Delhi District Court
Has Relied Upon I(2001) Dmc 17 Titled As ... vs State, on 20 March, 2010
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IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 10/01
Date of Decision: 16/03/2010
Date of Sentence: 20/03/10
State
Versus
1) Ashok Kumar
Son of Jagdish Ram
R/o H.No. 42, Mandir Mohalla,
Samay Pur Badli, Delhi.
2) Jagdish Ram
Son of late Sh. Pyare Lal
R/o H.No. 1104,
Multi Storey near Arya Samaj Mandir,
Timarpur, Delhi.
FIR No. 420/2000
PS : Samay Pur Badli
U/s. 498A/34 of IPC
ORDER ON SENTENCE
20-03-2010
Present: Addl. PP for State.
Both the convicts in person.
Report of the probation officer received. I have gone through the same.
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Ld defence counsel submits that convict Ashok is aged about 38 years and convict Jagdish Rai is aged about 66 years.
Convict Ashok is a T.V mechanic and having three children to support. He is also maintaining convict Jagdish Ram, who is retired now. Ld defence counsel further submits that all the three children of convict Ashok are school going and imposition of sentence and sending him behind bars will shatter his family.
Ld Counsel for further submits that both the convicts have faced trial of this case since 2000 and have appeared regularly.
Ld defence counsel further submits that both the convicts be given benefit of probation.
In support of his contentions Ld Defence counsel has relied upon I(2001) DMC 17 titled as Bijender Vs State, where benefit of probation was given to the convict u/s 498A and 306 of IPC by the Hon'ble High Court of Delhi.
Ld defence counsel has further submitted that out of court, it was settled with the complainant that both the convicts will deposit Rs.70000/- each in the name of the -:3:- children of the deceased, which was deposited by them accordingly to the satisfaction of the complainant.
Considering the nature of offence, as the same is punishable with the maximum sentence of three years with fine and character of both the convicts, who are maintaining the children left behind by the deceased, in my opinion it is a fit case to give benefit of probation of good conducts to both he convicts for two years on furnishing a personal bond for the sum of Rs.10,000/- with one surety in the like amount each, subject to the condition that both the convicts shall not involve themselves in such acts in future and in case of default during the period of Probation, both will produce themselves before the court for acceptance of sentence.
Compensation to the tune of Rs.40,000/- is also imposed upon the convicts, payable by both the convicts collectively to the complainant and be deposited within three days in the court, as requested by both the convicts.
On deposit of compensation, notice be issued to complainant to call him to receive the compensation.
Personal bonds and Surety Bonds furnished. Same are accepted. Probation Officer is also directed to -:4:- report the court quarterly regarding the probation of the convicts. Necessary notice be issued to Probation Officer in this respect.
Announced in the open Court on 20/03/10.
(Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi -:5:- IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 10/01 Date of institution of the case: 26/06/2001 Arguments heard on: 12/03/2010 Date of reservation of order: 12/03/2010 Date of Decision: 16/03/2010 State Versus
1) Ashok Kumar Son of Jagdish Ram R/o H.No. 42, Mandir Mohalla, Samay Pur Badli, Delhi.
2) Jagdish Ram Son of late Sh. Pyare Lal R/o H.No. 1104, Multi Storey near Arya Samaj Mandir, Timarpur, Delhi.
3) Smt. Angoori Devi ( Since expired)
W/o Jagdish Ram
R/o H.No. 1104,
Multi Storey near Arya Samaj Mandir,
Timarpur, Delhi.
FIR No. 420/2000
PS : Samay Pur Badli
U/s. 498A/306/34 of IPC
Judgment
This case was registered on the statement of one -:6:- Dharam Singh by preparing a rukka by ASI Ram Avatar and he got registered the case u/s 498A/306/34 of IPC against all the three persons i.e. accused Ashok, Jagdish Ram and Smt Angoori.
During investigation photographs of the spot were taken, statement of witnesses were recorded, site plan was prepared at the instance of the Dharamveer, inquest papers were prepared and dead body was sent to mortuary, Subji Mandi. Dead body of Babita was also identified and statement regarding identification as recorded. After postmortem, dead body was handed over to legal heirs of the deceased. Viscera and sample seal, which were taken from the doctor, were seized. Case property was deposited in malkhana During investigation all the three accused were arrested in this case and were produced before the court concerned. Viscera was sent to CFSL for opinion and on completion of the investigation, challan was filed.
Case was committed to the Court of Sessions and was received on 04/02/02.
All the three accused persons were charged u/s 498A/34 and 306/34 of IPC, to which they pleaded not guilty -:7:- and claimed trial. During trial, accused Angoori Devi expired.
To prove its case, prosecution has examined PW1 to PW11 in all.
Statement of both the accused recorded. Accused Ashok Kumar has denied the case of the prosecution and has stated that he has been falsely implicated in this case by his father in law, who demanded an amount of Rs.two lacs prior to registration of this false case, which he denied. His father in law later on asked him to get FDR of Rs.1.5 lac in the name of his daughters stating that he will withdraw the case registered against them. However, he deposited Rs.1.5 lacs as FDR in the name of his daughter after they were released on bail.
Accused Jagdish Ram has also denied the case of the prosecution and has stated that he and his wife were residing separately from his son Ashok and his deceased wife Babita. However, they were on visiting terms with each other. He has further stated that they never demanded any single penny nor ever harassed or tortured Babita at any point of time and on the day of the incident, he and his wife reached there. Father of the deceased by reaching there started -:8:- demanding amount and in the police station prior to lodging of this case. Initially he demanded Rs.10.lac and after that, reduced the amount to Rs.two lac. On denial of the same, they were falsely implicated and arrested in this case. Even after release on bail, father of the deceased asked them to deposited Rs.1,50,000/- as a FDR in the name of his grand daughter and asked him to transfer the property by way of will deed in the name of the grandson, and accordingly, they complied with the said instructions and deposited Rs.70,000/- each in the name of his grand daughters. Copies of the FDRs in the name of grand daughters Kavita and Seema are marked as X and X1. He has further stated that he himself executed a will deed. Copy of the will is Mark Y. In their defence accused persons examined DW1 Suresh Kumar and DW2 Seema.
