Delhi District Court
State vs . on 19 March, 2013
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSION JUDGE-01/SPECIAL JUDGE (NDPS)
SHAHDRA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 372/02
Under Section : 498A/304B IPC
Police Station : Shahdra, Delhi
Sessions Case No : 77/12
Unique I.D. No. : 02402R0005392003
In the matter of :
STATE
Vs.
1. Vijay Kumar (husband of deceased)
S/o Sh. Om Parkash
R/o 89, Shyam Park
Sahibabad, Ghaziabad
2. Anil Kumar (Devar)
S/o Sh. Om Parkash
R/o 89 Shyam Park
Sahibabd, Ghaziabad
3. Krishan Gopal (Nandoi)
S/o Sh. Chander Parkash
R/o K-26, Mahipalpur, New Delhi
4. Raj Rani (mother-in-law)
W/o Sh. Om Parkash
R/o 89 Shyam Park
Sahibabad, Ghaziabad
5. Jitender Kumar (Devar)
S/o Sh. Om Parkash
R/o 89 Shyam Park
Sahibabad, Ghaziabad . . . Accused Persons
Date of Institution : 26/09/12
Date of committal : 12/11/03
Date of reserving judgment : 06/03/13
Date of pronouncement : 19/03/13
JUDGMENT
Brief facts of the prosecution case are that on receipt of FIR No. : 372/02 Page 1 of 29 information through DD No. 26A dated 02/11/01 ASI Ishwar Singh alongwith Ct. Iqbaluddin reached at Shanti Mukand Hospital where he obtained MLC No. 418 dated 02/11/01 of one Kavita W/o Vijay Kumar R/o 30A Jyoti Colony, Shahdra, Delhi on which Doctor had declared her dead. Information in this regard was immediately given to SDM Shahdra and as per direction of SDM dead body of deceased was preserved in Mortuary GTB Hospital. On 04/11/01, SDM got the postmortem of dead body of deceased conducted and after postmortem the dead body was handed over to the relatives of deceased. Statement of complainant Virender Kumar was recorded by the IO on 29/09/02 as under :-
"That marriage of my daughter namely Anjali was solemnised with Vijay Kumar Gupta S/o Om Parkash on 09/03/96 according to Hindu rites and ceremonies, that in-laws of my daughter were not happy with the dowry given to her in her marriage and they started harassing my daughter from the very first day of her marriage. They also gave beatings to her. When I used to visit her with material/things they took the same and pushed me and was not allowed to enter into the house. My daughter also lived at Baraut for one year but her in-laws did not come to take her. I am a cancer patient and I cannot tolerate the tension of my daughter but what I could do except to weep. My daughter was kept in a dirty house where she was in tension. Mother- in-law of my daughter harassed her. My daughter was also tried to be killed several times. An attempt was made to drink her poison which is meant for mosquitoes. When I went, my son-in-law scolded and threatened my daughter in my presence saying that she should not allow her parents to stand there otherwise he would repeat his yesterday's behaviour. My daughter became perplexed. She was also tried to be burnt at Brahampuri house and on 02/11/01 story of my daughter came to and end from this world. My daughter was also harassed by her elder brother in law and brother-in-law Gopal who was in drunken FIR No. : 372/02 Page 2 of 29 condition. Both brothers-in-law (Dewars) of my daughter also used to harass her. My daughter was being harassed by family members of her husband. She was also deprived of proper food. I came to know about the demise or death of my daughter through her landlord on telephone. Her in-laws did not tell me regarding her death. Immediately on coming to know about it, I alongwith my family reached at the hospital in a car where she was declared dead. My daughter was killed by my son-in-law Vijay Kumar, mother-in-law Raj Rani, nandoi Gopal and dewars Anil and Jitender. Being worried my daughter shifted from Ghaziabad to Brahampuri house and thereafter in a rented accommodation at Jyoti Colony".
2. After completion of the investigation, charge-sheet was filed against all the five accused persons U/s 498A/304B IPC.
3. Ld. Metropolitan Magistrate after supplying the necessary copies to the accused persons, committed the case to the court of Sessions vide order dated 12/11/03.
4. My Ld. Predecessor, vide order dated 25/05/04 charged accused persons namely, Vijay Kumar, Anil Kumar, Krishan Gopal, Raj Rani and Jitender for the offences punishable U/s 498A, 304B and 306 IPC all r/w Sec. 34 IPC to which they pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined as many as 18 witnesses.
(a) The prosecution examined following material witnesses:-
1) PW2 Amit Kumar Jain is the brother of deceased, Anjali @ Kavit, who deposed that after receipt of information regarding the death of his sister he alongwith his family FIR No. : 372/02 Page 3 of 29 members went to the house of accused Vijay Kumar Gupta and from there they went to hospital where they found his sister dead.
2) PW3 Virender Kumar Jain is the father of deceased, Anjali @ Kavita, who did not support the prosecution version in toto and turned hostile.
3) PW4 Aman is the son of deceased Anjali who also did not support the prosecution version in toto and turned hostile.
4) PW5 Smt. Kamlesh Jain is the mother of deceased Anjali @ Kavita who deposed regarding ill-treatment of her daughter at her matrimonial home.
5) PW7 Ashok Kumar (independent witness) is the habitant of the same building where accused alongwith his deceased wife Anjali and his children were residing. He deposed that on 02/11/01 accused Vijay Kumar called him to the ground floor where he saw that wife of accused was laying unconscious in his lap. Thereafter, they took her to the Jyoti Nursing Home, Loni Road and from there on the advice of Doctor she was taken to Shanti Mukand Hospital where she was declared dead.
(b) The prosecution also examined following formal witnesses : -
1) PW6 Ms. Rakhi, Medical Record Technician, Shanti Mukand Hospital has brought the MLC register containing MLC No. 418 dated 02/11/01. She also proved MLC Ex. PW6/A.
