony of such PWs are hereby dealt and appreciated separately as well as comparatively with other PWs as follows.
47. Now coming to the deposition of PW-1 Karan Singh, father of the deceased on whose complaint the present prosecution initiated. In his examination in chief, PW1 stated that FIR No. 115/13 State v. Vikas and other Page 24/53 he gave cash, jewellery, car and clothes etc at the time of marriage of his daughter Poonam. He gave the details and particulars of the articles in his testimony, however, this witness nowhere stated in his examination in chief that the aforesaid articles were given as per the demand of the accused persons. There is no statement by PW1 to the effect that accused persons demanded dowry at the time of marriage. It is deposed by PW1 that after the marriage there was a demand of Rs. 1 Crore cash and a car worth Rs. 1 Crore for which his daughter was tortured, harassed and beaten. Again no details or particulars have been mentioned by PW1 as to when such demand was raised by the accused persons. In fact, PW1 has nowhere stated in examination in chief that the aforesaid demand was raised by the accused persons before him or any of his family members.
48. During cross examination PW1 was questioned about his financial capacity and regarding the proof of articles given at the time of marriage. It has come in the testimony of the investigating officer that none of the articles alleged to have been given in dowry at the time of marriage was recovered from the accused persons. During the cross examination of PW1, he admitted to have no proof of rental income and he admitted to have salary receiving from his government job to the tune of Rs. 22,000/- to Rs. 23,000/- only in hand at the time of marriage of Poonam. He also admitted that the rental income of Rs. 1,35,000/- was received by his brother Kuldeep and the said FIR No. 115/13 State v. Vikas and other Page 25/53 income was not disclosed to the department where PW1 was employed. PW1 claimed to have sold the land to arrange the money for the marriage of Poonam but during his cross examination he failed to prove on record the proof of the payment. Admittedly, the cheques received as consideration by PW1 from the sale of the land were not presented in the bank.
49. PW1 further admitted in his cross examination that he never personally went to the jeweller from where the jewellery was purchased nor the receipts exhibited as Ex.PW1/X1 to Ex. PW1/X6 were verified by the jeweller. The Investigating Officer also did not got the receipts verified during the investigation. No other bills pertaining to expenses incurred on marriage of Poonam on various things have been produced or proved on record. The photographs Ex. PW1/Y1 - Ex. PW1/Y6 exhibited on record by PW1 have also not been proved on record as per law. No negatives or certificate u/s 65 B of Indian Evidence Act produced on record. Even the photographs are undated and they do not in any way connect to dowry articles in the present case. Hence, no documentary proof has been lead on record to prove the expenses incurred by PW1 during the marriage of Poonam.
50. In view of discussion above, it can seen that PW1 has failed to prove his financial capacity and also failed to show that alleged articles in dowry at the time of marriage of Poonam were actually given to accused persons. PW1 had admitted to be a FIR No. 115/13 State v. Vikas and other Page 26/53 class four employee in Delhi Government earning Rs. 22,000/- - 23,000/- per month at the relevant point of time who cannot be expected to spend that much amount as claimed in this case. In such circumstances, it is highly improbable to believe that accused would ask or expect Rs. 1 Crore cash or a car worth Rs. 1 Crore that too without mentioning the model or make of car from the complainant or his family members as alleged herein.
51. Admittedly, no police complaint has been filed by PW1 against the accused persons qua any alleged incident of beating or harassment caused to deceased. No MLC was ever prepared to support the allegations of PW1. It is also admitted that no Panchayat was held by both the families to resolve the issues since the marriage and till the death of the Poonam. It is not disputed that no such incident has happened in the presence of PW1. PW1 has made bald and vague allegations that whenever his daughter Poonam visited her parental house she used to complain about harassment of dowry, however, no particular date or occasion has been mentioned by PW1 when he got to know from Poonam about her circumstances. At one place PW1 stated that on 13.05.2013, Poonam came to attend pooja at her paternal house and she looked disturbed and she informed her mother that there is no change in conduct of the accused persons and the harassment is continued. PW1 in his cross examination admitted that the said fact was told by Poonam to her mother and not to him and also that he was not present in his house at the time of FIR No. 115/13 State v. Vikas and other Page 27/53 pooja. In view of the statement of PW1 it could be gathered that PW1 did not have the occasion to meet his daughter in order to assess her mood and also the information provided to him by his wife falls in the realm of hearsay. Moreover, during cross examination, PW1 was confronted with his previous statement given to the SDM exhibited as Ex. PW1/A where he admitted that he did not stated to the SDM that his daughter was looking disturbed when came for pooja or that she complained about the conduct of accused persons.