I have heard Ld APP for State and Ld defence counsel for the accused persons and have gone through the material placed on record and the evidence adduced. Finding qua offence u/s 498A of IPC To prove offence u/s 498A/34 of IPC, prosecution has examined few witnesses. PW2 is Dharambir Singh. He is -:9:- the father of the deceased Babita. PW4 Bhim Singh is a public witness. He has not supported the case of the prosecution and has been cross examined by Ld APP.
PW5 Pramod Kr. Sharma is cousin of deceased Babita. PW10 Sh. Devender Kr Sharma is also a public witness. He has also not supported the case of the prosecution and has been cross examined by Ld APP.
As the marriage of deceased Babita with accused Ashok is not in dispute and further that she started residing with the accused Ashok at her in laws house at House no.42, Mandir Mohalla, Samay Pur, Delhi, is not in dispute, so there is no need to discuss this fact in any manner.
PW2 has stated that his daughter Babita after her marriage started residing with the accused persons at House no.42A, Mandir Mohalla, Samay Pur and accused Jagdish Rai and Smt Angoori Devi (since expired) were also residing with them. At the time of her marriage, he had given sufficient dowry articles as per his status and capacity such as motor cycle, fridge, colour TV, Alimrah, gold ornaments, clothes etc. After the marriage Babita returned to his house from her in laws after 2-3 days and she told him in the presence of other -:10:- family members that when she was in her in laws house after the marriage, all the three accused persons started taunting her that he had come from a low grade family as they have not given sufficient dowry articles in her marriage. After 2-3 days, accused Ashok Kumar had come to his house to take back Babita to her house and he persuaded his daughter and sent back by telling her that the taunting to her by her in laws and the husband was a routine matter and everything would be alright after some time.
PW2 has further stated that after 2-4 days, he received a phone call that besides taunts, all the three accused have also giving her beatings on the ground of insufficient dowry and then he went to the house of the accused to see his daughter and when he reached there, all the three accused were present there with Babita and when he tried to converse with accused Jagdish Rai and other accused persons, they started abusing him and started pouncing and attacking him and seeing their behaviour and other circumstances, he left their house and came back to his own house. He then called a meeting of his relatives and he took his relatives and again went to the house of the accused -:11:- at Samay Pur and met there with the accused persons and held a meeting. Accused Jagdish Rai gave assurance in the panchayat meeting that he would not repeat such like acts of taunting, abusing, beating and about the demand of the dowry also. Thereafter, they returned from there but the behaviour of the accused persons did not change and they continued indulging in giving taunts about the insufficient dowry to his daughter.
PW2 has further stated that out of the wed lock, his daughter Babita delivered a female child after about one year of her marriage and at the time of delivery he had given chuchak articles as per his capacity and customs. He had given clothes of the child as well as clothes of the accused persons and other customary articles, but accused persons did not accept the said articles, which were taken there by his son and nephew and from there, his son and nephew took those chuchak articles to their grand father Sh. Ratti Ram in village Kundali and after this, his father sent back his son and nephew to the house of accused persons to deliver the chuchak articles, but they again did not accept and again threw the same as they felt the same as insufficient. At that -:12:- time accused Ashok had also given a remarks that such like chuchak articles were not as per their likings and discarded them.
PW2 has further stated that accused persons did not mend their ways and they again started beatings Babita for insufficient dowry and during her marriage period, Babita also delivered two other children and against he went to deliver Chuchak articles, but accused persons did not accept those articles and again started harassing his daughter.
PW2 has further stated that accused persons had made a demand of Rs.50,000/- within a period of two years of marriage, but he could not afford the same and in order to settle his daughter that she may live happily there, he arranged Rs.20,000/- and gave the same to accused Jagdish Rai and at that time, other accused and Babita were also present there. PW2 has further stated that he again called a panchayat and made a request to the accused persons not to harass or beat Babita for the sake of dowry as he was poor person and was unable to meet their exorbitant demand of dowry.
PW2 has further stated that about 9-10 days prior -:13:- to the day of the incident, his son in law Ashok Kumar had come to his house along with his daughter and children and he told him that the Babita was willing to stay for a week at his house and told her that she could stay for the whole of her life in her parents house and thereafter he went from there leaving Babita and Children. On the next day, accused Ashok telephoned Babita and called her back to her in laws house and Babita went to her in laws house leaving her children at his house and she returned at his house at the instance of Ashok as to why she had not brought her children back, she immediately came back to his house, but PW2 was not present at his house and when his wife started sending her with her children to her in laws house, Babita told his wife that she be not sent back there as she was apprehending that the accused persons would kill her. In the mean time, while he was returning to his house, he met his daughter and the children in the gali with his wife, who were going to see her off and Babita started weeping on seeing him and he consoled her and assured her that everything would be right with the passage of time and persuaded her to go to her in laws house and she thereafter went to her in laws house with the children. -:14:-
PW2 has further stated that in the intervening night of 2/3-7-2000 at about 11.30 or 12 night, his brother Ram Kishan made a telephone call to him from Kundali and told that he had received a telephone from Samai Pur form the person by the name of Nanu that Babita was not well and after this, his brother Ram Kishan told him about the condition of Babita and also suggested him to reach at her in laws house as she had already made complaint about the harassment made by the accused persons.
PW2 has further stated that after this, he immediately left his house and took along 2/3 persons and they all went to the house of his brother Mange Ram, where her marriage was solemnized and there he met Nanu Ram and Bhim Singh residence village Samai Pur and there Nanu told him that he had earlier informed to his brother Ram Kishan about the ill health of Babita and he told him that she had expired in fact.
