Delhi District Court
State vs . 1. Karan Tyagi @ Rahul S/O Yogesh Tyagi, ... on 12 August, 2010
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 20/09
Unique Case ID No. 02402R0011772009.
State Vs. 1. Karan Tyagi @ Rahul S/o Yogesh Tyagi, R/o H.No.
1/4532, Gali No.9, Ram Nagar Extn., Mandoli Road
Shahdara, Delhi.
2. Kunal @ Goldi S/o Sh. Yogesh Tyagi, R/o H.No. 1/4532,
Gali No.9, Ram Nagar, Extn., Mandoli Road, Shahdara,
Delhi.
3. Smt. Kusum Lata W/o Yogesh Tyagi, R/o H.No. 1/4532, Gali
No.9, Ram Nagar Extn., Delhi.
FIR No. 125/08
PS M.S. Park
U/s 498A/304B/406/34 IPC.
Date of Institution : 19.01.2009
Date of reserving the Judgement : 22.07.2010
Date of pronouncement : 09.08.2010
J U D G E M E N T : A young bride leaves her parental home for her matrimonial home with dreams unlimited in her eyes. She expects to receive love, affection, honour and dignity at her matrimonial home, which she used to possess when she was at wonderful land of her parents. In the instant case also, Anuradha daughter of Purshottam Tyagi was married to Kunal Tyagi @ Goldi on 06.03.2003. She went to her matrimonial home at H.No. 1/4532, Gali No.9, Mandoli Road, Ram Nagar Extn., Shahdara, Delhi. However, she met her untimely death. On 30.04.2008, she was brought to GTB Hospital with burn injuries. She expired in the hospital on 01.05.2008 at 11am. Shri Anurag Tyagi, elder brother of Anuradha, made his statement before ld. SDM on 02.05.2008 detailing therein that Anuradha was S.C. No. 20/09 Page 1/36 2 married in March, 2003. A sum of Rs.31,000/ was demanded at the time of Tilak ceremony. One motor cycle, all house hold articles and jewellery were given at the time of her marriage. After about one and half year of marriage of Anuradha, discord started. Anuradha was assaulted after a spell of eight or ten days and so on at her matrimonial home. Her husband Kunal used to consume drugs. He was not doing any job. He used to assault Anuradha. Her motherin law, namely, Smt. Kusum Lata used to make Anuradha cry almost for every penny. She was made to live separately. Anuradha was employed as a teacher in a school at Seelampur on a monthly wages of Rs.1,500/. She was rearing her four years old daughter with difficulties. Kusum works in Delhi Police and used to torture her a lot. After marriage of her brotherinlaw, namely, Rahul, torture of Kusum was aggravated since they (bride's side) could not give so much of dowry as was received in the marriage of Rahul. Inlaws of Anuradha used to call her a beggar. Kunal used to criminally intimidate her of her death. On 30.04.2008, he had gone to Bulandshaher for a job. Kuldeep, uncle of Kunal, gave a telephone call and informed that Anurdha was burnt. Anurag informed his father on phone. He talked to Rahul on phone, who informed him that Anuradha had sustained minor burns with a gas stove. He detailed that he reached burn ward, GTB Hospital, but could not meet her sister Anuradha. He was informed that Anuradha had expired. He was of the view that Kunal, Kusum and Rahul were involved in the death of Anuradha. According to him, all the accused persons conspired and burnt Anuradha. Since accused persons were greedy persons, as such they had burnt Anuradha for dowry. Purshottam Tyagi, father of Anuradha, had also projected that Kunal used to beat Anuradha and Kusum used to taunt her. She used to tell that her motherinlaw had asked her to bring money from her parents. She used to illtreat Anuradha at her matrimonial home. Kunal used S.C. No. 20/09 Page 2/36 3 to take drugs. Anuradha was taunted for dowry time and again. On 30.04.08, Anuradha met her death at GTB Hospital due to burn injuries. Autopsy surgeon noted superficial deep burns involving face, neck, chest, abdomen, both upper limbs circumferencially, front and back of both lower limbs till just below the knee joint and lateral aspect of both sides of upper and middle back regions, sparing genital area, mid portion of back and both lower limbs after just below the knee joints amounting to 75% of total body surface area. He opined that death occurred due to shock as a result of antemortem flame burns involving 75% of total body surface area. Statements of Anurag Tyagi and Purshottam Tyagi were recorded, which became bedrock of the case. Investigation was taken up. During the course of investigation, accused Karan Tyagi, Kunal Tyagi and Kusum Lata were arrested. Investigation culminated into a charge sheet against them.
2. Charge for offences punishable under sections 498A and 304B IPC was framed against Kunal Tyagi @ Goldi and Smt. Kusum Lata, vide order dated 18.02.2009, to which charge they pleaded not guilty and claimed trial.
3. However, accused Karan Tyagi @ Rahul was discharged vide order dated 18.02.2009 by my ld. Predecessor as no material incriminating against him was found on record.
4. To substantiate the charge, prosecution has examined Purshottam Tyagi (PW1), Krishan Pal, Constable (PW2), Anurag Tyagi (PW3), Dr. Sumit Tellewar (PW4), Siya Nand, Constable (PW5), Shovir, Constable (PW6), Om Prakash, Constable (PW7), Naresh, Head Constable (PW8), Rajeev (PW9), Om Prakash (PW10), Kuldeep Tyagi (PW11), Dr. P. Yadav (PW12), Jaswant Singh SI (PW13), D. Balaiah, Assistant Commissioner, Custom and Central Excise (PW14) and Yogesh Pal Singh (PW15) in the S.C. No. 20/09 Page 3/36 4 case.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all the allegations levelled against them, except the fact that Anuradha was married to Kunal @ Goldi on 06.03.2003 according to Hindu rites and customs. Their case has been of denial simplicitor.
