Delhi District Court
State vs . (1) Kapil Mudgil on 21 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 679/2006
Unique Case ID: 02404R0236992006
State Vs. (1) Kapil Mudgil
S/o Deepak Mudgil
R/o H. No. 82, Village Dhaka,
Kingsway Camp, Delhi
(Acquitted)
(2) Deepak Mudgil
S/o Late Jai Ram Sharma
R/o H. No. 82, Village Dhaka,
Kingsway Camp, Delhi
(Acquitted)
(3) Kusumlata
W/o Deepak Mudgil
R/o H. No. 82, Village Dhaka,
Kingsway Camp, Delhi
(Acquitted)
(4) Kirti
W/o Gaj Raj Singh
R/o H. No. 82, Village Dhaka,
Kingsway Camp, Delhi
(Acquitted)
(5) Himanshu
S/o Deepak Mudgil
R/o H. No. 82, Village Dhaka,
Kingsway Camp, Delhi
(Acquitted)
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 1 of 107
FIR No.: 619/06
Under Section: 498A/304B/34 Indian penal Code.
Police Station: Saraswati Vihar
Date of committal to Sessions Court : 22.9.2006
Judgment reserved on : 9.4.2012
Judgment pronounced on : 21.4.2012
JUDGMENT:
1. As per allegations, the marriage of Seema (deceased) was solemnized with the accused Kapil Mudgil on 18.2.2006 and between 18.2.2006 to 4.6.2006 the accused Kapil Mudgil being the husband; accused Kusum Lata being the mother in law; accused Deepak Mudgil being the father in law; accused Himanshu being the brother in law (devar) and accused Kirti being the sister in law (nanand) of the deceased Seema in furtherance of their common intention subjected Seema to cruelty or harassment for or in connection with the demand of dowry. It is further alleged that on 4.6.2006 in furtherance of their common intention all the accused committed dowry death of Seema who committed suicide within seven years of her marriage.
BRIEF FACTS/ CASE OF THE PROSECUTION:
2. The case of the prosecution is that on 4.6.2006 DD No.32A was received at Police Station Saraswati Vihar pursuant to which SI Ranbir Singh along with Ct. Balraj reached the spot i.e. House No. WZ557, Shri St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 2 of 107 Nagar, Shakurbasti, Delhi where they came to know that one lady had received burns and had already been shifted to Maharaja Aggarsain Hospital, Punjabi Bagh. Thereafter SI Ranbir Singh and Ct. Balraj reached at Maharaja Aggarsain Hospital where they came to know that the doctors had referred Seema to Safdarjung Hospital and from the MLC they came to know that Seema was burnt to the extent of 95 to 100%. Thereafter the SDM was informed who reached Safdarjung Hospital but the victim was not fit for giving statement. At about 1:25 AM (midnight) Seema expired.
The SDM thereafter recorded the statement of the parents of the deceased.
3. The mother of the deceased Seema namely Santosh informed the SDM that the marriage of deceased Seema was solemnized with Kapil Mudgil on 18.2.2006 according to Hindu rites. She further informed the SDM that within a period of one and half month the accused started harassing her daughter Seema. According to Smt. Santosh, her daughter used to speak to her over telephone every week and informed her that her mother in law (Kusumlata) demanded gold jewellery which she (mother in law) wanted to give to her daughter Kirti. She also told the SDM that Seema had informed her that accused Kirti along with Kusumlata used to torture her in connection with the demand of dowry on which she (Smt. Santosh) called Seema to her house. Smt. Santosh further informed the SDM that accused Santosh (mother in law), Kirti (sister in law/ Nanand), Deepak (father in law), Kapil (husband) and Himanshu (brother in law/ devar) raised a demand of Rs.50,000/, Maruti car and gold jewellery as a St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 3 of 107 condition to take Seema back to their house or else they would not take Seema back to their house. She had alleged that her daughter Seema had committed suicide on account of the torture and harassment caused by the aforesaid accused persons.
4. On the basis of the said statement of Smt. Santosh, the SDM Sh. Vijay Dogra directed the SHO Police Station Saraswati to register a case pursuant to which the present case was got registered. The SDM also recorded the statement of Sh. Rajender Singh the father of the deceased who made similar allegations against the accused persons. Thereafter all the accused persons were arrested and after completion of investigations, charge sheet was filed against them.
CHARGE:
5. The Ld. Predecessor of this Court had settled the charges under Section 498A/304B/34 Indian Penal Code against the accused persons to which they pleaded not guilty and claimed trial. EVIDENCE:
6. In order to prove its case the prosecution has examined as many as seventeen witnesses as under:
Public witnesses/ eye witnesses:
7. PW2 Smt. Santosh Sharma is the mother of the deceased who has deposed that she has three daughters & two sons, and the deceased St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 4 of 107 Seema was her youngest daughter. According to the witness, on 18.02.06 the marriage of Seema was solemnized with accused but after two to three days of the marriage, Seema was harassed by husband Kapil Mudgil, father in law Deepak Mudgil, mother in law Kusum Mudgil, Nanad Kriti Mudgil and Devar Himanshu Mudgil whom the witness has correctly identified all accused persons. She further deposed that her daughter (since deceased) used to telephonically inform her at her office as well as her residence about the harassment and torture caused to her by the accused persons. Witness has deposed that her daughter informed her that she was denied food and bath and was beaten for the demand of dowry i.e. Rs 50,000/ in cash, gold jewellery, Maruti car which they wanted to gift to their daughter, Kriti, who had married against the wishes of her parents and had not been accepted by her in laws. According to the witness, Seema also informed that Kriti used to reside in her parental house as she was not accepted at her in laws and she (Kirti) used to harass and torture her (Seema). The witness has further deposed that on 08.04.06 accused Kusum and Kriti had tied her daughter on a chair with the help of ropes whereas accused Himanshu and Kapil used hot Chimta (tongs) on her back and front causing burn injuries to her. She has testified that accused Himanshu, Kapil and Deepak left her at her house at about 10:00 PM on 09.04.06 and demanded Maruti Car, Rs 50,000/ in cash and gold jewellery and only then they would have take her daughter back. She has testified that after the accused had left her house, she saw the injuries on the person of her daughter and the next morning, she took her St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 5 of 107 daughter to the nearby Doctor and in this regard she has placed on record the photocopy of Medical Certificate which is Mark X. The witness has also deposed that after fifteen days, she sent back her daughter Seema to her matrimonial home with her son Jayant and Dhananjay but when her sons reached the house of accused persons, they (accused) inquired if the cash amount, car and jewellery had been brought. She has deposed that she herself was also present there and told the accused that they did not have the capacity to arrange for such articles and cash but the accused persons were not ready to accept her daughter on which she forcibly left her (Seema) behind. According to Smt. Santosh on the same night i.e. 16.05.06 at around 10:00 PM her daughter Seema called her up and told that she was sitting outside the house on staircase since the house had been locked from inside and all her jewellery had been removed. The witness further deposed that she thereafter went to the house of accused and expressed her inability to arrange for their demand and also made a request to them with folded hands but the accused did not open the door of the house on which she brought back her daughter to her house. She has testified that on 20.05.06 all the accused persons came to her house and repeated their previous demand as a precondition to take back Seema back. The witness has also deposed that on 26.05.06 and 31.05.06 all the accused again came and repeated their demand and left her house without taking her daughter as their demand had not been met. According to the witness, her daughter was a graduate who had passed her 12th in First Division and had also passed a professional St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 6 of 107 course in library science and was self reliant.
8. The witness further deposed that on 04.06.06, her daughter committed suicide at her house by setting herself on fire because of the harassment and torture caused by the accused persons. According to her, after Seema caught fire they took her to Maharaja Aggarsain Hospital in Punjabi Bagh where doctors told her that Seema had sustained 95% burn injuries and referred her to Safdurjung Hospital. The witness has also deposed that she informed accused Kapil, Himanshu and Deepak telephonically about the occurrence but none of them reached the hospital. She has testified that at Safdurjung Hospital, the SDM and the police party reached. According to the witness, during the night Seema was declared dead by the doctor and her statement was recorded by the SDM 05.06.06, in the morning hours which statement is Ex.PW2/A. She has further deposed that she could not narrate the entire facts to the SDM as she was very upset because the dead body of her daughter was still lying in front of her. She has deposed that SDM also recorded her statement regarding identification of the the dead body of her daughter Seema vide Ex.PW2/B. She has proved that after postmortem the dead body of her daughter was handed over to her which she received vide receipt Ex.PW2/C. According to her, she went to the police station on couple of occasions but her supplementary statement was not recorded and therefore on her complaint investigations were handed over to DIU Cell. She has deposed that on 15.7.2006 she gave a written complaint along with the list of articles not returned by the accused St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 7 of 107 and on 17.9.2006 her statement was recorded by Inspector Chandra Kant.
9. In her crossexamination the witness has deposed that the mediator for the marriage proposal was Lakshmi Bhardwaj who is her real sister and she (witness) got her (Lakshmi) employed. According to the witness, she is not having good terms with Lakshmi and has voluntarily added that if the relations would have been cordial, Lakshmi would not have suggested such a match. She has denied the suggestion that Lakshmi Bhardwaj told her that the accused belonged to a good family and after her satisfaction she had accepted the marriage proposals and has voluntarily stated that Lakshmi had only told her about two unmarried boys in her office. She has admitted that when she invite Lakshmi Bhardwaj to attend family function, she (Lakshmi) had attended the same. The witness has also admitted that the day of occurrence i.e. 4.6.2006 was a Sunday and has stated that all family members were present at home during the day but has voluntarily added that at the time of incident she herself and her daughter in law namely Lalita were present. She has further admitted that her house is constructed only till ground floor and the surroundings house are multi storied. The witness has also admitted that her daughter Archna and her two children along with her husband were present at her house on 4.6.2006 but has voluntarily added that they had come to meet her and left by 4:00 PM. She has denied the suggestion that on 4.6.2006 at about 10:00 AM she and her son Dhananjay had given beatings to the deceased Seema as she was refusing to join the company of the accused Kapil or that she was interested St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 8 of 107 in some other boy due to which reason she committed suicide. The witness has also denied the suggestion that Seema was opposing the marriage proposal with accused Kapil Mudgil and has voluntarily added that she was very happy with the marriage proposal with the accused Kapil. According to her, the occurrence took place at about 8:15 PM and they had tried to extinguish the fire. She has testified that her neighbour had told her that fire had taken place in her house and they had come to join extinguishing the fire but she does not remember the names of the neighbours and states that they were some Sikh gentleman and one son of Pandit. According to her, she did not make a call to the police regarding the occurrence and has voluntarily explained that it was a neighbour who had called up. She has deposed that Seema was taken to the hospital in their car by her husband, daughter in law Lalita and his son Dhananjay but at that time of occurrence her husband was not present. According to the witness, within ten minutes of the occurrence she had informed the accused persons and had spoken to the accused Deepak Mudgil. She has denied the suggestion that she had called up the accused about three and half hours after the occurrence after which all the accused immediately reached the hospital. The witness has deposed that she had told the SDM that she had made calls to the accused. According to her, she had stated to the SDM that after two to three days after the marriage her daughter Seema was harassed by the accused Kapil, Deepak, Kusum, Kirti and Himanshu but when confronted which her statement Ex.PW2/A the said fact was not found recorded. She has further stated that she did not tell the St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 9 of 107 SDM that her daughter Seema used to call her up at her office as well and informed her telephonically about the harassment and torture meted out to her by the accused. She has denied the suggestion that she had made made improvements in her statement and has voluntarily stated that she was in a state of shock at the time of recording the statement by the SDM. According to her, she had not informed any of her colleagues regarding problems being faced by her daughter and has voluntarily added that being a recent marriage she did not want to put her family affairs to be exposed. She has further stated that she did not state to the SDM that accused Kirti had not been accepted by her in laws and used to reside in the matrimonial house of her daughter as she (Kirti) was not accepted at her in laws house. However, when confronted with portion A to A of her statement Ex.PW2/A it was found recorded that her Nanand had done a love marriage and used to visit her mother daily and harass her along with her mother for demand of jewellery. According to her, she did not report to the police or CAW Cell or any other authority about the torture or harassment given to her daughter by the accused. The witness has further stated that she had told the SDM about the incident dated 8.4.2006 when accused Himanshu and Kapil gave hot iron tong (Chimta) blows to Seema but when confronted with her statement Ex.PW2/A the said statement was not found recorded. She has also deposed that she had not reported the matter of 8.4.2006 to the police since her sisters and daughters dissuaded her. According to the witness, she had told the SDM about the incident dated 9.4.2006 but when confronted with St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 10 of 107 her statement Ex.PW2/A the said fact was not found recorded. She does not remember if she had stated to the SDM that she took her daughter to a doctor in the next morning, after seeing the injury on her person. According to the witness, she did not tell the SDM about the incidents dated 16.5.2006, 20.5.2006 and 26.5.2006 and has denied the suggestion that she did not mention these facts to the SDM since no such incidents had happened but has voluntarily added that she was upset at the time of recording her statement before the SDM. She has admitted that she did not visit the SDM again to give a complete statement. According to the witness, she had made a written complaint narrating the entire facts on 15.7.2006 at DIU Cell, Sector13, Rohini and her statement was also recorded on 17.9.2006. She has testified that her daughter had expired during the night of 4.6.2006 and her cremation had taken place at about 4:00 PM on 5.6.2006. The witness has admitted that accused Kapil had participated in all the last rites and has voluntarily added that it was at her behest that he had joined the last rites. She has denied the suggestion that the neighbours of accused and other residents of village Dhaka had joined the last rites and has voluntarily added that the family of the accused persons were present since 3:00 PM.