PW2 has further stated that thereafter he along with his relatives and mohalla people reached to the house of accused persons and there he found that his daughter was lying dead on the floor in the Verandah and her clothes were -:15:- in dis-order and all the three accused persons were also present there in their house. On seeing the dead body of Babita, out of emotions and love affections, when he tried to lift her dead body, it was found to very stiff and there were scratches and bruise marks on her cheek and face and there were also stains of blue colour on other parts of her body. At that time, he was accompanied Laxmi Narain, the mediator, his nephew Parmod and other relatives. He made enquiries from the accused persons as to how his daughter had died and on this, they got angry and stated th at " Hame jo kuch karna tha kar diya Hai, Tum jo chaho kar lo. He found some foaming on her mouth and when he tried to life the dead body of Babita, her neck was not firm and tilting/hanging here and there freely. He asked the accused persons that they have taken the revenge of insufficient dowry by killing Babita and after saying so, when he came out of their house, police met him to the gali near the house of the accused and again he reached at the place of incident i.e. the house of the accused persons. Police interrogated him and recorded his statement ExPW2/A. PW2 has further stated that thereafter dead body -:16:- was sent for postmortem and he also participated in the inquest proceedings. His statement Ex. PW2/B was also recorded in this regard on 03/07/00, he had identified her dead body. After postmortem the dead body was given to him vide receipt Ex.PW2/C. He cremated his daughter on 03/07/2000 as per customs. All the accused persons were arrested in this case vide arrest memo Ex.PW2/D, Ex.PW2/E and Ex.PW2/F. At the time of death of Babita, she was pregnant.
To corroborate these facts, prosecution has examined PW4 Bhim Singh. He has merely stated that he knows the accused persons and came to know that Babita had consumed poison due to which she died. He has further stated that he and other villagers went to inform the parents of the deceased Babita and came back to their house after informing the father of the deceased and her uncle. Even during cross examination conducted by Ld APP for State, he has denied that his statement was recorded by the police. He has also been confronted with his statement recorded u/s 161 CrPC. Even then, he has not supported the case of the prosecution.
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Another witness is PW10 Devender Kumar Sharma. He has also not supported the case of the prosecution. He has stated that at the time of incident, he was working as a driver. He was residing near the house of deceased Babita. She was in her distant relation. He was called by accused Jagdish and Ashok in their house. He reached there and found that Babita had already expired. He saw the dead body of Babita wrapped in a bedsheet. He was asked to call the father of the deceased Babita, so he alongwith Pandit Bhimsen went to the house of parents of Babita and called them. Thereafter, he came back to his house.
PW10 has denied his knowledge about the cause of death or about any quarrel. He has also stated that his statement was not recorded. In the cross examination conducted by Ld APP, he has admitted that he was called by Smt Angoori Devi, mother of accused Ashok at about 10.00 pm and stated that Babita was having pain in her stomach. He also told that when he reached at the house of accused persons, he saw dead body of Babita was lying on the floor and many people had gathered there. He has also admitted -:18:- that he had informed the parents of the Babita on telephone, but regarding material aspects, he has denied that he had made any statement to the police. He has been confronted with the Ex.PW10/A, but even then, he has not supported the case of the prosecution in any manner.
Other witness is PW5 Pramod Kumar Sharma.
Deceased Babit was his cousin sister. He has deposed about the marriage of Babita with accused Ashok and that many articles were given in the marriage according to their financial and social status. He has identified both the accused persons. PW5 has further stated that after marriage, Babita started living with the accused persons at her in laws house. PW5 has further stated that after about 2-3 months of the marriage, accused persons had started harassing Babita and also started beating Babita for insufficient dowry given in the marriage. Whenever Babita visited his house, she used to tell about the harassments given by the accused persons to her. After about three months, she visited at her parents house and told that accused persons used to harass by saying that sufficient dowry was not given in the marriage to the accused persons. He advised Babita that they would have a dialogue -:19:- with the accused persons to behave properly.
PW5 has further stated that about 7-8 days prior to the incident, accused Ashok and Babita came to the house of PW2 and she narrated the whole story to PW2 Dharambir Singh. On the same day, Babita also came to her house and on his inquiry, she told that her husband and her in laws used to harass her and beat her on the same reasons for more dowry. She further told that her husband was pressing her to start living at the parental house. He advised her to tackle the matter peacefully. Accused Ashok returned on the same day leaving behind Babita at the house of PW2. Next day accused persons called back Babita at their house by making a telephonic call. Thereafter, about 7/8 days, he came to know that Babita had died. So he along with some other persons went to the house of accused persons and saw the dead body of Babita lying on the ground at the house of accused persons He came to know from accused persons that Babita had consumed something due to which she died.
PW5 has further stated that when Babita visited his house around 7/8 days prior to the her death, she did not disclose any specific incident or fact of her harassment or -:20:- apprehension from the accused. So PW5 has not corroborated with PW2 to the fact that when Babita was going back to her in laws house 7/8 days prior to her death, she disclosed to PW2 that accused persons would kill her.
PW2 Dharamvir has been cross examined on the aspect as to who was present when Babita came back to her parents house after about two days of her marriage and PW2 has stated that his wife and his son were also present in the house and in the mean time, Laxmi Narain, the mediator had also come to his house and he had also told him about the demand of the accused persons and their ill behaviour towards Babita.
PW2 has also further stated in the cross examination that accused Jagdish Rai, father in law of deceased Babita had come to his house within six months of marriage and made demand of Rs.50,000/- from him. He had paid Rs.20,000/- to the accused within 7-8 months of the marriage and he paid this amount to accused Jagdish Rai in the presence of two other accused persons in the evening time. He had taken this amount of Rs.20,000/- from his father. PW2 has further stated that once again, the mediator had -:21:- also paid Rs.30,000/- to the accused persons at their house, which was paid to them in his absence with the help of his wife at the request of Babita as demanded by the accused persons.