52. PW1 admitted during his deposition that his family and the family of the accused persons are related to each other in many ways and infact the marriage of Poonam and accused Vikas was also fixed keeping in view the old relations between the families. PW1 admitted to have family relations for since last 25 years. PW1 admitted that he continued to attend functions in the family of accused persons despite there being allegations of harassment by his daughter. In fact, on one occasion admittedly PW1 called the father of the accused Vikas to make arrangements for tea etc. for the procession on account of Dr. Ambedkar Jayanti on 14.04.2013 and also the fact that PW1 and the father of the accused had travelled out of station for leisure holidays together at Kashmir and Rajasthan after the marriage of their children that shows the friendly environment and cordial relations between the parties which were not possible if there had been any demand of dowry or harassment caused to the daughter of PW1 by the FIR No. 115/13 State v. Vikas and other Page 28/53 accused persons.
53. Further, PW1 stated that his daughter used to share her problems faced at matrimonial house with him whereas on the contrary PW2 during her cross examination categorically stated that Poonam never used to share her problems with her paternal family members except PW2 and Sarita (elder sister of Poonam). This statement of PW2 completely falsifies the testimony of PW1 and it also proves that whatever knowledge or information regarding the condition of Poonam at her matrimonial house gathered by PW1 was from PW2 which again falls in the realm of hearsay evidence, thus, cannot be relied upon. PW1 stated in her chief that on 14.04.2013 Vikas and his jija came to take Poonam with them and assured him that they will not harrass her any further but during the cross examination PW1 admitted that he was not at home on 14.04.2013 when Vikas and his jija came to take Poonam. In his examination in chief, PW1 stated that Poonam after going back on 14.04.2013 called him and told that conduct of the accused persons have not changed whereas during cross examination this witness when questioned about the date or day of such interaction, PW1 stated that he do not remember whether he called Poonam after 20.04.2013 till her death nor he could state the date or day when Poonam called him. These are other material contradictions which cast doubt upon his testimony.
FIR No. 115/13 State v. Vikas and other Page 29/5354. During cross examination, PW1 was confronted with his previous statements given to SDM and police where the facts stated by him before the court in examination in chief were not found recorded therein. He even admitted that he has not read his statement given to police Ex. PW1/DA nor it was read over to him. This shows that PW1 has tried to make improvements in his testimony that also cannot be considered and it has shaken the veracity of his testimony. The discrepancies and the contradictions appearing in the testimony of PW1 as discussed above renders his testimony highly unbelievable and does not inspire confidence at all.
55. Now coming to the testimony of PW2, Munesh i.e. the mother of deceased Poonam. This witness also gave the details of the articles given at the time of marriage of Poonam but she has also not stated in her examination in chief that the articles were demanded as dowry by the accused persons at the time of marriage. PW2 deposed that accused used to demand Rs. 1 crore as cash and a car worth Rs. 1 crore. Again, this witness has not given any date or time as to when such demand was raised by the accused persons. No specific model or make of car demanded has been mentioned. If there had been demand of car worth Rs. 1 Crore there could have been at least mentioning of any particular car but the allegations are silent on his aspect. This fact has not been stated by PW2 in her statement Ex. PW2/A given to the SDM as admitted by PW2 when confronted during cross FIR No. 115/13 State v. Vikas and other Page 30/53 examination. PW2 deposed that her daughter was used to be tortured for petty things and taunted at her matrimonial house. However, PW2 has nowhere given any date or time, instance or occasion or even the manner in which her daughter Poonam was tortured and taunted. At one place in her deposition PW2 stated that accused Vikas when came to take Poonam back on 14.04.2013 stated that unless PW2 fulfills the demand of his mother he would not have relations with Poonam. On the contrary, it has nowhere came in the testimony of PW1 or PW12 that PW2 was present at the time when Vikas came to take Poonam nor any of the said witness supported the claim of PW2. Even if it was so said by accused Vikas then why PW2 let her daughter go as earlier also she refused to send her to matrimonial house when her father in law came to take her for her first karwachauth. This statement of PW2 being contradictory to other PWs cannot be relied upon.