6. Accused Kunal @ Goldi projected that he was living with his deceased wife Anuradha separately since 2006 in top floor of his house. He never demanded any dowry articles including the cash of Rs.41,000/ and motorcycle from Anuradha Tyagi or from her parents. He is not a drug addict and had not stolen the jewellery of Anuradha and did not sold the same in order to fulfill his habit of drug addiction. No report was lodged with police in this regard. He did not give beating to deceased Anuradha on 10.06.2006 on her person and no such incident was reported in the police station M.S. Park to this effect. He never tortured decease Anuradha Tyagi at any stage, that is, since her marriage with him and till her death. On 30.04.2008, early in the morning, at about 7am, when he was leaving for his work, his wife told him to bring an amount of Rs.50,000/ from his mother because an amount of Rs.50,000/ was spent by his mother in the treatment of daughter of his younger brother Karan Tyagi, hence, she wanted that similar amount be kept in fixed deposit in the name of their daughter. However, he refused for the same because he was living separately. After that, he went to his job and came back in the evening time at about 78pm. She again raised that demand but he refused for the same. As he went inside the bathroom, he heard screams S.C. No. 20/09 Page 4/36 5 of his wife and then he came out and tried to save herself and in that process he had also sustained burn injuries. Now, he is living with his daughter aged about 5 years. He pleads that he has been falsely implicated in the case.
7. Accused Kusum Lata projects that she is innocent. She was living separately since 2006 in ground floor of her house. Her son Kunal Tyagi and his wife Anuradha Tyagi were living separately on the top floor. He never demanded any dowry articles including the cash of Rs.41,000/ and motorcycle from deceased Anuradha Tyagi or from her parents. Her son Kunal Tyagi did not gave beating to Anuradha on 10.06.2006 on her nose and no such incident was reported at PS M.S. Park to this effect. She never tortured deceased Anuradha Tyagi at any stage, that is, since her marriage with her son and till her death. He also claimed her false implication in the case being motherinlaw of deceased of Anuradha. In order to defend themselves, they have examined Smt. Swati Tyagi (DW1) in support of their defence.
8. Sh. Purshottam Tyagi (PW1) is the father of deceased Anuradha. His testimony will be discussed later on.
Krishan Pal, Constable (PW2) got the case registered in the case. He detailed those very investigative steps, which took place in his presence.
Anurag Tyagi (PW3) is the brother of deceased Anuradha. As such his testimony will also be discussed later on.
Dr. Sumit Tellewar (PW4) conducted postmortem on the dead body of Anuradha. He proved the autopsy report of deceased as Ex.PW4/A. Siya Nand, Constable (PW5) recorded FIR and proved copy of it as S.C. No. 20/09 Page 5/36 6 Ex.PW5/A. Shovir, Constable (PW6) deposited viscera in a cartoon and one sample seal vide RC No. 75/21 at FSL, Rohini, Delhi.
Om Prakash, Constable (PW7) unfolded facts pertaining to arrest of accused Kunal and Kusum Lata. He detailed those very investigative steps, which took place in his presence.
Naresh, Head Constable (PW8) recorded entry No. 1751 in store room register in regard to case property deposited with him, that is, one sealed parcel and one sample seal. He proved copy of said entry in the store room register as Ex.PW8/B. On 02.09.08, he sent aforesaid parcel to FSL Rohin through Constable Shovir, vide RC No. 75/21.
Rajeev (PW9) removed Anuradha to GTB Hospital in his maruti 800 car and admitted her there. He came to know that Anuradha, wife of accused Goldy, has expired in GTB Hospital.
Om Prakash (PW10) took photographs of the spot from different angles on the direction of IO. He had also taken photographs of dead body in the hospital. He proved photographs and negatives as Ex.PW10/A to Ex.PW10/R respectively.
Kuldeep Tyagi (PW11) had taken Kunal to GTB Hospital as he also received burn injuries and got him admitted in the hospital. Later on, he came to know that wife of Goldy, namely, Anuradha succumbed to her burn injuries.
Dr. P. Yadav proved MLCs of Anuradha @ Radha and Goldy as Ex.PW12/A and Ex.PW12/B respectively, which were prepared by Dr. Murtaza.
Jaswant Singh SI (PW13) deposed that on 30.04.08, he was posted S.C. No. 20/09 Page 6/36 7 at PS MS Park. On that day, he was on emergency duty from 8am to 8pm. At about 3.55am, DD No.42A was received by him regarding admission of one Anuradha @ Radha in GTB Hospital in burnt condition. He along with Constable Krishan Pal, went to GTB Hospital. He collected the MLC, on which patient was shown unfit for statement. He contacted the doctor, who also declared her unfit for statement at 5am, dated 01.05.2008. No eyewitness was found present in the hospital. Thereafter, he along with Constable Krishan Pal went at the place of occurrence, that is, H.No. 1/4500 or 1/4532, but he was not sure. Said house was situated in street No.9, Ram Nagar, Mandoli Road, MS Park. He inspected the site and he found two or three match sticks in burnt condition and one or two match sticks and one empty match box were lying in the kitchen, at the first floor. He also found one pink colour salwar having string, lying in burnt condition, in the varandah in front of kitchen. He called the private photographer, namely, Om Prakash, who took the photographs of the place of occurrence. He had kept that burnt salwar, match sticks, match box etc., in one pulanda and it was sealed with the seal of JS and the same was taken into police possession vide memo Ex.PW13/A. Thereafter, he informed the concerned SDM, regarding the occurrence. He waited for sometime for the SDM to arrive and thereafter he went to GTB Hospital. In the hospital, SDM came and in the meanwhile, Purshottam Tyagi, father of deceased and Anurag Tyagi, brother of deceased also reached at the hospital. SDM recorded their statement. He sent Constable Krishan Pal for getting the case registered. No eyewitness was found present in the hospital. Thereafter, he went to the place of occurrence. He also met with persons, namely, Rajeev and Kuldeep and S.C. No. 20/09 Page 7/36 8 recorded their statements. They stated that they had taken injured to GTB Hospital. The house was found opened and there was none inside the house of accused persons. He had also prepared the site plan at the spot, which is Ex.PW13/B. He recorded statement of Krishan Pal. Thereafter, he came back to PS and came to know that Anuradha has expired. Thereafter, he went to GTB Hospital. Dead body was got preserved. Postmortem on the dead body was got conducted and after postmortem examination, dead body was given to relatives of deceased vide memo Ex.PW7/G. On 10.05.2008, he formally arrested accused Karan Tyagi as he was released on anticipatory bail vide arrest memo Ex.PW13/C. On 04.06.08, he formally arrested accused Kunal @ Goldy and Kusum Lata vide arrest memo Ex.PW7/B and Ex.PW7/C. On 02.09.08, the case property sealed wooden box, one sealed parcel and sample seal were sent to FSL Rohini, through Constable Shovir.