Ld defence counsel has contended that this fact is nowhere mentioned in the statement of the PW2, which was recorded by the police as Ex.PW2/A and in his examination in chief, PW2 has no where alleged that Ex.PW2/A was not recorded correctly by the police, so PW2 canot be believed in this respect.
PW2 has stated that he had told this fact to police, but Investigating officer had not recorded this fact in his statement. PW2 has denied the suggestion that he did not tell this fact to the police because accused persons never harassed or tortured Babita for the demand of dowry. PW2 has further denied that accused persons had not thrown the chuchak articles being insufficient. Accordingly the contentions of the Ld defence counsel are not forceful in any manner.
Ld Defence counsel has further contended that PW2 has admitted in the cross examination that his daughter -:22:- had come to his house at about 4.30/5.00 pm around 8-9 days prior to the incident and Ashok Kumar immediately left at that time. Accused Ashok did not make any demand for dowry articles form him.
PW2 has not been confronted with his statement Ex.PW2/A by the Ld defence counsel, so witness was not having any opportunity to explain about the improvements as alleged by Ld defence counsel made before the court from Ex.PW2/A. So this contention of Ld defence counsel is not tenable in any manner.
PW2 has denied the suggestion regarding the sending of chuchak articles and that accused persons did not accept the same. PW2 has also denied the suggestion that accused persons did not utter the words "Hame jo karna tha kar diya hai, tum jo chaho kar lo", when he reached at the house of accused persons at the time of death of his daughter. So the contentions of Ld defence counsel are not material in any manner.
The defence raised by the accused persons as put in the cross examination to PW2 that PW2 was keeping another woman by name of Sarla in his house and have two -:23:- daughters from said woman Sarla, has been denied by the witness. It is also denied by the PW2 that Babita used to visit his house after her marriage and his two daughters from Sarla used to quarrel with Babita.
Another defence raised by the accused persons is that when PW2 had gone to PS with the police after the death of Babita, he made demand of Rs.10 lacs from the accused persons and when the accused persons refused to given the same, he falsely implicated the accused persons in this case. It is also suggested to PW2 that Babita did not like to talk to him because of his illegal relations with said Sarla, which has been denied by PW2.
Ld defence counsel has further contended that PW2 has admitted that he never made inquiries about the state and health of the children of his daughter after her death, which shows the conduct of PW2 as to how much he was concerned with his daughter Babita.
PW2 has explained that after the death of his daughter Babita, he did not like to maintain relations with the accused persons. So from cross examination of PW2, it is clear that PW2 has not been cross examined on the fact that -:24:- Babita pointed just after 2-3 days of marriage that accused persons started taunting her for insufficient dowry. PW2 has also not been cross examined that after 2-4 days, he received a phone call from Babita that beside taunting, accused persons also started giving her beatings on the ground of insufficient dowry. PW2 has again affirmed about the pouncing and attacking by accused persons in his cross examination and has stated that in the Panchayat, Laxmi Narain, Raj Kumar, Bhudhi Parkash, Jai Bhagwan and one Ashok kumar had gone with him.
Regarding the return of Chuchak articles being insufficient, PW2 has denied all the suggestion given by the Ld defence counsel. In the cross examination, PW2 has affirmed that Rs.20,000/- were paid within 7-8 months of the marriage to accused Jagdish Rai in presence of other two accused persons in the evening time. PW2 has also explained that Rs.20000/- were taken by him from his father. So testimony of PW2 inspire confidence and he seems to be trustworthy and is reliable.
Rs.30,000/- were paid through mediator with the help of wife of PW2 on the request of Babita as demanded by -:25:- accused persons, but PW2 was not present at that time. Neither wife of PW2 nor mediator has been examined by the prosecution as witness so there is no corroboration to this fact that Rs.30,000/- were also paid to the accused persons.
Ld defence counsel has contended that PW5 Pramod Kumar Sharma has contradicted with PW2 and has admitted in the cross examination that they had not given motorcycle to the accused persons in the marriage. So PW2 cannot be belived in any manner.
Ld defence counsel has further contended that PW4 has also admitted that mediator Laxmi Narain did not disclose any fact of the married life of Babita to him in this regard, which shows that no such incident of harassment and cruelty took place with Babita as alleged against the accused persons.
Ld defence counsel has further contended that PW5 Pramod Kumar Sharma was in Delhi police so if there was any harassment or cruelty regarding demand of dowry caused by accused persons to Babita, then it could have been disclosed to him for necessary police action.
Ld defence counsel has further contended that -:26:- PW5 has admitted in the cross examination that on that very day, Babita did not tell him that accused persons were demanded any specific articles from her. So the evidence of PW5 is hearsay and is not admissible in evidence and even it cannot be believed that Babita had told him anything about cruelty and harassment allegedly caused by the accused persons. PW5 has also admitted that none of the accused persons had made any demand or any articles from him. He has further stated that neither accused persons informed him nor complained him regarding the fact that less dowry was given to them.
PW5 has denied the suggestion that accused persons never harassed or maltreated Babita. He has also denied the suggestion that Babita never told him about the harassment and maltreatment given by the accused persons. PW5 has also denied the suggestion that PW2 Dharambir Singh was having illicit relations with Sarla and was having two daughters and because of this fact, Babita was not regular visitor at her parental house because the daughters of Sarla used to quarrel with her. From the cross of PW5, it is clear that defence as taken by the accused persons is false -:27:- and even otherwise the same has not been proved in any manner. Regarding the second defence, PW5 has also denied that PW2 demanded Rs.10 lakhs otherwise he would implicate the accused persons in a false case. In view of the same, it cannot be believed that PW2 demanded Rs.10 lakhs and as the same were not given so he falsely implicated the accused persons in this case.
So PW5 has told about two incidents. One, when Babita visited his house after about three months of the marriage and told that accused persons used to harass her by saying that sufficient dowry was not given to them by her parents in the marriage. Secondly, 7-8 days prior to the incident, when Babita visited her house, she told that her husband and in laws used to harass her and beat her for more dowry. Regarding the first incident, when Babita visited his house after three months of the marriage, PW5 has not been cross examined in any manner.