56. PW2 also admitted that no police complaint was ever filed against the accused persons since marriage and till the death of Poonam regarding incidents of harassment caused to her to meet the demands of dowry nor she or any of her family member went to the house of accused persons to reconcile the differences between Poonam and accused persons. Above all, admittedly no Panchayat was ever called to resolve the issue despite there being common relatives between the families. All these circumstances compels the court to draw adverse inference qua the prosecution FIR No. 115/13 State v. Vikas and other Page 31/53 witnesses.
57. PW2 further admitted during her cross examination that her family had relations with the family of accused Vikas prior to the marriage of Poonam and they used to meet each other at the time of marriages and other occasions in the family. PW2 admitted that at the instance of Krishan (cousin sister of PW2) and her husband (paternal uncle of accused Vikas) they were agreed to the relation of Poonam and Vikas. Meaning thereby Krishan and her husband acted as mediator between the two families but admittedly none of them have been informed by paternal family of deceased Poonam about the ill treatment given to her during her matrimonial life. PW2 specifically admitted that there were cordial relations with Krishan and her husband till the death of Poonam. So there was all the opportunity available with PW2 and her family members to discuss and prevent any ill treatment meted to the deceased Poonam but it has not happened in this case. PW2 also admitted that her real brother Balraj was also related to the extended family of the accused persons but she admittedly never talked to him as well about the ill treatment meted out to her daughter Poonam. The above circumstances suggest and probalizes that there were no such incident of harassment or beatings or demand of dowry existed prior to the death of Poonam otherwise the same would definitely had been in the knowledge of Krishan and her husband and Balraj.
FIR No. 115/13 State v. Vikas and other Page 32/5358. PW2 has also failed to prove on record her family's financial capacity to spent such a huge amount on the articles alleged to have been given in marriage of the deceased Poonam. During cross examination PW2 admitted that father of accused Vikas came to take Poonam for her first karwachauth but PW2 refused to let her go. PW2 further admitted that Poonam insisted to go back to her matrimonial home on 13.05.2013 as she had to attend Girisha's birthday despite request of PW2 to stay back at parental home. The above circumstances also shows that if there had been any ill treatment given to Poonam by accused persons she would not have gone back to her matrimonial house. PW2 alleged that accused Vikas had extra marital affairs with other women as stated to her by her daughter Poonam but none of the prosecution witness including Investigating officer has been able to show or prove that accused Vikas had relations with other women. This witness has also made lot of improvement in her testimony as the facts stated by her in the court did not find mentioned in her previous statements made to SDM and police when confronted during her cross examination. The discrepancies and the contradictions appearing in the testimony of PW2 as discussed above renders her testimony highly unreliable and is found to be an after thought allegations that does not inspire confidence of the Court.
59. Now coming to the testimony of PW8 Sangeeta who was the elder sister of Poonam. Statement u/s 161 Cr.P.C. of this FIR No. 115/13 State v. Vikas and other Page 33/53 witness was recorded on 20.07.2013 that is almost 2 months after the incident despite that she was always available since the date of incident at her paternal house when statement of her mother and other family members were recorded. Under these circumstances, her statement has to be viewed with caution. This witness in her examination in chief deposed that Poonam had told her that she was being tortured / mentally harassed by the accused persons but PW8 nowhere stated that Poonam told her that the harassment was on account of demand of dowry nor she could give the specific dates or occasion when Poonam was harrassed or tortured by accused persons. PW8 nowhere stated as to what was demanded by the accused persons as dowry. During cross examination PW8 could not tell as to on which date or month or on which occasion, Poonam told her about her problems. Admittedly, PW8 never visited the house of inlaws of Poonam nor she had ever talked to the accused persons. Above all, PW2 has already stated in her deposition that Poonam shared her problems only with her and not with any other family member so the testimony of PW8 becomes doubtful in view of the statement of PW2. The testimony of PW8 do not support the case of prosecution in any manner hence, cannot be considered.