2) PW8 HC Raj Kumar deposed that on 10/07/02 he was posted at PS Shahadara and on that day he deposited three pulandas of the present case at FSL Malviya FIR No. : 372/02 Page 4 of 29 Nagar.
3) PW9 R.K. Chauhan, Assistant Commissioner Vigilance Food & Supply Department, Government of NCT of Delhi deposed that in September 2002, he was posted as SDM Shahdra and on 28/09/02 he recorded statements of Virender Kumar Jain, Amit Kumar Jain, Smt. Kamlesh Jain and Aman Kumar vide Ex. PW3/A, PW2/B, PW5/A and PW4/A respectively.
4) PW10 Dr. Anil Kohli deposed that on 04/11/01 he conducted postmortem on the dead body of deceased Kavita @ Anjali on 04/11/01 on the request of SDM Shahdra and gave his detailed postmortem report vide Ex. PW9/DB.
5) PW11 Amar Pal Singh, Sr. Scientific Officer (Chemistry), FSL Rohini deposed that he examined the parcel received from PS Shahdara vide his report Ex. PW3/A.
6) PW13 HC Ajmer Singh deposed that on 02/11/02 he was posted at PS : Shahdra and on that day Amit Kumar handed over one photograph and photocopy of the receipt to SI Dharamvir who seized the same vide seizure memo Ex. PW13/A.
7) PW14 Satnam Singh, ADM/SW District, Delhi deposed that on 02/11/01 he was posted as SDM Shahadra and on 03/11/01 he went to the spot and inspected the site and also recorded the statements of Vijay Kumar vide Ex. PW9/DG, Kamlesh Jain vide Ex.
PW5/DA, Amit Kumar Jain vide Ex. PW2/A and Virender Kumar vide Ex. PW9/DO. He further deposed that on 04/11/01 he conducted the inquest proceedings vide Ex. PW9/DC1 and Ex. PW9/DD.
FIR No. : 372/02 Page 5 of 298) PW15 HC Kishanvir Singh deposed that on 04/11/01 he was posted as MHCM at PS Shahdra and on that day ASI Ishwar deposited one viscera cartoon and one pulanda of clothes and one envelope in sealed condition alongwith sample seal with the seal of AK GTB Hospital in the malkhana vide DD No. 26A dated 02/11/01. He further deposed that on 10/07/01 viscera carton was sent to FSL Malviya Nagar through Ct. Raj Kumar vide RC No. 79/21.
9) PW17 HC Sunita deposed that on 08/10/02 he was
posted at PS Shahdra as Duty Officer and on the
basis of complaint he recorded FIR of the present
case.
(c) The prosecution has examined the following witnesses
of investigation :-
1) PW1 Inspt. Shyam Pant, Addl. SHO, PS Mukherjee
Nagar is the second IO and deposed that on 20/01/03, he was posted as Addl. SHO, PS Shahadra and investigation of this case was marked to him and during investigation he formally arrested accused Krishan Gupta, Rajrani and Jitender Kumar and thereafter he was transferred. He also proved arrest memo of Krishan Gopal, Rajnrani, Jitender as Ex.
PW1/A, PW1/B and PW1/C respectively.
2) PW12 SI Ishwar Chand deposed that on 02/11/02 he was posted at PS Shahdra and on receipt of DD No. 26A, he went to Shanti Mukand Hospital where he found deceased dead. He immediately informed SDM Shandra and took the dead body of the deceased to GTB Mortuary for preservation.
FIR No. : 372/02 Page 6 of 293) PW16 Retd. SI Dharambir is the first IO who deposed that on 08/10/02 he was posted at PS : Shahdra and Duty Officer handed over to him copy of FIR and other documents for investigation. He further deposed that on 10/10/02 he reached at the spot and at the instance of Ashok Kumar, landlord of deceased Anjali, prepared the site plan Ex. PW16/A. He also recorded statements of ASI Ishwar Singh, Ashok Kumar, HC Kishanvir and the family members of the deceased during investigation. Thereafter, he handed over case file to SI Ashvir Singh for further investigation on the direction of the SHO as he was to retire in the same month.
4) PW18 Inspt. Aishvir Singh is the third IO who deposed that on 02/12/02 he was posted at PS Shahdra and investigation of this case was marked to him by SHO, PS Shahdra. During investigation he arrested the accused persons at the instance of Amit Kumar.
6. After closure of the Prosecution Evidence, all the incriminating evidence against the accused persons was put to them in their statement U/s 313 Cr.PC recorded on 09/08/11 and 10/08/11 wherein the accused persons pleaded that the allegations levelled against them were false and the witnesses have deposed against them being interested witnesses. The accused persons claimed to be innocent who have been falsely implicated in the present case despite the fact that they had been residing separately from the deceased.
7. In their defence, accused persons examined DW1 Om Prakash.
FIR No. : 372/02 Page 7 of 298. I have heard the submissions from Ld. Addl. PP for the State and Sh. Sanjay Gupta, Ld. counsel for all the accused persons. I have also gone through the record.
9. Ld. Addl. PP for state has submitted that master Aman PW2 is the material witness who has deposed about the occurrence with his own eyes and has narrated the facts in the court to the effect that he had seen the main accused his father in the room of his deceased mother Anjali who was hanging. All the other material witnesses PW3, 5 and 7 have also corroborated the prosecution case on all material facts and official witnesses have proved the prosecution case beyond reasonable doubt. The deceased Anjali had died within seven years of her marriage and adverse presumption exists against the accused persons U/s 113B of Indian Evidence Act and therefore all the accused persons be convicted for the offences with which they have been charged i.e U/s 498A, 304B and 306 IPC all r/w Sec. 34 IPC.
