Delhi District Court
State vs : 1- Rajender Kumar, on 4 April, 2007
1
IN THE COURT OF SH. BHARAT
PARASHAR:ASJ:FTC:ROHINI:DELHI
S.C. NO.43/06
STATE VERSUS : 1- RAJENDER KUMAR,
S/O LATE SH. GULAB SINGH,
R/O S-1133, MANGOL PURI,
DELHI.
2- SMT. HARPYARI,
W/O LATE SH. GULAB SINGH,
R/O S-1133, MANGOL PURI,
DELHI.
3- RAMCHARAN,
S/O SH.BHIKAMBER SINGH,
R/O A2/35, SULTAN PURI,
DELHI.
4- SMT. LAXMI,
W/O SH. RAM CHARAN,
R/O A2/35, SULTAN PURI,
DELHI.
FIR NO.174/96
PS MANGOL PURI
U/S 498A/304B/34 IPC.
JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.PC is as under :
"One Smt. Shakuntla married her daughter Kamlesh with accused Rajender Kumar on 2 1/12/93 as per Hindu Rites and Ceremonies.
After her marriage Kamlesh shifted to her matrimonial home at Mangol Puri and where besides Rajender, his mother Harpyari also used to reside. Rajender had one sister, namely, Smt. Laxmi, who though was married from prior to his marriage with one Ram Charan and used to reside at Sultan Puri but, often used to visit her parental house. Though, for a few initial months, the matrimonial life of Kamlesh went off smoothly but soon troubles started coming in her life. Her husband Rajender used to often beat her on the instigation of her mother, sister and brother-in- law with a view to demand a colour TV, fridge and Rs.30,000/-. When after sometime Kamlesh disclosed about her tormented life to her brothers and mother that they even contacted the accused persons and expressed their inability to meet the said demands on account of their poor financial condition. However, the behaviour of the accused persons did not change much and as a result of their behaviour the physical health of Kamlesh 3 started deteriorating. At around February, 1996 accused Rajender contacted Rajesh, the brother of Kamlesh and stated that the condition of Kamlesh was critical and she be taken back to their house. Accordingly, Kamlesh was taken back to her parental house by her brother Rajesh. Kamlesh told her mother and brothers that she has been severely beaten. In fact, it was found that Kamlesh was not even able to stand up properly on account of her critical condition. She was accordingly admitted in Khetarpal Nursing Home. The doctors stated that Kamlesh immediately needs to undergo an operation and accordingly the husband and other in-
laws of Kamlesh were informed about her condition. They however reluctantly came to the hospital and even did not agree to bear the expenses of treatment of Kamlesh. Her husband accused Rajender Kumar even initially did not agree to give his consent for the operation of Kamlesh as was required by the doctors. During all this period, the condition of Kamlesh became very critical and finally on 13- 4 2-96 she died.
In the aforesaid circumstances, matter came to be reported to the police. The area SDM was also informed. Statement of Rajesh, brother of Kamlesh and Smt. Shakuntla, the mother of Kamlesh were recorded and on the basis of their statements, a case for the offences U/S 498A/304B/34 IPC was got registered at PS Mangol Puri. Investigation was accordingly carried out. After carrying out the inquest proceedings postmortem upon the dead body of Kamlesh was also got carried out. Accused Rajender Kumar was arrested.
Though, the other three accused persons were ordered to be released on anticipatory bail by the court. Upon completion of necessary further investigation, challan was prepared for the offence U/S 498A/304B IPC against all the accused persons and was filed in the court for trial".
Upon committal of the case to the court of Sessions, charge for the offence U/S 498A/304B/34 IPC was framed against all the accused persons to which they all pleaded not guilty and claimed trial. 5
Prosecution thereafter in order to prove its case examined sixteen witnesses in support of its case. Accused persons were thereafter examined u/s 313 Cr.PC. They thereafter examined one Lakshmi, Record Technician, Khetarpal Nursing Home as DW1 in their defence.
PW1 Rajesh Kumar and PW4 Vishal were the two brothers of Kamlesh examined by the prosecution.