60. Now coming to the testimony of PW10 Sarita who was also the elder sister of Poonam. Prosecution has heavily relied upon this material witness with whom Poonam has shared her plight. This witness has also deposed in her examination in chief that FIR No. 115/13 State v. Vikas and other Page 34/53 Poonam used to tell her after her marriage that she was harassed by accused persons for bringing insufficient dowry and was also given beating on regular basis. This witness has also made omnibus allegations without giving any specific details such as date, time or any occasion where the accused persons have beaten Poonam or harassed her for bringing insufficient dowry. PW10 also nowhere stated what kind of dowry the accused persons demanded from the deceased Poonam.
61. PW10 further deposed that on 13.05.2013 Poonam looked disturbed in the pooja at her paternal house and when asked she revealed that nothing has settled in her matrimonial house and she had the apprehension that she may be killed if demands are not met. This information was admittedly not shared by PW10 with other family members and importantly Poonam has not shared her apprehension of being killed with her mother or any other family member as none of other PWs have deposed so in their testimony except PW10. During cross examination of PW10 she was confronted with her previous statement exhibited as Ex. PW10/DA where the fact of giving of beatings by the accused were not found to be recorded nor the fact of apprehension of killing of Poonam by accused has been mentioned. The above statements are material contradictions that occurred in the testimony of PW10 which shows that improvements have been made in the deposition before the court as an after thought as no such allegations were made at the first place when her statement FIR No. 115/13 State v. Vikas and other Page 35/53 was recorded by the police.
62. PW10 further deposed in her examination in chief that on 14.05.2013 she had telephonic conversation with Poonam at about 11/11.30 AM when she told that accused Vikas had again quarreled with her and things have gone out of control and she cannot tolerate and by saying that Poonam started weeping on phone. During her cross examination this witness was questioned as to whether she has called her father after talking to Poonam but the reply was in negative. PW10 stated that she did not talk to her father. This conduct of PW10 is found to be surprising because as a matter of prudence and concern it was expected that PW10 would have called her father or anyone from the family informing the state of mind of Poonam so that she could be attended at the earliest that would have saved her life but PW10 did not bother about the same calling it as a routine matter. No documentary evidence in the form of call detail record has been produced on record to show that Poonam actually had conversation with PW10 Sarita on 14.05.2013. Nothing in her deposition supports the prosecution on material aspects. Rather the discrepancies and inconsistencies appearing in her testimony makes it highly unreliable to be believed upon.
63. Now coming to the testimony of PW12 Amit Tanwar who was the brother of Poonam. The testimony of PW12 is more or less on the same lines as that of PW1 and PW2. This witness also FIR No. 115/13 State v. Vikas and other Page 36/53 failed to prove on record the financial capacity of his family to incur huge expense on the marriage of Poonam. This witness deposed that he had given an amount of Rs. 31,75,000/- at the office of accused for the purchase of Audi car but simultaneously admitted that the cheque for the purchase of Audi car was signed by Lokender, father of the accused Vikas. Nowhere it has come in the deposition of PW12 specifically that the cash was given to the accused persons nor their presence have been mentioned when alleged cash for car was given. No date or time has been mentioned by PW12 in that regard.
64. PW12 alleged that in December, 2012, Poonam came to the maternal house and informed him that accused persons taunt her for bringing insufficient dowry and demand Rs. 1 Crore cash and a car worth Rs. 1 Crore. He also deposed that she was also beaten due to the same. Again, vague allegations are made by this witness without any details such as date, time or occasion of such beating etc. He also failed to specify when actually the demand of car or cash was made. PW12 admitted that there was close intimacy between his family and the family of the accused persons and they used to celebrate festivals and functions together. It is also not disputed by PW12 that both the families were related to each other in many ways. The aforesaid circumstances suggest that there was no bitter relations existed between the families, hence, the allegations made by PW12 seems to be an after thought and also no complaint in respect to FIR No. 115/13 State v. Vikas and other Page 37/53 the ill treatment or the demand of dowry was made by PW12 against the accused persons to any relative or police or any other authority since the marriage of Poonam and till her death. The statement of PW12 that deceased did not share her problem with anyone else except her also falsifies the deposition of PW12 in respect of his knowledge of harassment etc. as gathered from Poonam. The testimony of PW12 in line of testimony of PW1 and PW2 had material inconsistencies and contradictions that also failed to inspire confidence of the court and does not substantiate or support the case of the prosecution.