10. On behalf of the accused persons Ld. Defence counsel has submitted written submissions and has also made oral arguments in the court. Ld. Defence counsel submitted that onus of proof in every criminal case is upon the prosecution and is required to prove its case beyond reasonable doubt. The defence cannot be asked to prove innocence and is only required to raise probable defence. He has relied on authorities reported as 2008 (4) RCR Crime 527 SC titled as State v Avdesh and 2010 (3) RCR (CR) 548 SC Nauhar v State. In order to prove the offence U/s 304B IPC, the prosecution is required to prove the following ingredients :-
(a) unnatural death of a woman within seven years of her marriage ;
(b) she should have been subjected to cruelty soon before her death; and
(c) the cruelty should be in connection with demand of dowry.FIR No. : 372/02 Page 8 of 29
11. According to Ld. Defence counsel, though there is presumption U/s 113B of Evidence Act for the offence U/s 304B IPC but the same is not absolute and is rebuttable. Ld. Defence counsel has relied on authorities reported as (1) 1997 CrLJ 1927 SC Shyam Lal v State, (2) AIR 1996 SC 67 State v. Nikku Ram, (3) 1991 JCC 380 Delhi Maqsood v State, (4) 1991 JCC 454 Delhi, Ravi Kumar v State, (5) 2007 (2) RCR (Cr) 395 SC, Biswajeet Haldar v State, (6) 2010 (3) LRC 157 SC Durga Pd. v State, (7) 1996 (1) CCC 67 SC State v Gurdeep Singh, (8) 2011 (25) CCD 47 Delhi, State v Anup Singh and (9) 2011 (2) CCC 179 Delhi, Durga Ram v State. Ld. Defence counsel submitted that Hon'ble High Courts and Hon'ble Supreme Court have held that non-specific, vague and non-particular allegations have no legs to stand in the eyes of law and has referred to authority reported as Nanhar & Ors v State of Haryana 2010 (3) RCR (Cr) 548.
12. Ld. Defence counsel has also submitted that prosecution has examined PW2, 3, 4 and 5 in support of its case but these witnesses have not only made improvements in their statements made in the court over their statements given to the SDM during enquiry proceedings and have also contradicted the statement of each other. The entire testimony is non- specific and vague. The testimony of PW3 Virender Kumar Jain is hearsay in nature. None of the material witnesses have made any specific allegations of harassment and torture of the deceased in relation to dowry demand. The prosecution has failed to adduce any evidence to prove that the deceased was treated with cruelty or harassed with dowry demand soon before death. The inquest proceedings conducted by PW9 are illegal as the same is contrary to the purpose of inquest. PW4 is the minor son of deceased and star witness to prove the case as homicide. This witness remained with the complainant party for about one year before disclosure of alleged incident by him. The cross-examination of PW4 has falsified the stand of the prosecution that the accused has committed murder of FIR No. : 372/02 Page 9 of 29 deceased. As per law, evidence of child witness should be scrutinised with due care but in the present case the possibility of motivated evidence cannot be ruled out as this witness has admitted that he was dependent upon his maternal grand parents for his every need. He has failed to tell the hour of incident whether it was morning, evening or night time and has destroyed the prosecution case by deposing that Ex. PW4/A was written by the police official though not sure. As a matter of fact, it is in the handwriting of PW5 Smt. Kamlesh who is the maternal grand mother of PW4. Cross-examination of PW4 shows about falsity of story cooked up by the complainant party. PW7 Ashok Kumar who is an independent witness has deposed that he was the landlord of the house where accused and deceased lastly lived together. He has never seen any dispute/quarrel or difference between them during their stay which strengthens the probable defence of the accused. PW14 Satnam Singh who was the then SDM Shahdra is a truthful witness and has deposed that no foul play was suspected by the relatives of deceased when he conducted the inquest proceedings on 03/11/01 and therefore the accused persons were innocent. PW10 the Doctor concerned has admitted that the case of medical evidence with respect to deceased Kavita is death due to asphyxia due to ante-mortem hanging. The application was filed by the police on 04/08/03 for opinion whether death was homicidal or suicidal and the doctor's report Ex. PW10/B shows that prosecution could not succeed in its attempt to declare the death of Kavita as homicidal and therefore has failed to prove its case beyond reasonable doubt and therefore the accused persons are entitled for acquittal. He has relied on authorities reported as (1) Mungeshwar v State 2002 (1) JCC 85 SC, (2) Heera Lal v State 2003 MLR 662 SC, (3) Nawab Ali v State 2011 (2) CCC 47 Delhi, (4) Harjit Singh v State 2006 (1) RCR (Cr) 133 CC, (5) Sunil Bajaj v State AIR 2001 SC 3020, (6) Chanchal Kumari v State AIR 1986 SC 752, (7) Dinesh Seth v State 2003 (VI) AD (Delhi) 146, (8) George v State 1998 (IV) AD SC 133, (9) Hira Lal v State AIR 2003 FIR No. : 372/02 Page 10 of 29 (SC) 2865, (10) Ashok Vishnu Davare 2004 (1) JCC 493, (11) Salamat Ali v State AIR 1995 SC 1863 and (12) Brij Mohan v State 2012 (1) CCC 52 Delhi.
13. The accused persons have been charged for commission of offences U/s 498A/34 IPC, 304B/34 IPC and U/s 306/34 IPC.
14. Sec. 498A IPC reads as under :-
"Husband or relative of husband of a woman subjecting her to cruelty. -- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section, "cruelty" means --
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand".
15. Before adverting to the rival submissions for the purpose of appreciation it will be apt to refer to Sec. 304-B IPC, which reads as under :-
"Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to FIR No. : 372/02 Page 11 of 29 imprisonment for life".
16. In order to seek conviction U/s 304-B IPC the prosecution is obliged to prove that (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death.
17. The offence U/s 306 IPC is abetment of suicide which is defined as under :-
"If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"
18. The basic constituents of the offence U/s 306 IPC are suicidal death and abetment thereof as was held in authority reported as Sangarabonia Sreenu v State of Andhra Pradesh (1997) 4 Supreme 214 and as per authority reported as Pallem Deniel Victoralions Victor Manter v State of Andhra Pradesh (1997) 1 Crimes 499 (AP), to attract the ingredients of abetment the intention of accused to aid or instigate or abet the deceased to commit suicide is necessary.