So from the deposition of PW2 and PW5, it is proved that Babita told them after her marriage that she was being taunted and she was being beaten by accused persons for insufficient dowry and for the demand of dowry. Secondly, -:28:- Rs.20,000/- were given by the PW2 to accused Jagdish Rai in the presence of other accused persons within two years of the marriage of his daughter.
Accused Jagdish Rai has also stated that he and his wife were residing separately from his son Ashok and deceased Babita. However, they were on visiting terms with each other. They never demanded any single penny nor ever harassed or tortured Babita at any point of time. On the day of incident father of deceased also reached there and started demanding amount and in the PS prior to the lodging of this case, he demanded Rs.10 lakhs and thereafter reduced the same to Rs.2 lakhs which he denied, so he has been falsely implicated in this case. Accused Ashok has explained that Rs.10 lacs were demanded by PW2 before registration of the case.
In defence, DW1 Suresh Kumar and DW2 Seema have been examined.
DW1 Suresh Kumar has stated that he had attended the marriage of the accused Ashok . Parents of accused Ashok were residing separately in a flat in Timar pur, Delhi. He did not hear any complaint of accused Ashok from -:29:- his family members that they were beating and were harassing Babita for demand of dowry. Babita also used to visit their house. She never complaint about any beatings or harassment for the demand of dowry. He did not see any family members of deceased Babita visiting the house of accused Ashok. PW2, father of Babita did not call any Panchayat in respect of alleged beatings and harassment of demand of dowry at any time. DW1 has further stated that Babita used to visit her parents, but she used to come back on the same day. DW1 has further stated that he had gone to the house of accused Ashok after the incident, Ashok was not there at that time he was called on telephone.
DW2 is Seema. She is daughter of accused Ashok. She has stated that on 01/07/2000, they had gone to her maternal uncle/s house. There her maternal grandparents were quarreling with each other and they did not allow her mother to enter in the house and asked her mother not to visit there again. Thereafter, her maternal grandmother brought a bottle of poison and asked her mother to consume the same at her house to kill herself. Thereafter, they came back to their house.
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DW2 has further stated that on 2nd July, 2000, she alongwith my her mother and brother and sister had gone to her aunt's house namely Saroj. Her father came there and asked them to go back to their house, as he had to go to his work. They came back to their house. She alongwith her brother and sister started playing in the gali and her mother was working in the kitchen. They were called by their mother. She alongwith her brother reached in the kitchen. Her mother asked for water. She handed over a glass of water to her mother and she took a tablet. She also handed over one tablet each to her and her brother on the pretext of Hajmola tablet and asked them to eat the same, but they refused and said that it was not Hajmola tablet because it was bigger than that.
DW2 has further stated that her mother started feeling unwell and asked her to inform about her health to Saroj Bua . She informed Saroj Bua on telephone and called her at her house. She came to their hosue and on asking of her mother, she gave her milk fat. After some time, her grandparents also came there. They went to call the doctor. Father of Saroj Bua also called her father. Her mother was -:31:- taken to a doctor by her father, but till that time she had expired. Her mother was hot tampered. Her mother and father never quarreled with each other at any time. Her maternal grandparents never visited their house before the death of her mother.
If we go through the depositions of PW2 and PW5, then it is clear that above facts were not suggested to both the witnesses So, the deposition of DW2 is not in consonance and missing in the cross examination of PW2, where accused persons have raised only two defences that Rs.10 lacs were demanded by PW2 before lodging the case and PW2 was having illicit relations with one Sarla and daughters of Sarla used to quarrel with Babita. It has not been suggested to PW2 in his cross examination as deposed by DW2 that her maternal grand mother gave bottle of poison to Babita and asked him to consume the same to kill herself. So DW2 cannot be believed in this respect as deposed by her. Moreover she is daughter of the deceased and is residing with her father, so her sole motive is to save her father from the punishment.
Similarly DW1 is a neighbour of accused persons -:32:- from the last 20-25 years and if he did not hear any complaint of accused persons, then it does not mean that accused persons were not harassing Babita for demand of dowry. If Babita had not disclose or made any complaint about the beatings and harassment for demand of dowry to DW1, then it was not unnatural and she might had not thought it appropriate to disclose such facts to her neighbour. More so, DW1 has stated that father of deceased Babita did not call any Panchayat regarding the alleged beatings and harassment for demand of dowry at any time but PW2 has specifically stated that he did so and accused persons accompanied him in Panchayat, so DW1 cannot be believed in any manner and he seems to be a witness only to the circumstances, when he visited to the house of accused Ashok after the incident.
Defence of accused Jagdish, that he was not residing with accused Ashok at Samay Pur Badli but was residing at Timar Pur, has been denied both by PW2 and PW5. PW2 has denied the suggestion that parents of accused Ashok were residing separately at Timarpur. PW5 had denied the suggestion that accused persons was having -:33:- any house in Timar Pur. He has stated that he never visited the house of Timar Pur and Babita never disclosed to him that there was a separate house of in laws at Timar pur So PW2 and PW5 have denied the suggestion that parents of accused Ashok were residing separately at Timarpur. Except deposition of DW1 Suresh Kumar, accused Jagdish Rai has not produced any other witness or any documentary evidence that after the marriage of accused Ashok with Babita, they were not residing in Samay Pur Badli with his son Ashok till the death of Babita. Accused Jagdish Rai could have produced his ration card, voter I-card or such other documents regarding ownership/occupation of the house at Timarpur to show and prove that he was residing during this period at Timarpur separately from his son Ashok. None prevented him to bring and prove these document in evidence before the court to prove this fact so accused Jagdish has failed to prove the fact that he was not residing at the house of Samay Pur Badli with the accused Ashok and deceased Babita during this period.