65. Now coming to the testimony of PW15 Kuldeep who was the paternal uncle of Poonam. This witness deposed in his examination in chief that on 13.05.2013 he went on to drop Poonam at her matrimonial house where accused Geeta told him "samdhiji, humari naak mat katwao, kuch aur dahej de do, taki ilaqe me or gaon me humara naam ho jaye. Me aur mera beta vikas kam dahej ki wajah se naraz h". He further deposed that accused persons used to harass Poonam for dowry. During the cross examination, PW15 admitted that he never talked with Poonam over telephone after her marriage till her death nor he has attended any function in the matrimonial house of Poonam after her marriage. He also admitted that he never visited the house of inlaws of Poonam at any time after her marriage nor he has spoken to the accused persons or the father-in-law of the Poonam after her marriage. As he had no visiting terms with FIR No. 115/13 State v. Vikas and other Page 38/53 family of accused nor he attended the marriage of Poonam and even not spoken to her after marriage or her in laws then why would accused Geeta will convey her grievance, if any, to him. This witness has nowhere mentioned as to how he gathered the knowledge that accused persons used to harass Poonam for dowry nor he has stated anywhere that he has himself witnessed any such incident nor he has stated that he has ever been informed by Poonam or any of her family member about the ill treatment meted to her. The testimony of PW15 is highly improbable to be believed in view of the aforesaid circumstances.
66. It is also important to note that statement of this witness u/s 161 Cr.P.C. has been recorded by the police after a period of more than 40 days after the date of incident whereas it has come on record that he was always available whenever police visited the paternal house and the area of deceased Poonam for making inquiries and also that PW15 accompanied the paternal family members of deceased Poonam to the police station at the time of recording of their statements. It is not the case of prosecution that this witness was not available to the Investigating Officer of the case. No explanation whatsoever has been given by the Investigating Officer as to why the statement of this witness was not recorded earlier. Under these circumstances, his statement has to be viewed with caution. The aforesaid circumstances clearly shows that this witness has been introduced later on to make out a case of the prosecution in respect of "soon before death" aspect FIR No. 115/13 State v. Vikas and other Page 39/53 that deceased was harassed for dowry whereas his testimony is completely unreliable not supported with any substantial material, thus liable to be rejected. Reliance is placed upon Mahavir Kumar and ors. v. State, 2014 SCC OnLINE DEL 3079.
67. Now coming to the testimony of independent witnesses examined by the prosecution witnesses. First is PW11 Harkishan, who deposed on the basis of information given to him by PW1 Karan Singh that Poonam's in-laws started harassing after 1 ½ month of marriage and they demanded a car worth Rs. 1 Crore and cash of Rs. 1 Crore and he advised Karan Singh to talk to Lokender, father of accused Vikas. During cross examination, he categorically admitted that whatever he stated to the police, that was as per the information given to him by Karan Singh and he never had talk with Poonam. The testimony of PW11 completely falls in the arena of hearsay testimony that cannot be relied upon.
68. Now coming to the testimony of second independent witness i.e. PW13 Divya Sharma. This witness claimed to have become friends with deceased Poonam through facebook account. It is deposed by PW13 that Poonam used to tell her that accused persons used to torture and beat her and she was also disturbed as accused persons never used to talk to her. PW13 also stated that on 14.05.2013 at around 12.30 PM, Poonam called her, talked to her on telephone and told that she is very much FIR No. 115/13 State v. Vikas and other Page 40/53 disturbed and may commit suicide. The testimony of PW13 Divya Sharma also do not inspire confidence as there are material infirmities and discrepancies in her deposition that appeared during her cross examination.
69. First and foremost, she has nowhere stated in her testimony that Poonam was harassed by the accused persons to meet dowry demands. It is also nowhere stated by PW13 that accused persons demanded dowry from the deceased Poonam after the marriage. She has not given any details such as date, time or occasion when Poonam told her about the torture or harassment caused to her. Only vague allegations have been made by PW13 in this regard. At one place she say that Poonam told her that accused persons used to torture and harass her and at the same time PW13 stated that Poonam told her that she was disturbed for the reason that the accused persons never used to talk with her. This is contradictory statement that blow hot and cold at the same time that is not believable.