19. The case of the prosecution in brief is that an information through DD No. 26A dated 02/11/01 was received by ASI Ishwar Chand who alongwith Ct. Iqbaluddin went to Shanti Mukand Hospital and obtained the MLC No. 418 dated 02/11/01 of Kavita on which the Doctor concerned had declared her dead. SDM concerned was informed and the dead body was sent to the Mortuary of GTB Hospital. On 04/11/01 the SDM Shahdra FIR No. : 372/02 Page 12 of 29 got the postmortem on the dead body of deceased Kavita conducted and statement of Sh. Virender Kumar Jain, father of deceased was recorded who had alleged that his daughter was killed. The statements of Anil Kumar Jain, Virender Kumar Jain, Smt. Kamlesh Jain and master Aman Kumar was also recorded and the matter was referred to SHO, PS Shahdra for taking action as per law and on completion of investigation the charge-sheet was filed against the accused persons namely Vijay Kumar, Anil Kumar, Krishan Gopal, Raj Rani and Jitender Kumar for offences U/s 498A/304B IPC. However, my the then Ld. Predecessor has charged them for the offences punishable U/s 498A, 304B and 306 IPC all r/w Sec. 34 IPC.
20. The then SDM Shahdra was examined as PW14 on 06/05/10 and at that time the witness Sh. Satnam Singh was ADM/SW District. In his testimony he has deposed that on 02/11/01 he was posted as SDM Shahdra and SI Ishwar Singh informed him at about 10:00 p.m, that one lady namely Kavita was admitted in Shanti Mukand Hospital in dead condition. He went to the spot and recorded brief facts vide Ex. PW9/DE. He also inspected the dead body and recorded statement of Vijay Kumar as Ex. PW9/DG, statement of Kamlesh Jain Ex. PW5/A, statement of Amit Kumar Jain Ex. PW2/A and of Virender Kumar Ex. PW9/DO. He also recorded the statement of Amit Kumar and Kamlesh as Ex. PW9/DK and PW9/DF in respect of Amit Kumart and Kamlesh. He proved the inspection report Ex. PW9/D. He also proved the inquest proceedings Ex. PW9/DC1, PW9/DD and request for postmortem Ex. PW9/DC. On his direction, viscera and blood of deceased was preserved and the dead body was handed over to her relatives. In the cross-examination of this witness he deposed that no foul play was suspected by relatives of deceased behind her death during the period for which the enquiry remained with him. Therefore, it is apparent on record that at that stage the complainant/relatives of the deceased had not expressed any suspicion FIR No. : 372/02 Page 13 of 29 against the accused persons with respect to her death and perhaps till that time they also did not have any grievance against the accused persons.
21. However, subsequently, the complainant/relatives of the deceased approached the then SDM Shahdra in September 2002 and PW9 R.K. Chauhan, the then SDM Shahdra recorded the statements of Virender Kumar Jain, Smt. Kamlesh Jain and Amit Kumar Jain on 28/09/02. He proved the statements Ex. PW3/A, PW5/A and PW2/B in respect of these witnesses. Master Aman Kumar was also produced before him whose statement was recorded by Smt. Kamlesh Jain, who put her signatures on the statement Ex. PW4/A and accordingly PW9 after making endorsement on all the statements, sent the same to SHO PS Shahdra on 03/10/02 for appropriate action vide letter Ex. PW9/A. However, in his cross-examination, he admits that on 28/09/02, he had no knowledge about pendency of any inquest proceedings regarding death of Kavita but again said it was 16/08/02 some papers were received from PS: Shahdra which were forwarded by him to his Reader through letter Ex. PW9/DA. He admits that no separate application was filed by the complainant or police for recording the statements of complainant/relatives of the deceased afresh. He admits that he had not perused the documents received by him on 16/08/02 before issuing direction to the SHO for taking action on the statement of witnesses. He claims to have satisfied himself for recording statement of master Aman but admitted that there was nothing on record to show that he had satisfied himself about the voluntariness and about the capacity of master Aman Kumar to give statement. He also admits that he had not interrogated the opposite party i.e the accused persons to rule out any bias. This witness deposed that statement of Aman Kumar was recorded by Smt. Kamlesh Jain which was signed by her and the same is Ex. PW4/A which clearly shows that the statement of master Aman Kumar was not recorded by him personally nor he had made any effort to ascertain whether master Aman Kumar was FIR No. : 372/02 Page 14 of 29 making the statement voluntarily and was competent to give statement. This witness also admits that purpose of inquest proceeding is to find out immediate cause of death. In the authority reported as George & Anr. v. State of Kerala & Anr 1998 IV AD SC 133, Hon'ble Supreme Court has held that the whole purpose of preparing an inquest report U/s 174(1) Cr.PC is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon, or instrument, if any, such wounds appear to have been inflicted. In other words, for the purpose of holding the inquest, it is neither necessary nor obligatory on the part of the Investigating Officer to investigate or ascertain who were the persons responsible for the death. In the present case not only PW14 but even PW9 both have failed to find out the immediate cause of death. Dr. Anil Kumar PW10 has proved the postmortem report Ex. PW10/B in respect of deceased Kavita and opined that the cause of death was asphyxia due to ante-mortem hanging. However, this witness stated that by examination of body of deceased Kavita alone (postmortem findings alone) no definite opinion could be given whether the death due to hanging was suicidal or homicial and his opinion was as per report Ex. PW10/B and therefore prosecution could not establish beyond reasonable doubt that death of deceased Kavita was homicidal or suicidal.