D. Balaiah (PW14) was posted as SDM Shahdara, at DC Complex, Nand Nagri, Delhi. In the morning hours, SI Jaswant Singh, informed him that one lady has been admitted in burnt department at GTB Hospital and she is unfit for statement. He asked SI Jaswant to inform him as and when injured lady gain consciousness. At about 1212.30 noon, SI Jaswant Singh informed him that injured lady has expired. Thereafter, he reached GTB Hospital, at around 1pm. He was informed by the doctor at GTB Hospital that dead body are accepted at Mortuary only upto 1pm and now the postmortem on the dead body of the deceased would be conducted on the next day. In the hospital itself, Pushottam Tyagi (father of deceased) and Anurag Tyagi (elder brother of deceased) met him. He recorded their statements. Dead body was got preserved. He had recorded identification S.C. No. 20/09 Page 8/36 9 statement of Purshottam Tyagi and Anurag Tyagi, which are Ex.PW7/E and Ex.PW7/F. On the next day, he went to mortuary. He recorded statement of Yogesh Pal Singh, Executive Magistrate, Shahdara, Seelampur, recorded statement of Anurag Tyagi and statement of Purshottam Tyagi, in his presence, under his supervision. He got recorded statement of these persons through Yogesh Pal Singh in his presence, as latter was subordinate to former and was well conversant with Hindi language. He had also given his request to conduct postmortem vide Ex.PW14/A. He had also conducted the proceedings regarding death report vide memo Ex.PW14/B. After getting the statement of Purshottam Tyagi and Anurag Tyagi recorded, he got them sent to SHO vide Ex.PW3/A and Ex.PW1/A, for taking necessary action by the SHO.
Yogesh Pal Singh (PW15) was posted at Shahdara as Tehsildar, on 02.05.08. On that day, he along with Sh. D. Balaiah, SDM, Shahdara, went to mortuary, GTB Hospital. On the direction of SDM, he recorded statements of Anurag and Purshottam, which are Ex.PW3/A and Ex.PW1/A. Both these statements were recorded by him in his hand.
9. I have heard Sh. Subhash Chauhan, ld. Prosecutor, for the State, Sh. R.K. Chaudhary, Advocate, for accused persons and have perused the record.
10. It was submitted by ld. Defence counsel that there is no material on record against the accused regarding demand of dowry and illtreatment of her, and therefore there is no question of presumption u/s 113B of the Evidence Act. He further submitted that accused Karan Tyagi himself sustained burn injuries, while saving deceased. There is nothing to show that from the date of marriage till death, any complaint was made by the S.C. No. 20/09 Page 9/36 10 deceased or family members before any authority, as such prosecution has failed to establish its case against the accused persons. As such accused persons are entitled to acquittal from the charge. Reliance was placed on : (1) 2005 (2) JCC 720, Smt. Inderjeet Kaur vs. State. (2) 2009 (2) JCC 1247, Babita vs. State.
(3) AIR 2004 SC 1714, Baljeet Singh vs. State of Haryana. (4) 2007 (2) CC Cases 157, Baiswajit Haldar vs. State of West Bengal.
11. The ld. Prosecutor contradicted all these submissions by submitting that in the cases of demand of dowry, only real relatives can know as to what was demanded and what was given. In cases of dowry death, the presumption is against the husband and his relatives for maltreatment and harassment and in the instant case, evidence amply proved that both the accused, who are husband and motherinlaw maltreated and tortured the deceased and under those circumstances, she had no other alternative but to do away with life by burning herself.
12. The dowry system is in existence from the time immemorial in different forms in different sects of society. It having taken the form of a wide spread epidemic became a matter of concern for the State as well as the social reformatory institutions. The Legislature became alert to the urging necessity of eradicating this social evil by appropriate enactment. True it is that Legislation cannot itself solve the deep rooted social problem and it is only the education of the society in a particular direction and the efforts of the reformative bodies that social problems can be solved, however, the Legislation has played an important role in curbing the lust of dowry hungry persons who though not perturbed by the pathetic S.C. No. 20/09 Page 10/36 11 condition of the victim of the system have atleast fear of suffering penal consequences. The Legislature, as such enacted the Dowry Prohibition Act, 1961 and introduced subsequent amendments in the provisions thereof to help the helpless weaker section of the society i.e the women folk from the torture and harassment, mental and physical at the hands of the husband and inlaws on account of their parents being unable to quench the ever increasing thirst for the property in the form of dowry. Not only those who want to raise their status by managing to get the necessities, comforts and luxuries of life though marriage but the effluent section of the society even in certain cases has a lust for easy money or material through the institution of marriage. Thus the sacred ties of the marriage are given deplorable form and the vows taken by the husband at the alter of marriage are pushed in oblivion and a continuous demand every now and then either directly made by the husband and his relatives to the parents of the bribe at the time of marriage or subsequent thereto.
13. Sec. 2 of the Dowry Prohibition Act, 1961 (hereinafter to be referred as 'the Act') defines the term 'dowry' as under : Sec. 2 Definition of 'Dowry' : In this Act "dowry" means property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim personal Law (shariat) applied.