In view of the above discussion, PW2 and PW5 both have corroborated each other and their testimonies -:34:- inspire confidence and they are reliable. Contradictory suggestions have been given to these witnesses, which have been denied by them and defence witnesses are not in consonance with the suggestions given to the witnesses, so contentions of the Ld defence counsel are not tenable in any manner.
To prove offence U/s. 306/34 of IPC, the relevant evidence of PW2 is that about 9/10 days prior to the day of incident, his son in law Ashok Kumar had come to his house alongwith his daughter and children and told him that deceased was willing to stay for a week at his house, but he told her that she could stay for whole of her life in her parents house. PW2 has further stated that on the next day, accused Ashok Kumar telephoned Babita and called her back to her in-laws house. Babita went to her in-laws house leaving her children at his house, but she immediately returned to his house at the instance of Ashok Kumar as accused had asked her as to why she had not brought her children back with her and asked to give her children. He was not present at his house at that time and when his wife started sending Babita with her children to her in-laws house, she told to his wife that -:35:- she be not sent back to her in-laws house as she was apprehending that accused persons would kill her.
PW2 has further stated that in the meantime, while he was returning to his house, he met his daughter and her children in the gali with his wife, who was going to see off them. Babita started weeping on seeing him and he consoled her and assured her that everything would be alright with the passage of time and persuaded her to go to her in-laws house. She thereafter went to her in-laws house with the children.
PW2 has further stated that in the intervening night of 2/3-07-2000 at about 11.30 or 12 night, his brother Ram Kishan made a telephone call to him from Kundali that he had received a telephone call from Samaypur from the person by the name of Nanu that Babita was not well and after this, his brother Ram Kishan told him about the condition of Babita and also suggested him to reach at her in-laws house as she had already made complaint about the harassment given by the accused persons.
PW2 has further stated that he immediately left his house and took along 2/3 persons and they all went to the -:36:- house of his brother Mange Ram, where marriage of Babita was solemnised. There he met with Nanu Ram and Bhim Singh, residents of Village Samaypur. There Nanu told him that he had earlier informed to his brother Ram Kishan about the ill health of Babita and further told that she had expired in fact.
PW2 has further stated that thereafter, he alongwith his relatives and mohalla people reached at the house of accused persons. There he found that his daughter was lying dead on the ground floor of the veranda and her clothes were in disorder. All the three accused persons were also present there. He made inquiries from the accused persons as to how his daughter had died. Accused persons became furious and angry and stated that "Ham Ne jo kuch karna tha kar diya hai, tum jo chaho kar lo".
PW2 has further stated that there was some foam on the mouth of Babita and when he tried to lift the dead body of Babita, her neck was not firm and was tilting/hanging here or there freely.
PW2 has further stated that when he came out of the house of accused persons, police met him and -:37:- interrogated him. His statement was recorded Ex. PW2/A. PW4 Bhim Singh has only stated that he and other villagers went to inform the parents of wife of accused Ashok Kumar and thereafter they came back to their house.
PW5 Pramod Kumar has stated that about 7/8 days prior the incident, accused Ashok and Babita came to the house of PW2 Dharambir. On the same day, Babita came to his house. He was present in his house and after about 7/8 days, he came to know that Babita had died. He alongwith other persons had gone to the house of accused persons. He came to know through the accused persons that Babita had consumed something due to which she had died, but when he saw her dead body, there were some visible marks and her neck was appearing to be broken. Police was informed and they conducted the proceedings.
Similarly, PW10 has stated that he was called by the accused persons. He went to the house of accused persons. Babita had already expired.
PW9 ASI Ram Avtar is IO of the case. He has stated that on 03/07/2000, he was posted at PS S.P. Badli and on that day, DD No. 35A Ex. PW9/A was handed over to -:38:- him for investigation. He along with PW6 Constable Ramesh Kumar reached at H.No. 42A, Mandir Mohalla, Samaypur Village, and found dead body of a female lying on the floor in the courtyard of the house. Dead body was found covered with a cloth. He inspected the dead body. No visible injury was found on the dead body. He recorded statement of PW2 Dharambir Ex. PW2/A. It was read over to him and after admitting the same to be correct, he signed the same. He signed the same at point B and made endorsement Ex. PW9/B. He got registered the case through PW6 Constable Ramesh Kumar by sending ruqqa. PW6 Constable Ramesh Kumar came back at the spot and handed over copy of FIR and ruqqa to him. He prepared site plan Ex. PW9/C and got the spot photographed. He completed inquest proceedings and filled up form No. 25.35. Same is Ex. PW9/D. PW9 has further stated that dead body was sent to mortuary, Subzi Mandi under the supervision of two Constables. It was identified by Pramod Kumar and Dharambir. He recorded their statements Ex. PW5/A and Ex. PW2/B. After postmortem, dead body was handed over to relatives of deceased. After postmortem, doctor concerned -:39:- handed over to him one sealed parcel containing viscera of deceased sealed with the seal of CMO, IC AAAGH, which he seized vide memo Ex. PW6/A. Thereafter, he came back to PS and deposited the case property in the malkhana.
PW9 has further stated that on 02/07/2000, on the pointing out of PW2 Dharambir, accused Ashok Kumar, Jagdish Rai and Agoori Devi (since expired) were arrested vide memos Ex. PW2/D, Ex. PW2/E and Ex. PW2/F. Their personal searches were conducted vide memos Ex. PW6/B, Ex. PW6/C and Ex. PW3/A. PW9 has identified all the accused persons before the court. Viscera was sent to FSL for chemical analysis. Thereafter, he was transferred.
PW9 has not been cross examined on behalf of accused persons in any manner. Similarly, PW6 Constable Ramesh Kumar has deposed the same facts. He has also not been cross examined on behalf of accused persons. Both have corroborated each other regarding recording of statement of PW2 and conducting of further investigation as such not disputed by the accused persons.