22. From the above, it is apparent that when the inquest proceedings was conducted by PW14 Sh. Satnam Singh, the then SDM Shahdra on 04/11/01 no foul play was suspected by the relatives of the deceased behind her death during the period of enquiry with him and after about 9/10 months the complainant and relatives of the deceased approached PW9 Sh. R.K. Chauhan, the then SDM Shahdra when their statements Ex. PW3/A (Virender Kumar Jain) Ex. PW2/B (Amit Kumar Jain) Ex. PW5/A (Smt. Kamlesh Jain) and Ex. PW4/A (Aman Kumar) were allegedly recorded. From the cross of PW9, it is established that he had FIR No. : 372/02 Page 15 of 29 not put any questions to master Aman Kumar to satisfy himself that master Aman Kumar had the capacity to make statement or that he was making the statement voluntarily. From the statement of PW9 itself it is established that statement of master Aman Kumar was not recorded by PW9 but the said statement Ex. PW4/A was written by Smt. Kamlesh Jain and therefore PW9 did not record any statement of master Aman Kumar.
23. PW2 Amit Kumar Jain in his examination-in-chief has deposed that accused Vijay Kumar had threatened them that they should declare to everybody that Kavita had died due to heart attack otherwise he would murder Aman and due to that threat he gave statement to SDM on 07/11/01 which Ex. PW2/A. This witness has claimed that due to the said pressure he made the statement Ex. PW2/A before SDM. In his statement Ex. PW2/A, this witness has not alleged against in-laws of deceased Kavita regarding harassment, torture and demand of dowry. In his examination-in-chief this witness admits that after 07/01/01 they went to their house at Baraut alongwith elder bhanja Aman where the other bhanja was already sent. Once master Aman was handed over the custody of complainant and his family members the relatives of deceased, it does not appeal to the reason that there could have any perceivable threat from accused Vijay Kumar killing master Aman Kumar and there is no explanation why the complainant and his relatives approached the PW9 after delay of about 10-11 months.
24. PW9 has failed to satisfy himself by examining the PW4 master Aman that he was competent to depose and was making any statement voluntarily. In fact, neither there is any examination of PW4 by PW9 nor there is any statement of PW4 in the handwriting or under the dictation of PW9. In fact, the statement Ex. PW4/A dated 28/09/02 is in the handwriting of Smt. Kamlesh Jain, maternal grand mother of PW4 in whose custody this child has remained since the date of cremation of FIR No. : 372/02 Page 16 of 29 deceased. Once the custody of this child was taken by the relatives of the deceased on the date of cremation around 4/5 November 2001, it cannot be believed that there was any threat from accused Vijay to the family members of the deceased that he could kill PW4 and the relatives of the deceased had all the time opportunity to report the matter to the police and other authorities but no such complaint or representation had been given by the family members of the deceased to any authority. This witness PW4 had admitted that he was dependent on his maternal grand parents for his every need. He has failed to state the hour of incident whether it was morning, evening or night time. In the statement Ex. PW4/A attributed to this witness and written in the handwriting of his maternal grand mother PW5 Smt. Kamlesh, this witness had stated that the accused Vijay Kumar, his father had tied the rope and saree in the neck of his deceased mother in his presence. On the date of examination of this witness he was around 12 years old and had appeared in the court while he was in the custody of parents of deceased and deposed that he does not remember the year, date or month of the occurrence but at that time he alongwith his parents i.e his deceased mother and accused Vijay Kumar were living in Delhi and he was also going to school. According to this witness, his mother (deceased) had gone to other room and lying down. His father (accused Vijay Kumar) told him that he would just come after urinating. Since much time had elapsed, he saw his mother in other room and around her neck there was a rope and palla of saree tied and his father was also present in that room. The head of his mother (deceased) was on the palang and her legs were hanging down from the palang. Thereafter his father had taken his mother in a rickshaw somewhere and he does not know what happened to his mother but she was no more. This witness was also cross-examined by Ld. Addl. PP wherein he denied the suggestion that rope and saree was tied in the neck of his mother in his presence by his father. He also does not remember if he had stated this fact in his statement. On confrontation with portion A to A of the statement Ex.
FIR No. : 372/02 Page 17 of 29PW4/A it was found so recorded. The statement Ex. PW4/A was as per statement of PW9 written in the handwriting of PW5 maternal grand mother of witness PW4 and therefore it is apparent that this fact was mentioned by improving the statement which fact has been denied by PW4. In the cross-examination, he admits that no other person except he and his parents were living in the house at Delhi where the occurrence took place. PW2 Amit Kumar Jain, brother of deceased, deposed that he gave statement Ex. PW2/A to SDM on 07/01/01 under pressure of accused Vijay Kumar Gupta without explaining the kind of pressure but he again approached the then SDM and made statement Ex. PW2/B on 28/09/02 improving on his earlier statement Ex. PW2/A dated 07/01/01. He had only pleaded that accused had threatened that he would murder master Aman PW4 but custody of master Aman was already taken by the family of deceased since the date of cremation of deceased. As such it cannot be believed that he had any kind of threat of pressure on 07/01/01 when he made the statement Ex. PW2/A before the Ld. SDM. In that statement he did not suspect anyone regarding the death of his deceased sister. In his examination-in-chief, he has made vague and non-specific statement without giving any date, time and month with respect to his allegations. He made a vague allegation that since the date of marriage of his sister all the accused persons used to harass his sister for insufficient articles given to her marriage as they were not satisfied with the dowry and she was suspected to beatings by her husband. He also alleged that the family of accused persons were demanding a house and harassing his deceased sister and his sister used to tell him that in case the demand of house is not fulfilled she will be killed by her husband and her in-laws. In his cross-examination, he claimed that he was earning Rs 10,000/- from medical store. His mother was a Teacher but he never asked about her salary. He could not admit or deny that his mother was earning around Rs. 15,000/- per month. According to PW2 he spent about Rs. 2.5-3 lacs in the marriage of his deceased sister Anjali @ Kavita. He admits that he did not FIR No. : 372/02 Page 18 of 29 provide any details to the police. According to him, he does not have any idea when accused persons had shifted to Delhi alongwith his sister. However, he admitted that his sister and her husband had shifted to Delhi and rest of the family members continued to stay at Raj