S.C. No. 20/09 Page 11/36
12
14. The insertion of the word "or any time after the marriage" and "in connection of the marriage of the said parties" by amendments in the year 86 has significance because clever parties initially do not enter into any agreement or make a demand but subsequent to the marriage after the lapse of some period make the demand directly or through the wife in order to make a show that it is not dowry. It is for this reason that Legislation in its wisdom included subsequent demands and the things given as inclusive in the definition of "dowry". Along with these amendment, provisions were inserted in the Indian Penal Code and in the Indian Evidence Act. Section 304B was inserted as a new provision in the category of offences falling under sections 302, 304A and 307 IPC, in order to curb the lust of procurement of the dowry in the past marital life; Section 304B reads as under : "304B. Dowry death: Where the death of a woman is caused by any burns of 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 purpose of this subsection "dowry" shall have the same meaning as in Sec.2 of the Dowry Prohibition Act, 1961 (2B of 1961). 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 imprisonment for life.
15. Their lordship of the Supreme Court in Sunil Bajaj vs. State of MP, S.C. No. 20/09 Page 12/36 13 2002 (1) Criminal Court Cases 196 (SC) after noticing the provisions of section 304B IPC had opined that in order to establish an offence u/s 304B IPC, following ingredients must be established before any death can be termed as dowry death: (1) The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstances.
(2) Such death must have occurred within 7 years of marriage. (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or relative of her husband. (4) Such cruelty or harassment must be for or in connection with demand of dowry.
16. Since the torture and harassment are normally confined in the four walls of the house, the cases depend upon the circumstantial evidence and it ordinarily becomes difficult to prove the allegations levelled and as a safeguard to that, the legislator enacted Section113B in the Evidence Act, which reads as under : "Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
Explanation For the purpose of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).
17. The Dowry Prohibition Act is both a remedial and penal statute. As such, its provisions are required to be construed in such a way that the S.C. No. 20/09 Page 13/36 14 purpose is fulfilled through and within the limits of the language complied in the statute.
18. Now it is to be seen whether in view of the evidence on record, essential ingredients of section 304B IPC are fulfilled or not?
19. Evidence on record shows that marriage between Anuradha and Kunal @ Goldy took place on 06.03.03 and out of this wedlock, a female child was born. On 30.04.08, Anuradha sustained burn injuries. She was removed to GTB Hospital by Rajeev (PW9) a neighbour and was attended by Dr. P. Yadav (PW12), according to whom patient was brought to hospital with alleged history of 58% burn. On examination, it was noticed that there were superficial deep burn on the face, front of chest and abdomen and adjoining back, both upper limb, both thighs and part of both legs. She succumbed to injuries on 01.05.08. Postmortem on the dead body was conducted by Dr. Sumit (PW4), who gave his report Ex.PW4/A. He opined that cause of death in this case was recorded as shock as a result of antemortem flame burns, involving 75% of the total body surface area.
20. As such, it is established that death had occurred within 7 years from the date of solemnization of marriage. It was unnatural death. Accordingly, it can safely be said that first two essential ingredients as laid down by their Lordship of Hon'ble Supreme Court in Sunil Bajal (supra) to constitute an offence u/s 304B IPC were established.
21. Now it is to be seen whether on the basis of evidence remaining two essential ingredients to constitute the offence are proved or not?
22. FIR Ex.PW5/A was recorded on the joint statement Ex.PW1/B of Purshottam Tyagi and Anurag Tyagi, father and brother of the deceased S.C. No. 20/09 Page 14/36 15 respectively by Sh. D. Balaiah (PW14), then working as SDM Shahdara, wherein they stated that dowry demands were met fully but additional demand of dowry was made. The husband of deceased is an addict to drugs. In pursuit of his drugs and other bad habits, he sold most of the jewellery of the deceased. To meet the demands of her inlaws, the deceased started working in a school in Seelampur. Six days back, deceased made a phone call and informed about the harassment.
23. Thereafter, their statements were separately recorded on 02.05.08 by Sh. Yogesh Pal Singh, Executive Magistrate, Shahdara, under the supervision of Sh. D. Balaiah as he was well conversant with Hindi language and statement of Anurag Tyagi is Ex.PW3/A, wherein he stated that his sister Anuradha was got married in March, 2003. Before marriage, at the time of tilak ceremony a sum of Rs.31,000/ was demanded from them, which was fulfilled. They had also given a motorcycle, house hold articles and jewellery at the time of tilak ceremony. After about one and half years of her marriage, matrimonial discord started. His sister was beaten at her matrimonial home. He husband Kunal Tyagi used to take drugs and was doing nothing. He used to beat Anuradha of and on. Her motherinlaw Kusum Lata did not give his sister even a single penny and had separated her. His sister used to work in a school, where she used to earn a sum of Rs.1500/ pm by which money she used to earn her livelihood and her four year daughter. Kusum Lata was in Delhi Police and used to harass his sister a lot. Since the date of marriage of her brotherin law (dewar) Rahul, atrocities on his sister increased. They used to call his sister a "beggar" and used to send her back to he parental home. Her husband Kunal used to threaten her to kill. On 30.04.08, he (the witness) S.C. No. 20/09 Page 15/36 16 had gone to Bulandshaher regarding his work. Kuldeep, uncle of Kunal, gave him a telephone call that Anuradha has been burnt. He called his father. After sometime, he called Rahul, brotherinlaw (devar) of Anuradha, who informed that she has received a litter gas burn injuries. At about 10.30am in the morning, they reached at burn ward, GTB Hospital. Anuradha met her death. He suspected Rahul, Kusum Lata and Kunal Tyagi behind death of his sister Anuradha. Statement of Purshottam Tyagi is Ex.PW3/B which is similar to that of Anurag Tyagi.