10. Further, in her crossexamination the witness has deposed that the receipts/ documents mark A, B, C and D pertain to the last rites of her daughter and the payments were made by her family members but she is not aware as to how these documents came in the possession of accused persons. She states, she is not known to any Nand Kishore (nephew of St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 11 of 107 accused Deepak) whose name is mentioned in the document Mark B. She has also deposed that police had arrived at their house on 4.6.2006 within ten minutes of taking away of her daughter to the hospital. According to her, photographer and fire officials had also reached in her presence and police officials had seized match sticks, match box, kerosene oil in can from the spot. She has also deposed that after the marriage had taken place, on 20.2.2006 her daughter was brought to her house by her son namely Jayant and Dhananjay and in the evening at about 8:00 PM accused Kapil, Kirti, Deepak and certain friends and family members (15 in number) had come to her house for Gauna Ceremony. She has admitted that her daughters Archna and Aarti and their husbands namely Dinesh and Deepak were also present and that on 23.2.2006 her daughter had come back to her house and went back to her matrimonial home on 2.3.2006. The witness has deposed that Seema had come a couple of days before Holi and accused Kapil had also come to their house for playing Holi. According to her, she had sent her daughter to her matrimonial home on 20.3.2006 and has voluntarily added that her daughter was not willing to go because of the demand raised by the accused persons. She has denied the suggestion that Seema did not like to return to her matrimonial home because she was not interested in living with accused Kapil. She has deposed that the accused Kapil and her daughter Seema might have stayed at Kullu Manali for two to four days. She is not aware if on 8.4.2006 accused Kapil and her daughter had seen a movie together at M2K Pitampura between 6:00 PM to 9:00 PM and has St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 12 of 107 voluntarily added that Seema was beaten on that night. She is not aware if she had wished the accused Kapil on his birthday on 3.4.2006 and has stated that she had called up the accused persons on 4.6.2006 between 8:15 PM to 8:30 PM on their landline phone but she does not remember the number. She has also deposed that her son Jayant had called the accused after 10:30 PM but has denied the suggestion that this was the first call made to the accused from their house. She has admitted that she had not expressed any grievances to the accused persons till about 5:00 PM on 5.6.2006 and has voluntarily added that they had not come to her till then. The witness has further admitted that her brother in law Satnarain Kaushik is working in Delhi Police as Daroga. She has deposed that on 9.4.2006 when the accused persons had come to their house they demanded the dowry in the presence of all the family members and on 10.4.2006 she had taken her daughter to their family doctor namely Dr. Avnish Aggarwal at 11:00 AM. She has denied the suggestion that Mark X (medical certificate) is a fake and fabricated at the instance of Dr. Avnish Aggarwal. She has also denied that the statement dated 17.9.2006 which is Ex.PW2/DA is an afterthought and a fabricated version. The witness has further stated that she had told the Investigating Officer in her statement Ex.PW2/DA that on 16.5.2006 all the jewellery of Seema had been removed; that all the accused persons came to his house on 20.5.2006 and 26.5.2006 had repeated their previous demands as a precondition to take back her daughter; that all the accused persons had come to her house again on 31.5.2006. However, when she was confronted St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 13 of 107 with her statement Ex.PW2/DA the said facts were not found recorded. According to the witness, she had cordial relations with all her neighbours but she did not call them on 9.4.2006 when the accused left behind her daughter. She has further deposed that the incidents of 20.5.2006, 26.5.2006 and 31.5.2006 were not revealed by her to her friends and neighbours. She has denied the suggestion that she herself and Satyanarayan demanded Rs.15 lacs from the accused persons and threatened to falsely implicate them if her demand was not met. According to her, on 16.5.2006 she did not make any call at 100 number even after having been told that her daughter was locked inside nor she intimate any of the neighbours of the accused persons about the same. The witness has further deposed that he had told the incident of 16.5.2006 to the mediator on telephone and she had taken her son in law, her daughters and mama to the house of the accused persons to settle the disputes on couple of occasions. According to her, they had gone on 17.5.2006 and also on 18/19.5.2006 and has voluntarily added that they had also spoken to the Tau of accused Kapil namely R.K. Sharma. The witness has further deposed that her daughter had called up from PCO in the gali on 16.5.2006 at the night on her landline phone but she is not aware the name of the PCO Booth.
11. She has denied the suggestion that R.K. Sharma is not in any manner related to the accused persons or that the Investigating Officer had investigated in the neighbourhood regarding the actual cause of suicide by her daughter and scared by his thorough investigations fearing her St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 14 of 107 implication, she filed a false complaint against him so that the investigations may be transferred from him. She has also denied the suggestion that so long as Seema (deceased) remained in the matrimonial home she was very well taken care of and affectionately kept. The witness has further denied that her daughter was taken by the accused persons to St. Stephen's Hospital for psychological treatment but has voluntarily added that false record had been prepared by the accused persons at the behest of one Bharat who is their relative and employed at St. Stephen's Hospital. She has also denied that she along with her husband had also gone with her daughter for her treatment to St. Stephen's Hospital on 25.5.2006.
12. PW3 Rajender Singh is the father of the deceased who has deposed that he has three daughters and two sons and his youngest daughter namely Seema (since deceased) was married with accused Kapil Mudgil on 18.02.2006. According to, him accused Kapil resided in the house with his father Deepak, mother Kusum, brother Himanshu and sister Kirti. He has correctly identified all the accused persons in the Court. The witness has further deposed that on 08.04.2006 his daughter called up his wife and told her that she was being beaten by all the accused persons using a hot iron tong (chimta) and she had been tied on a chair with rope and that the accused were demanding Rs.50,000/ in cash and a Maruti Car as dowry from her. According to him, on the next day i.e. on 09.04.2006 at 10:00 PM accused Kapil, Kirti and Himanshu came to their house to leave his daughter as their demand of cash and car had not been fulfilled and on the next St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 15 of 107 morning his daughter was shown to their family doctor namely Avnish Aggarwal. He has also deposed that about fifteen days later, accused Kapil came to their house to take back his daughter and they asked her to go with him but she was not interested in going as accused persons used to beat her for demand of dowry but they sent her with accused Kapil after counseling her. According to him, on 16.05.2006 at about 10:00PM his daughter called up his wife and told her that she had been pushed out of the house and that she was directed by accused persons to come back to their house only if she brought the Maruti car and Rs 50,000/ in cash. The witness has also deposed that on 04.06.2006 his daughter set herself a fire on the terrace of his house because of the harassment and torture of the accused persons on account of demand of dowry on which they took her to the Aggarsain Hospital where police also arrived. He has stated that the deceased was referred to Safdarjung hospital as she had sustained 95% burn injuries where at Safdarjung hospital, SDM and police arrived and on the same night she expired at about 1:00 AM. According to the witness, his statement was recorded by SDM on 05.05.2006 which statement is Ex.PW3/A and SDM had also recorded his statement regarding identification of dead body of daughter vide statement Ex.PW3/B. According to the witness, the dead body was handed over to him and his wife vide receipt Ex.PW2/C. He has proved that the accused Kapil was arrested in his presence on 05.06.2006 vide arrest memo Ex.PW3/D and the personal search of the accused was conducted vide memo Ex.PW3/C after which the disclosure statement of the St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 16 of 107 accused was also recorded which is Ex.PW3/E. The witness has testified that at the time of marriage of his daughter, he had given sufficient dowry to the accused persons i.e. Pulsor motorcycle, colored TV (LG), LG washing machine, dressing table, central table and a trunk consisting of 100 utensils, Titan watch, jewelery articles to his daughter and to the inlaws including clothes and other items at the time of marriage. He has proved the marriage card of his daughter which is Ex.X1. According to him, police had seized three burn sticks and cane having oil, one match box with words 'Ship' written on it, vide memo Ex.PW3/F and has voluntarily added that he and his wife were present in the hospital at the time of seizure and police had taken his signatures on 06th of June, 2006. Witness has further deposed that police had seized the aforesaid articles after making the pulanda but he does not know the initial of the seal. According to him, his daughter Seema told him that accused Kapil used to beat her daily. He is unable to identify the can, match box and the burn sticks as the same were not seized in his presence and has stated that the dowry articles which he had given at the time of marriage and another ceremonies are still with the accused persons.
13. The witness was found resiling from his previous statement due to which reason he was cross examined by Ld. Addl. PP for the State wherein he has admitted that his statement was recorded by the investigating officer on 05.06.2006 and that the Investigating Officer prepared the site plan at his instance who also got photographed the spot which photographs are mark X1 to X5. He has admitted that the doctor of Safdarjung Hospital St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 17 of 107 had handed over a pulanda duly sealed with the seal of SJ Hospital, New Delhi having scalp hairs of his daughter Seema (deceased) which was taken into possession vide memo Ex.PW3/G. The witness has further admitted that crime team was also called at the spot who had inspected the spot. He has denied the suggestion that the investigating officer had seized one plastic can having kerosene oil, one match box having ship written on it and three burn sticks but has voluntarily added that the same were seized in the presence of his wife.
14. In his cross examination by Ld. Defence counsel the witness has deposed that at the time of marriage of Seema he was working as a Teacher in a government Aided School and has denied the suggestion that Seema could not continue regular studies after 10th class and 12th or that Seema got a compartment in her class 10th result. He has admitted that before her marriage, Seema was teaching in J.D. Public School and after engagement with accused Kapil, Seema discontinued her job at J.D. Public School. He has denied the suggestion that she discontinued her job at his insistence as she had developed a love affairs with another boy and wanted to marry him or that she had refused to marry any person except the boy of her choice or that they had forcibly got her married with accused Kapil. He has further deposed that his statement was recorded only once, at the hospital in the presence of the investigating officer, at the time of delivery of dead body of Seema. According to him, the statement Ex.PW3/A was recorded by the investigating officer and merely signed by the SDM. He has St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 18 of 107 denied the suggestion that the portion A to A of his statement dated 01.09.2007 is improved and after thought only to ensure conviction for the accused persons. Witness has further deposed that the incident of dated 08.04.2006 and 09.04.2006 came to his knowledge only after the death of his daughter and states that he had seen marks of red injuries on her chest, when he got her examined by Dr. Avnish Aggarwal on 10.04.2006. He has admitted that Dr. Avnish Aggarwal has a clinic in his neighbourhood and is their family doctor. According to the witness, he did not tell the investigating officer about the examination of Seema by Dr. Avnish Aggarwal, at any point of time because he was upset about the death of Seema. He has denied the suggestion that no such medical examination of Seema had taken place and has stated that he did not report about the harassment and torture of his daughter to the police as he wanted to settle her in her matrimonial home. The witness has denied the suggestion that he did not report any such incident to police as no such harassment or torture had taken place or that accused persons never demanded Maruti Car of Rs.50,000/ in cash. He has also denied that the accused did not harass his daughter or that his daughter was not tied by the accused persons on a chair with rope nor she was given hot iron tong (chimta) blows. He has testified that his entire family is educated but he did not approach any NGO or Women Cell, regarding the torture of his daughter as he wanted to settle her in matrimonial house, however he had made complaint to the elder brother of accused Deepak namely S.K. Sharma. He has denied the suggestion that St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 19 of 107 about 15 days later accused Kapil came to their house to take his daughter but she was not interested in going with him as she was beaten by the accused persons for demand of dowry. The witness has also denied that on 16.05.2006 at about 10:00 PM Seema had not called up his wife and told her that she had been turned out of the house after being beaten or that she was sitting on the staircase of the house. According to the witness, he did not disclose to any of his neighbour regarding the torture of his daughter at her matrimonial home despite the fact that he had cordial relations with his neighbours. He has admitted that for the first one and half month of her marriage, Seema was not beaten and was happy at her matrimonial home. He is not aware from where Seema had called up on 16.05.2006 at 10PM but has stated that she was not possessing a mobile phone. The witness has further deposed that in his statement Ex.PW3/A he did not state that Seema came to their house on her own. Witness has denied the suggestion that his daughter was not harassed by the accused persons that is why in his statement Ex.PW3/A he did not make any such allegations and he only expressed his suspicion. He has admitted that in the last days of Seema at their house, all of them used to leave for work and she remained at home with a newly born child of his daughter in law. The witness has denied the suggestion that during this period Seema was visited by her lover and when he came of know of his visits, he confronted Seema and confined her inside the house or that troubled by such confinement, Seema committed suicide. He has admitted that on 04.06.2006 his elder daughter namely Archana St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 20 of 107 along with her children also visited them but has denied the suggestion that on 04.06.2006 Seema was beaten by his wife and his son Jayant, as she had refused to go to the house of accused. She has admitted that his cobrother namely Sh. S. N. Kaushik is Head Constable in Delhi police and that initially he had refused to make statement before the SDM as he was upset because of death of his daughter. The witness has denied the suggestion that he did not make the statement because his daughter had not been harassed by the accused persons or that he had no grievances against the accused persons. He has also denied the suggestion that he made a statement later at the instance of his cobrother who is a police official or that he demanded Rs.15 lacs from the accused persons or that his daughter was kept happily at the matrimonial home and there was no demand from her or there was no cruelty to her.
15. PW4 Dhananjay Vashisht has deposed that deceased Seema was his younger sister who was married with accused Kapil Mudgil as per Hindu Rites and Customs on 18.02.2006. According to him at the time of marriage, they had given her sufficient dowry and at the matrimonial home of his sister accused Deepak Mudgil (father in law), Kusum lata (mother in law), Kirti Mudgil (nanad) and Himanshu Mudgil (devar) lived with his sister whom he has correctly identified all the accused persons in the Court. The witness has further deposed that within a week of the marriage his sister was being harassed and tortured by all the accused persons for demand of Rs.50,000/ cash, car and gold jewelery. According St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 21 of 107 to the witness on 08.04.2006 during the night his sister was tied on chair with the help of ropes by Kapil Mudgil and Himanshu and was beaten by all the accused persons and hot iron tong (chimta) blow was given to her on the chest, back and on the shoulders after which she was told to go to her parental house and return only with Rs.50,000/ in cash, car and gold jewelery. He has also deposed that Seema was left at their house on 09.04.2006 after 10:00 PM by the accused persons and after noticing injuries on her person she was taken to a nearby doctor namely Dr. Avnish Aggarwal on 10.04.2006. According to him, after about 10 days, they took Seema back to her matrimonial home and explained to the accused persons that they could not arrange so much of cash and dowry and another week later he went to meet his sister he saw that she was sitting alone in the room and none of the accused persons was even speaking to her. He has alleged that Seema was being denied food and he had taken fruits for her which he made her to consume. The witness has further deposed that on 16.05.2006 in the night he received a phone call from Seema that she was again beaten and was being harassed by all the accused persons and she had been pushed out of the house and was sitting outside when she made the phone call. According to the witness, he himself, his younger brother Jayant and his parents went to the house of the accused persons and tried to speak to the accused persons but they refused to open the door of their house saying that Seema should be taken back to their house and be sent back only if their demands had been met with. He has also testified that twothree days St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 22 of 107 thereafter his elder brother in law namely Dinesh Vats, Archana Vats, himself and his parents went to the house of the accused persons and tried to counsel them that they should not harass and beat Seema for demand of dowry, since they were not in a financial position to meet their demands after which they returned home. According to the witness on 20.05.2006 all the accused persons came to their house and asked if their demands had been arranged for as a precondition to take back his sister. He has also deposed that on 26.05.2006 a telephone call was received at their house made by mother in law (Kusum Mudgil) demanding clothes, jewelery and food for all of them for the festival of "BADMAVAS". The witness has testified that in the afternoon, he went to their house and gave the aforesaid gift items but on the same night accused persons again came to their house and asked if their demands had been fulfilled, they will not meet his sister or even speak to her. He has also alleged that on 31.05.2006 the accused again came to their house and repeated their demands when they expressed their inability. According to him, on 04.06.2006 his sister had committed suicide having been harassed by the demands of the accused persons and considering their inability to meet the demands of accused persons. The witness has further deposed that on the day of incident when he and his father were away to the market, Seema went to the terrace and set herself ablaze by pouring kerosene oil on herself and when they came back to the house then they took her to Maharaja Agarsain Hospital for treatment. He has deposed that after First Aid Seema was shifted from Maharaja Agarsain St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 23 of 107 Hospital to Safdarjung Hospital and at 1:30 AM of 05.06.2006 she breathed her last in the presence of all family members except his mother. According to the witness, the body was taken for postmortem examination after which it was handed over to them and the last rites were performed by them.