Nagar, Sham Park, Shahibabad. It is pertinent to note that Ld. Defence counsel has pointed out to my Ld. Predecessor that this witness had written some dates on his hand which were got wiped out by issuing directions. According to him, his deceased sister complained to him about the harassment gave by her husband on 10/03/1996 for the first time and when he went to her sister's house on 11/03/96 she told him that she was taunted on account of insufficient dowry. He admits that his sister stayed with them for eleven months after her marriage but has not disclosed the specific period of such stay due to the reason best known to him. This witness has failed to specify the articles demanded by the accused persons in dowry but only stated that the accused persons were not satisfied with the quality of articles. However, he has failed to give the details of the articles, if any, given in the dowry. He claims that few articles were deficient but is unable to state the names of such deficient articles. He is unable to state the year in which his deceased sister stayed with him after marriage. He claims that even in his presence, his deceased sister was harassed by accused persons but was unable to tell the exact date, time and month or year. He admits that before her death his deceased sister had suffered from fever and had brought medicines from Baraut. He also admits that his deceased sister was operated upon thrice i.e two times abdomen and one time head. She had given birth to both the children by ceasarian operation. This witness does not know the date, month and year when his deceased sister was harassed by her dewar and nandoi under the influence of alcohol or otherwise and they have not made any complaint to any authority in this regard. This witness is unable to state the date, month and year or the other details of harassment committed by Sunita, Usha and Munga. He does not know as to when his FIR No. : 372/02 Page 19 of 29 sister and her husband started living separately but he admits that they were living separately from their family in Shahibabad. He admits that he had not filed any complaint about harassment of his sister. He also deposed that they did not provide anything except providing article/goods demanded by her and for the first time his sister asked for ata which was provided to her but he does not remember any date in this regard. He also did not tell about this fact to the police. In reply to a question, to tell the details of gifts demanded by his sister which was provided by him on demand this witness replied that she used to ask about household articles such as food-grain but could not tell the details as to when the same was demanded and was provided by him to his sister. According to this witness, his sister did not sustain any injury due to beatings given by accused Vijay. He claims that he used to make 2/3 visits to his sister when she was harassed but he was unable to state the dates of those visits. According to this witness, marriage of his sister was solemnised with accused Vijay on mediation by Vijay's phupha.
25. Virender Kumar Jain PW3 is another material witness who has deposed that all the accused persons used to quarrel with his daughter Anjali @ Kavita but he could tell any reasons as to why they used to quarrel. According to this witness deceased Anjali @ Kavita resided with accused Vijay Kumar at Brahampuri and after sometime they resided at Ashok Nagar. He has also deposed that accused persons used to beat his daughter and threatened her. He added that GHAR KA SAMAN LANE ME TANG RAHTI THI WOH KHUD KARTI THI YA HUM JATE THE TO KARTE THE. This witness has categorically stated that the accused persons present in the court never demanded any dowry articles from him. He was cross-examined by Ld. Addl. PP wherein he affirmed the suggestion that his daughter was being deprived of proper food and she was being harassed by giving beatings. He also affirmed the suggestion that his daughter told him that an attempt was made upon her to drink FIR No. : 372/02 Page 20 of 29 poison but no date, month and year has been mentioned nor any complaint to any authority in this regard has been proved by him. He also affirmed the suggestion that he tried to search a house at Gulab Watika and at some other places but he could not arrange for the money due to his illness and subsequently due to operation of his wife. He was a cancer patient for last 7-8 years.
26. PW5 Smt. Kamlesh Jain, mother of deceased, has deposed that after marriage when her daughter came to her for the first time, she told that her in-laws were harassing her for demand of dowry. She clarified the demand that the mother-in-law of deceased taunted her by saying KYA LAYEE HAI KYA DIYA HAI. According to her the accused persons demanded to arrange a house but they could not arrange due to her operation. When she reached at Bal Mukand Hospital where her deceased daughter was found in dead condition, only accused Vijay Kumar was found who informed that she died due to heart attack. She also alleged that accused Vijay Kumar threatened them in case they informed police he will kill Aman PW2 (son of her deceased daughter) within 10 minutes. However, she deposed that after recording their statement before police, master Aman was handed over to her by accused Vijay from where she alongwith her family members went to Baraut where master Aman had allegedly disclosed the incident to her detailing how accused Vijay has killed her daughter. She admits that statement of master Aman Ex. PW4/A bears her signatures and she also made statement Ex. PW5/A before SDM. She has stated that her daughter was not harassed by her father-in- law and Nand. Her father-in-law is a gentle person who used to advise the accused persons to behave properly and not to harass Anjali @ Kavita. She is B.A, B.Ed and admits that she had written the complaint Ex. PW5/DA but claimed that at the time of making said statement she was very much upset as she was operated upon and was confined to bed. She denied the suggestion that Anjali @ Kavita remained sick and had FIR No. : 372/02 Page 21 of 29 undergone three surgery although this fact is admitted by her son PW2 Amit Kumar. She pleaded ignorance that in the statement Ex. PW5/DA she had not suspected anybody regarding death of his daughter. She was confronted with portion 'DC' to 'DC' where it was so recorded. This witness has admitted that in the Jyoti Colony rented accommodation only her daughter alongwith accused Vijay and children were residing. She does not remember the date, month and year when for the first time she came to know about the demand and harassment made by the accused persons and voluntarily added that it was at the time of gona i.e second day of marriage but when she was confronted with statement Ex. PW5/A it was not so recorded. This witness is unable to state the date, time and month when the items of demand were given by her to the accused persons. She is unable to state the date, time and month when the demand for house was conveyed to her by Kavita at the instance of the accused persons. She admits that her husband was operated upon for cancer before death of Kavita but she is unable to state the expenses incurred on two operations but again said the amount as Rs. 1,60,000/-. She denied the suggestion that accused Vijay shifted