70. This witness gave evasive replies to most of the questions put to her during her cross examination with respect to her mobile numbers that were used by her at the relevant point of time on which she had conversation with deceased Poonam. Secondly, PW13 claimed to have become friends with Poonam through Facebook but at the time of her deposition she stated that her facebook account was hacked in December, 2012. During FIR No. 115/13 State v. Vikas and other Page 41/53 cross examination she admitted that she has never made any complaint with respect to hacking of her facebook account nor police ever asked her to give facebook friends list. Admittedly, police has not investigated on this aspect to ascertain whether actually PW13 and deceased Poonam were connected through face book. Though, PW13 had claimed herself to be the friend of Poonam but she was admittedly not invited to attend her marriage nor PW13 and deceased Poonam ever met each other during their alleged interactions between January 2012 till the death of Poonam in May 2013. PW13 further admitted that she was not aware about Poonam's stay at her parent's house in April, 2013. She even did not remember the mobile number of Poonam.
71. In her examination in chief PW13 stated that on 14.05.2013 at 12.30 PM she had last telephonic talk with Poonam. Further, PW13 during her cross examination deposed that she left her house on 14.05.2013 at about 12.15 PM and went directly to her institute at Connaught Place. However, during the subsequent part of cross examination, PW13 admitted that she was in the area of new Ashok Nagar from 12.00 noon to 12.45 PM on 14.05.2013. This discrepancy in statement of PW13 falsifies or atleast raise doubt in her deposition with respect to her interaction with Poonam at 12.30 PM on 14.05.2013 and also creates doubt in the veracity of the testimony of PW13 as at one place she stated to have gone to her institute directly from her house where as simultaneously she admits to be at a place which FIR No. 115/13 State v. Vikas and other Page 42/53 even does not fall on the route to her institute. Hence, in view of the discrepancies discussed above this Court does not find the testimony of PW13 reliable enough to be acted upon.
72. It is relevant to note that statement u/s 161 Cr.P.C. of this witness was recorded on 28.07.2013 that is almost after more than 2 months of the incident whereas this witness claimed to have recorded her statement before the police on 20.05.2013. The IO has not given any explanation for delay in recording the statement of this witness when he already had the mobile numbers of this witness procured through the CDR. Hence, the introduction of this witness at a later stage to make out a case of prosecution of "soon before death" aspect that deceased was tortured for dowry whereas her testimony is completely doubtful in view of the discrepancies noted in her testimony in the preceding paragraphs.
73. Third independent witness PW14 Jagdamba Prasad was the Pandit who performed pooja at the paternal house of Poonam a day before her demise. As per this witness he had telephonic conversation with Poonam on the day of her death i.e. 14.05.2013 and she told him that her husband does not listen to her and she had asked her husband to get the SIM card reduced in size but he did not agree to that. Nowhere in his testimony it has come on record that Poonam was harassed to meet the demand of dowry or for that reason she committed suicide. This witness nowhere FIR No. 115/13 State v. Vikas and other Page 43/53 deposed that Poonam told her about any ill treatment meted to her by accused persons. Hence, the testimony of PW14 also does not support the case of the prosecution in any manner.
74. Fourth independent witness PW18 Prakash was the village nai who deposed that he took the dowry articles with lagan chithi at the house of accused. Nowhere this witness stated in his deposition that articles entrusted to him were demanded as dowry by accused persons. During cross examination he stated that the cash and the other articles were taken by him to accused as per customs performed at the time of marriage and again not stated that to be dowry articles demanded by accused. Hence, testimony of PW18 also do not support the case of prosecution. Moreover, during cross examination witness was questioned regarding any other lagan chithi taken by him during the month in which the present lagan chithi was taken by him. The witness admitted to have taken four lagan chitthi during the said month but he failed to give the details of the families or the places where he has taken the said lagan chithis. This infirmity appearing in the testimony of PW14 also cast doubt of his being a planted witness that otherwise also do not support the case of the prosecution.