16. During his cross examination by the Ld. Defence counsel witness has deposed that his statement was not recorded by the investigating officer through out the investigations of the present case and he was shown the statement by the investigating officer and told that the same was recorded on his behalf. According to him, the alliance with accused Kapil Mudgil was suggested by his maternal aunt namely Lakshmi Bhardwaj with whom they had cordial relations being his mausi. He has also deposed that he had met the accused persons four to five times prior to the marriage of his sister and after the ring ceremony i.e. over a period of six months during which period he did not find any abnormal conduct of the accused persons. He has denied the suggestion that his statement was recorded by the investigating officer on 05.06.2006 or that he had made a totally false statement in the court, that is why he had not made any statement to the investigating officer. The witness has admitted that his masi Lakshmi Bhardwaj used to visit their house prior to and even later to the marriage of Seema. According to the witness, his sister lived in the matrimonial home for the month of February and March 2006 and came to their house only on 09.04.2006 but has voluntarily stated that she had also came to their house on Holi. He does not remember the exact date of Holi and states that she St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 24 of 107 had stayed for a period of one week and left for her matrimonial home on the day of Holi which fell on Monday. Witness has further deposed that he was aware that complaint regarding harassment to married women shall be made at CAW cell and the police station, however no such complaint was made by them and has voluntarily stated that they wanted her to settle in the matrimonial house. According to the witness they did not tell any of their neighbours regarding the harassment of his sister and has voluntarily stated that they only told their relatives. The witness has further deposed that his mother told about the harassment of Seema to Lakshmi Bhardwaj for the first time on 09.04.2006 telephonically after which his masi had come to their house on the next day. He has denied the suggestion that no such complaint was made to his masi Lakshmi Bhardwaj as no such act had taken place. He has further deposed that the telephone number of his masi was not made available to the investigating officer during investigations. The witness has denied the suggestion that accused Kirti was not present in the house of accused because she was a married woman and has voluntarily added that Kirti had been deserted by her in laws due to which reason she used to live with the accused persons during the day and returned to her husband during the night. He has also denied the suggestion that accused persons did not cause any beatings to his sister on 08.04.2006 or that she was not tied with a chair by Himanshu or Kapil Mudgil or by any other accused or that no hot iron chimta was used to cause injuries to her. He has also denied the suggestion that there was no demand of car, Rs.50,000/ in St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 25 of 107 cash or gold jewelery by any of the accused persons. He has admitted that Dr. Avnish Aggarwal is their family physician but has denied that his sister was not treated by Dr. Avnish Aggarwal on 10.04.2006. He is not aware if his sister Seema and accused Kapil had gone for a movie on 08.04.2006 at M2K, Pitampura from 6 to 9 PM. According to him, he did not report the occurrence of 08.04.2006 as they wanted their sister to settle in her matrimony but has denied that no such incident had taken place on 08.04.2006, that is why no complaint was made to any authority. The witness has further deposed that Seema had come to them on 09.04.2006 but they had not reported the matter to any neighbour and had only informed the elder brother of accused Deepak Mudgil who lived in the neighbourhood, whose name he is not aware. He has deposed that on 16.05.2006 phone call was received on their land line number but he is not aware from which phone Seema had made the call. According to him, Seema does not possess a mobile phone and they did not collect any friends or relations to go to the house of the accused persons nor they report the matter to any of the neighbours of accused persons nor to the police. Witness has further deposed that when they went to the house of accused, his sister was sitting on the steps in the gali outside the house of accused persons. According to him, there are other residential houses in the neighbourhood but there were no passerby in the gali when they reached there and has voluntarily explained that people in villages sleep early. He has admitted that one Satya Naraian posted in the Delhi police is related to them but according to him, St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 26 of 107 they did not discuss the matter with Satya Narain at any stage. The witness has testified that he did not see the conveyance used by the accused persons on 20.05.2006 and that the incident of 20.05.2006, 26.05.2006 or 31.05.2006 was not reported to the police or to the neighbourers as they wanted Seema to settled in her matrimonial home. He has denied that no such reports were made to the police or the neighbour as no such incidents had taken place on any of the three dates mentioned above. The witness has deposed that on 26.05.2006 phone call had been received on their land line and subsequently on his mobile phone and he had also spoken to the accused persons by making a call from his mobile phone. According to the witness, his family members knew of the gifts taken by him on 26.05.2006 on the festival of Badmavas. He has denied the suggestion that no such gifts were given or demanded on 26.05.2006. He has testified that he did not make any statement to the SDM and has voluntarily added that his parents had made the statement. He has denied the suggestion that he did not make any statement to the investigating officer, SHO or SDM as his sister had no complaint against the accused persons or that he was deposing falsely on being tutored by his parents. The witness has denied the suggestion that on 04.06.2006 at about 10AM he and his mother had caused beatings to Seema as she was not happy in the present marriage and wanted to marry some other person or that she had refused to return to the matrimonial home that is why they gave her beatings or that on account of their conduct she committed suicide.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 27 of 107
17. The witness has admitted that Seema and accused Kapil had stayed at Kullu from 27th March, 2006 to 01st April, 2006 and that Seema and accused Kapil had brought jacket for Jayant and his son from Kullu. He is not aware if on 16.05.2006 accused Kapil had taken Seema to St. Stephen hospital to psychiatry ward but has denied the suggestion that on 25.05.2006 Seema was taken by them to St. Stephen hospital to psychiatry ward and has voluntarily stated that a cousin brother of accused Kapil namely Bharat was working in St. Stephen hospital as a Lab. Technician. He has denied the suggestion that accused did not harass or torture his sister on any accounts or that she was kept affectionately by the accused persons. The witness has also denied the suggestion that he has deposed falsely or that they had demanded Rs 15 lacs from the accused persons on which they had declined to pay.
18. PW6 Mrs. Archana Vashisht is the real sister of the deceased who has deposed that her younger sister Seema was married to accused Kapil Mudgil on 18.02.2006 as per Hindu rites and ceremonies and before the marriage accused Deepak demanded a gold ring for his elder brother which was given. According to her, at the time of marriage dowry including furniture, gold jewelery, clothes and cash, pulsar motorcycle, electronic goods i.e. TV, washing machine, fridge, press etc were also given and after marriage her sister shifted to her matrimonial home at H.No. 82, village Dhaka, Delhi where all the accused persons lived together. She has deposed that after one week of the marriage, her sister was sent back to their St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 28 of 107 house on the pretext that accused Kapil was to sit for an interview but subsequently some demand was made i.e. Rs.50,000/, a car and cash. According to the witness, Seema was taken back by Kapil a week later but at the matrimonial home Seema was harassed and tortured for the above said demand. She has further deposed that on 10.04.2006 she went to her parental home where Seema was also present who told her that she had been left at the house of parents by her in laws as their demands have not been met and further told that she had been tied to a chair and hot iron chimta was used to torture her, by the accused persons. According to the witness, Seema also told her that accused Kapil tortured her with cigarette butts and showed her the injuries marks on her body and further told that she did not want to go to her matrimonial home because of the torture. She has deposed that she counseled Seema that they will try to meet the demands, slowly and the situation would improve. She has testified tht on 11.04.2006 she herself, her husband Dinesh Kumar and her father, mother and her brothers went to the house of accused persons and met Mr. S. N. Sharma, accused Deepak, Kapil Mudgil, mother in law and Dadi (grandmother) of accused Kapil and advised them not to torture, harass Seema but the accused again raised the demands of Rs.50,000/, car and jewelery and at that time Seema was at the house of her parents. She has also deposed that on the next day i.e. 12.04.2006 Kapil came and took Seema with him but she was again tortured for the demands.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 29 of 107
19. The witness has further deposed that on 20.05.2006 she went to the house of her parents, where Seema told her that accused persons had taken away her jewelery which she was wearing and was forced out of their house and on the same day, she attended a phone call made by accused Kusum Lata, where she reiterated the aforesaid demands. She has testified that on 04.06.2006 she called up the in laws of Seema to inform them about the death of Seema when her father in law i.e. accused Deepak attended the call and laughed at the information. She has correctly identified all the accused persons in the court.
20. In her cross examination by Ld. Defence counsel witness has deposed that her statement was not recorded by the investigating officer during investigations and has denied the suggestion that she did not make any statement to the investigating officer as there was no grievance against the accused persons or that because her sister was living happily in the matrimonial home. According to her, she saw the SDM twice during the investigations of this case and she had described orally the entire circumstances to the SDM but her formal statement was not recorded by him. She has denied the suggestion that she had been tutored by her parents and brothers or that no gold ring was demanded before the marriage by accused Deepak for his elder brother or that all dowry articles given to her sister were voluntarily gifted by her parents. According to the witness, she did not advise her sister to approach the CAW cell or any other NGO for her harassment since she wanted her to settle in the matrimonial home and St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 30 of 107 thought that better senses would prevail on the accused persons. She has denied the suggestion that she did not advise so to Seema as there was no such situation. According to the witness, they did not tell any of the neighbours regarding the cruelty to Seema as it was a personal matter between two families. Witness has denied the suggestion that they did not tell the neighbours as there was no such occurrence or that Seema was taken back by Kapil within a few days or that at the matrimonial home she was not harassed and tortured for the above said demand. Witness has further denied the suggestion that she did not visit her parents home on 10.04.2006 or that she did not meet Seema or that she did not told her about any occurrence regarding her torture using hot iron tong (chimta) or cigarette butts. She has also denied the suggestion that Seema did not show any burn injuries to her on her person or that Seema did not want to go to her matrimonial home because she was not interested in marrying accused Kapil since she was involved with some other boy. Witness has further deposed that Seema was a regular student when she passed class 10th,12th and graduation and Library Science Course.
21. According to her, she made a call on 04.06.2006 at the land line number of the accused persons but she does not remember the number. She has denied the suggestion that no such call was made by her or that accused Deepak did not respond by laughing. Witness has deposed that on 04.06.2006 she was at the house of her parents till the evening. She has denied the suggestion that during the period of her stay at her parents house, St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 31 of 107 they all used to leave the house and Seema had opportunity and time to see her lover or that Seema was therefore restrained inside the house by her parents since she refused to go with accused Kapil. The witness has further denied the suggestion that on 04.06.2006 her mother and brother Dhanjay gave beatings to Seema due to which reason Seema committed suicide on account of instigation by their family. She has also denied the suggestion that accused persons did not harass Seema or that no demand was ever made from her or from her parents or that her parents demanded Rs.15 lacs from the accused persons and on their refusal they filed the present false case.
22. PW7 Jayant Vashist is the brother of the deceased who has deposed that his sister Seema was married to accused Kapil Mudgil on 18.02.2006 as per Hindu rites and ceremonies and before the marriage, accused Deepak demanded a gold ring for his elder brother which was given. According to him, at the time of marriage dowry including furniture i.e. sofa set, bed, center table, gold jewelery, 101 pair of clothes, cash, pulsar (self start) motorcycle, electronic goods i.e. TV washing machine, fridge, press etc. were also give and after marriage his sister shifted to her matrimonial home at H.No. 82 Village Dhaka, Delhi where all the accused persons lived together. Witness has further deposed that shortly after the marriage, he visited his sister's matrimonial home when she told him that accused persons were not happy with the dowry given to them and that they harassed her for demanding more dowry. According to the witness, Seema told him that accused Kapil demanded a car, accused Kirti demanded gold St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 32 of 107 jewelery and accused Kusum Lata demanded Rs.50,000/ and that she she was beaten by accused Deepak during the night and by accused Kirti and Kusum during the day. He has testified that Seema also told him that the accused demanded the aforesaid articles from her and that she was denied food since couple of days. He has correctly identified all the accused persons in the Court. The witness has deposed that Seema had come to their house three four days prior to Holi and on the day of Holi, accused Kapil, Himanshu and husband of Kirti along with a cousin and a child came to their house to play Holi when they demanded clothes for all of them and Rs. 1100/ in cash for each of them. According to the witness, his parents gave clothes and cash as demanded on which Seema went back to her matrimonial home after three four days of Holi. He has deposed that on 03.04.2006 it was birthday of accused Kapil when he called him up on his mobile phone and wished him for his birthday. The witness has further deposed that his sister Seema told them that accused Kapil demanded Laptop form them as a birthday gift but they could not gave him the laptop, therefore, on that night Kapil tortured her with cigarette butts. Witness has further deposed that on 09.04.2006 Seema was brought by all the accused persons and she had injuries all over her body. According to him, Seema told him that on 08.04.2006 she was tied to a chair by Kusum and Kirti and was beaten by chappal and dandas by all the accused persons and she was also beaten by a hot iron chimta. He has further deposed that on 09.04.2006 when the accused persons came to their house, they demanded Maruti car, St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 33 of 107 Rs.50,000/ in cash and gold jewelery, failing which they would not take back Seema. According to him, on 10.04.2006 Seema was taken to Dr. Anish Aggarwal's clinic who is their family doctor and about seven to ten days later he himself, his brother Dhanjay and his mother went to the house of accused persons and left Seema at her matrimonial home which the accused persons asked them if their demands had been fulfilled on which they expressed their inability to meet their demands and after explaining the situation to the accused, they left Seema at their house. The witness has further deposed that few days later, he went to meet Seema when she was sitting alone in a room on the second floor, whereas all the accused persons were sitting on first floor room together. According to him, the accused asked him if they had arranged for their demands and his purpose of visiting their house, when he explained that he had come to meet his sister, but they told him that he should not visit them unless their demands are arranged for. Witness has further deposed that his sister told him that she was being beaten for the last three four days by accused Kusum, Kirti and Kapil for the demands raised by them. He has testified that on 16.05.2006 Seema called up at their house and told them that she had been turned out of the house as their demands had not been fulfilled. According to the witness, he himself, his mother and brother went to the house of accused when they saw that Seema had been locked outside, on which they knocked the door but the accused did not open the door and accused Kapil and Himanshu spoke to them from the balcony of first floor that their relations had ended as their St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 34 of 107 demands have not been fulfilled. He has further deposed that on 20.05.2006 accused persons again came to their house and reiterated their demands and they visited them on 26.05.2006 and 31.05.2006 for their demands. According to him during these visits, the accused did not meet Seema and told them that they should get in touch with them, only when the demands had been arranged for. He has stated that driven by the circumstances, Seema committed suicide on 04.06.2006 on account of cruelty by the accused persons.
23. In his cross examination by Ld. Defence counsel witness has deposed that he had narrated the incident to the investigating officer on 05.06.2006 at about 3 PM at Safdarjung Hospital, however, he had not made any statement to the SDM. According to him, SDM and the investigating officer were standing together at the hospital and his parents made statement to the SDM. He has deposed that he had told the investigating officer that the accused persons had demanded gold ring for elder brother of accused Deepak. The witness has further deposed that he had stated to the investigating officer that accused persons had started torturing his sister, shortly after the marriage and this had happened two three days after the marriage but when confronted with his statement Ex.PW7/DA the said fact was not found so recorded. He has also deposed that he had not stated to the investigating officer about the visit of accused Kapil and his other relations to his house on the day of Holi or regarding the demand made at the time of Holi and meeting those demands or that Seema went back to her St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 35 of 107 matrimonial home after three to four days of Holi. The witness has testified that he did not tell the Investigating Officer the various facts as mentioned in his examination in chief at points A to A, B to B, C to C, D to D, E to E, F to F and G to G. He has denied the suggestion that he did not state so as no such occurrence had taken place or that he was deposing falsely. However, it has been mentioned in the statement Ex.PW7/DA that Seema was sent back to her parents home about a month earlier with the demand of car and Rs.50,000/. The witness has denied the suggestion that no demand of maruti car, Rs 50,000/ in cash or jewelery was ever made by accused persons.