24. Anurag Tyagi appeared as PW3 and deposed that Anuradha was his younger sister. Anuradha was married to Kunal @ Goldy on 06.03.03 according to Hindu customs. They had given all the dowry articles including the articles, which were demanded by mediator and inlaws of Anuradha, including cash of Rs.41,000/, one motorcycle silver colour and other routine items. His sister was leading a peaceful life for a period of one and half year after date of her marriage. Thereafter, whenever, his sister used to call them on telephone or used to visit their home, she used to make complaint that she is being beaten by her inlaws, that is, her husband Kunal Tyagi, motherinlaw Kusum Lata and other members of the family. She also used to make complaint that the behaviour of inlaws was not good and this thing continued till the marriage of brotherinlaw (dewar of his sister), namely, Karan Tyagi. Wife of Karan Tyagi brought huge dowry and the cash, after having a plot sold by wife of Karan Tyagi as that plot was in her name and since then inlaws of his sister used to compare the dowry articles brought by wife of Karan Tyagi with that of that articles, which they had given to their sister. Her inlaws used to call his sister beggar. Her motherinlaw did not pay any penny to his sister. S.C. No. 20/09 Page 16/36
17 She used to torture his sister and she was made to live separately in that house itself. Husband of his sister, namely, Kunal Tyagi is a drug addict and he did not do any work, since the date of marriage. Since Kunal Tyagi was a drug addict, he had stolen the jewellery of his sister and sold the same to fulfill his bad habit that is drug addiction. Whenever his sister used to make complaint to them in their house, he along with his father and other respectable relatives of their used to go at inlaws house of his sister and tried to console her inlaws. These persons used to assure them not to harass his sister and promised to keep her happy. But again they used to beat/harass his sister and used to ask to bring more dowry and the money. On 10.06.06, Kunal Tyagi gave beatings to his sister on her nose. They reached there. They also approached PS MS Park. Police officials of MS Park, assured them that since motherinlaw of his sister was an employee in Delhi Police, they will pacify inlaws of his sister. On 30.04.08, he was in Bulandshaher at about 11.30.12 in the night, he received telephone call to the effect that Radha had received burn injuries. Immediately, he had talked with Kusum and Rahul regarding the same about that information. They stated that Radha had received injuries from hot milk and she was alright. After one and half hours, he again made a telephone call to these persons, but their phones were switched off. From Bulandhshar, he made telephone call to his father. On the next day morning, he came from Bulandhshaher to Ghaziabad, UP. From Ghaziabad, he made a call to Rahul, who told him that Radha is admitted in Gtb Hospital and she was alright. He also informed that she had just taken milk. He along with his wife and his father reached GTB Hospital, at about 10am. They tried to meet Radha, but they were not allowed to meet her. He asked S.C. No. 20/09 Page 17/36 18 his wife to go inside the burn department. She came out and at that time she was weeping. His wife told that Radha has expired. Immediately, he went inside burn department, along with his father and other family members. Doctor declared his sister dead. At that time, Smt. Kusum was present in the hospital, but later on she disappeared from there. On the next day, dead body of his sister was given to them for funeral. His statement was recorded by SDM on 01.05.08, which is Ex.PW1/B. On the next day, again his statement was recorded by SDM, which is Ex.PW3/A.
25. Purshottam Tyagi as PW1 gave confirmation to facts as deposed by Anurag Tyagi and deposed that Anuradha was his daughter. She was married to Kunal Tyagi @ Goldy on 06.03.03. At the time of phere, he had given dowry articles as demanded. Thereafter, his daughter had gone to her inlaws house. His daughter used to come at their house and used to say him that she is being harassed by her husband, her motherinlaw and her brotherinlaw for not bringing sufficient dowry. She also used to tell these facts on telephone. She also used to make complaint to them that accused persons used to beat her and also used to abuse her. She used to complain them that they have not given sufficient dowry and used to demand more dowry. Marriage with accused Kunal was got solemnized on the pretext that he is an educated person, whereas they came to know later on after the marriage that accused Kunal was drug addict. His daughter used to complain him that whenever she made complaints regarding the bad habit of Kunal regarding the drug addiction, her mother used to manage Kunal of her own. On some occasion, he had gone to in laws of his daughter. They had also gone to the PS to make a complaint regarding drug addiction of Kunal. Motherinlaw of his daughter, namely, S.C. No. 20/09 Page 18/36 19 Ms. Kusum Lata is an ASI in Delhi Police. Fatherinlaw of his daughter was also retired Delhi Police Officer. On many occasion, he tried to console his soninlaw Goldy. Goldy stated that he will get divorce from his daughter. On 30.04.08, his daughter was working as a Teacher in a private school. In the night at about 12.30pm, he received a telephone call from his son Anurag, who was working at Bulandshaher UP to the effect that he had received a telephone call from one of the neighbour of inlaws of his daughter and stated that his daughter had been burnt and admitted in GTB Hospital. He tried to contact at the residence of inlaws of his daughter. Firstly, motherinlaw of his daughter lifted the phone, but did not answer his call and put off the phone. Thereafter, he again rang and brotherinlaw (dewar) of his daughter lifted the phone and talked with him. He stated that everything was alright and his daughter was admitted in the hospital. Since it was late hours, and due to nonavailability of transport, they could not start in the night from Delhi. He asked his son to come to Ghaziabad. At about 10am, they reached at GTB Hospital. He came to know that his daughter is admitted in burn department. Some neighbours of inlaws of his daughter and accused persons were present there. Gudia @ Dimple Tyagi, wife of his son, was allowed to go inside the burnt department at about 11am. By that time, they came to know that their daughter had died. His statement was recorded by SDM, which is Ex.PW1/A.
26. Analysis of statement of prosecution witnesses, referred above, clearly indicates that allegations regarding demand of dowry are in general terms and vague. In the initial statement Ex.PW1/B, which became bedrock of investigation, general allegations were levelled that demand for S.C. No. 20/09 Page 19/36 20 additional dowry was made. In subsequent statement Ex.PW3/A, whereas Anurag Tyagi has deposed that at the time of Tilak Ceremony, demand of Rs.31,000/ was made which was fulfilled and they also gave motorcycle, house hold articles and jewellery. But according to his father, at the time of marriage, no demand was made but they gave motorcycle, household articles, jewellery according to their capacity. Even when they appeared in the witness box, they did not state as to when, in which year, date and month and what was demanded by the accused persons. Under these circumstances, general allegations have been levelled that Anuradha was harassed by her husband and motherinlaw for not bringing sufficient dowry. No specific demand for dowry has been alleged.
