Delhi District Court
State vs 1. Ashu Kumar Goyal on 16 December, 2019
CNR No. DLNW-012362-2018
FIR No. 278/18 PS Aman Vihar
U/s 498A/304B/34 IPC
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 03 :
NORTH WEST : ROHINI : DELHI
SC No. 859/2018
CNR No. DLNW0123622018
FIR No. 278/2018
U/s 498A/304B/34 IPC
P.S. Aman Vihar
IN THE MATTER OF:
STATE VERSUS 1. Ashu Kumar Goyal
S/o Sh. Naresh Goyal
R/o B139, Gali no. 8,
Gaurav Nagar II,
Prem Nagar, Kirari,
Delhi
2. Shimla Devi
W/o Sh. Naresh Goyal
R/o B139, Gali no. 8,
Gaurav Nagar II,
Prem Nagar, Kirari,
Delhi
Date of FIR : 03.04.2018
Date of Institution of the case in Sessions Court : 14.11.2018
Date of conclusion of arguments : 16.12.2019
Date of Judgment : 16.12.2019
Sh. Shiv KumarI, Ld. APP for State
Sh. Bharat Bhushan, ld. Counsel for both the accused persons.
Order/Judgment: Both accused persons are acquitted of offence
under Section 498A/34 and Section 304B/34
IPC.
SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 1 of 15
CNR No. DLNW-012362-2018
FIR No. 278/18 PS Aman Vihar
U/s 498A/304B/34 IPC
JUDGMENT
1. Facts leading to the trial of the accused persons for the offense under Section 498A/304B/34 IPC are that on 03.04.2018 at about 2:28 pm an information regarding hanging of a lady namely Sonia W/o Ashu Kumar Goyal R/o B139, Gali No. 8, Gaurav NagarII, Prem NagarIII, Kirari, Delhi was received at PP Prem Nagar, Police Station Aman Vihar, Dehi which was recorded vide DD No. 27 PP. The call was marked to ASI Baljeet Singh who reached at the spot and found that a lady whose name was revealed as Sonia W/o Ashu Kumar Goyal was hanging with the help of chunni from ceiling fan.
2. During the course of process, ASI Baljeet Singh came to know that marriage of the deceased was solemnized before three years which was less than seven years, hence, he informed Sh. Rajeev Kumar Khanna, Ld. Executive Magistrate. Crime Team was also called at the spot. It inspected the spot and took photographs of the scene of crime. ASI Baljeet removed the dead body of deceased after cutting the chunni and seized one part of the chunni vide seizure memo. Ld. Executive Magistrate recorded the statement of sister of deceased. Thereafter, dead body of deceased was shifted to SGM hospital where MLC was prepared and deceased Sonia was declared brought dead. Thereafter dead body of Sonia was shifted to mortuary. The exhibits were deposited in malkhaana by ASI Baljeet Singh through seizure memos.
SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 2 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC
3. On 04.04.3018 Sh. Rajeev Kumar Khanna, the Ld Executive Magistrate, Kanjhawala recorded the statement of the mother of the deceased Smt. Shan Devi. Mother of the deceased stated that her daughter Sonia got married three years ago and since the day her daughter got married, her inlaws harassed her thereby asking for dowry. They fulfilled their (inlaws) demand on most of the occasions but with the passage of time, they (inlaws) increased their demand. She further stated that they spent around 2025 lacs in the marriage of deceased Sonia and gave Rs. 3 lac in cash for the construction of house but they spent all the money and they were demanding more money for the construction of house but they were unable to fulfill their demand. She further stated that there was quarrel during the day of 03.04.2018 and in the night of 02.04.2018 due to which her daughter committed suicide on 03.04.3028 by hanging herself. Sh further stated that sisters of the husband of Sonia were also harassing her and they also had hand in evicting her daughter. Hence, ASI Baljeet Singh made endorsement on the statement of Dhan Devi and got registered the FIR no. 278/18 u/s 498A/304B/34 IPC & 4 Dowry Prohibition Act.