to a rented house separately from his parents under pressure of the family of the witness. She admits that accused Vijay and deceased Kavita had shifted to Delhi from Shahibabd. She denied the suggestion that Kavita remained tensed due to illness of this witness or her husband. She admits that master Aman PW2 had gone to Baraut after cremation of Kavita. She admits that she did not lodge any complaint before SDM prior to 28/09/02 about threat given by accused Vijay at Jyoti Colony house not to depose against him otherwise he would eliminate Aman. She admitted that in the statement made to the SDM, she did not state that her daughter Kavita had undergone two operations of her stomach and one of neurosurgery. Even though she is qualified B.A, B.Ed but she pleaded fading memory and did not disclose her salary at the time of marriage of Kavita. She did not even disclose the name and address of the school where she was working. This witness is unable to state the FIR No. : 372/02 Page 22 of 29 amount of money spent in the marriage at Baroda and voluntarily added that only male family members can tell about it. She does not know whether her first statement dated 07/11/01 to this SDM was correct or not. She pleaded ignorance whether paternal uncle (phupha) namely Om Parkas of accused Vijay was mediator of marriage of Vijay and Kavita. It is pertinent to note that according to this witness no articles were given to Kavita in marriage as per prevailing custom. However, she voluntarily added that cash amount was given in the marriage but does not remember how much cash amount was given in the marriage. She stated that she cannot produce any photographs of the marriage to prove the fact that cash amount was given to the accused persons in the marriage. She voluntarily added that entire amount was withdrawn from post office and some amount was borrowed from the relatives of her husband but she could not state as to how much amount was withdrawn from the post office and how much amount was borrowed from the relatives of her husband. She did not produce any documentary evidence in this regard nor examined any such relatives. Strangely, this witness has pleaded ignorance about the fact as to who had mediated in the matrimonial alliance of her daughter although PW2 son of this witness has categorically stated that Mr. Om Parkash, phupha of accused Vijay was mediator. She also pleaded ignorance whether she was told by male family members prior to the marriage about the mediator. She admits that Kavita was never harassed in her presence and voluntarily added that they had never visited their house. She admits that they had not lodged any complaint with police or any authority till the death of Kavita about the alleged harassment meted out to her. She admits that she has never heard anything about Sunita, Usha and Munga. This witness has also admitted that accused Vijay and her deceased daughter Kavita were living separately at the time of her second delivery in the tenanted house away from family members. Her husband was admittedly suffering from cancer for the last 13-14 years and he was operated upon after marriage of FIR No. : 372/02 Page 23 of 29 Kavita. She also admitted she was operated upon of gall bladder after marriage of Kavita and Kavita used to remain tense due to ailment of her husband and this witness. She also admits that after leaving the family house accused Vijay and her daughter stayed in a rented house at Shahbibad for about 7/8 months and thereafter they shifted over to another house at Brahampuri where they stayed till 1998 and thereafter they shifted to other tenanted house of Sh. Ashokji at Jyoti Colony where the incident had taken place. She denied the suggestion that Brahampuri and Jyoti Colony tenanted accommodations were arranged through their sources. She stated that there was demand of aata and food-grain besides house. No promise was made by them to gift a house at the time of marriage as a consideration of marriage. She is unable to state the date when Kavita had asked about the demand or the dates when the said fact was told by Kavita to her. She is unable to disclose the time when PW Aman disclosed the alleged two facts to her.
27. PW7 Ashok Kumar has deposed that he was owner of house B-38/A, Gali No. 8, Jyoti Colony, Shadra, Delhi-32 where he was living since 1978. Vijay Kumar alongwith his wife Anjali and two children were living on the ground floor of his house since 01/09/01. On the date of incident, Vijay Kumar called him to the ground floor and he saw his wife Anjali lying unconscious in his lap. They took her to Jyoti Nursing Home where the Doctors advised them to take her to some other good hospital and she was taken to Shanti Mukand Hospital where she was declared dead. Her parents were informed by him on telephone. In the cross- examination of this witness, he stated that the accused Vijay shifted to in- laws house at Baraut alongwith his two children and entire belongings. He has never seen any dispute/quarrel or differences between the Vijay and his wife during the tenure when they lived there. This house was let out by him to accused Vijay on asking of father of Anjali as her father was known to him. From the testimony of this witness, it is established on record that FIR No. : 372/02 Page 24 of 29 the accused Vijay Kumar alongwith deceased wife and children were living at the house of PW7 Ashok Kumar as tenant for the last 2-3 months prior to the date of incident. PW5 has admitted that the accused Vijay Kumar alongwith Kavita and their children were living separately from family members of accused Vijay Kumar at Shahibabd before shifting to Delhi. No complaint was made by any family member of deceased Kavita against accused Vijay Kumar or his family member including other accused Anil Kumar, Krishan Gopal, Raj Rani and Jitender Kumar with respect to allegations of harassment and cruelty if any having been committed by them against Kavita with dowry demand. There is no letter or complaint sent by deceased Kavita having been sent to the complainant/family members with any such allegations. None of the PWs 2, 3, 4 and 5 has deposed that the accused persons had made any specific dowry demand on or before marriage of Kavita with accused Vijay. They have failed to prove on record that on demand of accused persons either cash amount or any dowry articles was given. No list of dowry articles has been submitted. No complaint or representation has been made to any authority by the family of complainant against the accused persons with the allegations of dowry demand or harassment or cruelty having been committed against the deceased Kavita in relation to dowry demand. Admittedly, deceased Kavita alongwith accused Vijay Kumar had left the matrimonial home alongwith their children and initially lived in a separate tenanted accommodation at Shahibabad and thereafter Jyoti Colony, Shahdra as a tenant of PW7 Ashok Kumar who has categorically stated that he has never seen any dispute/quarrel or differences between Vijay and his wife during the tenure they lived there. He has also admitted that the accommodation was let out to accused Vijay on the asking of PW3 (father of Anjali) who was known to him. Since it is established on record that deceased Kavita @ Anjali and accused Vijay Kumar along with their children had