24. He has deposed that on 20.05.2006 and 31.05.2006 accused persons had visited their house between 810PM by car but they did not discuss these visits with any neighbour or relations. He has admitted his sister worked in J.D. Public School as Incharge and has stated that the said school belonged to them. He has denied the suggestion that his sister was maintaining affairs with another boy or that she had refused to marry accused Kapil because this affairs. The witness has also denied the suggestion that they did not allow Seema to move about free and she was restrained in the house because of her affairs with another boy or that on 04.06.2006 his brother Dhanjay and his mother gave beatings to Seema on account of this errant behaviour. He has further denied the suggestion that driven by such harassment Seema committed suicide or that they had demanded amount of Rs.15 lacs from the accused persons but the accused St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 36 of 107 refused to meet this illegal demands. The witness has admitted that they did not report the matter to CAW cell or any NGO and has voluntarily added that they had not reported the matter to save the matrimonial life of his sister and to maintain the honour of family. He has denied the suggestion that his sister was never harassed or tortured by the accused persons or that no demand was ever made from her or from his parents or that she was given all love and affection by the accused persons.
25. PW11 Balkishan Sharma has deposed that he is a photographer by profession and on the date of the incident he was having his shop under the name and the style of M/s. Sharma Digital Photo Studio. According to him, he was called by SI Ranbir Singh to take the photographs of the spot at house no. WZ 567, Srinagar, Delhi and the spot was located at first floor. The witness has further deposed that he was told that some lady had been burnt and he was required to take the photographs of the room. He has proved having taken five photographs which are Ex.PW11/A to Ex.PW11/F.
26. A specific question was put by the Ld. APP for the State to the witness in respect of the house no. during which he has admitted that the correct house number was WZ577.
27. In his cross examination by Ld. Defence counsel the witness has admitted that he had not produced the negatives in the court and has voluntarily added that negatives are not traceable since he has now shifted his shop. According to him, he had not given any receipt after taking the St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 37 of 107 money from the Investigating officer for taking photographs hence, he cannot produce the same. Witness has further deposed that he had noticed some tyres lying at the spot along with a bucket and some clothes. He has stated that except for the family members and the police persons, no other public person was present and he does not remember exactly as to how many family members were present at that time at the spot. He has testified that the spot is located at about one km from his shop and he was not sure if Ranbir Singh was an Inspector or Sub Inspector.
Medical evidence/ witnesses:
28. PW1 Dr. Sanjay Arora has deposed that on 4.6.2006 he was posted at Maharaja Agarsen Hospital when the patient Seema Mudgil was brought to the hospital by her father with alleged history of burn with kerosene oil. According to the witness, he examined her at 8:40 PM and found the general condition of the patient to be very sick, drowsy, restless, her pulse was not palpable and BP was not recordable. The witness has further deposed that on examining the chest the air entry was found to be opened but some conducting sounds were noticed to indicate that there was some choking but the heart was found to be normal. According to the witness, on local examination 95 to 100% deep dermal burns were found all over the body after which the witness was referred to Safdarjung Hospital for admission in ICU. He has proved that the patient was unfit for statement on 4.6.06 at 9 PM and the MLC Ex.PW1/A is in his handwriting. The St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 38 of 107 witness has not been cross examined on behalf of the accused despite opportunity and his testimony has gone uncontroverted.
29. PW10 Dr. Sarvesh Tandon has deposed that on 05.06.06, he was posted at Safdarjung Hospital, where he conducted the postmortem on the dead body of Seema Mudgil W/o Sh. Kapil Mudgil, aged 24 years, vide Postmortem No.948/06 which body was sent by SDM Narela Mr. Vijay Dogra and accompanied by SI R.S. Dagar, Police Station Saraswati Vihar. According to him, there was alleged history of pouring Kerosene oil over her and burning at her father's residence on 04.06.06 and died at Safdarjung Hospital on 05.06.06 at 01.25 AM. The witness has further deposed that RigorMortis was fully developed, back was burnt, smell of kerosene oil was present in scalp hair, serous fluid was coming out of mouth and nostrils. The witness has proved that on external examination, there were superficial to deep burns present all over the body, which were red, inflamed and the lines of redness were seen and the deceased was 100% burnt. According to the witness, on internal examination brain was congested, mucosa was inflamed, lungs were congested, other internal organs were also congested, stomach was having 50 ml. medicinal fluid, uterus was non gravid and urinary bladder was empty.
30. The witness has proved that the cause of death in this case was hypovolumic shock due to dry flame, thermal, ante mortem burn injuries and time since death was approximately same as in hospital records. He has deposed that scalp hair were preserved for the presence of St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 39 of 107 kerosene oil. He has proved his detailed report which is Ex.PW10/A which is in his hand and bear his signatures at point A. Police/ Official witnesses:
31. PW5 Sh. Vijay Dogra has deposed that on 04.06.2006 he was posted as SDM, Narela and on that day at about between 9 to 9:30 PM he received a phone call from police station Saraswati Vihar regarding burning incident of a woman at Srinagar, near Rani Bagh, Delhi. According to the witness, he was told that the body had been shifted to Safdarjung Hospital on which he reached Safdarjung Hospital at about 10:15 PM. Witness has further deposed that the body of the girl appeared to have 100% burn injuries and the doctor attending upon her declared the patient unfit to make statement. According to him, at about 12:00 PM in the night, he again sought the opinion of the doctor regarding the fitness of patient to make statement and he was again given the same opinion that the patient was unfit to make statement. He has proved the application moved by the Investigating Officer seeking opinion regarding fitness of the patient which is Ex.PW5/A. According to him, he spoke to the family members of the lady (victim) who were present at the hospital and thereafter he returned home because the family members of the lady (victim) were not willing to make statement at that time. The witness has also deposed that in the morning, he received another call from the police officials intimating that the lady had expired on which he reached the hospital on 05.06.2006 at St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 40 of 107 about 10AM. He has proved having recorded the statements of mother and father of the deceased which are Ex.PW2/A and Ex.PW3/A. The witness has further deposed that on the statement Ex.PW2/A he made endorsement directing registration of FIR which is at point X to X on statement Ex.PW2/A. According to the witness, he carried out the proceedings under Section 176 Cr. P.C. his application for postmortem of the deceased Seema D/o Sh. Rajinder Singh is Ex.PW5/B; Form No. 25.35(1)(b) is Ex.PW5/C, DD No. 4B and 7B dated 05.06.2006 are Ex.PW5/D and Ex.PW5/E. He has also proved having recorded the statement of Santosh Sharma and Rajinder Singh regarding identification of dead body of Seema. According to the witness, he gave directions to SI Ranbir Singh that the dead body of deceased Seema was handed over to the family of the deceased after the postmortem which directions are from point X to X on Ex.PW5/B.
32. In his cross examination by Ld. Defence counsel the witness has deposed that the statement Ex.PW2/A and Ex.PW3/A are not scribed by him but states that the same were taken down by the investigating officer in his presence on the information given by the parents of the deceased. He has denied the suggestion that the statements were recorded after 4 PM on 05.06.2006 after the cremation of the dead body and has voluntarily added that the statements were recorded before the postmortem examination of the dead body as all the documents including the statements were handed over to the autopsy surgeon before the postmortem examination. According to St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 41 of 107 the witness, he did not visit the house of complainant party, where the occurrence is stated to have taken place. He is unable to tell if the parents of deceased did not make statement on 04.06.2006 during the night since they had no grievances against the accused persons at that time.
33. PW8 Ct. Balraj Singh has deposed that on 04.06.2006 he was posted at police station Saraswati Vihar and was on emergency duty from 8:00 PM to 8:00 AM. According to the witness, on the receipt of DD No.32A he along with SI Ranbir Singh went to Safdarjung Hospital. He has deposed that when they reached the hospital Seema was alive and investigating officer collected her MLC but later on she expired and a call was received to this effect in the police station. According to the witness, he along with SI Ranbir Singh again went to Safdarjung hospital where she was declared dead by the doctor. He has testified that he remained with the dead body of Seema till her postmortem was conducted and after her postmortem the dead body was handed over to her parents.
34. The said witness was found resiling from his previous statement due to which reason he was crossexamined by the Ld. Addl. PP for the State wherein he has admitted that on receipt of DD No.32, he along with SI Ranbir Singh first went Maharaja Agarsain Hospital where investigating officer collected the MLC of Seema on which she was declared unfit for statement and was referred to SJ Hospital. Witness has admitted that from Maharaja Agarsain hospital, he along with SI Ranbir Singh went to Safdarjung Hospital where Seema was declared dead. He has also St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 42 of 107 admitted that SDM was called by SI Ranbir Singh and SDM came to hospital. The witness has admitted that SDM carried out the inquest proceedings and recorded the statement of parents of deceased.
35. In his cross examination by Ld. Defence counsel witness has deposed that his statement was recorded by the investigating officer on 04.06.2006 but he does not remember the time. According to him they had reached Agarsain Hospital during the night but he does not remember the time when they reached Aggarsain Hospital and Safdarjung Hospital. He does not remember the time when SDM reached Safdarjung Hospital or the time when statements of parents of the deceased were recorded. He is not aware if the parents of deceased did not make any statement to the SDM during that night. Witness has deposed that his statement under Section 161 Cr. P.C. bear the date of 05.06.2006 since it was past midnight by that time due to which reason the date mentioned is of 05.06.2006. According to the witness, he remained at the hospital till the postmortem of deceased but he is not aware if accused Deepak and his other relations were present at the hospital. He has denied the suggestion that he was not with the investigating officer or that he was deposing falsely at the instance of the investigating officer.
36. PW9 ASI Satpal Singh has deposed that on 04.06.2006 he was posted as Incharge Crime Team NW District, Pitampura and on the same day he was called at house No. WZ557, Shri Nagar, Saraswati Vihar with crime team. According to him, he inspected the spot and prepared the St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 43 of 107 Crime Team Report which is Ex.PW9/A which he handed over to the investigating officer SI Ranbir Singh. Witness has further deposed that the injured had already been shifted to hospital when the crime team reached the spot.
37. In his cross examination by Ld. Defence counsel witness has deposed that the camera of photographer of crime team was not operational, therefore a private photographer was called by the investigating officer to take the photographs. According to him from the spot investigating officer had seized articles mentioned at point B to B in his report. He has denied the suggestion that the crime team did not conduct any proceedings or that he did not visit the spot or that report was prepared at the asking of the investigating officer.
38. PW12 SI Ranbir Singh has deposed that on 04.06.06, he received DD no.32 A pursuant to which he along with Ct. Balraj went to the house no. WZ 557, Shrinagar, Delhi where he came to know that one lady was burnt and had been shifted to Agarsen Hospital, Punjabi Bagh. Thereafter, he and Ct. Balraj reached Maharaja Agarsen Hospital where they came to know that the doctors had already referred the lady to Safdarjung Hospital and from the MLC he came to know that she was burnt to the extent of 95% 100%. Witness has further deposed that he had seen that she was being taken to Safdarjung Hospital in an Ambulance and the doctors at Maharaja Agarsen Hospital handed over to him some pullandas containing the clothes of the victim. According to him the pullandas were St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 44 of 107 two in numbers and were duly sealed with the seal of the hospital which pullandas were seized vide memo Ex.PW11/A. The witness has further deposed that thereafter he reached the police station and deposited the pullandas in the Malkhana after which he got the information entered in the DD register vide DD no.4 B to the extent that the victim had been shifted from Agarsen Hospital to Safdarjung hospital which DD is Ex.PW5/D. According to the witness, in the meantime while he was still in Agarsen Hospital he had informed the area SDM of the incident and the Area SDM had gone to Agarsen Hospital but since the victim was not fit for statement he could not record her statement, he thereafter reached Safdarjung Hospital along with DD no. 4B and again informed the SDM concerned, who reached the Safdarjung Hospital but the victim was still unfit for statement. He has testified that the SDM thereafter, made inquiries from the parents of the victim but did not record their statements and went away after giving him instructions to inform him the position of the victim. According to the witness, after some time the victim was declared dead, which information he gave to the SDM on which the SDM again came to the spot and thereafter recorded the statement of the parents and conducted the inquest proceedings and directed registration of the FIR on the basis of the statement of the parents. He has testified that in the meanwhile the postmortem was conducted on the body of the deceased after which he was handed over one pullanda containing the scalp hair of the deceased, which he seized vide memo Ex.PW3/G which he thereafter deposited in the Malkhana. The St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 45 of 107 witness has further deposed that he joined investigations along with the Investigating Officer Insp. Gajraj Singh on 05.06.06 and went to arrest the accused at village Dhaka, from where they arrested the husband of the deceased namely Kapil Mudgil vide arrest memo Ex.PW3/D and personally searched vide memo Ex.PW3/C. He has also admitted that he collected the postmortem report from the Safdarjung Hospital.
39. Leading questions were put by Ld. Addl. PP for the State wherein the witness has admitted that the accused Kapil had made a disclosure in his presence which is Ex.PW3/B. He has also admitted that on 04.06.06 when he had visited the spot on receipt of DD no.32 before the registration of the case, he had found one plastic can containing kerosene oil filled upto two inches and one matchbox with 'SHIP' written on it and three burnt match sticks, which he had put in a pullanda and sealed it with the seal of RS and seized the same vide memo Ex.PW3/F. He has correctly identified the accused Kapil Mudgil and also the case property i.e. one plastic can, one match box on which 'SHIP' is written, the matchbox containing some sticks and four burnt sticks as same having been seized from the spot, which can is Ex.P1, matchbox along with unburnt stick are Ex.P2 and the burnt sticks are Ex.P3.
40. In his cross examination by Ld. Defence counsel the witness has deposed that he received DD no.32A at police station and he left the police station with the DD no.32 A at about 8.00 PM. According to the witness, he reached the spot on motorcycle within five to seven minutes and St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 46 of 107 he had located the house by seeing the house numbers of the locality. He has further deposed that there were only two to four public persons when he reached the spot and the elder sister & mother of the deceased were present at the spot. According to him he had made inquiries from the public persons about the incident but they did not disclose anything. He is unable to tell the names and addresses of persons from whom he made inquiries and did not ask anything from the sister and mother of the deceased and they merely told him that the deceased had been removed to Maharaja Agarsen Hospital. According to the witness, he hardly stayed for about two minutes at the spot and during that time the mother and the sister did not divulge anything against the accused persons. Witness has further deposed that after leaving Ct. Balraj on the spot, he left for Maharaja Agarsen Hospital and reached Agarsen hospital at Emergency where he found the father of the deceased, both brothers of the deceased present and the same time the mother of the deceased had also reached the hospital. According to him, he remained at the Aggarsain Hospital for about 45 minutes to one hour during which period the parents of the deceased had told about the harassment and torture extended by the accused to their daughter (victim) but he did not record their statement at that time since he was not suppose to record their statement as the same was to be done by the SDM. The witness has further deposed that when the SDM arrived at the Maharaja Agarsen hospital, the victim was already shifted to the Sardarjung Hospital. He has denied the suggestion that no mention of harassment and torture extended by the accused persons St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 47 of 107 to the deceased was ever made by the parents of the deceased. Witness has further deposed that the elder sister of the deceased had not gone to the Agarsen hospital and the SDM arrived at Maharaja Agarsen hospital at about 08.45 PM to 9.00 PM but no family member was present at the Agarsen hospital when the SDM reached the hospital. He has stated that after seeing the MLC, SDM left the hospital and he himself also left the hospital with MLC for the spot where he reached at about 10.00 PM. According to the witness, at that time he found four to five relatives of the victim in addition to other family members of the victim to be present at the spot and some neighbours were also present there. Witness has further deposed that this time he stayed at the spot for about half hour to one hour and he made inquiries from the persons present at the spot but nobody told him anything. According to him he had called photographer for taking photographs but he did not remember his name. He has also deposed that he prepared one pullanda from the spot of the 'CAN' containing kerosene. He has admitted that no persons were present at the spot made allegations against the accused persons at that time. According to him, after the receipt of the DD No. 4B he left for Sardarjung Hospital alongwith Ct. Balraj and telephoned the SDM to come to the Safdarjung Hospital. He has admitted that the family members of the victim and also the family members form her (victim) matrimonial family were found to be present at the Safdarjung Hospital. According to him, at that time the victim was alive but was unconscious and the SDM left the hospital after giving him instructions to St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 48 of 107 inform him as and when the victim was fit for statement. The witness has also admitted that the SDM met the family members of the victim, the victim and also the accused. He has further admitted that this time also nobody from the family of the victim gave any statement to the SDM against the accused. According to him thereafter, the SDM reached the hospital at about 8.00AM the next morning i.e. on 05.06.06, as he was given information about the death of the victim and he remained in the hospital till the postmortem was conducted. Witness has further deposed that at that time he did not make any inquiry from the family members of the victim till he remained in Safdarjung Hospital and remained in the hospital till 12 noon on 05.06.06. According to the witness, he along with Insp. Giri Raj Singh reached the spot after 8:00 PM and remained with him during the investigation of this case. He has testified that SHO made inquiries from one or two public persons residing in neighbourhood but he is unable to tell their names and addresses. According to the witness, the house wherein the incident had taken place was bearing no. WZ 557 but they did not make inquires from the adjoining houses of the spot. He has admitted that there were residential units around the spot and has deposed that they did not think to be proper to make inquiries from the neighbourhood about the incident. Witness has further deposed that he has no knowledge if the 'Mausa' of the deceased was serving Delhi Police. According to the witness, he did not make any inquiry from the close relatives of the family of the victim and is unable to tell who conducted the cremation of the deceased and St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 49 of 107 has voluntarily stated that dead body was handed over to her father and brother. Witness has further deposed that on 05.06.06 he had gone with the Investigating Officer to village Dhaka at about 08.00 PM and accused Kapil Mudgil was at his own residence. He has denied the suggestion that accused Kapil did not make any disclosure and same was recorded by the Investigating Officer at the instance of the family of the deceased. According to the witness, his statement was recorded by the Investigating Officer on 05.06.06 after the accused was put in the lock up and has voluntarily added that it must have been at around 11.00 PM. He has admitted that it is the SDM who conducted the entire inquest proceedings and that he did not prepare any document. He has denied the suggestion that he was not with the Investigating officer or that he has deposed falsely at the instance of the Investigating officer.
41. PW13 HC Praveen is the MHCM who has brought the register no. 2 pertaining to DD no. 4B and 7B dated 05.06.06. According to him DD no. 4B was recorded by HC Yashpal, no. 280/NW on the basis of a telephonic call received by him at 01.30 AM from the Duty Ct. Safdarjung Hospital, Ct. Jile Singh copy of which DD is Ex.PW5/D. The witness has further deposed that DD no. 7B was recorded by Duty Officer HC Yashpal Singh on the basis of telephone received at 02.50 AM from Duty Ct. Safdarjung Hospital regarding the death of Seema, W/o Kapil Mudgil, which DD is Ex.PW5/B. He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted. St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 50 of 107
42. PW14 ACP Sh. Giri Raj Singh has deposed that on 05.06.06 he was working as SHO Police Station Saraswati Vihar and on that day SI Ranbir Singh handed over a rukka Ex.PW2/A to him on which he made an endorsement vide Ex.PW14/A. According to him the said rukka was produced before the Duty Officer who registered the case vide FIR No. 619/06 under Section 498A/304B/34 IPC vide Ex.PW14/B. Witness has deposed that he made investigation and reached at the spot where he prepared the site plan vide Ex.PW14/C at the instance of the parents of the deceased and SI Ranvir Singh. According to the witness, he recorded the statement of parents, brother of deceased and other family members and also SI Ranbir Singh, Ct. Balraj, Crime Team Incharge ASI Satpal, photographer Sh. Balkishan Sharma R/O JJ Colony, Shakurpur. He has testified that he also made inquires from the neighbours but nobody was ready to join the investigations and thereafter he reached Village Dhaka at about 9:45 PM for the search of accused persons where in front of House No. 82, near purani chopal village Dhaka accused Kapil Mudgil was identified by Sh. Rajender Singh, father of deceased, who was interrogated and accordingly accused Kapil was arrested vide memo Ex.PW3/D and personally searched vide memo Ex.PW3/C. He has further deposed that the accused Kapil Mudgil was interrogated and his disclosure statement was recorded vide Ex.PW3/E. According to him, thereafter he made efforts to arrest the remaining accused persons upto 03.07.2006 but could not be arrested and thereafter this case St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 51 of 107 was transferred to DIU North west district.
43. In his cross examination by Ld. Defence counsel witness has deposed that he received the rukka from SI Ranbir Singh at about 5:00 PM on 5.6.06 and he left for the place of occurrence after about one hour of the receipt of the rukka. According to him family members of the deceased i.e. parents, brothers, sisters and other relatives were present at the house besides some neighbourers of the locality and after receipt of call about burning of some lady in the evening on 04.06.2006 he reached at the place of occurrence. He has deposed that he reached there along with SI Ranbir Singh, Ct. Balraj but he did not make any inquiry from the neighbourers at his first visit to the place of occurrence. He has denied the suggestion that parents, brother of the deceased and other family members did not give any statement to him and he recorded the same of his own. He is unable to tell the names of the persons present there from whom he made inquiries. Witness has further deposed that he did not record any proceeding/ prepared any document at his first visit to the place of occurrence. He has stated that he inspected the place of occurrence and prepared a site plan on his second visit to the place of occurrence after receipt of the rukka. According to him, he found only accused Kapil in the house and other accused persons were not there. He has testified that he tried to join the neighbourers in the investigation but none agreed. According to the witness, he had recorded this fact of asking the neighbourers to join the investigation of this case in case diary but he is unable to tell the name and addresses of the persons/ St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 52 of 107 neighbourers whom he asked to join the investigation. He has denied the suggestion that he was unable to tell the name and addresses of the neigbourers as he did not note their names and addresses in the case diary intentionally as they were telling him about the good reputation of the accused persons. According to him, he never went to hospital where the deceased was admitted. Witness has denied the suggestion that accused Kapil Mudgil did not make any disclosure statement to him or that he (witness) of his own recorded his disclosure statement. According to the witness except one or two neighbourers nobody was gathered near the chaupal when he recorded the disclosure statement of accused Kapil Mudgil. The witness has further denied the suggestion that he did not carry out the proper investigation of the case and he falsely arrested the accused persons or that he mechanically got registered the FIR against the accused persons at the behest of the false and untrue statements of family members of the deceased. He has also denied the suggestion that one of the relative of Santosh was posted in Delhi Police and due to the influence of that official he got registered the false FIR against the accused or that he did not cite any other relative of the deceased family as witness and adds that he had made the inquires from them. He has admitted that till the time he received rukka from SI Ranbir Singh the parents of the deceased and other family members did not make any complaint to him against the accused persons and has voluntarily stated that because the parents and family members were making efforts to save the life of the injured.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 53 of 107
44. PW15 ACP Sh. Chander Kant has deposed that on 07.07.06 he was working as Inspector DIU North West District and on that day further investigation of this case was handed over to DIU which was marked to him. According to him, he received the case file from his staff and he perused the same. Witness has further deposed that the husband of the deceased was already arrested in this case and the exhibits of this case were already lifted and seized in this case from the spot and the hospital. He has testified that he send the exhibits to FSL Hyderabad and examined mother of deceased namely Santosh Sharma. He has proved having formally arrested Deepak Mudgil and Smt. Kusum Lata vide memos Ex.PW15A and Ex.PW15/B respectively and Himanshu (devar) and Kirti (nanand) were on interim protection from Hon'ble court and upto filing of the present challan they were on interim bail. According to the witness, he prepared the challan and filed in the Court. He has correctly identified the accused Deepak Kumar Mudgil, Kusum Lata and Kapil who were present in the the Court against whom first challan was filed by him.
45. In his cross examination by Ld. Defence counsel witness has deposed that he does not remember the exact date when he examined the mother of deceased and has voluntarily stated that he filed the charge sheet only thereafter. He has admitted that the statement of the mother of the deceased which is Ex.PW2/A is in his handwriting which was recorded on 17.09.2006. He has denied the suggestion that after he was handed over the investigation he never visited the family of the deceased and has voluntarily St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 54 of 107 stated that he had visited them on a number of occasions. According to the witness he does not remember the dates and the time when he had visited them nor does he remember the number of the house of the in laws of the deceased but has stated that it was near purani chaupal. The witness has also deposed that when he had gone to that house it was opened and one old lady (whose name he is unable to tell) was present there but she did not disclose anything about the accused persons. Witness has further deposed that he made inquiries from the neighbourhood but he is unable to tell the names and addresses of the neighbours from whom he had made inquiries. According to the witness, he had also made inquiries from the Pradhan of the village but he did not take down his name and has voluntarily stated that accused were deliberately absconding as they were in the process of moving anticipatory bail applications in the court. He has denied the suggestion that he did not make any inquiries from any neighbours or any villagers about the reputation of the accused persons and their conduct with their daughter inlaw. According to the witness, he had first visited the parents of the deceased and then visited the house of the in laws. He has denied the suggestion that he never visited the parents of the deceased and has voluntarily added that he had visited the parents and even took the marriage card into possession and prepared the seizure memo of the same. The witness has further stated that he did not make any inquiries regarding the telephone call received by Santosh and has voluntarily explained that it was on the land line number of which the record is not possible to retrieve. He St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 55 of 107 has further deposed that he also recorded the supplementary statement of Santosh when the marriage card was seized. He has denied the suggestion that he did not visit the village nor he carried out any investigations and the charge sheet was filed on routine on the basis of material handed over to him by the first Investigating officer. The witness has denied the suggestion that his visits were only for the purposes of search of the accused or that he did not carry out the proper investigations and the entire investigations were motivated at the instance of the family of the deceased.
46. PW16 ASI Yashpal has deposed that on 04.06.06 he was posted at Police Station Saraswati Vihar and was working as Duty Officer from 4PM to 12 AM (Midnight). According to him on that day he received information from PCR regarding burning of a lady in House No. 557, Gali No.1, Tri Nagar, Rani Bagh which information he recorded vide DD No. 32A which is Ex.PW16/A at about 8:40 PM which is in his hand. He has further deposed that on 05.06.06 he received the rukka of this case at about 5:10PM from reader SHO on the basis of which he recorded FIR No.619/06. Carbon copy of which is Ex.PW14/B and he made endorsement on the rukka which is Ex.PW16/B. He has not been crossexamined by the accused persons despite opportunity in this regard and his testimony has gone uncontroverted .
47. PW17 Dr. Avnish Aggarwal has deposed that he is running a family clinic at 610/1, Sri Nagar, Gali No.2, Main Market, Shakur Basti, Delhi34 and on 10.04.2006 he examined the patient Seema Vashist W/o St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 56 of 107 Mr. Kapil Mudgil who was suffering from boils over chest and he had given her treatment in the form of Ciplin DS. According to him, he had issued the medical certificate in this regard which is Ex.PW17/A. He has placed on record of the treatment of the said patient in his daily record diary which is Ex.PW17/B.
48. In his cross examination by Ld. Defence counsel the witness has deposed that he does not recollect who had come to collect the medical certificate from him. According to him, he does not maintain any separate register on which he take signatures of the persons coming to collect the certificate. He has admitted that as per the Medical Council Rules a performa regarding the manner in which the certificate is being issued has been prescribed but has voluntarily stated that they are only guidelines. He has further deposed that he had not put any cross on the certificate towards the end of the page. During the crossexamination of this witness this Court has specifically observed that the copy of the medical certificate does not bear any cross.
49. He has further deposed that they do not maintain any record of the certificate issued and he does not put any number on the certificates issue and has voluntarily stated that he is a private practitioner and he does not issue many certificates. According to him only persons coming to him for treatment are issued certificates. He has admitted that he had not mentioned the diagnosis in the certificate and has voluntarily stated that normally he mentioned the same. The witness has further deposed that he St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 57 of 107 sit his clinic from 69PM at Sri Nagar, main market Shakur Basti and at F1/132, Sector 11, Rohini from 8.00AM12.00 (noon) and has voluntarily explained that in the year 2006 he used to sit at Sri Nagar from 11.00AM to 1.00PM apart from sitting there in the evening. The witness has further deposed that he is also running a clinic at his residence and attend the patients whoever comes to him and used to sit at his clinics everyday except Sunday. According to him on 10.04.2006 the patient had come to him in the evening but he cannot tell the time when he issued the medical certificate to her relative. He has further deposed that he is the family doctor of Smt. Santosh Vashist and they all received treatment from him. The witness has admitted that there is a cutting at point encircled X which cutting does not bear his initials and has voluntarily stated that he cannot tell what he wanted to write at that point of time which he had cut. He has further deposed that patient did not come to him for review after three days and has voluntarily explained that he stated so because it was not so mentioned in the record. He has denied the suggestion that he had issued a wrong certificate on the asking of Smt. Santosh as the family was previously known to him. According to him he had given the treatment to Seema for boils and has voluntarily stated that it was on the account of the infection which had set on the skin. He has denied the suggestion that Seema had never come to him for treatment and he had fabricated the certificate only for the purposes of the court proceedings.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 58 of 107 STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
50. After completion of prosecution evidence, the statements of the accused were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to them which they denied. The accused Kirti has stated that she is innocent and has been falsely implicated in this case by the complainant. According to her, as per their knowledge the deceased was given beatings by her mother and brother on the date of incident. She has stated that she and her family members have been implicated at the instance of the complainant and her family members as they demanded Rs.15 lacs from them after the death of deceased which demand was not fulfilled by them. She has further stated that she was residing separately with her husband and was not residing with her parents.
According to her, the medical certificate is false and procured by the complainant from her family doctor.
51. Similarly the accused Kusum Lata has stated that she is innocent and has been falsely implicated in this case by the complainant. She has also similarly stated as per their knowledge the deceased was given beatings by her mother and brother on the date of incident. She has stated that she and her family members have been implicated at the instance of the complainant and her family members as they demanded Rs.15 lacs from them after the death of deceased which demand was not fulfilled by them. She has further stated that the dead body of the deceased was handed over to her parents after which it was taken to the cremation ground of Punjabi St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 59 of 107 Bagh where the last rites were performed by Kapil in the presence of parents of the deceased. According to her, the medical certificate of deceased Seema is false and procured by the complainant from her family doctor.
52. The accused Deepak Kumar Mudgil has also stated that he is innocent and has been falsely implicated in this case by the complainant. According to him, as per their knowledge the deceased was given beatings by her mother and brother on the date of incident. He has stated that he and his family members have been implicated at the instance of the complainant and her family members as they demanded Rs.15 lacs from them after the death of deceased which demand was not fulfilled by them. He has further stated that the dead body of deceased was handed over to her parents after which it was taken to the cremation ground of Punjabi Bagh where the last rites were performed by Kapil in the presence of parents of the deceased. According to him, the medical certificate of deceased Seema is false and procured by the complainant from her family doctor.
53. The accused Kapil Mudgil who is the husband of the deceased has stated that he is innocent and has been falsely implicated in this case by the complainant. According to him, as per their knowledge the deceased was given beatings by her mother and brother on the date of incident. He has stated that he and his family members have been implicated at the instance of the complainant and her family members as they demanded Rs.15 lacs from them after the death of deceased which demand was not fulfilled by them. He has further stated that the dead body St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 60 of 107 of deceased was handed over to her parents after which it was taken to the cremation ground of Punjabi Bagh where the last rites were performed by him in the presence of parents of the deceased. According to him, the medical certificate of deceased Seema is false and procured by the complainant from her family doctor.
54. Similarly the accused Himanshu Mudgil has stated that he is innocent and has been falsely implicated in this case by the complainant. According to him, as per their knowledge the deceased was given beatings by her mother and brother on the date of incident. He has stated that he and his family members have been implicated at the instance of the complainant and her family members as they demanded Rs.15 lacs from them after the death of deceased which demand was not fulfilled by them. He has further stated that the dead body of deceased was handed over to her parents after which it was taken to the cremation ground of Punjabi Bagh where her last rites were performed by Kapil in the presence of parents of the deceased. According to him, the medical certificate of deceased Seema is false and procured by the complainant from her family doctor.
55. The accused have examined four witnesses in their defence. DW1 Sh. Amardeep has deposed that he was running a printing press under the name and style of Sagar Printers in Shakurpur Village in the year 2006. According to him, on 04.06.2006 at about 3.30PM he was passing through a street in front of one house to have some job work when he overheard noise of quarrel coming from a house and he also kept standing there for a while St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 61 of 107 as some persons had also collected there. He has further deposed that on 06.06.2006 his friend Kuldeep Sharma came to his shop at Shakurpur and informed him about this case on which he told him that on 04.06.2006 he heard the noises and voices of some quarrel taking place in the house and he came to know on that day that some lady had committed suicide by burning on 04.06.2006. He has testified that thereafter he along with Kuldeep Sharma went to police station Saraswati Vihar and met SHO and told him about the quarrel that had taken place on 04.06.2006 but the SHO and other police officers did not record his statement after which he informed Kuldeep Sharma that he would be available for giving this piece of evidence whenever he is required to do so before any authority.
56. In his crossexamination the witness has deposed that the printing press which he is running is not registered and that he was running this printing press at 410/1, Village Shakurpur, Delhi which was his own shop but he has now sold the same and shifted his printing press at Sagar Plaza, Chanderlok near Rani Bagh. He has placed on record his visiting card of the address WZ 410/1, Shakurpur Village showing that he was running his printing press from there, which visiting card is Ex.DW1/PX1. He has admitted that the said visiting card is in the name of Bittoo and has voluntarily added that his name is Bittoo. He has testified that the timings of the printing press were from 8 AM to 8 PM and on the date of incident he was going to the market to give some printed stationery to HiTech. According to him, he did not call the police or tell anybody else regarding St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 62 of 107 the voices of quarrel which was coming of the house and has voluntarily added that a large number of other public persons were also standing. He is unable to tell the name of the other public persons who were also standing there. He is also unable to tell the address of the property from which the voices were coming. According to him, he did not intervene in the quarrel but went away. He has admitted that he have left his work today to depose before this court only because he felt it was his public and moral duty.
57. A specific Court Question was put to the witness whether it was not his moral or public duty to intervene or inform the police when he noticed some marpitai or quarrel going on inside the house where large number of public persons were also gathered, to which he responded that he thought somebody else must have informed the police.
58. He has denied the suggestion that he has deposed falsely at the instance of the family of Kapil because he have been planted by them and has voluntarily added that Kuldeep Sharma was his my friend and working at Burari and he had come to depose on his asking. According to him, Kuldeep Sharma is the first cousin i.e. son of the Mama of accused Kapil Sharma. He has denied the suggestion that he is not a witness to any incident.
59. DW2 Sh. Sunil Kumar Sharma is the brother of the accused who has deposed that his house is quite adjacent to the house of accused persons and the staircase leading to his house and to the house of accused persons is common. According to him, accused Deepak Kumar was St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 63 of 107 his younger brother and he joined the marriage of Kapil Mudgil. He has testified that he did not notice nor saw any quarrel with the deceased in the family of the accused persons. He has also deposed that once on the occasion of Holi he was invited by the mother of deceased pursuant to which had gone there and he was entertained there by all the family members of the deceased and deceased herself. He has stated that there was no complaint from the family members and the deceased against the accused persons. He has further deposed that he came to know that the deceased had gone to her parental house about 20 or 25 days earlier to the said incident from her matrimonial home and after coming to know about the said tragic incident he along with the accused persons went to Hospital where they remained there for whole night. According to the witness, on 05.06.2006 the cremation of the dead body of the deceased was done at Punjabi Bagh Crematorium and all the last rights were performed by accused Kapil. He has deposed that there was no complaint against the accused persons from the family members of the deceased. He has also deposed that he came to know that some demand of money was put to the accused persons from the family members of the deceased which could not be fulfilled and the present case was registered falsely against the accused persons. According to the witness, complainant Smt. Santosh (the mother of the deceased) and other family member never made any complaint to him about the alleged mis behaviour of the accused persons with the deceased. He has deposed that he knew that all family members of the accused were innocent and he tried to St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 64 of 107 tell the police officials about the innocence of the accused persons but they did not pay any heed to what he had stated.
60. In his crossexamination the witness has deposed that he is the original resident of village Dhaka and is residing there since his birth. He has admitted that Kapil and his family were also resident of the same village and has voluntarily added that Kapil was his real nephew (Bhatija) as his father Deepak is his younger brother. According to him, the deceased was a well behaved girl and there was no problem between her and Kapil and he never noticed any abnormality in her behaviour and conduct. The has also admitted that he is residing separately but their staircase is common. He has deposed that he was an employee of Government of India and retired in the year 2007 but has explained that he had never resided in any government accommodation. According to the witness, he did not meet any senior police officer nor he has given any written complaint to any competent authority including the police or the court to the extent that Kapil and his family were innocent. He has denied the suggestion that being the first blood relation of Kapil and his father who is his real brother, he has deposed falsely only to save them from penal consequences.
61. DW3 Sh. Braham Singh aged around 63 years is a neighbour of the accused who has deposed that he is residing in the same village in the vicinity of the house of accused persons and knew the entire family since childhood. He has stated that the house of the accused is situated near an old chaupal of the village and everybody in the village is St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 65 of 107 aware of most of the happenings or mishappenings in the families of those residing in the same village. According to him, he had knowledge about the marriage of accused Kapil but had never heard of any problems connected with the marriage of Kapil or any problem with his deceased wife at any time. He has deposed that he came to know about the present case because the police had come to the village and there was a talk of it in the village. The witness has further deposed that he had contacted the investigating officer and police to tell them that the accused have been falsely implicated but he was not heard. He has testified that the accused persons were innocent and well behaved persons being educated family and there was no dispute or quarrel of the accused persons with any resident of the village. The witness has also deposed that the all residents of the locality were present there when the police officials had come to arrest them but their evidence was not recorded by the police officials.
62. In his crossexamination the witness has deposed that he was an employee of Escorts Company at Faridabad till the year 2000 when he took VRS and thereafter he is leading a retired life. He has voluntarily stated that he is actively involved in philanthropist activities and is not related to Kapil and his family. According to the witness, he did not participate in the marriage of Kapil and is the original resident of this village where he is residing since my birth. He has admitted that Kapil and his family also originally hail from this village where they are residing since very beginning. The witness has further deposed that he had never had any St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 66 of 107 personal interaction with the deceased and that he had not given his written complaint in writing to any competent authority including the police or the court to the extent that Kapil and his family were innocent. He has testified that he had never heard of anything adverse against the deceased and said that Kapil and his family never made any demand on the basis of their behaviour and conduct which they have observed over the period of years. According to him, he has no personal knowledge and has voluntarily added that if anything would had happened it would have come before them. He has denied the suggestion that being a resident of the same village and also being on friendly terms with the Kapil and his family he has deposing falsely at their instance.
63. DW4 Smt. Rita aged about 48 years is also a neighbour of the accused who has deposed that she knew the accused persons as they are her neighbourers. She has further deposed that she used to visit the house of accused persons many times in a day as she was on friendly terms with the grandmother of accused Kapil with whom she used to sit. According to her, she had attended the marriage of accused Kapil and she never observed any problem between Kapil and his wife or in their family nor heard about the same from anyone. The witness has further stated that she came to know about the incident on 05.06.2006 when she went to meet the Daadi of accused Kapil. She has deposed that accused are innocent and falsely implicated in the present case. According to her, when the police came to apprehend Kapil, they all had gathered and objected to the same but they did St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 67 of 107 not listen to them. She has testified no PCO Booth existed in their street at any point of time and even on date there is no PCO Booth.
64. In her crossexamination the witness has deposed that she is residing in village Dhaka for the last 3035 years and has family relations with the family of Kapil but she is not related to them. According to her, she used to speak to the deceased wife of Kapil and found her normal and there did not appear to be any problem. She has further deposed that the grandmother of Kapil with whom she was on visiting terms has expired after this incident. According to her, she did not give any complainant in writing to any authority stating that Kapil and his family were innocent and had been falsely implicated. She has denied the suggestion that being friendly relations with the Kapil and his family, she has deposed falsely. FINDINGS:
65. I have heard the arguments advanced before me by the by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by both the parties. My findings are as under:
Identity/ relationship of the accused with the deceased:
66. There is no dispute in so far as the identity of the accused and their relationships with the deceased is concerned, the same is not disputed. Even otherwise, all the accused have been specifically identified in the Court. The accused Kapil Mudgil is the husband of deceased Seema; St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 68 of 107 Deepak Mudgil is the father in law of deceased Seema; Kusumlata is the mother in law of deceased Seema; Kirti is the sister in law (Nanand) and Himanshu is the brother in law (devar) of the deceased Seema. In view of the above, I hereby hold that the identity of the accused and their relationship with the deceased Seema stands duly established. Unnatural death within seven years of marriage:
67. It is an admitted case of both the parties that the marriage of the deceased Seema took place with the accused Kapil Mudgil on 18.2.2006 which marriage was an arranged marriage. According to the complainant, the match was suggested to them by one Laxmi Bhardwaj the real sister of the mother of the deceased namely Santosh Vashisth. It is also not disputed that the deceased had committed suicide while she was in the house of her parents at WZ57, Srinagar, Gali No.1, Shakur Basti on 4.6.2006 by setting herself on fire after which she was rushed to the hospital with 100% burns but could not survive. It therefore stands established that the deceased of the deceased took place within four months of the marriage. Cause of death/ medical evidence:
68. The case of the prosecution is that the deceased had committed suicide on 4.6.2006 by pouring kerosene oil upon her and setting herself on fire after which she removed to hospital with 100% burns and expired in the intervening night of 45.6.2006 at 1:25 AM. PW1 Dr. Sanjay Arora Medical Officer, Maharaja Aggarsain Hospital has duly proved that St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 69 of 107 on 4.6.2006 Seema was brought to the hospital by her father and he examined her at 8:40 PM when he found her general condition very sick, drowsy, restless; her pulse was not pulpable; Blood Pressure was not recordable. He has further proved that on examining the chest, air entry was found to be opened but some conducting sounds were noticed to indicate that there was some chocking but her heart was found normal. According to him, on local examination there were 95 to 100% deep dermal burns all over the body on which she was referred to Safdarjung hospital for ICU. He has proved the MLC of Seema which is Ex.PW1/A and has also proved that the patient was unfit for statement on 4.6.2009 at 9:00 PM. PW10 Dr. Saversh Tandon Senior Specialist Forensic Medicines, Safdarjung Hospital has proved that Seema was brought to the hospital with a alleged history of pouring kerosene oil over her and burning at her father's residence on 4.6.2006 and had expired on 5.6.2006 at 1:25 AM. The witness has proved the postmortem report Ex.PW10/A according to which rigor mortis was fully developed, back was burnt, smell of kerosene oil was present in the scalp hair, serous fluid was coming out of mouth and nostrils. On external examination there were superficial to deep burns present all over the body, which were red, inflamed and the lines of redness were seen and the deceased was 100% burnt. On internal examination brain was congested, mucosa was inflamed, lungs were congested, other internal organs were also congested, stomach was having 50 ml. medicinal fluid, uterus was non gravid and urinary bladder was empty. He has further proved that the cause St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 70 of 107 of death was hypovolumic shock due to dry flame, thermal, ante mortem burn injuries. The postmortem report Ex.PW10/A has not been disputed by the accused and it also stands established that the deceased Seema had committed suicide at her father's house at WZ57, Srinagar, Gali No.1, Shakur Basti.
69. The case of the prosecution is that even prior to the death of deceased Seema she was subjected to torture. It is alleged that on 8.4.2006 the deceased Seema had been tied to a chair with the help of a rope by accused Kusumlata and Kirti while accused Himanshu and Kapil had given her twang (chimta) blows as a result of which she received burn injuries, since there was a regular demand of maruti car, Rs.50,000/ cash and gold jewellery and the accused wanted her to go to her father's house to meet the said demands. It is further alleged that when the parents of the deceased noticed the said blows on the chest of Seema, they took her to the clinic of Dr. Avnish Aggarwal at Shakur Basti who had given her treatment for the same. In this regard the parents of the deceased have placed on record a certificate of Dr. Avnish Aggarwal dated 10.6.2006 which is Ex.PW7/A. Dr. Avnish Aggarwal has been duly examined in the Court as PW17 and in his examination in chief he has stated that that on 10.4.2006 he had examined the patient Seema Vashisth who was suffering from boils over chest and he had given her treatment in the form of Ciplin DS and thereafter issued a medical certificate in this regard which certificate is dated 10.6.2006 i.e. after the death of the deceased. In his crossexamination Dr. St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 71 of 107 Avnish Aggarwal has stated that he does not maintain any separate register on which he take signatures of the persons coming to collect the medical certificate. He has admitted that as per the Medical Council Rules a performa regarding the manner in which the certificate is being issued, has been prescribed but has explained by saying that they are only guidelines. He also admits not having put any cross on the certificate towards the end of the page and admits that he did not maintain any record of the certificate issued, nor he put any number on the certificates issued. He has also not mentioned any diagnosis in the certificate. According to him, on 10.4.2006 the patient had come to him in the evening though he is unable to tell the time when he issued the medical certificate to her relative. He has stated that he is the family doctor of Smt. Santosh Vashisth and the entire family receives treatment from him. He has also admitted that there is a cutting in the medical certificate at point encircled X and also admitted that the cutting does not bear his initials. He has proved that the treatment given by him was on account of skin infection which has set and does not even remotely indicate that it was on account of burns due to branding by hot iron tongs.
70. Ld. Defence Counsel has vehemently argued that the certificate sought to be placed on record Ex.PW17/A is a forged document which has been fabricated in connivance with Dr. Avnish Aggarwal after the death of deceased Seema only to create evidence against the accused. I have considered the submissions made and I may observe that Firstly the certificate has been issued on 10.6.2006 after the death of the deceased. St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 72 of 107 Secondly Dr. Avnish Aggarwal (PW17) has also placed on record his diary which he has been noting the details of the various patients who have come to him for treatment copy of which daily record diary is Ex.PW17/B. Perusal of the said diary shows that it has not been regularly maintained. The first date mentioned on the page is of 7.4.2006 followed by 11.4.2006 and thereafter followed by 10.4.2006 wherein the entry of Seema appears to have been inserted. Thirdly I may observe that in so far as other entries are concerned the ailment of the various patients find a mention in the entries but in the case of Seema no ailment or complaint with which the patient had come to the doctor, has been mentioned and the prescription which finds mention in the diary does not match with the prescription as shown in the certificate Ex.PW17/A. Fourthly the witness Dr. Aggarwal does not explain how and under what circumstances he had issued the certificate after almost two months and no duplicate record of the same is being maintained by him. Fifthly Dr. Aggarwal does not indicate that he had treated the victim (deceased Seema) of burns caused due to branding by iron tongs which injury/ burn are specific and distinct from ordinary burns caused by scalding, blistering etc. Sixthly Dr. Aggarwal has simply proved that the treatment he gave was for skin infection which was set in and he does not give any diagnosis or reasons for the said infection. Lastly Dr. Aggarwal is the family physician of the family of the victim and would have been told the history of the infection which is not the case. It is also not evident that St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 73 of 107 he even informed the police of the same, since in case if there was an injury due to branding by tongs, the doctor would have certainly come to know of the same and would have also inquired from victim the cause/ history as to how she received the said injury and thereafter reported the same to the police being under an obligation to do so, which is not the case.
71. This being the background I am not inclined to rely upon the certificate issued by Dr. Avnish Aggarwal which has been produced for the first time in the Court and not subjected to any inquiry or investigations and does not appear to be credible and correct. I hereby hold that the prosecution has not been able to establish beyond reasonable doubt that Seema had been taken to Dr. Avnish Aggarwal on 10.4.2006 for purposes of treatment of injuries received by her on account of torture by her in laws/accused. Allegations against the accused under Section 498A & 304B IPC (dowry death proximity test):
72. The case of the prosecution is that the marriage between the accused Kapil Mudgil and the deceased Seema was arranged through one Lakshmi Bhardwaj the real sister of Smt. Santosh the mother of the deceased and the marriage was solemnized on 18.2.2006. It is alleged that soon after one week of the marriage, Seema was subject to harassment and torture with demand of dowry since the accused were demanding Rs. 50,000/ cash, Maruti Car, and gold jewellery for giving the same to Kirti who was recently married and was having differences with her in laws. It is also alleged that on 8.4.2006 Seema was tied on a chair with the help of St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 74 of 107 ropes and accused Himanshu and Kapil gave hot tong (chimta) blows on the back and front of Seema. On 9.4.2006 the accused left her (victim) at the house of her parents with a warning that she should come back only after making arrangement of the cash and other articles. It is further the case of the prosecution that the parents of the deceased sent Seema back to the house of accused but since the family of the deceased could not make any arrangement of the dowry articles therefore on 16.5.2006 the accused shut the door and did not let Seema come inside. Thereafter the parents of the deceased left her at the house of her inlaws but later at night Seema called up from some STD booth and told her parents that she was sitting outside the house on staircase and the house had been locked from inside, after which the mother of the deceased went and took Seema back to her house. It is also alleged that on 20.5.2006, 26.5.2006 and 31.5.2006 the accused had repeated their demands to the family of the deceased and was not taking the deceased back to her matrimonial house as a result of which Seema committed suicide in the house of her parents on 4.6.2006.
73. Before coming to the evidence on merits, it is necessary to discuss the law in this regard. In order to succeed in charge under Section 498A of the Indian Penal Code, the prosecution is required to prove that the accused had subjected the deceased to cruelty, as defined in the explanation to the section. It is not every cruelty which is punishable under Section 498A of the Indian Penal Code. The cruelty, so as to attract penal provisions, contained in Section 498A of Indian Penal Code, has St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 75 of 107 necessarily to be a willful conduct which is of such a 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 498A of Indian Penal Code 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 reasonably 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 498A of Indian Penal Code.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 76 of 107
74. The expression "Cruelty" takes 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 498A of Indian Penal Code.
75. If the woman has been 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 498A of IPC. The expression "harassment" has not been defined in Section 498A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. However, it is not harassment of every nature which is punishable under section 498A 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.
76. Further, in order to establish a charge under Section 304B of Indian Penal Code, which deals with what is described as "dowry death", the prosecution must necessarily prove the following ingredients: i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 77 of 107 circumstance;
ii. Such death must have occurred within seven years of her marriage;
iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
iv. Such cruelty or harassment must be for or in connection with demand for dowry;
v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.
77. The term "Dowry" has not been defined in Section 304B 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 304B IPC as held by Hon'ble Supreme Court in Satvir Singh & Ors. v. State of Punjab and Anr. reported in 2001 (4) Crimes 45. Section 2 of Dowry Prohibition Act defines dowry as under:
"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."
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 78 of 107
78. Dowry would include that property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of a person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. However, 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 inlaws 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 articles being demanded by them were expected to be given or ought to have been given in marriage, that would also, to my mind, 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 St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 79 of 107 with the marriage though made after the marriage has been solemnized. Even demand of articles such as T.V., fridge, jewellery, clothes, furniture, etc. which usually are given or expected in marriages in our country, would, considering the objective sought to be achieved by incorporating Section 304B in Indian Penal Code and enacting Dowry Prohibition Act, 1961 fall within the purview of Section 304B of Indian Penal Code.
79. In the case of Pawan Kumar & Ors. Vs. State of Haryana reported in AIR 1998 SC 958, the Apex 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 304B 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 fulfill 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. In case, 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.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 80 of 107
80. In the case of Satvir Singh Vs. State of Punjab reported in 2001 (4) Crimes 45 while dealing with this issue, the Hon"ble Supreme Court, inter alia, observed as under:
"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."
81. In the case of Appasaheb and Anr. Vs. State of Maharashtra, reported in AIR 2007 SC 763, the Hon'ble Supreme Court observed as under:
"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 St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 81 of 107 have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the 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.
The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure."
82. The 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 charge should be made out.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 82 of 107
83. The main ingredients to be proved for establishing a case under Section 304B 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.
84. The words "it is shown" occurring in section 304B IPC are of significance for the reason that the initial burden of proving that circumstances envisaged by Section 304B IPC do exist on the prosecution. This being shown or established, the question of presumption under Section 113B of the Evidence Act would arise. In other words, to draw a presumption under section 113B 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 304B IPC, 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 304B is to be soon before the death of a woman.
85. The Courts are required to scrutinize the evidence carefully because cases are not rare in which occasionally there is a demand and then the atmosphere becomes calm and quiet and then again there is demand. St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 83 of 107 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. The Courts are, however, required 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.
86. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological problem 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 Vs. The State of Rajasthan reported in 1992 Crl. L.J. 309).
87. The importance of proximity test is both for the proof of an offence of dowry death as well as for raising a presumption under section 113B of the Evidence Act. The expression "soon before her death" used in the substantive section 304B IPC and section 113B Evidence Act is pregnant with the idea of proximity test. No definite period has been St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 84 of 107 indicated and the expression "soon before" used in section 113B of the Evidence Act, 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.
88. It 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., reported in AIR 1975 SC 258, it was observed by Hon'ble Supreme Court of India as under: ''The 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.''
89. In another case reported as Kali Ram Vs. State of Himachal Pradesh reported in AIR 1973 SC 2773, it was observed by Hon'ble Supreme Court of India as under: St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 85 of 107 Another 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 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........
It 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..
90. In another case reported as AIR 1973 SC 2622, it was observed by Hon'ble Supreme Court of India as under : St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 86 of 107 ''Certainly 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.''
91. Further more, in another case reported as Mousam Singha Roy & Ors. Vs. State of West Bengal, reported in 2003 (3) JCC 1358, it was observed by Hon'ble Supreme Court as under : ''Before 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:
It is no doubt a matter of regret that a foul coldblooded 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.'' St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 87 of 107
92. It 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.
93. Applying the settled principles of law to the facts of the present case, Firstly it is evident from the record that there are five star witnesses of the prosecution all of whom are the family members of the deceased i.e. Smt. Santosh (PW2) mother of the deceased; Rajender Singh (PW3) father of the deceased; Dhananjay Vashisth (PW4) brother of the deceased; Smt. Archna Vashisth (PW6) sister in law (bhabhi) of the deceased and Jayant Vashisth (PW7) younger brother of the deceased who have all deposed similarly in a parrot like manner in respect of the incident dated 8.4.2006, 9.4.2006, 10.4.2006, 16.5.2006, 20.5.2006, 26.5.2006 and 31.5.2006.
94. Secondly it is evident from the testimonies of all these witnesses that it is for the first time in the Court that they have deposed about the incident dated 8.4.2006 regarding the accused giving hot tong (chimta) blows to the deceased after tying her with a chair and thereafter leaving her at her parental house on 9.4.2006 after which she was shown to Dr. Avnish Aggarwal. This aspect has never been mentioned by these witnesses in their statements before the SDM or the Investigating Officer. It is evident from the testimony of Sh. Rajender Singh (PW3) father of the deceased that according to him his daughter Seema has telephoned to him on 9.3.2006 and told him that she was tied to a chair and hit/ branded with hot St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 88 of 107 tongs/ chimta. No explanation is forthcoming why on coming to know of the same he did not raise any objection or immediately bring his daughter home or also why the police was not informed. Again further no explanation is forthcoming as to why, when the victim was allegedly left at their house on 9.3.2006 by her inlaws and while Rajender Singh was already aware of the injuries caused to the victim as she had spoken to him on telephone, he did not immediately rush her to the doctor and rather waited till 10.3.2006. This conduct of the father and the family of the victim does not appear to be natural and probable. I may further note that there is a material contradiction between the testimony of Rajender Singh (father) and Smt. Santosh (mother) since on the one hand father states he came to know of the incident on 9.3.2006 when the victim telephoned to him whereas the mother and brother pleaded ignorance of the injury till 10.3.2006. It is impossible that a well educated family living in City would have treated the incident so casually that not only they did not get the victim back or ensure immediate medical treatment to her but also did not mention about this incident either to the Investigating Officer or to the SDM when there statements were being recorded. The possibility of the story being created later in order to lend credence to the allegations of torture being put forward by them, cannot be ruled out.
95. Thirdly had the deceased Seema being branded and inflicted injuries as alleged on 8.4.2006 the first thing which any doctor would done on seeing the nature of injuries, was to have contact the local St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 89 of 107 police or would have at least advised Seema to contact police being a medicolegal case. I may observe that the nature of injuries inflicted upon the deceased with a hot iron tong (chimta) would have been different as it would have cause the blackening and chapping of the skin on account of branding. It is not possible that the boils on the chest of deceased could have been caused by hot iron tong (chimta). I do not find the oral testimonies of the family members of the deceased examined by the prosecution, reliable and untrustworthy in this regard, more so because the doctor who had allegedly treated the victim and also given the Medical Certificate in this regard after two months (10.6.2006) i.e. after the death of the deceased, has himself not been able to prove the correctness of the record being maintained by him and further because in his deposition before the Court Dr. Aggarwal informed the Court that he had treated the deceased (Seema) for the skin infection which had set in. The nature of ailment as given by Dr. Aggarwal is different from the one alleged by the complainant and the family members of the deceased. Rather, I may observe that the manner in which the certificate had been issued by Dr. Aggarwal is not in conformity with the Rules of Medical Council and the professional ethics. Branding a young woman by hot tongs is an injury which even a layman would notice and it is impossible that Dr. Aggarwal would not have noticed the same. Neither does he give the history of such an ailment/ injury for which he is treating the patient nor does he inform the police. St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 90 of 107
96. Fourthly the allegations of dowry demand, torture and harassment for the first time to the SDM are all general and non specific. In fact the father of the deceased namely Rajender Singh in his statement to the SDM had only expressed his suspicion that his daughter was being tortured at his in laws house. He had told the SDM that every time when his daughter used to visit their house her health used to improve and therefore, he suspects that she was being tortured at his in laws house. There is no specific mentioning of the incident dated 8.4.2006 and it is for the first time in the Court that this allegation has been made that the accused having tied Seema on a chair with ropes and given hot tong (chimta) blows to her and thereafter left her at her parents house on 9.4.2006 after which she was taken to Dr. Aggarwal's clinic. To my mind it is not possible that a young educated girl belonging to a highly educated family, the mother being employed in MCD and father being a Teacher and the girl herself had been teaching prior to her marriage, would not highlight this kind of a torture being branded with hot iron tong (chimta) to anybody. As discussed here in above the possibility of procuring the medical certificate from Dr. Avnish Aggarwal (PW17) after the death of the deceased only to create evidence against the accused, cannot be ruled out.
97. Fifthly it is further evident that it is for the first time in the Court that a specific allegation regarding the demand of Rs.50,000/ cash, Maruti Car and gold jewellery has been attributed to the accused persons and no where in their statements before the SDM or the Investigating St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 91 of 107 Officer, this demand has been specified. In fact the statement of the parents of the deceased made to the SDM and of the brothers and sister in law made to the Investigating Officer are vague in this regard. The allegations are only made in the statement of Smt. Santosh but the statement of Rajender Singh father of the deceased which is Ex.PW3/A is totally silent in this regard.
98. Sixthly I may observe that the first statements of these witnesses i.e. Smt. Santosh (PW2); Rajender Singh (PW3); Dhananjay Vashisth (PW4); Smt. Archna Vashisth (PW6) and Jayant Vashisth (PW7) are silent on the incident dated 16.5.2006 is concerned, wherein it has been alleged by the family of the deceased that they had left Seema in the house of accused but in the night the deceased called them and told that she was sitting on the staircase and the accused were not opening the doors after which the family of the deceased went and took her back to their house. Further, the statements of all the witnesses are silent with regard to the incident dated 20.5.2006, 26.5.2006 and 31.5.2006 and it is for the first time that the said dates have been introduced and specified to the Court despite the fact that earlier there are no allegations with regard to the same.
99. Seventhly Santosh Sharma (PW2) the mother of the deceased has in her crossexamination admitted that after the marriage of the deceased with the accused Kapil Mudgil, the 'Gauna Ceremony' was also attended to by them and on 27.3.2006 the deceased and the accused Kapil Mudgil had gone for holidays to Kullu Manali and returned on 1.4.2006 St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 92 of 107 which fact is also admitted by the other witnesses particularly by Dhananjay Vashisth (PW4) who admits that his deceased sister and the accused Kapil Mudgil had brought jacket for Jayanat and his son from Kullu. It is further admitted that the deceased had also come to their house to celebrate Holi festival when Seema had come before a couple of days from Holi. It is further borne out from the record that the accused Kapil Mudgil and all of his family members participated Holi festival at the parental house of deceased Seema. Had there been a history of demand or torture as alleged it is not possible that both families would have been happily participating in festivals jointly. It also does not appear natural and probable that on the one hand Kapil Mudgil would be torturing his wife and making demands of dowry and on the other hand taking his wife out for holidaying to Kullu Manali where he would be purchasing gifts for the younger brother and nephew of his wife.