75. PW26 Insp. Gurnam Singh was the Investigating Officer who was examined by the prosecution but the infirmities appearing in his testimony clearly shows that fair investigation was not conducted and several lacunas were left while conducting the investigation on material aspects. During his cross FIR No. 115/13 State v. Vikas and other Page 44/53 examination he admitted that bills Ex.PW1/X1 to Ex. PW1/X6 pertaining to the purchase of jewellery were never verified by him nor the said bills contained any details to connect the articles allegedly given as dowry by the complainant at the time of marriage of Poonam. PW26 further admitted that he did not gather any income proof of the complainant nor he could get the bills of other articles and even the dowry articles were not recovered during the investigation. PW26 further admitted that he did not conduct any inquiry from the record of Audi Showroom to ascertain as to who actually purchased the Audi Car. This witness also admitted that no investigation was concluded regarding extra marital affair of Vikas and these allegations could not be proved as alleged by the complainant. He also failed to explain as to why he recorded the statement of PW15 Kuldeep after a gap of 40 days from the date of incident despite that he met him a number of times during the investigation. This witness also admitted to have not investigated about the relations between the parties by examining their relatives who were commonly related to each other in one way or the other, that could have also helped ascertaining the actual circumstances pertaining to the treatment extended to Poonam. Role of Investigating Officer was very crucial but he failed to elicit the actual state of affairs existing between the parties at the relevant point of time.
FIR No. 115/13 State v. Vikas and other Page 45/5376. In judgment State of NCT of Delhi v. Rakesh & or, 2012 SCC Online DEL 2816 it was held that "the onus lay on the prosecution to establish beyond doubt that the deceased was subjected to matrimonial cruelty or harassment for or in connection with the demand of dowry 'soon' before her death". The testimonies of the material witnesses of the prosecution have been discussed in the previous paragraphs. In nutshell, this court has reached to a conclusion that testimony of material witnesses are not consistent and are full of embellishments that does not inspire the confidence of the court. Admittedly, none of the prosecution witness discussed above has given details or particulars such as date, time or occasion when the accused persons allegedly tortured or beaten deceased Poonam. The prosecution witnesses could not even tell as to exact particulars when the demand of dowry has been made by the accused persons. Reliance is placed upon Vipin Jaiswal v. State of AP, 2013, STPL, 198 SC where it has been held that "general allegations of harassment without bringing on record any specific acts of cruelty or harassment is not sufficient to discharge the onus on the prosecution.
77. The families of both the parties were admittedly related to each other in many ways through many members of family but none of the said independent relative have come to depose in favour of the prosecution. Allegedly, the demand of dowry started after few months of marriage and the harrassment also FIR No. 115/13 State v. Vikas and other Page 46/53 continued till the death of Poonam but no police complaint has ever been filed by the complainant against the accused persons with respect to any such incident of beatings or demand of dowry nor any panchayat has taken place between the families to resolve any difference or such alleged issues despite the families related to each other. It has also been proved on record that even none of the paternal family of Poonam visited the accused persons to question their conduct or to reconcile the differences. The deceased was an educated lady. During her stay in her matrimonial home, she never lodged any complaint regarding harassment on account of dowry demands to the police or any other authority. No medical evidence emerged to infer if at any time, that deceased was taken to hospital for physical beatings allegedly given to her. Absence of these material factors go against the case of the prosecution. Reliance is placed on Naveen v. The State (GNCT of Delhi), 2014 SCC Online Del 4355 where the above factors have been duly considered and given weight that helps in dislodging of burden upon the accused and compel to draw adverse inference against the prosecution.
78. On the other hand, accused persons have examined two independent witnesses namely Mahender Singh as DW1 and Harinder Singh as DW5 that were very relevant to prove the material aspects. DW1 Mahender Singh deposed that he is samdhi of Balraj (real brother of PW2 Munesh) and has good acquaintance /relation with family members of both the sides i.e. FIR No. 115/13 State v. Vikas and other Page 47/53 accused persons as well as complainant Karan Singh (father of deceased). This witness categorically deposed that complainant Karan Singh or his family members never informed him about any ill treatment or demand etc. by the accused persons. Nothing contradictory came out in his testimony during the cross examination and his testimony remained uncontroverted.
79. DW-5 Harinder Singh was the most important witness being the mediator and the husband of Krishan (cousin sister of PW2 Munesh). This witness categorically deposed that he did not receive any complaint of any sort from the wife of Karan Singh or Karan Singh himself. He further stated that his family and family of Karan Singh had visiting terms and even father of the accused Vikas, Lokender and Karan Singh also oftenly meet each other and even travelled together. Again no material contradiction appeared in his testimony during the cross examination resulting in unrebutted testimony.