PW1 Head Constable Kulwant Singh has proved copy of FIR, which was recorded by him on receipt of ruqqa -:40:- Ex. PW1/A, sent by PW9 ASI Ram Avtar through PW6 Constable Ramesh Kumar. Copy of FIR is Ex. PW9/B. His endorsement on ruqqa is Ex. PW1/C. PW1 has also not been cross examined by learned defence counsel in any manner.
PW3 Constable Raj Rani is a witness to the arrest of accused Angoori Devi (since expired), who was arrested vide memo Ex.PW2/F and her personal search was conducted vide memo Ex.P W3/A. This witness has also not been cross examined in any manner on behalf of the accused persons.
To further corroborate, PW8 Head Constable Amarpal Singh has stated that on 03/07/200, he was posted at PS Samaypur Badli and was working as MHC(M). On that day, PW9 ASI Ram Avtar deposited one sealed parcel sealed with the seal of CMO alongwith sample seal in the malkhana. He made entry at serial No. 3087 in register No. 19. He has produced the original register and copy of entry is Ex. PW8/A. PW8 has further stated that on 20/12/2000, he sent one sealed parcel and one sample seal to CFSL, Hyderabad, vide RC No. 327/21 through Constable Ved Pal Singh. After depositing the exhibits, Constable Ved Pal Singh -:41:- handed over to him receipt copy of road certificate. Photocopy of RC is Ex. PW8/B. This witness has also not been cross examined by learned defence counsel in any manner.
Further investigation of this case was handed over to PW7 retired SI Sube Singh. He obtained FSL result Ex. PW7/A and recorded statement of Ram Kishan. On completion of investigation, he filed the charge-sheet.
To prove the cause of death, PW11 Dr. Sarvesh Tandon has been examined. He has stated that on 03/07/2000, he was posted at Civil Hospital mortuary and conducted postmortem on the dead body of Babita, brought by ASI Ram Avtar of PS S.P. Badli, with alleged history of poisoning. Some external injuries were seen on the body of Babita. Only one of the external injury is corroborating the deposition of PW2 Dharambir, who has stated that there were scratches and bruise marks on the cheek and face of Babita and there were also stains of blue colour on other parts of her body. No such blue colour stains were found by PW11 Dr. Sarvesh Tandon on the body of Babita.
PW2 has further stated that when he tried to lift the dead body of Babita, her neck was not firm and -:42:- tilting/hanging here and there freely. It is not supported by the deposition of PW11 Dr. Sarvesh Tandon, who did not observe any abnormality in the neck and all the structures were intact. Similarly, PW5 Pramod Kumar Sharma has also seen some visible marks on the body of Babita and her neck was appearing to be broken. This is also contrary to the observations of PW11 Dr. Sarvesh Tandon. So, from this, it is clear that it was not a case of homicide, but was of suicide only and injuries could have been of beatings, which seems to be more probable.
According to PW11, he prepared postmortem report Ex. PW11/A. He has further stated that chemical examiner's report received from CFSL, Hyderabad, has opined that aluminium phosphide was detected on Ex. 1A and Ex. 1B. Hence, the final cause of death, according to his opinion, was aluminium phosphide, which is a chemical compound of Sulphas. Consumption of this compound causes multiple organs failure and cardio genic shock leading to death of an individual.
DW2 Seema has been examined by the accused persons in their defence, who has stated that her mother took -:43:- a tablet and thereafter she started feeling unwell and asked her to inform about her health to Saroj Bua. She informed Saroj Bua on telephone and called her at our house. She came to their house and on asking of her mother, she gave milk fat to her. So, from the deposition of DW2, it is clear that deceased Babita consumed poison.
Now, it has to be seen whether Babita committed suicide by consuming poison due to abetment of the accused persons or otherwise.
Beside the incident of harassment, cruelty for the demand of dowry, the last incident, as deposed by PW2 Dharambir, is about 7/8 days before the incident, when Babita came to her parental house with accused Ashok Kumar. Babita was willing to stay back for a week at her parental house, but accused Ashok Kumar told that she could stay for whole of her life in her parental house and thereafter went back, after leaving Babita and children. On the next day, accused Ashok Kumar telephoned Babita to call her back to her in-laws house. Babita went back to her in-laws house, leaving behind her children at her parental house, but she returned back at the instance of Ashok Kumar as he asked as -:44:- to why she had not brought the children with her. She immediately came back and when wife of PW2 started sending her with her children to her in-laws house, she told her mother that she be not sent back as she was apprehending that accused persons would kill her. In the meantime, PW2, while coming back to his house, met his wife, who was going to see off Babita and her children. At that time, Babita started weeping on seeing her father-PW2 and he consoled her and assured her that everything will be alright with the passage of time and persuaded her to go back to her house.
So, from this part of the evidence of PW2 and also from the cross examination, it is clear that accused Ashok Kumar came to his in-laws house to drop deceased Babita about 9/10 days before the incident. PW2 has stated in cross examination that he had not demanded any dowry. So, it was another incident of cruelty caused by the husband against Babita as she wanted to stay at her parental house for a week for which accused Ashok was not willing.
PW2 has deposed that Babita while going back to her in-laws house told that she be not sent back because -:45:- she was apprehending that accused persons would kill her, but from the evidence brought on record, it is clear that she was not killed rather she had committed suicide. It was not the apprehension of deceased Babita that accused persons were abetting her to commit suicide. Rather, she was apprehending that she will be killed by her in-laws and this is not the case of the prosecution. None of the witnesses has stated so.
Offence of abetment of suicide is made punishable by Section 306 of IPC, which reads as under:
" If any person commit 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."
The word "abetment" has been defined in Section 107 of the IPC, which reads as under:
"Abetment of a thing- A person abets the doing of a thing, who-
First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of -:46:- that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1- A person who, by willful misrepresentation, or by willful concealment or a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
It has been held in AIR 2005 SC 3100 titled as Sushil Kumar Sharma Vs Union of India that "one other provision, which is relevant to be noted in section 306 of IPC is the drastic difference between the two sections i.e. section 306 and section 498A of IPC is that of intention. In the later cruelty committed by the husband or his relatives drag the women concerned to commit suicide. While under the former provision suicide is abetted and intended."