4. Postmortem of the deceased was got conducted, statement of the witnesses were recorded, accused persons were arrested and after completion of the investigation chargesheet was filed against the accused persons under section 498A/304B/34 IPC and Section 4 of Dowry Prohibition Act and sistersinlaw of the deceased were kept in SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 3 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC column 12 of the chargesheet as no evidence was found against them.
5. Ld. Concerned Metropolitan Magistrate took cognizance of the offence and after complying with the provision of Section 207 CrPC committed the case to the Session Court and after assignment present case was marked to Ld. Predecessor of this Court.
6. Prima facie findings the offense having been made and Ld. Predecessor of this Court was pleased to frame charges only under Section 498/24 IPC and 304B/34 IPC against both the accused persons, to which they pleaded not guilty and claimed trial.
7. In order to prove charges against the accused persons prosecution proposed to examine as many as 25 witnesses. However, after examination of 19 witnesses, this court dispensed the prosecution with need to examine remaining prosecution witnesses realizing that material witnesses have turned hostile and further realizing that remaining witnesses at best would prove the aspect of investigation and will not have direct bearing on the guilt of the accused persons.
8. The witnesses left to be examined were Premdass Pal who had played the role of mediator in getting negotiated marriage between the deceased and accused No.1 Ashu Kumar Goyal. Another witness left to be examined was the MHC(M) who could have proved SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 4 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC entries in Register No.19 regarding deposit of case properties in malkhaana and Register No. 21 to prove road certificate vide which case properties would have been sent out of malkhaana to FSL etc. Two more witnesses left to be examined were Ct. Satender and SI Sonu Ram who were to prove arrest of the accused persons. Last witness that remained to be examined was IO Harender Singh who was to prove his investigation. Thus it could be seen that remaining prosecution witnesses were witness to the investigation and record and they were not witness to the crime, hence, their dispensation has not prejudiced the case of the prosecution. In fact their dispensation has been done keeping in mind that they have proved the things which they would have proved if they had actually appeared in the witness box.
9. The witnesses examined were as under: 9.1. PW1 HC Renu Kumar sought to prove registration of FIR Ex PW1/B and his endorsement Ex PW1/B on tehrir.
9.2. PW2 ASI Jai Kanwar Mobile Crime Team Incharge who had inspected the scene of crime and he sought to prove his report Ex PW2/B. 9.3. PW3 HC Satyawan was the photographer in the Mobile Crime Team and he sought to prove the photographs Ex PW3/A1 to SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 5 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC PW3/A20 which he clicked at the spot where deceased had hanged herself. He also sought to prove certificate Ex PW3/B under Section 65B of Indian Evidence Act issued in respect of aforesaid photographs.