27. Moreover, to bring home the guilt of the accused within the four corners of section 304B IPC, it is incumbent upon the prosecution to prove that "soon before her death" deceased was subjected to cruelty or harassment by her husband or inlaw.
The expression "soon before death" has not been defined and the legislation has not specified any time which would be the period prior to death that would attract the provisions of section 304B IPC. In Sunil Bansal (supra), it was observed as under : "Though there is no thumb rule as to what is meant by the expression "soon before" death of a woman u/s 304B IPC despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. Hon'ble Supreme Court has held in Kedya Perumal vs. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda vs. State of M.P., 2004 III AD 305 = 2004 (3) SCC 98 that there should not be too much of the time lag between cruelty and harassment in connection S.C. No. 20/09 Page 20/36 21 with demand of dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence".
In Inderjeet Kaur (supra) anticipatory bail was granted to inlaws of deceased due to the reason that no specific demand of dowry was made. Similarly, in Babita (supra) order of framing charge qua sisterinlaw of deceased was set aside due to vague allegations. In Biswajit Haldar (supra) also it was held that in order to attract section 304B IPC, it has to be shown that cruelty or harassment was for or in connection with demand of dowry.
28. In the instant case, not a single instance has been cited by both the prosecution witnesses that soon before the death of deceased, she was harassed for demands of dowry. Under these circumstances, prosecution has failed to prove demand of dowry and cruelty inflicted upon the deceased soon before her death.
29. Presumption under section 113B of the Evidence Act can be drawn only when prosecution first establishes the essential ingredients of section 304B IPC, since prosecution has failed to discharge the onus of proof which lays upon it, question of drawing presumption against the accused u/s 113B does not arise. For the same reason in Baljeet Singh (supra) conviction was setaside. Under these circumstances, I hold that prosecution has not been able to establish charge u/s 304B IPC. S.C. No. 20/09 Page 21/36
22
30. However, that itself is not sufficient to absolve the accused persons from their liability in compelling Anuradha to commit suicide.
31. Section 498A of Indian Penal Code has been enqrafied on the statute book by way of a separate chapter in terms of the provisions of criminal law (second amendment) Act, 1983 (Act 46 of 1983). The above amendment stand incorporated by reason of present trend in the society and to meet the requirement of the society, the legislature thought fit to incorporate a new chapter being chapter XXA in the statute book consisting of section 498A in the Indian Penal Code.
For convenience sake, section 498A is set out herein below: "498A. 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 extend to three years and shall also be liable to fine.
Explanation-- For the purpose of this section, "cruelty" means--
(a) Any willful 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 meet such demand.
32. The basic purport of the statutory provision is to avoid 'cruelty' which stand defined by attributing a specific statutory meaning attached thereto. Two specific instances have been taken note of in area to ascribe S.C. No. 20/09 Page 22/36 23 a meaning to the word 'cruelty' as is expressed by the legislation : whereas explanation (a) involves three specific situations viz. (i) to drive the women to commit suicide or (ii) cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Expl.(b) there is absence of physical injury but legislation thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury, whereas one is patent, the other is latent euqally serious in the terms of provisions of the statute, since the same would also embrace the attributes of cruelty in terms of section 498A.
33. It has come in the testimony of brother and father of deceased that deceased used to make complaints regarding harassment to her by her husband and motherinlaw, beating her as sufficient dowry was not given, marriage was solemnized on the pretext that Kunal was an educated person. But after marriage, it was revealed that he is drug addict. Whenever deceased used to make a complaint regarding bad habit of Kunal regarding drung addiction, his mother used to manage Kunal of her own. They had also gone to PS to make complaint regarding drug addiction of Kunal, but no action was taken by police official as accused Kusum Lata is an ASI in Delhi Police. When Pushottam Tyagi used to pursue Kunal not to indulge in these habits, he threatened to divorce Anuradha. It has further come in the testimony of Anurag Tyagi that things became bad to worse when younger brother Karan of Kunal got married. Wife of Karan Tyagi brought huge dowry and cash and therefore comparison started with the dowry articles brought by wife of Karan Tyagi with that of articles given to deceased. Deceased used to be called S.C. No. 20/09 Page 23/36 24 beggar. Kunal Tyagi was drug addict and did not do any work since the date of marriage. He stole the jewellery of deceasd and sold the same to fulfill his bad habit of drug addiction. She was not paid any penny by her motherinlaw and was made to live separately in that house itself. Whenever Anuradha used to make complaints to them, both the father and son along with other respectables relatives used to go to the house of accused. They used to assure them not to harass Anuradha and promised to keep her happy, but again she used to be harassed, beaten and used to be asked to bring more dowry. On 10.06.06, Kunal gave beatings to his sister on her nose. They reached there and then went to PS M.S. Park, but police officials told them since motherinlaw of Anuradha was an employee in Delhi Police, they will pacify them.