80. Both the aforesaid witnesses were independent and were related to both the families have categorically deposed with respect to the relations between the families of both the parties and rejected the allegations of harassment or demand of dowry by the accused persons caused to deceased Poonam. Testimony of DWs were consistent to the effect that no demand as imputed was ever made nor the victim was subjected to cruelty in any manner.
FIR No. 115/13 State v. Vikas and other Page 48/5381. Accused persons also examined Lokender Singh as DW2 being the father of the accused Vikas. This witness also categorically deposed that he used to meet complainant Karan Singh thrice / four times in a week even till the date of incident and they also travelled together out of station on several places but PW1 Karan Singh never made any complaint regarding matrimonial relations of accused Vikas and deceased Poonam and there had not been any occasion for the same as deceased Poonam did not make any compliant to her. This witness further deposed that due to long term friendship there was no occasion for any demand in the marriage. This witness was also cross examined and nothing contradictory has come out in his testimony as well during the cross examination.
82. In view of the discussion above, and the evidence lead on record, this court thus concludes that the prosecution has failed to establish both the aforesaid essential requirements i.e. neither it has been able to establish the causing of cruelty/harassment to Poonam by accused persons nor it could establish that any such willful conduct of accused persons was to meet the demand of dowry. The aforesaid aspects (iii) & (iv) stands answered accordingly.
(v) The woman is subjected to such cruelty or harassment soon before her death.
FIR No. 115/13 State v. Vikas and other Page 49/5383. As the essential requirements mentioned at serial no. (iii) and (iv) that the deceased Poonam was subjected to cruelty or harassment in order to meet the demand of dowry could not be established so question of "soon before her death" does not arise. This aspect also remained unproved.
84. In Baijnath and ors. v. State of Madhya Pradesh, (2017) 1 Supreme Court Cases 101 it was observed that Section 113B of the Act enjoins a statutory presumption as to dowry death. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.
A conjoint reading of these three provisions, thus predicates the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to FIR No. 115/13 State v. Vikas and other Page 50/53 avail the presumption engrafted in section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
85. As the essential elements discussed in the preceding paragraphs have not been complied, it can be safely conducted that prosecution has failed to prove even foundational facts so presumption of law does not get attracted and the onus remained on the shoulders of the prosecution only.
86. For the sake of discussion if it is assumed that the presumption of law is attracted in this case, even then the evidence lead on record by the accused persons is sufficient to discharge the onus lying upon their shoulders. The contradictions appearing in the testimony of material prosecution witnesses as well as the unrebutted and uncontroverted depositions of defence witnesses are sufficient to discharge the onus of accused persons and therefore the accused can be said to have successfully FIR No. 115/13 State v. Vikas and other Page 51/53 rebutted the presumption of law.
87. Patently, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences that is u/s 498A and 304B of IPC. A cumulative consideration of the overall evidence on the facet of dowry, leaves this court unconvinced about the truthfulness of the charge qua the accused persons. The prosecution has failed to prove this indispensable component of the two offences beyond reasonable doubt. The factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge under sections 304B and 498A of the code against them. The necessary ingredients of section 6(2) of The Dowry Prohibition Act also have not been proved in view of the evidence discussed.
CONCLUSION
88. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also, it is a settled proposition of criminal law that accused is entitled to the benefit FIR No. 115/13 State v. Vikas and other Page 52/53 of reasonable doubt if any in the prosecution story and such reasonable doubt entitles the accused to acquittal.
89. In view of the material inconsistencies in the testimony of the prosecution witnesses and due to lack of cogent evidence lead on record, this Court is of the view that prosecution has miserably failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused persons for the benefit of doubt. Therefore, the accused persons namely Vikas s/o Sh. Lokhinder and Geeta w/o Sh. Lokhinder are hereby acquitted of the charges levelled against them in the present case.
Digitally signed
VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2023.03.31
16:25:21 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 31.03.2023 ASJ (FTC) -02, South,
Saket Courts, Delhi
Containing 53 pages all signed by the presiding officer.
Digitally signedVISHAL by VISHAL PAHUJA PAHUJA Date: 2023.03.31 16:25:27 +0530 (VISHAL PAHUJA) ASJ (FTC) -02, South, Saket Courts, Delhi.
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