9.4. PW4 Ct Dharmender sough to prove scaled site plan Ex PW4/B prepared by him after inspection of the spot.
9.5. PW5 ASI Baljeet Singh stated that on 03.01.2018, he was posted at PP Prem Nagar and on that day on received DD No 27 PP, he alongwith Ct. Rajender reached at the spot i.e. B139, Gali no. 8, Prem Nagar, Budh Vihar road. He saw at the spot that one lady was hanging by her neck with the help of chunni and one end of the chunni was found tied with the ceiling fan. He came to know the name of the deceased as Sonia W/o Ashu. He cut the chunni with the help of knife and seized the part portion of the chunni vide memo Ex. PW 5/A. He kept the said part of chunni in a transparent plastic container and sealed with the seal of BS. He got the body of Soniya shifted to SGM hospital through Ct. Rajender where she was declared brought dead and her body got preserved in mortuary. On 04.04.2018 he reached at mortuary SGM hospital and Sh. Rajeev Kumar Khanna also reached there and he recorded the statement of Dhan Devi, mother of deceased Soniya. PW5 recorded the statement of Jitender Kumar Gupta and Ramesh Chand regarding identification of dead body vide memos Ex. PW5/B and Ex. PW5/C respectively. He SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 6 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC further deposed that he handed over the dead body of Sonia to Jitender Kumar vide memo Ex. PW5/D. After the postmortem, doctor handed over the ligature material in sealed condition sealed with the seal of SGMH MORTUARY DELHI 83 along with one sample seal and same was seized by him vide seizure memo Ex. PW5/E. He collected the PM report. Executive Magistrate handed over him the statement of Dhan Devi. Thereafter, he came back to PS and deposited the exhibits in malkhaana. He prepared a tehrir on the statement of Dhan Devi vide Ex. PW5/F. He handed over all the documents to Inspector Harender Singh. Thereafter, he along with Inspector Harender Singh again reached at the spot and prepared rough site plan at his instance and recorded his statement. On 08.09.2018, as per the instruction of the IO Inspector Harender Singh, he along with Assistant Draftsman Dharmender again visited the spot and on his pointing out, Dharmender took the measurements of the spot and prepared the rough notes for preparation of scaled site plan.
9.6. PW6 Dr. Munish Wadhwan proved the postmortem report Ex PW6/A of the postmortem conducted on the dead body of the deceased Sonia. As per his opinion "death was due to asphyxia as a result of antemortem hanging" and time since death was approximately 30 hours. He further handed over 14 inquest papers, ligature material in sealed condition along with sample seal of SGMH MORTUARY MANGOLPURI DELHI 83 to the accompanying police officials.
SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 7 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC 9.7. PW7 Dr. Ramandhar Prasad sought to prove MLC Ex PW7/A vide which deceased was declared brought death after examination.
9.8. PW8 Smt. Dhan Devi deposed that deceased Sonia was her daughter and she was married with accused Ashu on 10.02.2015. She correctly identified accused Ashu. She further stated that none of the accused had ever tortured or harassed her daughter. She further stated that her daughter was violent and used to threat them to commit suicide even prior to her marriage. Though she did not support prosecution case but admitted that her statement was recorded by Ld. Executive Magistrate Rajeev Kumar Khanna and that her statement is Ex. PW8/A; that she had handed over photographs of marriage of Sonia to the IO vide seizure memo Ex. PW8/B and that she had replied Notice u/s 91 Cr.P.C vide reply Ex. PW8/D. 9.9. PW9 Ct. Pramod sought to prove DD No. 27 PP Ex PW9/B by bringing the original Daily Diary in court.
9.10. PW10 Ct. Anshu sought to prove PCR Form Ex PW10/A received from mobile No. 9210332365 whereby caller had informed that "ek ladki ne fansi laga li hai" in B139, Gali no. 8 Prem Nagar, Budh Bazar.
SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 8 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC 9.11. PW11 W/Ct Anju sought to prove arrest of accused Shimla Devi vide arrest memo Ex. PW11/A and conducting of her personal search vide memo Ex PW11/B. 9.12. PW12 Rajeev Kumar Khanna sought to prove his role in visiting the spot after receiving information about the hanging of women and recording of statement Ex PW12/A of the mother of the deceased and that of accused persons vide statement Ex PW12/B and Ex PW12/C, his request for conducting of the postmortem vide application Ex PW12/D and Form No. 25.35 Ex PW12/E. 9.13. PW13 Sh Jitender Kumar is the brother of the deceased, PW14 Ms Deepa, PW15 Ms Komal, PW16 Ms. Renu Gupta, PW17 Ms. Anita all are sisters of deceased and PW19 Ramesh Chand Gupta is the real uncle of the deceased. PW13, PW14, PW15, PW16, PW17 and PW19 did not support the case of the prosecution.
9.14. PW18 Ct. Rajender had gone to the spot alongiwth ASI Baljeet Singh following receipt of DD No. 27 PP on 03.04.2018. He deposed on the lines of what PW5 ASI Baljeet had deposed.
10. As noted above after examination of 19 witnesses, prosecution was dispensed with the need to examine remaining witnesses for the reasons already recorded herein before.
SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 9 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC
11. As nothing incriminating appeared in the evidence of the witnesses examined by the prosecution, therefore recording of statement of the accused persons under Section 313 CrPC was also dispensed with.
12. Ld. APP for State vehemently argued that despite public witnesses having not supported the case of the prosecution, still prosecution has sufficient case to make out against the accused persons. He submitted that mother of the deceased PW8 Dhandevi admitted her statement Ex PW8/A and contents thereof. Further PW12 Rajeev Kumar Khanna unimpeachably deposed that he had recorded the statement of mother of the deceased and in the statement she had alleged that deceased had committed suicide because of harassment and torture meted out to her daughter by the accused persons for and in connection with demand for dowry from her. Hence, he submitted that turning hostile by her and other relatives will not dent the case of the prosecution and accused persons can still be found guilty. Thus, he submitted that prosecution should have been given opportunity to examine remaining witness and findings of guilt be returned.
13. On the contrary Sh Bharat Bhusan Ld. Counsel for the accused persons argued that private witnesses who knew the reality regarding the treatment meted out the deceased, did not depose against the accused persons, then merely on the basis of testimony of SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 10 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC police witnesses who were not part of the family member of the deceased or accused persons and who have not personally seen the treatment meted out to the deceased by accused persons, cannot prove the alleged cruel treatment meted out to the deceased by the accused persons. Hence, he submitted that this Court rightly stopped further trial of the case to save the accused persons from further harassment which results from facing trial. He therefore request that accused persons be acquitted of the offense they faced trial for.
14. Evidence and material on record perused and rival submissions taken into consideration. The presumption as to abetment of suicide by a married woman as contemplated under Section 113A of the Evidence Act, can be raised when it is proved on record that the married woman has committed suicide within 7 years of her marriage and that her husband or such other relative of her husband had subjected her to cruelty soon before her death. Thus as per Section 113A of the Evidence Act if two requirements are satisfied, the court may presume having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or such relatives of her husband. The two requirements are firstly that married woman must have committed suicide within 7 years of her marriage and secondly soon before her death she was subjected to cruelty by her husband or such relative of her husband.
15. In the present case it is the case of the prosecution that SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 11 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC deceased Sonia committed suicide on 03.04.2018 by hanging herself with chunni from the ceiling fan in the house of her husband/Inlaws. Defense is also not disputing that deceased Sonia committed suicide on 03.04.2018. Even otherwise from the testimony of PW5 ASI Baljeet Singh and that of PW6 Dr. Munish Wadhwan it also stands proved that deceased committed suicide by hanging herself with chunni from the ceiling fan of house of her husband and the cause of her death was "due to asphyxia as a result of antemortem hanging". It is not disputed that deceased was married to accused No. 1 Ashu Kumar Goyal 10.02.2015. Thus the first ingredient of Section 113A of the Evidence Act stands proved beyond doubt that deceased committed suicide within 7 years of her marriage.
16. Now the next question is whether deceased was subjected to cruelty soon before her death. Best witness for the aforesaid purpose would have been the deceased herself but unfortunately she is no more and she did not leave behind any suicide note also which could have thrown light on the reason and culprit of her drastic step. Next best witness in this regard would have been parents, siblings, friends and neighbors of the deceased. Investigation agency did not make any investigation/enquiry from friends and neighbour of the deceased. Prosecution examined mother(PW8), brother (PW13), sisters (PW1417) and one uncle (PW19) of the deceased but none of them depose anything against the accused persons. They on oath did not make any testimony against accused persons regarding subjecting the SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 12 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC deceased to cruelty soon before her death. Apart from above relative of the deceased there is no witnesses who personally knew of accused persons subjecting the deceased to cruelty soon before her death. Hence, the second ingredient of Section 113 A of the Evidence Act is not met out and therefore presumption as to abetment of suicide committed by the deceased cannot be raised against the accused persons.
17. Ld. APP for the Stated vehemently argued that PW8 Smt Dhan Devi mother of the deceased categorically admitted having made statement before Ld. Executive Magistrate regarding the cruel treatment meted out to her daughter by the accused persons for or in connection with demand for dowry. He further submitted that Ld. Executive Magistrate PW12 Rajeev Kumar Khanna corroborated the same in his testimony that the contents of the statement of PW8/A was stated by Smt. Dhan Devi. Hence, Ld APP for State submitted that even second ingredient of Section113A of the Evidence Act stands proved and therefore it is for the defense to rebut the presumption contemplated under Section 113A of the evidence Act and since defense did not lead any evidence therefore accused are guilty of causing dowry death of the deceased Sonia.
18. There is no doubt that PW8 Smt. Dhan Devi admitted that contents of her statement Ex PW8/A was stated by her before Ld. Executive Magistrate PW12 Rajeev Kumar Khanna. The contents of her statement do contain inculpatory statement against the accused SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 13 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC persons. However, she volunteered that she was tutored by police to give such statement. She admitted that she had not made any complaint in this regard against any police officials or disclosed this fact to Executive Magistrate.
19. What does it all prove? It proves only that PW8 Dhan Devi had made such allegation regarding subjecting the deceased to cruelty by accused persons for or in connection with dowry demand; that FIR was registered at her instance and that investigation was undertaken and accused persons were arrested on such complaint of Smt. Dhan Devi and not otherwise or with malafide intention of the investigating agency. But it no way proves that what she had stated before Ld. Executive Magistrate was her true and correct statement and that accused persons had subjected the deceased to cruelty soon before her death. It is settled law that statement before Executive Magistrate or police official is not evidence in terms of Section 3 of the Evidence Act. Only such part of statement of a witness is evidence which he or she depose before the court. In the present case PW8 Smt. Dhan Devi, PW13 Jitender Kumar, PW14 Ms. Deepa, PW15 Ms. Komal, PW16 Ms. Renu Gupta, PW17 Ms. Anita and PW19 Ramesh Chand Gupta did not depose anything against the accused persons regarding the cruelty to the deceased by the accused persons soon before her death for or in connection with demand of dowry. Hence, there is no evidence before the Court that accused persons were demanding dowry from the deceased or her parents or that they were subjecting the deceased SC No. 859/18 State v. Ashu Kumar Goyal & Ors. Page No. 14 of 15 CNR No. DLNW-012362-2018 FIR No. 278/18 PS Aman Vihar U/s 498A/304B/34 IPC to cruelty soon before her death for or in connection with demand for dowry. Hence, accused persons are hereby acquitted of the offence under Section 498A/34 and Section 304B/34 IPC for which they faced trial in the present case.
20. Bail bond and surety bond of the accused persons stands canceled/discharged. Original documents, if any, of the sureties be returned to them as per rules.
21. Accused persons shall furnish personal bond of Rs 25,000/ each with one surety of like amount in terms of Section 437A of CrPC which shall remain valid for a period of six months.
22. Though this Court has reason to contemplate action against the mother of the deceased for having caused criminal justice delivery system in motion either knowingly or allegedly on the tutoring of the police but taking into account her state of mind at the time of demise of her young daughter, this Court is not intending to direct any action against her so as to further cause trouble in her life.
Digitally signed by HARISH HARISH KUMAR
KUMAR Date:
2019.12.17
15:35:28 +0530
(HARISH KUMAR)
ADDL. SESSIONS JUDGE - 03,
Announced in the open court NORTH WEST, ROHINI COURTS,
(Judgment contains 15 pages) NEW DELHI/16.12.2019
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