It is also been held in AIR 2002 SC 1998 titled -:47:- as Sanju Vs State that "even if we accept the prosecution story that the appellant did tell the deceased that 'to go and die' that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mensrea, therefore, is necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mensrea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July 1998 ensued by quarrel. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and therefore it cannot be said that the abusive language, which had been used by the appellant on 25 July 1998 derived the deceased to commit suicide. Suicide by the deceased on 27th July 1998 is not a proximate to the abusive language uttered by the appellant on 25 July 1998. The fact that the deceased committed suicide on 27 July 1998 would itself clearly point out that it is not a direct result of the quarrel taken place on 25th July 1998 when it is alleged -:48:- that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below."
It has also been held in AIR 2002 SC 2078 titled as Gridhar Shankar Thabade Vs State of Maharashtra that "as regards the core issue as to whether charges under section 306 and 498A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in a form there to and as such further dilation is not necessary neither we are inclined to so nor justify a conviction under the later provision there seems to be available on record some material and cogent evidence. Presently we have on record two inconsistent versions of the brother and cousin, as such no credence can be attributed thereon -the documentary evidence (namely those three letters) in our view, falls short of the requirement of the statute. Even on an assumption of the fact that there is no contradiction in the oral testimony available on record. The cousin goes to the unfortunate girl's in laws place and request the husband to treat her well-at best some torture and -:49:- requests to treat her well. This by itself would not bring home the charge u/s 498A of IPC. Demand of dowry has not seen the light of the day."
So from the deposition of the witnesses it can be summarized as follows:-
(1)That after the marriage deceased Babita visited her parental house after 2-3 days and told about the taunting by her in laws for giving insufficient dowry articles in the marriage.
(2) That after 2-4 days, PW2 received a phone call, wherein deceased Babita told that besides taunting, she was also beaten by the accused persons on the ground of insufficient dowry. (3)That PW2 reached at the house of his daughter, but the accused persons started pouncing and attacking him, so he came back and called a meeting in which accused Jagdish Rai gave assurance that he would not repeat acts of taunting, abusing, beating etc for demand of dowry.
(4)That at the time of delivery of the child, PW2 sent Chuchak articles which were not accepted by the accused persons despite directed by their grand father Sh.Ratti Ram and were sent back as the same were in sufficient.
(5) That accused persons had demanded Rs.50,000/- within two years of marriage and in -:50:- order to settle his daughter's life as she may live happily, PW2 gave Rs.20,000/- to accused Jagdish Rai in presence of other accused persons.
(6)That 9-10 days prior to the day of incident, Babita was dropped by her husband at her parental house but was called back on the next day and she was beaten as to why she had not brought children back, so, she came and took away her children with her and at that time she told that she was apprehending that accused persons would kill her.
In view of the judgments relied upon as stated above, it is clear that both offences u/s 498A and 306 of IPC are different. To prove offence u/s 498A of IPC, there are 5-6 instances as stated above against the accused persons which have been deposed by the witnesses examined by the prosecution, it shows that Babita was subjected to cruelty and was harassed for demand of dowry by the accused persons and also willful conduct of the accused persons derived Babita to commit suicide. Once Rs.20,000/- out of Rs.50,000/- as demanded by the accused persons were also given to accused Jagdish Rai in presence of other two accused persons, so prosecution has been able to prove -:51:- beyond reasonable doubts that after 2-3 days of the marriage till her death, Babita was subjected to cruelty and was harassed by the accused persons to meet their unlawful demand of cash and articles and such cruelty and harassment derived Babita to commit suicide. Accordingly offence u/s 498A/34 of IPC is proved against the accused persons Ashok and Jagdish Rai for which they are held guilty and convicted for the same.
For the offence u/s 306/34 of IPC, except demand of dowry and that Babita was treated with cruelty and was harassed at the hands of the accused persons, there is no other incident, which has come on record in the evidence of witnesses that at any point of time accused persons instigated Babita to commit suicide. As it has been held by Hon'ble Supreme Court as relied above, both offences i.e. section 498A and section 306 of IPC are different. So if the conduct of the accused persons derived Babita to commit Suicide then the same does not fall within the ambit of the abetment to commit suicide and it cannot be said that accused persons instigate or engages in any conspiracy or intentionally added in abetment to commit suicide by the Babita having element -:52:- of mensrea.
Last incident, which took place is 8-9 days before the death of Babita, was another act of cruelty which took place against Babita she wanted to stay in her parents house for about one week for which accused Ashok was not willing and he called Babita back to his house and also asked her to bring back the children from her parental house when he reached alone in her in laws house and confrontation took place between both of them.
Mere this act of accused Ashok cannot be said to be an instigation to Babita to commit suicide. Rather if we see the evidence of PW2, then Babita had told to her parents while she was coming back from her parent's house 8-9 days prior to her death that her in laws would kill her, but from the evidence on record, it is not a case of the homicide but a case of suicide. So Babita was not having any intention in her mind at that time i.e. 8/9 days before her death that due to such cruelty and harassment, she would commit suicide. So any of accused persons did not instigate Babita to commit suicide in any manner. As it has been held and relied upon in AIR AIR 2002 SC 1998 titled as Sanju Vs State of MP, Presence of -:53:- mensrea, therefore, is necessary concomitant of instigation. The last incident of cruelty took place against Babita 8-9 days before her death. This also shows that suicide was not direct result of the quarrel. So the prosecution has not been able to prove beyond reasonable doubts that accused persons instigated or abetted Babita to commit suicide in any manner. Accordingly offence u/s 306/34 of IPC is not proved beyond reasonable doubts for which accused are acquitted. Announced in Open Court on 16/03/10 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi