Delhi District Court
State vs Mr.Vinod Kumar Son Of Mr.Mahender ... on 21 August, 2010
IN THE COURT OF MS. NIVEDITA ANIL SHARMA
ADDITIONAL SESSIONS JUDGE -01, WEST, DELHI
Sessions Case Number : 103 of 2009.
Unique case ID Number : 02401R0461172009.
State versus Mr.Vinod Kumar son of Mr.Mahender Singh,
Resident of B-866, J.J.Colony, Shiv Vihar,
Hastsal, Uttam Nagar, New Delhi.
FIR Number 184/2009.
Police Station Uttam Nagar.
Under sections 498A/304B /34 of the Indian Penal Code.
Date of filing of the charge sheet before the : 05.09.2009.
Court of the Metropolitan Magistrate
Date of receipt of file after committal : 06.10.2009.
Arguments concluded on : 21.08.2010.
Date of judgment : 21.08.2010.
Appearances: Mr. Vinod Kumar Sharma, Additional Public
Prosecutor for the State.
Accused Mr.Vinod Kumar is in judicial custody.
Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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Mr.R.S.Sharma, counsel for the accused.
JUDGMENT
1At the outset, it may be mentioned that this case which is a dowry death case has been disposed off expeditiously in ten and a half months of its committal considering the gravity of the nature of the alleged offence and as the accused was in judicial custody.
23ALLEGATIONS 4Mr. Vinod Kumar, the accused person, has been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under sections 498A/304B/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that in between 24.11.2007 to 08.06.2009 at time unknown at House No. B-866, J.J.Colony, Shiv Vihar, Uttam Nagar, New Delhi, he along with co-accused Ms.Archana and Mr.Sunil (not arrested), subjected Ms.Pooja (deceased wife of accused Mr.Vinod Kumar) to cruelty in connection with demand of dowry and Ms.Pooja who was married with Vinod Kumar about 19 months back of her unnatural death, died on 08.06.2009. She had died an unnatural death by causing injury within 7 years of marriage was subjected to cruelty during aforesaid period and also soon before her death for or in connection with demand of dowry.
5Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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6CHARGESHEET AND COMMITTAL
7After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 05.09.2009 and after its committal, the case was assigned to this Court by learned Sessions Judge, Delhi vide order dated 06.10.2009.
89CHARGE 10After hearing arguments, charge for offence under sections 498A/304 B of the IPC was framed against the accused on 22.10.2009 to which accused pleaded not guilty and claimed trial.
1112PROSECUTION WITNESSES 13In order to prove its case, the prosecution has examined as many as nine witnesses i.e. ASI Surat Singh, the duty officer who has recorded the formal FIR in the case, has been examined as PW1; Ct. Narender Singh, the police witness of investigation, as PW2; Mr.Ajay, the brother of the deceased and who identified the body of deceased, as PW3; Mr. Dharamvir, the uncle of deceased, who also identified the her body, as PW4; Ms.Aarti, sister of deceased and the complainant of the case, as PW5; Ms.Somwati, mother of deceased, as PW6; Mr.Joginder Singh, Tehsildar cum Executive Magistrate who conducted the inquest proceedings, as PW7; Retd. SI Om Parkash, the Sessions Case Number: 103 of 2009.
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Investigation Officer, as PW8; and Dr.Komal Singh, who conducted the post mortem on the body of the deceased, as PW9.
1415STATEMENT OF THE ACCUSED AND HIS DEFENCE 16In his statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) recorded on 09.06.2010, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. He has admitted that he was married with Ms.Pooja and his brother Mr.Sunil is married to Ms Aarti, who is Ms. Pooja's sister. He has however, denied that he along with his family member has harassed Ms.Pooja for dowry or treated her with cruelty or tortured. He has denied that he takes liquor. He has stated that when he returned from his duty as house keeper at 10 pm, he found that his wife Ms.Pooja was very disturbed. After taking dinner, he went to sleep. Next morning, there was a fight between Ms. Pooja and Ms. Aarti. He had gone out of the house and when he returned the fight was still continuing and he pacified the matter between both the sisters. He started watching TV and his wife went to take a bath. He, subsequently, found that she has died by hanging herself in the room where she used to take a bath. He is not responsible for her death. The accused has preferred to lead evidence in his defence and has examined Ms.Usha, the wife of paternal uncle (Chacha) of the accused Sessions Case Number: 103 of 2009.
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as DW1; Ms.Saroj, sister of the accused, as DW2; and Mr.Dinesh Kumar, who knows the father of accused, as DW3; in his defence.
1718ARGUMENTS 19I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
2021The Additional Public Prosecutor for the State has requested for convicting the accused submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
2223The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating on the record against them. The prosecution has failed to bring home the charge against the accused.
2425DISCUSSION, ANALYSIS AND FINDINGS 26The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts Sessions Case Number: 103 of 2009.
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should be made to find the truth , this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized .It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out Sessions Case Number: 103 of 2009.
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the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
2728It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if the speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witness was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.
2930When an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who Sessions Case Number: 103 of 2009.
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is well tutored can successfully made his testimony totally non- discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
3132Under this sphere, I now proceed to test the submissions of both the sides.
3334BLEMISHES WHICH ARE FATAL 35However, I find that there are several overwhelming inconsistencies and glaring blemishes in the evidence of the prosecution witnesses which remain unexplained by the prosecution and these blemishes are fatal to the prosecution version as they strike at the root of the case. The prosecution story does not inspire confidence and is not worthy of credence.
3637I find that the prosecution has miserably failed to bring home the charge against the accused for plurality of reasons, elaborated below.
38Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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39PROSECUTION VERSION
40The prosecution story unfolds with the lodging of DD Number 36A dated 08.06.2009, Ex.PW8/A, wherein it is reported telephonically that at 1.30 pm that Ms.Pooja wife of Mr.Vinod had hanged herself and her second daughter Ms.AArti has come with her mother and the cremation of the body should not be done. The DD was informed by L.Ct.Nirmala and was marked to SI Om Prakash, PW8. SI Om Parkash went to the spot along with Ct.Narender, PW2 and saw that a lady was lying on the ground and her body was covered with clothes. Ms.Somwati, the mother and Ms.Aarti, the sister of the deceased Ms.Pooja were also there and he verified the facts from them and informed the SDM and SHO. The Tehsildar, PW7, reached the spot and recorded the statements of the mother and the sister of the deceased, Ex.PW6/A and Ex.PW5/A respectively on which the IO wrote the rukka, Ex.PW8/B and sent it through Ct.Narender for the registration of the FIR, Ex.PW1/A. The site plan, Ex.PW8/C, was prepared. Accused Mr.Vinod Kumar was arrested vide arrest memo Ex.PW2/A and his personal search was taken vide personal search memo Ex.PW8/D. The clothes of the deceased were seized vide seizure memo Ex.PW2/C. The inquest papers, request for post mortem Ex.PW7/B, request for PM Ex.PW7/C, brief facts Ex.PW7/D, form 25.35 Ex.PW7/E were prepared and the post mortem was conducted on the body vide post mortem report Ex.PW9/A. The viscera was Sessions Case Number: 103 of 2009.
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seized vide seizure memo Ex.PW2/B. The body was identified vide Ex.PW3/A and Ex.PW4/A and handed over to the family members.
4142The police witnesses, PWs 1, 2 and 8 have deposed regarding the investigation conducted and the documents prepared. The public witnesses, PWs 5 and 6, have deposed regarding the facts of the case. PWs 3 and 4 have identified the body. PW7 is the Tehsildar cum Executive Magistrate. PW9 is the doctor who had conducted the post mortem on the body.
4344EVIDENCE 45It is necessary to discuss and analyse the testimonies of the witnesses in brief.
4647PW1 is the duty officer who has recorded the formal FIR of the case.
4849PW2 is a police witness of investigation, who had gone to the spot along with SI Om parkash on receipt of DD NO.36A, where he saw that the dead body of Ms. Pooja was lying in the room. The crime team and SDM were informed, who reached the spot. The statement of Ms. Aarti was recorded by the SDM. IO prepared the rukka and handed it Sessions Case Number: 103 of 2009.
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to him for registertion of FIR. He also took the dead body to the mortuary. After the postmortem the doctor handed over the sealed viscera box and pulenda of the clothes of deceased which he gave to the IO.
5051PW3 is the brother of the deceased Ms. Pooja, who has identified the body in the mortuary and have taken the body from there.
5253PW4, is the uncle of the deceased who has also identified her body in the mortuary .
5455PW5, is the sister of deceased who is the complainant of this case. She has deposed that the accused, Ms. Archana, her sister in law and Mr. Sunil, husband of PW5, used to taunt the deceased Ms.Pooja and PW5 on the quality of goods given by their mother in the marriage. When her sister fell unwell she was sent to her mother's house for treatment as the accused did not want to bear the expenditure of her treatment. Even at the time of delivery her sister as well as PW5 were sent to her mother's house and her mother was made to pay the expenses of deliver.
5657PW6, is the mother of the deceased who has deposed on the same lines as PW5.
Sessions Case Number: 103 of 2009.
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5859PW7, is the Tehsildaar cum Executive Magistrate, who had conducted the inquest proceedings and recorded the statement of Ms. Somwati and Ms. Aarti.
6061PW8, is the Investigation Officer.
6263PW9, is the doctor who had conducted the postmortem on the body of the deceased.
6465DW1, is the wife of paternal uncle (Chacha) of the accused who has deposed that Ms. Aarti had told her that there was a fight between her and Ms Pooja since Ms. Pooja had made her son wear the clothes of Ms Aarti's son which was not like by Ms. Aarti. After some time Ms. Pooja had told Aarti that she was going for a bath and she went to the first floor in the room where she hang herself. She had reached the house of the accused at about 11.00am and at that time Ms. Pooja was already dead.
6667DW2, the sister of accused, has deposed that she was informed by Ms.Aarti that Ms.Pooja had expired and when she reached there Ms. Aarti told her that there was a fight between her and Ms.Pooja since Ms. Pooja had made her son wear the clothes of Ms Aarti's son which Sessions Case Number: 103 of 2009.
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was not like by Ms. Aarti. After some time Ms. Pooja had told Aarti that she was going for a bath and she went to the first floor in the room where she hang herself. She has also deposed that Ms.Archana, younger sister, was not in the house of her brother Mr.Vinod and was living with her for about a month prior to the incident as she had not been keeping well since she was in the family way.
6869DW3, has deposed that father of accused is known to him as he is sweeper in MCD and his posting is at Beat office which is near the residence of DW3.
7071EVIDENCE OF PWS 5 AND 6 72PW5 is the sister of the deceased and the complainant of the case. PW6 is the mother of the deceased.
7374Both have deposed that Mr.Mahinder, father of the decased, Mr.Vinod, husband of the deceased, Ms.Archana, sister in law of the deceased and Mr.Sunil, brother in law of the deceased who is husband of PW5 used to harass her and gave beatings on minor issues. They used to taunt on the quality of goods given by her mother. Whenever Ms.Pooja was ill, they used to send her to her mother's house for treatment so that her mother would bear the expenses. On 08.06.2009, Mr.Sunil, her husband, had beaten her and accused Mr.Vinod and Sessions Case Number: 103 of 2009.
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Ms.Archana were beating Ms.Pooja. Mr.Sunil closed her in the room and opened it after 20 minutes and she saw Ms.Pooja weeping. Thereafter, Ms.Archana, Mr.Vinod and Mr.Sunil took Ms.Pooja in the room on the first floor. PW5 remained busy with her child and the child of Ms.Pooja. When they came down after half an hour with Ms.Pooja, on her enquiry, they told her that Ms.Pooja is unconscious and her sisiter was taken to the doctor. After one hour, she came to know about Ms.Pooja's death. Ms.Pooja has been killed by Ms.Archana, Mr.Vinod and Mr.Sunil for not bringing the proper dowry as per their wishes.
7576PW6 has also deposed similarly. She has deposed that her daughter Ms.Pooja had told her that Mr.Mahinder, Ms.Archana, Mr.Vinod and Mr.Sunil continuously harass her for dowry and their behaviour is not good with her. She had been told about the manner of Ms.Pooja's death by Ms.Aarti.
7778However, I am of the considered opinion that the evidence of PWs 5 and 6 does not inspire credence and does not appear to be reliable and believable.
7980In Ex.PW5/A i.e. her statement to the Tehsildar, PW5 has stated that her parents had given the dowry as per their capacity in the marriage Sessions Case Number: 103 of 2009.
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of Ms.Pooja with Mr.Vinod Kumar. There was no specific demand of dowry from accused Mr.Vinod Kumar and his family "Meri bahen Pooja ke pati Vinod aur uske parivar walon ki taraf se dahej ki koi khas maang nahi thi." The accused and his family used to trouble Ms.Pooja over minot things "choti-choti baaton par pareshan karte the". When ver Ms.Pooja was ill, she was sent by her husband to her mother's house and the expenses for the medicines were borne by her mother.
8182PW6, in Ex.PW6/A, her statement to the Tehsildar has also deposed similarly although she has not mentioned about there not being any specific demand by the accused and his family.
8384It can be seen that the allegations made by PWs 5 and 6 are not only vague and unspecific but also lack in details like dates, amount, etc. and they have made many improvements which appear to have been made after due deliberation and consultation.
8586It is clear from the evidence of both PWs 5 and 6 that there was no demand for dowry as such nor anything in specific was given. Both of them have not deposed regarding the details of the articles or cash, whether or not they were demanded by the accused and his family at the time of marriage and whether or not the demand was met by the Sessions Case Number: 103 of 2009.
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paternal family of Ms.Pooja.
8788Further, in her cross examination, PW5 has deposed that "After the fight between accused and my sister, the deceased had clean and moped (jhadu pocha) ground floor and thereafter tea was also prepared." This part of the deposition shows that the situation was normal and the deceased was doing all the routine activities like cleaning and moping the house and preparing tea.
8990Further, PW5 has deposed that "It is correct that the deceased was short tamper and she also used to not eat food when she was angry. It is also correct that the accused used to telephone my mother whenever the deceased did not have food due to anger and my mother used to pacify her and thereafter she used to take food." This part of the deposition shows that the deceased was short tampered and would also need cajoling from her mother to eat food.
9192Also, PW5 has deposed that her sister Ms.Pooja was not suffering from any disease and had never fallen ill. This part of the deposition is contradictory to her examination in chief where PW5 has deposed that accused Mr.Vinod Kumar used to send the deceased to her mother's house when she fell ill. If Ms.Pooja was not suffering from any disease and had never fallen ill, then there was no occasion for the accused to Sessions Case Number: 103 of 2009.
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send her to her mother's house for treatment.
9394It is pointed out by the Additional Public Prosecutor that PW5 has further deposed that "Whenever my sister used to have cough(khansi), fever, headache she was sent to my mother's house. It is wrong to suggest that Pooja never sent to my mother's house for her treatment. It is correct that my mother in law had expired prior to my marriage and Pooja's marriage. It is correct that the care of an elderly lady is required at the time of delivery of a child.....Pooja's son was born in KK.Hospital, which is near no.5 Jawalapuri. It is correct that my bua Kamla knew the doctor of KK Hospital. The accused had left my sister at my mother house and my mother had taken her to KK Hospital on the advise of my bua........My father in law and my mother had borne expenses in equal half shares for the deliver of my sister." It may be mentioned that cough, cold or headache are not serious diseases and are just temporary dis-comforts for which no special medical treatment is required. As regards the delivery of a child, it is practice and convention that the delivery is generally at the mother's house. Admittedly, the mother in law of the deceased had pre-deceased her and therefore she could not got care of an elderly lady which is required at the time of delivery of a child and consequently, there was need to go to the parental home. Neither the prosecution nor PWs 5 and 6 have produced any medical record of Ms.Pooja to show that the Sessions Case Number: 103 of 2009.
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medical expenses were borne by her mother. In fact PW5 has admitted that the in laws of the deceased had also borne the medical expenses at the time of Ms.Pooja's delivery.
9596In her statement, Ex.PW5/A, Ms.Aarti has deposed that her husband Mr.Sunil had locked her in the room on the first floor while in her evidence she has not deposed about the floor. This is a material contradiction which remains unexplained.
9798The version of Ms.Aarti regarding the accused killing the deceased is falsified in her cross examination wherein she has admitted that the door of the room where the hanging occurred was broken. She has deposed that "I do not know whether Vinod, my father in law and my brother in law had broken open the door of the room on the first floor.....It is also correct that the doors of the room on the first floor is made of thin iron sheet. I can not say whether this door can be broken open by a kick. It is correct that as on date that door is broken." If the door was broken, then obviously the version of PW5 regarding the manner of death is wrong as if the accused had hanged her the door would not be broken and they would have opened it but the fact that the door was broken shows that it was broken to save the deceased.
99100It is also clear that the accused, in order to save Ms.Pooja had also Sessions Case Number: 103 of 2009.
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brought a doctor from Jyoti Clinic which is in the same locality, as admitted by PW5.
101102Further, the conduct of PW5 also is not natural and normal. She has admitted that when the accused allegedly took her sister to the room on the first floor she did not raise any alarm for help nor tried to escape. She did not telephone the police till the arrival of her mother and did not call any neighbour. She had also not telephoned her mother but her father in law had informed her. These facts also shatter the veracity of her testimony as any woman in such a situation would immediately shout for help and when she sees that her sister is dead, she would immediately inform her family and the police.
103104PW5 has also made unexplained improvement from Ex.PW5/A and she has been confronted regarding her not being able to escape as she was confined in a room.
105106Further, it is also clear that both PWs 5 and 6 had a consultation with other family members before calling the police, as is admitted by both of them.
107108PW6 has deposed that "Veh Kaha karte thai ki dahej mai samaan ki jagah paise dene chaihye" but this fact is missing in Ex.PW6/A. Sessions Case Number: 103 of 2009.
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She has also deposed that the accused with other family members are continuously harassing her for dowry and their behaviour was not good with her. However, PW6 has neither furnished the details of the demands of the accused, their dates and details. She has also not disclosed the manner in which the behaviour was not good.
109110PW6 has also deposed that "The Sagai ceremony was conducted 5 years prior to the marriage of my daughter Pooja with Vinod and Aarti with Sunil. We did not find anything wrong in the family of MR. Mahender in the five yrs after the sagai till the marriage.......It is correct that there was no demand for dowry from the accused and his family prior to the marriage." It is surprising that for five years there was no demand and the relationship was also good and after marriage the relationship soured.
111112Further, PW6 has deposed that "I do not remember the exact dates when the accused persons along with his family used to trouble and torture my daughter demanding dowry." If there was any harassment of the deceased by the accused and his family, then PW6 would have known the dates and details.
113114Although PW5 has admitted that Ms.Pooja was short tempered but PW6 has deposed that "It is wrong to suggest that Pooja was short Sessions Case Number: 103 of 2009.
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116PW6 has contradicted herself regarding the accused being a drunkard by deposing "Accused Vinod is a habitual drunker and he drink liquor daily. I had not made any complaint against accused Vinod about his drinking liquor daily.......I can not tell the exact dates when I had seen accused Vinod in a drunken stage."
117118PW6 has made unexplained improvement regarding the demand as she has deposed that "I was told by accused Vinod and his younger brother Sunil that I should give a motor cycle for accused Vinod but I can not tell the date when this demand was made. I did not give the motor cycle as I did not have the money for the same. It is correct that I have not made any complaint regarding the demand of motor cycle for accused Vinod to any police authority, CAW Cell or the Court." These facts indicate that the evidence has been made by PW6 after due deliberation.
119120PW6 has made further improvement by deposing that "About 2-3 months prior to the demise of my daughter Pooja, I had seen accused Vinod fighting with her and she had received injuries in her ear which was bleeding. I had seen accused Vinod, Sunil and Archana beating my daughter due to which her ear was injured. I did not make any Sessions Case Number: 103 of 2009.
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complaint to the police about the accused injuring my daughter and I also did not call the respectable people from the locality to intervene to settle the matter." This deposition clearly appears to be an afterthought as PW6 did not even bother to make any complaint against the accused for allegedly injuring her.
121122She has also made improvement from Ex.PW6/A by deposing that "I was telephone by Mr. Mahender, father of accused on the date of incident and he told me that "apni beti ko aakar sambhalo, hum nai joh karna tha kar chuke" as she has not so stated to the Tehsildar.
123124PW6 has also trashed the sanctity of her statement by deposing that "My thumb impression was taken on blank paper and thumb impression of my daughter Aarti was also taken on blank paper."
125126It is also clear from the evidence of PW6 that there was a meeting and consultation between her relations before making the complaint. She has deposed that "It is correct that I had taken my second daughter namely Aarti and returned to my house leaving my daughter Deepa in the matrimonial home of the deceased so that she could look after the children. .....I reached at my house about 5.00-6.00pm. I called my family members including Dharamvir, brother in law, Mr. Mahavir, my husband, Mr. Rajbir, my brother in law and Mr. Rajesh, Sessions Case Number: 103 of 2009.
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my brother in law and rest of the family members came themselves when they heard about the incident. My mother in law Mrs. Kasturi, my sisters in law Bimla, Nirmla and Kamla had also reached there. The police was informed about the incident from the telephone of Rajender son of my brother in law Mr. Sita Ram after all the relatives had collected." In such a situation the possibility of false implication of the accused cannot be completely ruled out.
127128Needless to mention that PW7 has deposed that Ms.Somwati and Ms.Aarti were angry and were crying when he had seen them first and he had given them some time to compose themselves before recording their statements.
129130All these facts in totality indicate that reliance cannot be placed on the evidence of PWs 5 and 6. It can be seen from the judicial record that PWs 5 and 6, the sister and mother of the deceased have not only made improvements in their statements, especially with regard to the alleged harassment of the deceased, but the same also apparently are an after thought also. Further, the improvements made in their testimonies are still vague and unspecific as neither any dates are mentioned nor any details are furnished which makes their version unreliable.
131Sessions Case Number: 103 of 2009.
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133It can be seen from the evidence of PW7 that both PWs 5 and 6 were still discussing the matter when their statements were recorded. He has deposed that "I had met Ms. Aart and Ms.Somwati in PS Uttam Nagar. It is correct that both of them were talking when I had seen them. It is correct that 3-4 family members of Aart and Somwati were also in the PS , but I do not know their names." It also appears that there were sufficiently composed before making their respective statements which took about one hour each.
134135Therefore, I am of the considered opinion that there is nothing to show that the Tehsildar did not conduct the inquest proceedings properly or that he did not record the statements of the sister and mother of the deceased properly. There is apparently no ulterior motive attached to his proceedings which shows that the same are flawless.
136137POST MORTEM REPORT 138The post mortem report, Ex.PW9/A, shows that the cause of death is asphyxia from ante mortem hanging. The scuffle prior to the post mortem cannot be ruled out.
139140Dr.Komal Singh, had conducted the post mortem on the body of Sessions Case Number: 103 of 2009.
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the deceased and had given the opinion of the death. In his cross examination, he has deposed that the sixteen hours mentioned in the post mortem report is a rough estimate of the period of death at the time of conducting the post mortem. The post mortem started at 1 pm and 16 hours should be the period from the conclusion of the post mortem which was at 2 pm. From the post mortem report, he can say that the deceased may have been alive at 7.10 pm on 08.06.2009.
141142The evidence of PW9 falsifies the version of the prosecution especially the evidence of PWs 5 and 6 that the accused had killed the deceased on 08.06.2009 in the morning as the rukka Ex.PW8/A mentions the time of incident as 9.30 am to 10.30 am and the FIR Ex.PW1/A mentions the time of occurrence as 9.30 am to 10.30 am. Ig the deceased was alive till 7.10 pm on 08.06.2009, as per Ex.PW9/a, she could not obviously have died between 9.30 am to 10.30 am.
143144Further, regarding the scuffle, it may be mentioned that PW9 has admitted that it cannot be certain whther the nail marks are of male, female or child and he cannot admit or deny that the nail marks are of a child. Therefore, the version of scuffle also stands shattered and apparently there was no foul play and Ms.Pooja had committed suicide.
145Sessions Case Number: 103 of 2009.
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146DOWRY DEMAND
147PWs 5 and 6 have although deposed in their examination in chief that there were demands for dowry from the accused and it is also mentioned that there was specific demand. Further, it is also shown that the engagement between the deceased and the accused was for five years and during this period there was no demand.
148149PW6, in her cross examination has stated that the accused Mr.Vinod Kumar with his brother Mr.Sunil had demanded a motorcycle but this allegation appears to be an after thought as firstly she does not even remember the date of the alleged demand; secondly, she has not mentioned about this demand in her examination in chief; and thirdly, she has not mentioned about the demand to the PW7 when her statement was recorded by him.
150151Therefore, the allegation of demand of dowry does not appear to be correct. It is not possible that the parents would not be able to tell about the harassment for dowry of their daughter and demand of motorcycle when the allegation made against the accused persons is of dowry death.
152153Further, as per PW6, she had seen accused fighting with the deceased due to which her ear was injured but even this allegation Sessions Case Number: 103 of 2009.
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does not appear to be believable as neither any complaint regarding the same was made by PW6 nor by the deceased during her life time nor any medical evidence has been produced.
154155The allegation that the accused Mr.Vinod Kumar with his siblings has killed the deceased and the father of the accused telephoning PW6 that "Apni beti ko aakar sambhalo, hum nai joh karna tha kar chuke"
also does not appear to be correct especially in view of the evidence of PW5 wherein she has deposed that Mr.Mahender, father of the accused, was not at home when the incident had occurred and the first words used by him on return were "Pooja ko bulao". When he was not even aware about the death of Ms.Pooja, then there was no occasion for him to telephone and say the above mentioned words to PW6.156
157Both PWs 5 and 6 have not mentioned anything in their statements to the Tehsildar that the accused used to demand dowry or that there was a demand for motorcycle and have only deposed that the accused were not happy with the quality of the goods. They have neither given any dates of the alleged demand of dowry and the amounts demanded nor whether the demands were met. Both have not mentioned a word about the demand of motorcycle in their statements to the Tehsildar and this clearly appears to be a planned move and an after thought. They have also not disclosed any date when the deceased was Sessions Case Number: 103 of 2009.
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allegedly beaten by accused and she received injury in the ear.158
159If there was any demand from the accused for dowry, money or motorcycle or ill treatment of Ms.Pooja for dowry, PWs 5 and 6 would have disclosed about the same at the very first instance to the Tehsildar which they have not done. All these facts in totality indicate that there was neither any demand for dowry by the accused nor motorcycle nor was she beaten by the accused.160
161TEMPERAMENT OF THE DECEASED 162It is borne out from the judicial record that the deceased was a short tempered woman. PW5 has so deposed although PW6 has denied the same.163
164PW5 has gone to the extent of depsing that the decased was short tempered and would not eat food also when she was angry so much so that the accused had to call her mother who would pacify her.165
166Further, it may be also mentioned here that DWs 1 and 2, the Chachi and sister of the accused respectively have deposed that PW5 had told them that she and the deceased had fought over the son of Ms.Pooja wearing the clothes of Ms.Aarti's son on which she went to the room on the first floor and hanged herself.
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168All these facts in totality indicate her short temperedness and stubbornness which may have been the reason for her committing suicide.169
170NO COMPLAINT DURING LIFETIME OF DECEASED 171It is also clear from the evidence of the prosecution witnesses especially PWs 5 and 6 that they had not made any complaint against the accused nor the deceased had made complaint against the accused during her marriage. This fact also indicates that the accused and the deceased did not have any major or minor disputes otherwise, the deceased or her relatives would have made complaint against the accused.172
173PUBLIC WITNESSES NOT EXAMINED 174I find that the prosecution has failed to examine some public as well as police witnesses whose evidence was material.175
176Ms.Usha and Ms.Saroj, the Chachi and sister of the accused, although available were not associated in the investigation nor any cogent reason is shown for the same by the prosecution.177
178The family members of PW6 including Mr.Dharamvir, brother in Sessions Case Number: 103 of 2009.
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law, Mr. Mahavir, her husband, Mr. Rajbir, her brother in law, Mr.Rajesh, her brother in law, Ms.Kasturi her mother in law, Ms.Bimla, Ms.Nirmla and Ms.Kamla her sisters in law who had also come to the spot of occurrence were not associated in the investigation nor any cogent reason is shown for the same by the prosecution.179
180The police was informed about the incident from the telephone of Mr.Rajender, son of the brother in law of PW6 namely Mr. Sita Ram but he has not been associated in the investigation.181
182Further, L.Ct.Nirmala, who had received the information in the PCR which was recorded vide DD No.36A, Ex.PW8/A, has not associated in the investigation nor cited as a witness nor produced before the Court in evidence nor any cogent reason is shown for the same by the prosecution.183
184Mr.Madan, who runs the PCO and kiryana shop from where accused Mr.Vinod Kumar had informed his father about the quarrel between the deceased and her sister has not associated in the investigation nor cited as a witness nor produced before the Court in evidence nor any cogent reason is shown for the same by the prosecution.185
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186Ms.Deepa, the younger sister of the deceased has not associated in the investigation nor cited as a witness nor produced before the Court in evidence nor any cogent reason is shown for the same by the prosecution.187
188The neighbours of the deceased have not been associated in the investigation despite being available. PW8, IO, has deposed that around 8-10 persons had gathered at the spot , however, none of these persons have been cited as a witness by the prosecution nor produced nor examined.189
190The independent persons from the public who were available at the spot, during the investigation, at the time of arrest of the accused, etc have not been associated in the investigation. They have also not been cited as a witness by the prosecution nor produced nor examined.191
192All these facts in totality give a fatal blow to the prosecution story.193
194MENS REA / MOTIVE 195Next, there apparently is no enmity between the accused and the deceased nor any motive has been assigned to them. In order to prove the charge under sections 498-A/304-B/34 of the IPC, the intention of the offender is the main consideration and the circumstances in which Sessions Case Number: 103 of 2009.
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the alleged offence is committed have to be examined.196
197Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.198
199The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the Sessions Case Number: 103 of 2009.
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pattern of the crime fits in which the alleged motive.200
201In the present case there is sufficient evidence on record to show that the accused did not have any motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.202
203In the present case, a story has been projected that the deceased was treated with cruelty for dowry and the accused have caused her unnatural death within seven years of her marriage. However, I find Sessions Case Number: 103 of 2009.
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that there is no evidence to prove the claim of the prosecution. In fact the post mortem report shows that it is a case of suicide and there is no foul play. These facts indicate that the story projected by the prosecution appears to be false. There was apparently no demand for dowry, no ill treatment of the deceased and consequently there was no reason for causing the death of the deceased.204
205Therefore, I am of the considered opinion that the prosecution has failed to show the mens rea on part of the accused in commission of the alleged offence.206
207DOWRY DEATH-PROXIMITY TEST 208There does not appear to be any proximity or live reason between the death of the deceased and any overt act of the accused, as is clear from the evidence of PWs 5 and 6.209
210The Indian Penal Code and the Dowry Prohibition Act are both remedial and penal statutes. As such Courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of language employed in the statute. If a case is established then the Courts are to be stringent in dealing with the culprits. The Courts while taking a stringent view and despite the obligation of the Legislature enactment a success have also to keep in mind that the Sessions Case Number: 103 of 2009.
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212The main ingredients to be proved for establishing a case under section 304-B IPC are (i) unnatural death of a woman within seven years of her marriage and (ii) she being subjected to cruelty or harassment by her husband or any relative of her husband, in connection with any demand of dowry.213
214The words "it is shown" occurring in section 304-B are of significance for the reason that the initial burden of proving that circumstances envisaged by section 304-B do exist on the prosecution. This being shown or established, the question of presumption under section 113-B of the Evidence Act would arise. In other words, to draw a presumption under section 113-B of the Evidence Act the necessary ingredient that it is shown that soon before her death she was subjected to cruelty or harassment in connection with the demand of dowry has to be proved. Only when these facts are proved then by virtue of the deeming provision of section 304-B, the Court shall presume that the husband or any relative of the husband had caused dowry death. Though cruelty at any time after the marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged by section 304-B is to be soon before the death of a woman.215
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216The Courts are to scrutinize the evidence carefully because cases are not rare in which occasionally there is a demand and then the atmosphere become calm and quiet and then again there is demand. Where a wife dies in the house of her husband within a short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined to the four walls of the house. However, the Courts are to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are the relatives of the deceased and relations between them and her in laws are strained for any reason whatever it might be. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological trouble or mental agony or such circumstances that the person committing suicide may think that life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person . Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life. (Reliance can be placed upon the judgment of the Rajasthan High Court reported as Gurditta Singh v. The State of Rajasthan, 1992 Cri.L.J.309).217
218The importance of proximity test is both for the proof of an offence Sessions Case Number: 103 of 2009.
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of dowry death as well as for raising a presumption under section 113- B of the Evidence Act. The expression "soon before her death" used in the substantive section 304-B IPC and section 113-B Evidence Act is pregnant with the idea of proximity test. No definite period has been indicated and the expression "soon before" used in section 114, Illustration (a) of the Act is relevant. The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before"
would normally imply that the interval should not be too much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
219220In the present case under consideration, when there is no evidence that there was any demand of dowry prior to the marriage and regarding the demand thereof subsequent to the marriage, the two witnesses, PWs 5 and 6, had improved their version in the Court from what they had deposed before the Police and the Tehsildar, and therefore the prosecution case is not established. More importantly, Sessions Case Number: 103 of 2009.
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there is nothing on the record which could show that there was any cruelty in connection with demand of dowry. It is also clear that the parents of the deceased had not made any complaint against the accused nor their daughter had made complaint against the accused during the life time of the deceased. All these facts also indicate that the accused and the deceased did not have any disputes. The accused has neither treated the deceased with cruelty for dowry nor are responsible for her death in any manner.
221222It is well settled by several judgments that mere suspicion cannot be a substitute for proof of guilt. In the case reported as State of Punjab v. Bhajan Singh and Ors., AIR 1975 SC 258, it was observed by Hon'ble Supreme Court of India as under :-
223The circumstances of this case undoubtedly create suspicion against the accused. Suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused.224
225In another case reported as Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, it was observed by Hon'ble Supreme Court of India as under:-
226Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his Sessions Case Number: 103 of 2009.
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innocence, the view which is favorable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of this innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have benefit of that doubt........ 227It needs all the same to be reemphasized that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused.228
229In another case reported as AIR 1973 SC 2622, it was observed by Hon'ble Supreme Court of India as under :-
230Certainly it is a primary principle that the accused must be and not merely may be guilty before the court can convict and the mental distinction between "may be" and "must be" is long and divides vague conjectures from sure consideration.
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232Further more, in another case reported as Mousam Singha Roy & Ors. v. State of West Bengal, 2003 (3) JCC 1358, it was observed by Hon'ble Supreme Court of India as under :-
233Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstance this Court in the case of "Sarwan Singh Rattan Singh Vs State of Punjab (AIR 1957 SC 637) stated thus :
234It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
235It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.236
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237Applying the law enunciated in the above referred judgments, I am of the considered opinion that the prosecution has not been able to establish the role of the accused in the commission of the alleged crime.238
239I find on perusal of the evidence of PW9, Dr.Komal Singh, that it appears to be case of suicide by the deceased.240
241Further, there is nothing on the record which could show that it is due to the conduct of the accused that the deceased took the extreme step of committing suicide. It has been proved that the accused have not treated the deceased with cruelty for dowry, as discussed above, and therefore, when there was no harassment of the deceased, it does not appeal to reason as to why all of a sudden the harassment for dowry would start after such a long time.242
243PW6 has made further improvement in her evidence by deposing that "About 2-3 months prior to the demise of my daughter Pooja, I had seen accused Vinod fighting with her and she had received injuries in her ear which was bleeding. I had seen accused Vinod, Sunil and Archana beating my daughter due to which her ear was injured. I did not make any complaint to the police about the accused injuring my daughter and I also did not call the respectable people Sessions Case Number: 103 of 2009.
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from the locality to intervene to settle the matter." This deposition clearly appears to be an afterthought as PW6 did not even bother to make any complaint against the accused for allegedly injuring her. Even if this statement is believed then also, as there is a gap of 2-3 months, then it cannot be connected with the alleged dowry death of Ms.Pooja in any way.244
245Also it is clear from the evidence of PWs 5 and 6 as well their statements made to the Tehsildar that the deceased had taken the extreme step of suicide on her own and not due to the conduct of the accused. There is nothing forthcoming in the evidence which could indicate that it was due to the misconduct of the accused that the deceased committed suicide. The accused have infact brought a doctor to save her which shows his bonafides and indicates that he is not responsible for her death in any manner.246
247SECTION 498-A IPC 248In order to succeed in charge under section 498-A of the IPC, the prosecution was required to prove that the accused had subjected deceased to cruelty, as defined in the explanation to the section. It is not every cruelty which is punishable under section 498-A of the IPC. The cruelty, so as to attract penal provisions, contained in section 498- A of IPC, has necessarily to be a willful conduct which is of such a Sessions Case Number: 103 of 2009.
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nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to section 498-A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498-A of IPC. Of Sessions Case Number: 103 of 2009.
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course, the expression "cruelty" would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498-A of IPC.249
250If the woman has harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498-A of IPC. The expression "harassment" has not been defined in Section 498-A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. But, it is not harassment of every nature which is punishable under section 498-A of IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.251
252In the present case under consideration, neither the dates of the alleged cruelty have been spelt out nor the manner in which the same Sessions Case Number: 103 of 2009.
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has been committed is elaborated nor it is explained which accused has committed which cruelty. The allegations are vague and unspecific and reliance cannot be placed on the same. More so, in view of the evidence of the relatives of the deceased there does not appear to be any cruelty or any demand in connection with the marriage. As already discussed above, the evidence of PWs 5 and 6 regarding the allegations of the accused treating the deceased with cruelty and demanding dowry and motorcycle have already been held to be not reliable. If there was no such cruelty for dowry, then the case under section 498-A IPC is not made out.253
254SECTION 304-B 255Coming to the charge under Section 304-B of IPC, before a person can be convicted under this Section, which deals with what is described as „dowry death", the prosecution must necessarily prove the following ingredients:-
256i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstance;
257ii. Such death must have occurred within seven years of her marriage;
258iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
259iv. Such cruelty or harassment must be for or in connection with demand for dowry;
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260v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.261
262The term "dowry" has not been defined in Section 304-B of IPC, but, since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of under Section 304-B IPC as held by Hon'ble Supreme Court in Satvir Singh & Ors. v. State of Punjab and Anr. 2001 (4) Crimes 45. Section 2 of Dowry Prohibition Act defines dowry as under:263
264"Definition of 'dowry'.- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage, or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 3 or any time after the marriage 4in connection with the marriage of the said parties, but does not include dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applies."265
266Dowry would include that property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time Sessions Case Number: 103 of 2009.
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of marriage or at any time after the marriage, so long as it is connected with the marriage. But, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agree to give some cash, valuable security or property to her husband or in-laws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry. If the husband of the girl or any other person related or connected to him, demands something from the girl or her parents or any other person related to or connected with her, saying that the article being demanded by them was expected to be given or ought to have been given in marriage, that also, to my mind, would constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized. Even demand of articles such as T.V., fridge, jewellery, clothes, furniture, Sessions Case Number: 103 of 2009.
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etc. which usually are given or expected in marriages in our country, would, considering the objective sought to be achieved by incorporating Section 304-B in Indian Penal Code and enacting Dowry Prohibition Act, 1961 fall within the purview of Section 304-B of IPC. In fact, in Pawan Kr. & Ors. Vs. State of Haryana AIR 1998 SC 958, the Hon"ble Supreme Court has specifically held demand of T.V., Fridge, etc. though not agreed to be given or promised or even demanded prior to or at the time of marriage, to be a demand for dowry for the purpose of Section 304-B of IPC. If cash or some property, etc. is demanded by the boy or his family members, after marriage, saying that they were expecting such cash, property, etc. to be given in marriage, and the girl, or her parents or any other person related or connected to her promise to fulfil such a demand, that also may fall within the purview of dowry, as the promise though made after marriage, would nevertheless be referrable to the marriage, having been made with a view to preserve the marriage. But, if the demand is made after marriage and it is in respect of a property or valuable security, which was not demanded, was not expected to be given and also was not in contemplation at any time up to solemnization of marriage, demand of such cash, property or valuable security, etc. cannot be said to be in connection with the marriage and, therefore, would not constitute demand of dowry.267
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268In Satvir Singh (supra) while dealing with this issue, the Hon"ble Supreme Court, inter alia, observed as under:269
270"Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."271
272In Appasaheb and Anr. Vs. State of Maharashtra, AIR 2007 SC 763, the Hon"ble Supreme Court observed as under:273
274"In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning........A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."275
276It is clear from the evidence of the prosecution witnesses that the deceased has committed suicide but it cannot be related to any dowry related harassment by the accused persons as apparently there is no proximity or link between her death and the alleged mis-conduct by the accused persons.277
278It is clear from the record, especially the evidence of the prosecution witnesses that there was neither any demand by the accused persons for dowry at the time of the marriage of the deceased with accused Mr.Vinod Kumar nor there was any demand for dowry subsequently. There is no harassment or cruelty by the accused persons in connection with the demand of dowry. Although the deceased has died in unnatural circumstances by hanging but it is Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
State versus Vinod Kumar -:: Page 50 of 55 ::-
apparently not due to any harassment for dowry or cruelty by the accused persons. This case is neither covered by section 498-A IPC nor section 304-B IPC and not even section 306 IPC.279
280It is an admitted fact as forthcoming in the evidence of PWs 5 and 6 that there was no dowry demand at the time of marriage of the deceased with accused Mr.Vinod Kumar and there was not demand even at the birth of the child. It is also clear from their evidence that the relationship between the deceased and her in laws were cordial and accused were not troubling her. It does not appeal to reason that after such a long period of marriage and after the birth of one child which are joyous occasions for an average Indian house hold, the harassment of the deceased for dowry would commence.281
282DEFENCE OF THE ACCUSED PERSON 283The accused person has projected that there was a fight between the deceased and PW5 on which the deceased committed suicide and in order to save her, the accused had called a doctor.
284285Both the DWs 1 and 2, have deposed on the same lines, as elaborated above, and there is nothing material in their lengthy cross examination. It is clear that the accused had brought a doctor for the deceased to save her, as per the evidence of PW5.
Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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286287Both the DWs did not care to make any complaint of the alleged false implication of the accused persons by the police to the senior police officers, Court or any other Government authority nor moved any application before the IO or the Court to make them a witness.
288289These facts however do not wash away their evidence as the claim of the defence also is proved in their evidence.
290291It is claimed by the accused that the present case has been made falsely against the accused only in order to extort money from the accused and his family. This claim appears to be correct as PW5 has admitted in her cross examination that the father of the accused has given Rs.5,000/- twice or thrice and also Rs.40,000/- and the money is lying with her. As per PW5 the money has been given for maintenance of the children but this averment appears to be wrong especially from the evidence of DW3 in whose presence PW6 had come to the father of the accused to demand money.
292293All these facts in totality indicate that the defence of the accused is true and correct.
294295FINAL FINDING Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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296All the above overwhelming discrepancies and glaring blemishes in the evidence of the prosecution witnesses are too significant to be ignored and are fatal to the prosecution case and are sufficient for throwing out the case of the prosecution as they strike at the root of the substantive allegations as against the accused. These blemishes shatter the veracity of the prosecution case, thereby throwing a shadow of doubt on the prosecution story.
297298I am of the considered view that the above discrepancies occurring in the deposition of various witnesses are not usual and natural and strike at the root of the matter and are fatal for the prosecution, thereby throwing a shadow of doubt on the prosecution story and shatter its veracity. All the above discrepancies, contradictions and blemishes in the evidence of the prosecution witnesses are to significant to be ignored and appear to be fatal and are sufficient for throwing out the case of the prosecution as they strike at the root of the substantive allegations as against the accused.
299300The evidence of the prosecution witnesses does not appear to be reliable. The prosecution story does not inspire confidence and is not worthy of credence. The role of the accused as the culprit in the prosecution story has not been proved.
301Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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302The prosecution has to prove its case beyond all shadow of doubt on its own strengths and cannot take advantage of the weakness, if any, of the defence. An accused is presumed to be innocent till proved guilty. It cannot be ignored that the greater the crime, the stronger is the proof required and fouler the crime, higher the proof. The prosecution has failed to establish any circumstance which could point a finger of doubt towards the accused persons and their role in the commission of the alleged offence. If there are two views coming forth in the prosecution case, the one which is favourable to the accused is required to be taken.
303304It is clear from the above discussion and analysis that the prosecution has miserably failed to prove the charge against the accused for the offence under sections 498-A/304-B/34 of the IPC that in between 24.11.2007 to 08.06.2009 at time unknown at House No. B-866, J.J.Colony, Shiv Vihar, Uttam Nagar, New Delhi, he along with co-accused Ms.Archana and Mr.Sunil (not arrested), subjected Ms.Pooja (deceased wife of accused Mr.Vinod Kumar) to cruelty in connection with demand of dowry and Ms.Pooja who was married with Vinod Kumar about 19 months back of her unnatural death, died on 08.06.2009. She had died an unnatural death by causing injury within 7 years of marriage was subjected to cruelty during aforesaid period and also soon before her death for or in connection with Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
State versus Vinod Kumar -:: Page 54 of 55 ::- demand of dowry. 305
306The prosecution story does not inspire confidence and is not worthy of credence, especially in view of the above elaborated glaring contradictions and overwhelming inconsistencies.
307308The conscience of this Court is completely satisfied that the prosecution has miserably failed to bring home the charge against the accused person. Accordingly, Mr.Vinod Kumar, the accused person, is hereby given the benefit of doubt and is acquitted of the charge.
309310Compliance of section 437-A of the Cr.P.C. is made in the order sheet.
311312File be consigned to record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 21st day of August, 2010. ASJ-01, West, Delhi.
Sessions Case Number: 103 of 2009.
Unique case ID Number: 02401R0461172009.
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