separated from her in-laws since a considerably long time prior to her death, it cannot be said that the other accused persons could FIR No. : 372/02 Page 25 of 29 have given beatings, harassed or tortured the deceased Kavita causing physical or mental cruelty with dowry demand. PW7 Ashok Kumar would not have deposed contrary to the testimony of other material witnesses who are members of family of the complainant, if the accused Vijay Kumar had given beatings to deceased or harassed or tortured the deceased Kavita @ Anjali treating her with cruelty physical or mental in connection with dowry demand. The testimony of complainant and his family members is bereft of requisite ingredients to establish the charges against accused Vijay and others. Entire testimony of these witnesses is vague and non- specific from which the prosecution has failed to prove on record that the accused persons had subjected deceased Kavita with cruelty as defined U/s 498A IPC. DW1 Sh. Om Prakash has deposed that his son Vijay was married to deceased Kavita. It was a simple marriage and they had not demanded anything from bride side and articles were given as per their sweet will. After marriage, Vijay and Kavita lived at his house for about 10 months. The parents of Kavita took her with them against their wishes after birth of the child. The parents of Kavita were keen to see his son Vijay to live separately from them. Parents and brother of the deceased used to visit his house and provoke deceased Kavita against them and therefore, accused Vijay and deceased Kavita were separated from his house. Initially they lived in a rented house for 3-4 months in Shahibabad. Thereafter, the father of Kavita got them shifted in Shahdra area in a rented house and they were not visiting the family of this witness. Accused Vijay came to his house for some financial help for his father in law who was suffering from cancer at that time but he refused. He came to know about death of Kavita from Vijay on telephone. After cremation of Kavita accused Vijay was taken by his in laws to Baraut where he lived for about 9/10 months and thereafter, he came to his house and told that he has been turned out from Baraut by his in laws. He also told that his in-laws were keen to marry their younger daughter with him but he refused. He also told Vijay to marry with younger daughter of his in laws as ultimately FIR No. : 372/02 Page 26 of 29 he has to marry. The testimony of this witness has remained un controverted and unchallenged and therefore his testimony deserves to be believed. PW5 Smt. Kamlesh Jain mother of deceased in her cross examination has stated that his daughter was not harassed by her father- in-law and her nanads. Father-in-law of her daughter was a gentle person. In authorities reported as Munshi Prasad & Ors. vs. State of Bihar, 2001 CRI.L.J 4708 SC, State of Haryana v Ram Singh 2002 (1) JCC 385 SC, Ajay Goswami Vs State 2011 (2) JCC 1279 and Ashok Narang v. State 2012 (1) JCC 482 Delhi High Court, it was held that the defence witnesses are entitled to equal treatment.
28. As discussed in para-16 above, in order to prove the offence U/s 304B, the prosecution was required to prove following ingredients :-
(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years of her marriage;
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased should have been subjected soon before her death.
29. In the present case, deceased Kavita was married with accused Vijay on 09/03/96 and has died on 02/11/01 within seven years. There is neither any allegation of burning her nor the postmortem Ex. PW10/A report shows any burn injury. Prosecution has failed to prove on record that either accused Vijay or his relatives had caused any bodily injury on the deceased. The prosecution has also failed to prove on record that the accused persons had harassed or subjected deceased Kavita with cruelty in connection with dowry demand, what to say of any kind of cruelty having been committed by accused persons soon before her death. There FIR No. : 372/02 Page 27 of 29 is no evidence on record that deceased Kavita was subjected to cruelty or harassment for, or in connection with any dowry demand by the accused Vijay or his family members at any point of time and therefore, presumption U/s 113B of Evidence Act against the accused persons stands rebutted. As such prosecution has miserably failed to prove the offence U/s 304-B IPC against the accused persons.
30. The accused persons have also been alternatively charged for the offence U/s 306 IPC and the prosecution was required to prove on record that the accused persons had intended to aid or instigate or abet the deceased to commit suicide. It is established on record that the deceased Kavita alongwith accused Vijay and their children had been living separately from the other family members of accused Vijay for considerably long period as they initially lived at Shahibabad and thereafter at Jyoti Colony. Therefore, no presumption against them of any kind could be drawn. The prosecution has also failed to prove on record that the accused Vijay had treated the deceased Kavita with cruelty mental or physical, to drive her to commit suicide or to cause grave injury or danger to life, limb or health or harassment with a view to coerce her or any of her relative to meet any unlawful demand for any property or valuable security or on account of her failure or any person related to her to meet such demand. Therefore, presumption U/s 113A of Indian Evidence Act cannot be drawn against any of the accused persons (relied authority reported as AIR 1996 SC 67). There is no iota of evidence that soon before the death of Kavita she was treated with cruelty by accused persons.
31. As per the postmortem report Ex. PW10/A of Dr. Anil Kohli, on examination of body of deceased Kavita (postmortem findings) no definite opinion whether the death was due to hanging was suicidal or homicidal could be given. He has also proved his opinion Ex. PW10/B. In FIR No. : 372/02 Page 28 of 29 view of this report, when it cannot be said whether the death was suicidal or homicidal, the prosecution has failed to prove on record that death of accused Kavita was homicidal. In order to convict any person for instigating any person to commit suicide, it has to be established that the victim committed suicide (relied Wazir Chand v State of Haryana AIR 1989 SC 378). The prosecution has failed to prove on record beyond reasonable doubt that the accused persons had treated the deceased with cruelty or harassed her with respect to dowry demand as required U/s 498A IPC, as such no presumption U/s 113A of Indian Evidence Act can be drawn against accused persons (relied on authority reported as Harjit Singh v. State of Punjab 2006(1) RCR (Cr) 133). The accused persons are entitled for benefit of doubt and acquittal. Accordingly, all the accused persons are acquitted of all the charges U/s 498A, 304B and 306 IPC all r/w Sec. 34 IPC. The accused persons are on bail. Their bail bonds are cancelled and sureties are discharged. However, they are directed to furnish fresh personal bond and surety bond in terms of provision U/s 437-A Cr.PC. File be consigned to Record Room.
Announced in the open court today i.e 19th March 2013 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi FIR No. : 372/02 Page 29 of 29