100. Eighthly, the record of the PCO Booth has not been produced nor its owner has been examined to prove that the deceased had made any call from there. Rather, on the contrary it is the accused who have examined one Rita (DW4) a resident of the same village who has proved that there is no PCO in their street thereby ruling out the possibility that the deceased would have made any telephone call to her parents from the PCO near her house as alleged by the complainant and the family of the deceased. If there was any such PCO Booth, then was it not necessary for the Investigating Officer to have brought before this Court evidence in the form St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 93 of 107 of call detail records and the details of the owner of the said PCO booth in order to connect the oral allegations made by the family of the deceased regarding the victim not being permitted to enter their house, which has not been done. I hold that the entire allegations made in this regard are non specific and vague and do not stand substantiated.
101. Lastly all the above witnesses have also admitted that no information regard any harassment being caused to the deceased was reported either to the police or to any NGO or to any government authority. They have also admitted that they did not tell Smt. Lakshmi Bhardwaj the real sister of Smt. Santosh who had got the alliance/ match fixed between the deceased. They have also admitted that they had not discussed the issue with any of their neighbours or the neighbours of the accused or other relatives and friends and the only explanation forthcoming is that they did not want to expose the matter of their family to outside. Laxmi Bhardwaj the most important witness whom the witness Himanshu admits they had informed about the harassment and demand of dowry, has neither been cited as a witness nor called to the Court. Why has she been withheld from the Court.
102. Here, I may observe that it is highly unlikely that an educated family would leave their daughter in a lurch at the door of her in laws, specially those against whom allegations made are of inflicting highest kind of trauma on their daughter and if they do so then this is highly criminal. How can any parent shut the doors of their house to their daughter St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 94 of 107 who is well educated and self reliant (previously being employed in a school as teacher) and that too when as per the allegations her inlaws had shut their doors on her. As per the evidence on record in the form of oral testimonies of the mother of the deceased Santosh (PW2), her brothers Dhananjay (PW4) and Jayant (PW7), after the deceased/ Seema was left at their house by the accused on account of demand of dowry. On 16.5.2006 they (mother Santosh and brothers Dhananjay and Jayant) forcibly left Seema at her matrimonial house by telling the accused that they were not in a position to fulfill their demands. According to these witnesses on the same day at about 10:00 PM they received a call from Seema that she had been pushed out of the house after her jewellery had been removed and she was sitting at the staircase. The first question which arises is, why was the deceased Seema left at her matrimonial house forcibly. Further, this version does not actually appear probable, for had this been so, the neighbours and other residents of the village including the uncle (Tau) of the accused Kapil Mugdil who is the elder brother of accused Deepak Mudgil and his family and the grandmother (who was alive at the relevant time) would have certainly noticed the same or intervened, which is not the case. The Investigating Officer could not examine a single witness from the neighbourhood to verify the said assertions/ allegations since it is now in the Court for the first time that the family of the deceased has come up with this story. Most of the allegations have been made by the family of the deceased for the first time in the Court which was never disclosed to the SDM or St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 95 of 107 Investigating Officer earlier and hence could not be probed or investigated. Even otherwise, this behaviour of the family of the victim does not appear to be natural or reasonable, for no mother worth the name leave aside a mother who herself is educated and employed, would abandon her young newly married daughter forcibly at the house of her inlaws in the background of her being aware of the cruelty and torture to which the young girl has been subjected to. Further, assuming that all the allegations of torture, harassment and demand of dowry made by the complainant and the other family members of the deceased on the face of it are correct and are to be believed, then under the given circumstances, is this act of the parents and the brothers in forcibly leaving the young girl at the mercy of her inlaws who according to them had been inflicting brutalities upon their daughter not in itself highly inappropriate, unacceptable and itself criminal. If a married daughter does not wish to join the company of her husband or in laws for reasons whatsoever, why and how can her parents and brothers, not stand by her decision and abandon her. It is this conduct of the victim's family which has created a doubt in the mind of the Court. No family which is educated and well placed would use force/ compel their daughter to join the company of her husband and inlaws given the background of torture unless they are themselves satisfied that their daughter would be safe and happy in her matrimonial home.
103. The accused have also examined four witnesses in their defence out of whom DW1 Amardeep is a friend of the cousin of accused St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 96 of 107 Kapil. According to him, on the date of incident when he was going to his shop at Shakarpur and passed through the street where the parental house of the deceased is situated, he saw a large number of persons standing outside the house as there was a quarrel going on inside the same house. This witness does not bring on record the number of the house from where he heard the noises of quarrel nor he informs the police about the said incident. It is for the first time in the Court that he has come up with the story and the possibility of his being a planted witness cannot be ruled out.
104. DW2 Sunil Kumar Sharma is the real brother of the accused Deepak Sharma who is also having his house adjacent to the house of the accused. He has proved that the staircase of his house and that of the house of accused are common. According to him, he had never heard of any differences between the accused Kapil Mudgil and his wife at any point of time and on the occasion of Holi festival the mother of the deceased invited him on which he along with his family members had gone to the parental house of deceased where they were properly entertained and they celebrated the Holi festival with the family members of deceased a fact which even the mother of the deceased has admitted. He has proved that the deceased was a well behaved girl and there appears to be no problem between Kapil and the deceased. It is strange that the family of the deceased did not share about the problems faced by their daughter with any of the relatives including Sunil Kumar Sharma and that too when they had an opportunity for doing so (when DW2 was at their house to celebrate the festival of Holi). St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 97 of 107
105. DW3 Brahm Singh is a resident of the same village who is an exemployee of Escorts Company at Faridabad and is involved in philanthropist activities after his VRS in the year 2000 and is actively involved in social services; has deposed that the house of the accused is situated near the old chaupal of the village and everybody in the village is aware of most of the happenings or mishappenings in the village and that he had never heard any kind of problems connected with the marriage of Kapil or any problem with his deceased wife at any point of time and they came to know about the present case only when the police had come to the village. According to him, the accused persons are innocent and well behaved persons being educated family and the entire residents of the locality were present at the time when police officials had come to arrest the accused and object to the arrest of accused persons but they were never heard. After going through the testimony of DW3 Brahm Singh a retired respected senior citizen of the area involved in philanthropist activities, there is no reason to disbelieve him and I find his testimony to be reliable and trustworthy. The area where the victim was staying with the accused is a village where the house of the accused is situated near the old chaupal. Any kind of misbehaviour of the accused with the deceased would have been the talk of the village and residents would have been aware of the same which is not the case. Not a single witness from the village has either been examined by the Investigating Officer or cited as a witness so as to even remotely corroborate the version of the complainant/ victim's family. St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 98 of 107
106. DW4 Smt. Rita is also the neighbour of the accused persons and a resident of the same village for 3035 years, was on friendly terms with the grandmother of accused Kapil who unfortunately expired after this incident. Smt. Rita was a regular visitor to the house of Kapil Mudgil being close to his grandmother and according to her, she never observe any problem between Kapil and his wife or in their family and came to know about the incident on 5.6.2006 when she went to meet the grandmother of accused Kapil. She has also proved that there was no PCO Booth existed in their street and even as on date there is no such PCO Booth and there is no reason to disbelieve her more so as the Investigating Officer himself has failed to bring on record any evidence to prove the existence of any PCO Booth in the street or that any call was made by the deceased to her parents as alleged.
107. The evaluation of the entire evidence and the circumstances shows that the accused are residents of an old village where their house is situated near an old chaupal where senior citizens of the village normally sit. The accused Deepak Mudgil and his brother Sunil Kumar (DW2) are having a joint family and their houses are joined by a common staircase. It is normally common in our society particularly in a rural areas that in case of any harassment or torture to any person in the family, the other family members particularly those who are closely related and other persons living in the village would come to know of it. Further, it is also a common phenomena that senior educated persons of the village St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 99 of 107 particularly those who are retired from good positions and are involved into philanthropist activities serving the society after their retirement just as DW3 Braham Singh and normally intervene at their level particularly when cases involves harassment or torture to young girls. It is unbelievable that a newly married girl who according to her her parents was being subjected to regular harassment and torture for the demand of dowry immediately within one week after her marriage to the accused Kapil, would have gone to her parental house enjoy the Holi festival being organized on a large scale along with her husband Kapil Mudgil and his family despite the said demands being raised and harassment caused to her. The visit of the deceased and accused Kapil to Kullu Manali has been admitted by the family members of the deceased. It has also been admitted that after her return from she had brought gifts for her brother and nephew. Had the allegations of demand of dowry and torture been true, then under no circumstances it is possible that the deceased would have been taken to Kullu Manali for a holiday where she would have made purchases of gifts for her younger brother and nephew. It is further not probable that on the one hand the family of the accused would have made a demand of cash, maruti car and gold jewellery and torture the deceased whereas on the other hand they would readily accept the invitation to celebrate Holi festival at the parental house of the deceased. Here, I may note that it is not only the family of the accused Kapil but also the extended family of accused Deepak Mudgil (i.e. the family of his brother Sunil Kumar) who had gone to attend the Holi festival on the invitation of the St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 100 of 107 mother of the deceased where they had enjoyed themselves. Further, had the deceased been harassed there were sufficient opportunities for the family of the deceased to have raised this issue with the senior members of the family of accused including the grandmother who was alive at that time or the uncle/ elder brother of father in law (Deepak Mugdil) which they did not do. Also, the person who had arranged the alliance between the accused and the deceased was the real sister of Smt. Santosh (the mother of deceased) and it appears to be impossible that the deceased would have been subjected to extreme torture and the mother of the deceased would not have confronted her sister Lakshmi Bhardwaj with regard to the alliance that she had fixed for her daughter but would have complained to her and intervened through her. I may observe that Lakshmi Bhardwaj has not been examined by the prosecution as their witness. She was the most material and important witness who could have explained to the Court if she had received any kind of complaint regarding harassment caused by the accused to the deceased.
108. Further, I may observe that the father of the deceased namely Rajender Singh is a highly educated person being a teacher; the mother of the deceased namely Smt. Santosh is also a working woman and the deceased herself was a graduate and had done a course in Library sciences. It does not appear possible that an educated girl belonging to an equally well educated family, in case of having suffered torture as now highlighted before the Court (bring branded by hot iron tongs), would not St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 101 of 107 have approached either her colleagues or her friends or some NGO or some other authority to make such a complaint or at least have got provided proper treatment to her for the same. It also does not appear probable that the doctor who had treated her would have preferred to keep silent on observing the nature of injuries which made out a medicolegal case. I may also observe that postmortem report does not show any scars of branding. It is impossible that the incident being hardly two months old, the scars could have vanished. Further, no suicide note had been left by the deceased. I am sure that in case if the deceased was so much harassed and tortured by the accused what she ultimately decided to end her life at her father's house, the first thing she should have done was to have left a suicide note explaining the reasons why she was ending her life and should have also explained that her parents have nothing to do, which is not the case. Whether the deceased ended her life on account of harassment caused by her in laws or for any other reason, has not been conclusively established and hence clearly under the given circumstances two views are possible.
109. In view of the above, it is clear from the evidence of the prosecution witnesses that the deceased Seema had committed suicide at her parental house and the prosecution has miserably failed to relate the same to any dowry related harassment by the accused Kapil Mudgil, Deepak, Kusumlata, Kirti and Himanshu. Also the prosecution has failed to establish any proximity or live link between the death of Seema or any misconduct by the accused. I am, therefore, of the considered opinion that the prosecution St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 102 of 107 has not been able to establish the role of the above accused Kapil Mudgil, Deepak, Kusumlata, Kirti and Himanshu in the commission of the alleged crime beyond reasonable doubt nor there is anything on record to show that the deceased had taken the extreme step of committing suicide on account of conduct of the accused.
FINAL CONCLUSIONS:
110. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622 the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 103 of 107
111. Applying the settled principles of law to the facts of the present case it is evident that the identity of all the accused stands established. The accused Kapil Mudgil is the husband of the deceased; accused Deepak Mudgil is the father in law; accused Kusumlata is the mother in law, accused Kirti is the sister in law (nanand) and accused Himanshu is the brother in law (devar) of the deceased Seema. It also stands established that the marriage of the Seema took place with the accused Kapil Mudgil on 18.2.2006 which marriage was an arranged marriage. It also stands established that the deceased had committed suicide while she was in the house of her parents at WZ57, Srinagar, Gali No.1, Shakur Basti on 4.6.2006 (within four months of the marriage) by setting herself on fire after which she was rushed to the hospital with 100% burns but could not survive. It further stands established that the cause of death was suicidal burns i.e. hypovolumic shock due to dry flame, thermal, ante mortem burn injuries.
112. However, the allegations against the accused Kapil Mudgil, Deepak, Kusumlata, Kirti and Himanshu of causing harassment to the deceased in connection with demand of dowry, do not stand established beyond reasonable doubt. The deceased had committed suicide at her matrimonial house and it does not stand established beyond reasonable doubt that it was related to any dowry related harassment by the accused Kapil Mudgil, Deepak, Kusumlata, Kirti and Himanshu as apparently there is no proximity or live link between the death of Seema or any misconduct by them. There is nothing on record to show that the deceased had taken the St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 104 of 107 extreme step of committing suicide on account of conduct of the accused. The only evidence on record is oral in the form of testimonies of the parents and brothers of the deceased which do not find any corroboration from any independent source.
113. The facts of the present case made me ponder, Why is it, that in India, despite the fact that the Shastras provide the "option of marriage" to a woman that she is first compelled/ forced into an uncomfortable marriage/ relationship and is thereafter compelled/ forced to continue with such a marriage. Why in our society the desirability of continuing in torturous relationship considered more important than the life and happiness of a woman? I also ponder why after a woman is married, the family in which she is born and brought up often disowns her and refuses to stand by her when she is living and alive but cries foul when she is no more. What does a young woman do and where does she go when her own family does not stand by her? Is this not the hypocrisy of our social system?
114. Numerous legislation have been brought in to tackle evils such as dowry, harassment to woman and domestic violence, yet the reality on the ground does not appear to change. It is necessary for the victims and their families to understand that unless such instances of dowry demands and harassment are reported well within time and the families of young women stand by them, there is little that the Court of Law and other agencies can do. We must realize that by not reporting of such incidents most vital evidence is often lost and the guilty frequently get away due to St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 105 of 107 lack of sufficient evidence. The evidence in the present case is totally lacking. If there was harassment or demand of dowry, Why was it not reported; Why was the issue not taken up and discussed with the friends, relatives and other family members; Why if the deceased was subjected to torture (by branding with tongs) she was not provided immediate medical attention by her parental family and despite the same compelled to join the family of the accused; Why at the first instance after her death, her family members (parents and brothers) did not inform the SDM and the Investigating Officer about the various instances of harassment and torture in the same manner in which they have now deposed in the Court; or is it that there was some other reason due to which the deceased ended her life. All these are the questions which have gone unanswered. The allegations against the accused do not stand substantiated beyond reasonable doubt and the material on record is not convincing and consistent with the hypothesis of the guilty of the accused beyond reasonable doubt.
115. I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The material brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 106 of 107 The prosecution has also not been able to establish a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Kapil Mudgil, Deepak, Kusumlata, Kirti and Himanshu, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 498A/304B/34 Indian Penal Code. Their sureties be discharged as per rules.
116. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 21.4.2012 ASJII(NW)/ROHINI St. Vs. Kapil Mudgil Etc., FIR No. 619/06, PS Saraswati Vihar Page No. 107 of 107