PW3 Shakuntla was the mother of deceased Kamlesh and PW15 Bijender Kumar was the brother-in-law (jija) of Kamlesh, who in fact had mediated in the impugned marriage of Kamlesh with accused Rajender Singh. All the aforesaid four witnesses deposed almost on identical lines while reiterating the prosecution story in their deposition. They all affirmed that after the initial few months of the marriage, Kamlesh used to be treated with cruelty and was subjected to harassment by the accused persons on account of demand of dowry viz Rs.30,000/- in cash, colour TV and fridge etc. PW2 HC Raj Kumar was the DO, PS Mangol Puri on 14-2-96, who had recorded FIR Ex.PW2/A in the present matter.
PW5 Smt. Laxmi was a neighbourer residing near to the parental house of Kamlesh. She also stated that whenever Kamlesh used to come to her parental house, she used to tell that her in-laws are treating her with cruelty on account of demand of dowry. She also stated that on one occasion she even found Kamlesh to be badly injured on account of beating given to her by her husband.
PW6 Dr. Anil Khetarpal had medically examined Kamlesh at 6 Khetarpal Nursing Home during the course of her admission over there and had finally prepared her death summary Ex.PW6/A when she expired over there.
PW7 Dr. K. Goyal had carried out the postmortem examination upon the dead body of Kamlesh vide his report Ex.PW7/A. PW8 SI Rajinder Singh initially received information about the incident on 12-2-96 while being posted at PP Raghubir Nagar, PS Rajouri Garden. He had accordingly gone to Khetarpal Nursing Home and had informed about the incident to SDM, Punjabi Bagh, who had recorded statement of mother and brother of Kamlesh. He however further stated that after the SDM recorded the statements, it was found that the occurrence in the present case has taken place in the area of PS Mangol Puri. He accordingly handed over all the documents along with the statements and orders of SDM to SHO, PS Mangol Puri on 14-2-96 for investigation vide his endorsement Ex.PW8/A. PW9 ASI Sheesh Pal had gone to Khetarpal Nursing Home on the night intervening 11/12-2-1996 from PS Moti Nagar upon getting information about admission of a lady over there. He had recorded statements of mother and brothers of Kamlesh besides that of accused Rajender Kumar and Harpyari as Kamlesh herself was opined to be unfit for making a statement. He however found that the place of occurrence fell in the area of PP Raghubir Nagar and thus vide DD No.13A dated 12-2-96 he sent all the necessary papers to PP Raghubir Nagar for further necessary action.
PW10 Ct. Dalbir Singh was the DD Writer, PP-Raghubir Nagar, who 7 had received all the documents in the present case from PS Moti Nagar on 12- 2-96 and after recording DD No.8 in the roznamcha he handed over the same to ASI Rajender Singh for further necessary action.
PW11 Ct. Yadram had accompanied SI Sunil Kumar to Subzi Mandi Mortuary and had collected the sealed pullanda containing viscera of the deceased from the doctor. Later on, the dead body of deceased Kamlesh was handed over to her father.
PW12 Sh. KK Dahiya was the then SDM, Punjabi Bagh, who had recorded the statements of Smt. Shakuntla, mother of Kamlesh and that of Rajesh, the brother of Kamlesh on 14-2-96. He thereafter passed his order Ex.PW12/C directing SHO, PS Mangol Puri to register a case against the accused persons on the basis of the said statements.
PW13 SI Sunil Kumar had also gone to Subzi Mandi Mortuary and where SDM Sh. KK Dahiya was called by him, who carried out the inquest proceedings. After postmortem examination, the dead body was handed over to the relatives.
PW14 Ram Milan, a Delhi Home Guard Constable had taken the documents of the present case to PP-Raghubir Nagar on 12-2-96 and handed over the same to the duty officer.
PW16 SI CM Meena had taken the investigation of the present case on 14-2-96. In his deposition, he reiterated the proceedings carried out by him besides proving the various documents/memos prepared by him during the course of his investigation.
Accused persons thereafter in their statements u/s 313 Cr.PC 8 however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely and claimed themselves to be innocent. It was further stated that no demand of any nature whatsoever was ever made either to Kamlesh or to her parents or brothers. It was also stated that Kamlesh was in fact having a fever and her parents and brothers got her examined from a Bengali Doctor (quack) and on account of wrong treatment given by the said doctor, the condition of Kamlesh deteriorated and she thus died.
DW1- Lakshmi, Record Technician, Khetarpal Nursing Hospital identified receipts Ex.DW1/A of payment made to Khetarpal Nursing Home towards one Mrs. Kamlesh as were produced by the accused persons.
I have heard ld. APP and ld. Counsel Sh. CL Dhawan for all the accused persons.
It has been submitted by learned defence counsel that the prosecution has miserably failed in proving its case against all the accused persons beyond shadows of all reasonable doubts. He took me through a number of contradictions and improvements made by the various prosecution witnesses over their earlier statements made during the course of investigation to emphasize that the story now being churned out by them during the course of trial was clearly a concocted one. It was further stated that Kamlesh in fact was suffering from typhoid which on account of wrong treatment having been given to her by a quack got spoiled leading to her critical medical condition. It was also stated that all the expenses towards treatment of Kamlesh at the hospital were in fact borne by the accused persons and i.e why they were still in possession of the said payment receipts. It was also stated that even as per 9 the postmortem examination report, no external injuries were found on the body of Kamlesh, which could support the prosecution story that she was given beating by the accused persons. It was also stated that before the death of Kamlesh both the parties had cordial relations with each other and even witnesses have admitted that they used to visit each others house on various functions etc. It was also stated that even when Kamlesh was admitted in the Khetarpal Nursing Home and had not yet died then also certain statements of parents and brothers of Kamlesh were recorded by the police and in which no such allegations were levelled by them. It was further stated that even PW15 Bijender Kumar and PW4 Vishal, the jija and brother of Kamlesh respectively have not supported the prosecution story on certain very material aspects of the prosecution case in their cross examination. It was thus prayed that all the accused persons be acquitted of the offences U/S 498A/304B/34 IPC. It was further stated that admittedly accused Laxmi and Ram Charan were residing at a different house and Laxmi was married much prior to the marriage of Kamlesh with Rajender Kumar. It was further stated that all the relatives have been roped in solely with a view to harass the in-laws of Kamlesh. All the accused persons were thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of ld. Defence counsel stating that the testimony of the prosecution witnesses examined was cogent, convincing and reliable in nature. It was also stated that certain contradictions/improvements are bound to occur when the witnesses deposes after a long gap of time and that too on the basis of their memory. The case of the prosecution was thus stated to have been proved 10 against all the accused persons beyond shadows of all reasonable doubts.
I have carefully perused the record.
Before I advert on to a discussion of the prosecution evidence as led in the present case, it will be worthwhile to mention the basic ingredients of the offence u/S 304B IPC which the prosecution is required to prove in order to establish a charge for the offence U/S 304B IPC:
1- The death of a woman should be caused by burns or bodily injury or must have occurred otherwise than under normal circumstances.
2- Such a death should have occurred with seven years of her marriage.
3- She must have been subjected to cruelty or harassment by her
husband or any relative of her husband.
4- Such cruelty or harassment should be for or in connection with
demand for dowry.
5- Such cruelty or harassment is shown to have been meted out to the
woman soon before her death.
At the outset, I may state that in the present case the prosecution has failed to prove the most important ingredient of the offence U/S 304B IPC viz that the death of Kamlesh had occurred otherwise then under normal circumstances. As per the postmortem examination report Ex.PW7/A, the death of Kamlesh was due to "peritonitis consequent to perforations of small intestine". It is also the case of the prosecution witnesses themselves that 11 when Kamlesh was taken to Khetarpal Nursing Home then the doctors over there opined her medical condition to be critical and she was advised to undergo an urgent operation. Admittedly, Kamlesh died while being taken for the said operation. It has also come on record during the course of testimony of various prosecution witnesses examined that Kamlesh was undergoing fever for few months prior to her death and was even taken to RML Hospital by her mother. It has also come on record that earlier she was undergoing treatment from some Bengali doctor at Raghubir Nagar itself, who then advised the parents of Kamlesh to take her to some hospital and pursuant to which she was taken to Khetarpal Nursing Home. It has also come on record that the said Bengali doctor was not a qualified doctor. The brothers of Kamlesh stated that the said doctor was one, who was not having any degrees. Thus, it can be stated that Kamlesh was undergoing treatment from a quack. PW7 Dr. K. Goyal also did not find any external injuries on the body of Kamlesh except for the surgical wounds or wounds due to I.V. Drip. Thus, his report that there was no other external injury on the body of Kamlesh lends support to the plea of the accused persons that she was not given beating by them at any point of time and at the same time it gives a severe blow to the prosecution story that Kamlesh was severely beaten by her in-laws. It also discredits the testimony of her brothers and mother that when she was brought back to her house from her matrimonial home then she stated that she was severely beaten by her husband.
Thus, irrespective of the fact that earlier at some other point of time Kamlesh was treated with cruelty or not by her in-laws, it clearly stands 12 established that her death was on account of her illness and not in any unnatural circumstances.
No-doubt, the death of a young woman can be termed to be unfortunate but it cannot be said to be in unnatural circumstances. At the same time it also cannot be argued that the ill-treatment of the in-laws of Kamlesh over a period of time led to her deterioration of health and on account of which she finally died and thus making her death to be in unnatural circumstances. Kamlesh admittedly died pursuant to typhoid once a period of three months which made her immensely weak. Thus by no stretch of imagination can the death of Kamlesh be termed to be in unnatural circumstances or otherwise then under normal circumstances.
In view of my aforesaid discussion when the all important ingredient of Section 304B IPC has not been proved by the prosecution so, the charge for the offence U/S 304B IPC cannot hold ground against any of the accused persons.
The next issue which crops up for consideration is for the offence U/S 498A IPC.
Before I advert on to the evidence as against accused Rajender Singh (husband) and Smt. Harpyari (mother in-law), I may state that as regards the other two accused persons, namely, Smt. Laxmi and Ram Charan the allegations are per se vague. Admittedly, Laxmi was married much prior to the marriage of Kamlesh with Rajender Singh. It is also not in dispute that Laxmi and Ram Charan were residing in Sultan Puri in their own house. The allegations primarily against these two accused persons as levelled by the 13 mother and brothers of Kamlesh are that of instigation of accused Rajender Singh by them to beat Kamlesh with a view to demand dowry. Thus, keeping in view the often seen tendency of the relatives of a lady in such kind of cases to rope in as many as relatives of the in-laws of the deceased girl so as to cause maximum harassment to them, I do not find any substance in the accusations levelled against these two accused persons. The contradictions and improvements which the witnesses have made in their deposition in the court clearly goes to support the aforesaid conclusion.
In fact, the allegations against accused Harpyari (mother in-law) are also no different. Even as regards accused Rajender Singh the allegations levelled by the prosecution witnesses does not inspires confidence. I shall now be dealing with the various contradictions and improvements made by the witnesses in their deposition before the court over their previous statements made during the course of investigation.
It will be worthwhile to mention over here that after Kamlesh was got admitted in Khetarpal Nursing Home then on 12-2-96 also on account of certain disputes between the parties, the police had come over there and had recorded statement of accused Harpyari and accused Rajender Singh besides that of Vishal, Rajesh and Shakuntla, the brothers and motor of deceased Kamlesh. In their said statements, all the persons merely stated that some quarrel had taken place between them on the issue of payment of bills of the Nursing Home towards the charges of treatment of Kamlesh. No other allegations of any nature whatsoever were levelled in the said statements. In fact, in the said statements it was admitted by the brothers and mother of 14 Kamlesh that Kamlesh was having fever (typhoid) for the past about three months and she was brought to their home by them on 5-1-96. It was also stated by them that initially Kamlesh was undergoing treatment from one Bengali doctor in Raghubir Nagar itself and about 5/6 days ago she was even taken to Lady Harding Hospital by their mother. It was further stated that on that day on account of sudden deterioration in the health of Kamlesh she was thus brought to Khetarpal Nursing Home and that they had called the husband and mother in-law of Kamlesh also to the hospital. In the said statement of Shakuntla, the mother of Kamlesh it was also specifically mentioned that Kamlesh was ill for the past three months on account of typhoid and that there were no injuries on her person. It was also stated that the doctor has told them that she is getting weak on account of her old illness. It was also stated by them that now they as well as the in-laws of Kamlesh were together getting her treated over there. Similarly, Rajesh, one other brother of deceased Kamlesh besides re-treating the aforesaid story also stated that there was fault of none in the impugned incident.
It will be also worthwhile to mention that no history of beating etc. were at all given even in the hospital by the brothers or mother of Kamlesh at the time of her admission. Certainly after the death of Kamlesh her brother Rajesh Kumar and mother Shakuntla got recorded their statements Ex.PW1/A and Ex.PW3/C with the SDM and on the basis of which the present case came to be registered. However, in the aforesaid circumstances it was the imperative duty of the prosecution to explain as to why this change of heart took place within a span of two days. It clearly appears from the facts & 15 circumstances that on account of the death of Kamlesh and which probably followed an expansive treatment at Khetarpal Nursing Home, the brothers and mother of Kamlesh chose to level such kind of allegations against the in-laws of Kamlesh. It will be also worthwhile to mention that in her statement Ex.PW3/C, Shakuntla did not state anything about the demand of Rs.30,000/- or colour TV or VCR. She though stated that a TV was given by them upon demand. Similarly, the brothers and sister of Kamlesh also contradicted the prosecution story when they stated that they brought Kamlesh to their house from her matrimonial home only about 5/6 days prior to her death. It has clearly come on record that Kamlesh was brought to her parental house about more than 1½ months prior to her death.
Furthermore, as regards the payment made to Khetarpal Nursing Home, the prosecution has failed to lead any evidence as to who exactly made the payments towards the treatment undertaken over there. On the other hand, accused persons have proved the payment receipts in this regard and except for putting certain suggestions to the Record Clerk of Khetarpal Nursing Home on behalf of the prosecution no other dent could be made in this plea of defence raised by the accused persons. Thus, in the absence of there being no evidence on behalf of the prosecution as to who exactly made the payment towards the treatment of Khetarpal Nursing Home, I find no reason to disbelieve the claim of the accused persons that they made the payment. They have been able to support this claim of there by producing necessary receipts of payment on record. The bald assertion of the brothers and mother of Kamlesh in this regard does not inspires any confidence. 16 Moreover, the statements of the brothers and mother as was recorded by the police on 12-2-97 also discredits this claim of their.
As regards the demand of Rs.30,000/-, it will be worthwhile to mention that PW1 Rajesh stated in his cross examination that the said amount was demanded for the purposes of getting Rajender Kumar employed. Thus, this fact also takes out the demand of said amount of Rs.30,000/- from the definition of dowry.
In the case MASOOD AHMED & OTHERS VS. STATE 1991 JCC 380 (DELHI). It was observed by Hon'ble Delhi High Court that a sum of Rs.10,000/-
demanded by the in-laws for the purposes of starting business of the husband cannot be a part of demand of dowry.
Moreover, in his deposition in the court PW1 Rajesh stated that besides Rs.30,000/-, colour TV and VCR, a fridge was also demanded. There was no such allegation made by him in his statement Ex.PW1/A made to the SDM. A number of other allegations were levelled by this witness qua the beating given to Kamlesh by her in-laws but all such incidences which even lacked any specific details were not at all mentioned in the earlier statements given during the course of investigation except for a bald statement that the in-laws of Kamlesh used to beat her on account of demand of dowry. In fact, during the course of their deposition in the court, all the witnesses stated that accused Harpyari, Laxmi and Ram Charan used to instigate accused Rajender Singh to beat Kamlesh. This aspect was a major departure from the earlier stand taken by the witnesses in their statements made during the course of investigation. Certain other instances such as the throwing of the box of 17 sweets taken by Rajesh to the matrimonial house of his sister also came up on record as an improvement made by him over his earlier statement made to the IO or SDM. A number of other improvements were thus found to have been made by the witnesses over their previous statements. PW3 Smt. Shakuntla, mother of Kamlesh however did not state anything about the demand of VCR in her deposition. Furthermore, PW4 Vishal specifically stated that accused Rajender used to demand Rs.30,000/- from them with a view to start some work. He further stated that the other three accused persons used to instigate accused Rajender to make all such demands for dowry. However, in his cross examination he stated that whenever his sister wanted to stay at their house she was allowed by her husband. He also stated that his sister used to come to their house along with her husband accused Rajender Singh. He also stated that he used to visit the house of accused along with his mother. He also stated in his cross examination by learned defence counsel that he himself had never seen any beating given to his sister by the accused persons. He further stated in his cross examination that whenever he visited the house of Kamlesh he never found accused Laxmi or her husband Ram Charan over there except on certain special functions etc. He further stated in his cross examination by learned DC that in his presence his sister never made any complaint either to him or to his mother regarding any incidence of beating given to her by the accused persons or any demand of dowry made by the accused persons. He also admitted that when Kamlesh was living at their house prior to her death then accused Rajender used to visit their house and whenever need arose accused persons also used to give financial assistance 18 in respect of treatment of Kamlesh. He also stated that accused Rajender never objected to the line of treatment of Kamlesh as was being provided by them to her. He further admitted that during the course of treatment of Kamlesh at Khetarpal Nursing Home accused persons remained present over there and he further claimed ignorance as to who exactly paid for the expenses of the hospital. To a court question this witness specifically stated that Kamlesh was staying at their house for about three months prior to her death. He also admitted that accused Rajender had in fact given some money to his mother for the treatment of Kamlesh.
One other witness PW15 Bijender Kumar, the brother-in-law (jija) of Kamlesh admitted in his cross examination that Kamlesh never directly conveyed to him anything about the ill-treatment or demand of dowry made by the accused persons. He further stated that whenever he visited the house of in-laws of Kamlesh he found everything normal and accused persons affectionate and did not see accused persons ever giving beating to deceased on any account whatsoever.
Thus, in view of the aforesaid nature of deposition of the various prosecution witnesses examined I'm of the considered opinion that the present case is one where after considering the entire evidence and the overall circumstances a grave doubt arises as to the guilt of the accused persons. It is a case where two views reasonably exists and while one point to the guilt of the accused persons but the other is suggestive of the innocence of accused persons. In these circumstances, the latter view has to be accepted giving benefit of doubt to the accused persons.
19
It was observed by Hon'ble SC in the case AIR 1956 SC 217 that:
"there are two important factors in a criminal trial that weigh heavily in favour of the accused persons. One is that the accused is entitled to benefit of every reasonable doubt and the other an offshoot of the same principle that whenever an accused offers a reasonable explanation of his conduct, even though he cannot prove his assertion, the same should ordinarily be accepted unless the circumstances of the case indicate otherwise".
In view of my aforesaid discussion, I am thus of the considered opinion that the prosecution has miserably failed in proving its case against all the four accused persons, namely, RAJENDER KUMAR, SMT. HARPYARI, RAMCHARAN and SMT. LAXMI beyond shadows of all reasonable doubts.
I accordingly hereby acquit all the four accused persons of the offences U/S 498A/304B/34 IPC. Their bail bonds stands cancelled and sureties are discharged.
File be consigned to Record Room.
Announced in the open court on 4-4-2007.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK COURT:ROHINI COURTS 20 D E L H I. FIR NO.174/96 PS MANGOL PURI U/S 498A/304B/34 IPC.
4-4-07 Pr. Addl. PP for the State.
All accused are present on bail.
Vide my separate detailed judgment dated 4-4-07 accused persons, namely, Rajender Kumar, Smt. Harpyari, Ramcharan and Smt. Laxmi are acquitted of the offences u/s 498A/304B/34 IPC.
Their bail bonds stands cancelled and sureties are discharged. Documents of sureties, if any be returned forthwith.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 4-4-07.
(BHARAT PARASHAR) (ASJ:FTC:ROHINI:DELHI) 21