34. Both these witnesses were subjected to lengthy crossexamination by ld. Defence counsel, but nothing material could be elicited to discredit their testimony. ld. Defence counsel tried to assail their testimony on the ground that it suffered from material improvement from their earlier statement and they were confronted with earlier statements. I have carefully gone through the statement Ex.PW3/A and Ex.PW3/B made by witnesses before ld. SDM and except for elaboration, there is no improvement. It is not the requirement of law that testimony of witnesses should be verbatim reproduction of the earlier statement made before police. There will be improvement only if any statement is made by witness for the first time in Court and has not stated earlier to police or other authorities. In the very first statement Ex.PW1/B, it was stated by both the witnesses that additional dowry was demanded. Kunal was drug addict and in pursuit of his drug and bad habits, he sold jewellery of S.C. No. 20/09 Page 24/36 25 deceased. In statement Ex.PW3/A and Ex.PW3/B recorded on very next day, it was stated that Kunal did not do any work and beat Anuradha. He and his mother used to make Anuradha cry almost for every penny. She was made to live skeleton. She was employed as a teacher in a school at Seelampur on a monthly wage of Rs.1,500/. She was rearing her four year old daughter with difficulties. Kusum was employed in Delhi Police and used to torture her a lot. After marriage of her brotherinlaw, namely, Rahul, torture of Kusum was aggravated. Anuradha was called as beggar. Kunal used to criminally intimidate her to death. Under these circumstances, except for giving detailed version, there is no substantial improvement in the testimony of witness, which may make their testimony doubtful.
35. As regards the plea that no complaint was made to police or any other authority regarding maltreatment or harassment, it has come in their testimony that they did go to police station, but no action was taken by stating that Kusum Lata is employed in Delhi Police and they will try to pacify the matter. It has further come in evidence that father and brother of deceased tried to save her marriage and with that end in view, complaints may not have been made to other authorities. In Indian society, matter is normally not made public nor reported to police and every effort is made to save the matrimonial life of the girl by the girl herself and her relatives. This was precisely the attempt of her father and brother in this case and therefore no adverse inference can be drawn if no report was lodged in police station.
36. Result of aforesaid discussion is that prosecution has been able to established the willful conduct of both the accused which was likely to S.C. No. 20/09 Page 25/36 26 drive Anuradha to commit suicide. As such both the accused persons are held guilty of offence under section 498A IPC.
37. Next question which arises for consideration is as to whether accused persons can be held guilty of offence u/s 306 IPC in the facts of this case, having been held guilty under section 498A IPC.
38. Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment which may extend to ten years and with fine. Section 107 IPC defines "abetment" which reads as under : "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 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 of 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."
This section has to be read with section 113A of Evidence Act, S.C. No. 20/09 Page 26/36 27 1872 which reads as under : "When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation. For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)".
39. In Ramesh Kumar vs. State of Chhattisgarh, 2001 IX AD (SC) 133 = (2001 9 SCC 618, Hon'ble Supreme Court held as under : "A bare reading of Section 113A shows that to attract applicability of Section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to "all the other circumstances of the S.C. No. 20/09 Page 27/36 28 case." A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression "the other circumstances of the case" used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113A is defined in Section 4 of the Evidence Act which says "Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."
40. Turning to the case in hand, it stand proved that (i) the deceased has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, and (iii) the husband and his relative, that is, motherinlaw subjected her to cruelty. A consideration of all the circumstances of the case discussed above leads the Court to presume that suicide by the deceased was abetted by her husband and motherinlaw, inasmuch as, urge to living is a natural phenomenon in mankind. A person would not embrace death unless there is some physiological problem or mental agony or such circumstances that the person committing suicide may think that the life of his/her has become miserable than the pangs and agony of death.
41. In Nachhatar Singh & Ors. vs. State of Punjab, 2005 (1) Criminal Court Cases 61 (P&H), Hon'ble Punjab & Haryana High Court S.C. No. 20/09 Page 28/36 29 relied upon a single bench of the Court in Naveen Kumar etc vs. State of Haryana, Criminal Appeal No.31SB of 1998, decided on 09.07.1998, and observed as under : "No sane lady would try to finish her life until and unless she is subjected to cruelty to such an extent that it had compelled her to finish herself for all times to come from this beautiful world. When a woman agrees for a marriage, she does not expect death under unnatural circumstances but the expectations are that she would get love and affection and financial security at the hands of her husband. If her those hopes are frustrated by the positive act of the husband or by willful negligence of the husband, in my opinion, it will constitute to abetment within the meaning of section 109 IPC, punishable under section 306 IPC, if in pursuance of that abetment, the death of a person takes place."
42. To the same effect is the opinion of another single Bench of Hon'ble High Court (P&H) in Gurbachan Singh and others vs. the State of Punjab, Criminal Appeal No. 90SB of 1998 decided on 06.08.2003.
43. Unless compelled under extreme circumstances, no woman after marriage, having a small child would commit suicide as has happened in this case. It has come in evidence that deceased was having a small daughter aged about 4 years. Anurag Tyagi has deposed that his sister used to love her baby too much, hence there cannot be any question of committing suicide leaving behind her daughter unless compelled otherwise. It is not the case of accused persons that it was an accidental detah. Cruelty as defined u/s 498A IPC does not amount to physical cruelty but also attracts mental cruelty as well. In view of the evidence coming on record, conduct of accused persons was such that they forced S.C. No. 20/09 Page 29/36 30 Anuradha to commit suicide. Under these circumstances, they cannot be absolved of their liability of abetment of commission of offence of suicide u/s 306 IPC. Abetment can be performed by a position act or by conduct or may be by omission. Evidence on record leads to an irresistible conclusion that due to vitiated atmosphere created by accused persons, Anuradha was compelled to take extreme step of ending her life.
44. Presumption under section 113A of Evidence Act is rebuttalbe one and therefore it is to be seen whether the accused persons have been able to rebut the same.
45. A perusal of statements of accused recorded u/s 313 Cr.P.C goes to show that same is one of denial simplicitor of accused Kusum Latta, whereas Kunal Tyagi besides denying allegations of demand of dowry, ill treatment, has taken a plea that on the fateful day, that is, 30.04.2008 early in the morning at about 7am, when he was leaving for his work, deceased asked him to bring an amount of Rs.50,000/ from his mother, because an amount of Rs.50,000/ was spent by his mother in the treatment of daughter of his younger brother Karan Tyagi, hence, she wanted that similar amount be kept in fixed deposit in the name of their daughter. However, he declined to do the same, as they were living separately. Thereafter, he went for his job. When he returned back in evening at about 78pm, she raised her demand, but he refused. As he went inside bathroom, he heard screams of his wife and then came out and tried to save her and in that process he also sustained burn injuries.
46. They have examined Swati Tyagi (DW1), wife of Karan Tyagi, who is younger brother of Kunal Tyagi and son of Kusum Lata. She has deposed that she got married with Karan Tyagi on 23.11.05. At the time S.C. No. 20/09 Page 30/36 31 of her marriage, her parents were not alive. Her marriage was performed by Buaji. There was no property registered in her name at the time of her marriage. She gave birth to a girl on 27.03.07. She was heart patient since birth and as such was provided medical treatment continuously for a period of one year. All the expenses, that is, Rs.6070,000/ approximately were incurred by her motherinlaw. Kunal Tyagi is having one daughter. Anuradha used to object whenever her motherinlaw used to spend money on them and she used to say to give the same amount of money to her. At the time of occurrence, she was not at her matrimonial home and had gone to her buaji's house. Her husband informed her in the night that Anuradha poured kerosene oil upon her and lit herself and in the process of saving Anuradha, Kunal Tyagi also received burn injuries. No demand has been made by her motherinlaw or jeth from her since date of her marriage.
47. At the very outset, it may be mentioned that defence taken by the accused seems to be an afterthought, inasmuch as, it has seen light of the day for the first time, when his statement was recorded u/s 313 Cr.P.C. No documentary evidence has been placed on record to show that daughter of Swati was suffering from any heat ailment or that a sum of Rs.6070,000/ was spent on her treatment by Kusum Lata. Moreover, no such suggestion was given to father or brother of deceased or any other prosecution witnesses that deceased was compelling the accused to bring a sum of Rs.50,000/ from his mother to get the amount deposited by way of FDR in the name of his daughter. Similarly, no weightage can be given to the testimony of Swati Tyagi, who is an interested witness, inasmuch as, she is daughterinlaw of accused Kusum Lata and is the wife of Karan S.C. No. 20/09 Page 31/36 32 Tyagi, brother of Kunal Tyagi. She is living in the same house, where both accused persons reside and in fact she is residing with Kusum Lata on the ground floor of the property. Moreover, she has admitted in cross examination that she came to know about arrest of her motherinlaw and brotherinlaw after one or two days, but she did not make any report to the effect that accused persons have been falsely implicated or they never harassed, gave beatings or demanded any dowry from Anuradha.
48. As regards the fact that Kunal Tyagi also sustained burn injuries, while saving Anuradha that itself is not sufficient to absolve him of his misdeeds because it is not a case of murder nor the case of prosecution that deceased has been set on fire by accused.
49. In view of the foregoing discussions, accused have failed to rebut presumption. On the other hand, I hold that the prosecution has been able to establish that suicide by deceased was the result of acts or omission of accused persons. As such they are held guilty of commission of offence u/s 306 IPC.
50. Now it is to be seen as to whether accused persons can be convicted for commission of an offence under section 306 IPC or not, in the absence of framing any charge on this count. Their Lordships of Hon'ble Supreme Court in K. Prema S. Rao and another vs. Yadia Srinavasa Raso and others, 2003 (1) Supreme Court Cases 217, while dealing with similar situation, opined that even though charge was framed only under section 304B IPC, yet an accused can be convicted under section 306 IPC in a case where all ingredients necessary to frame charge for that section are available on record. In the judgement referred above, Hon'ble Supreme Court considered the provisions of sections 221 and 215 S.C. No. 20/09 Page 32/36 33 Cr.P.C. To the same effect is the ratio of judgements in Naveen Kumar's case and Gurbachan Singh's case (supra).
51. In view of the foregoing discussions, I hold that although prosecution has failed to prove its case against accused persons for offence punishable u/s 304B IPC. However, it has been able to establish its case under section 498A and 306 IPC. Accordingly, accused persons are held guilty and convicted for offences punishable under sections 498A and 306 IPC.
Announced in the Open Court (Sunita Gupta)
th
On this 9 day of August, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 20/09 Page 33/36 34 IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI : S.C. No. 20/09
Unique Case ID No. 02402R0011772009.
State Vs. 1. Kunal Tyagi @ Goldi S/o Yogesh Tyagi, R/o H.No. 1/4532, Gali No.9, Ram Nagar Extn., Mandoli Road Shahdara, Delhi.
2. Smt. Kusum Lata W/o Yogesh Tyagi, R/o H.No. 1/4532, Gali No.9, Ram Nagar Extn., Delhi.FIR No. 125/08
PS M.S. Park U/s 498A/306 IPC.
Date of Institution : 19.01.2009 Date of reserving the Judgement : 09.08.2010 Date of pronouncement : 12.08.2010 ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed by Sh. R.K. Chaudhary, Advocate, for the convict Kusum Lata, pleading that she is aged about 52 years, is a government servant, widow and deceased left behind a minor child aged about 4 years and the child is being looked after either by convict Kunal Tyagi or Kusum Lata. As such it was submitted that she be granted benefit of Probation under section 360 Cr.P.C. In the alternative, leniency in punishment was prayed by relying upon 2007 (4) AD (Cr.)(SC) 21, Anand Mohan Sain and another vs. State of West Bengal, where punishment was reduced from 5 years to 3 years. He further submits that convict persons are ready to pay heavy compensation, in case they are given lessor punishment.
2. On the other hand, ld. Prosecutor submits that offence committed by the convict persons is very serious in nature. As such they do not deserve any S.C. No. 20/09 Page 34/36 35 leniency.
3. It goes without saying that offence committed by the convict persons are very serious in nature. As regards convict Kunal Tyagi is concerned, he is the husband of deceased and it was primarily his moral and legal responsibility to maintain his wife, but his willful conduct was of such a nature that it compelled the deceased to commit suicide by burning herself, leaving behind a small child aged about four years. Similarly, convict Kusum Lata is the motherinlaw of deceased. When a girl goes to her matrimonial home, leaving behind her parents, normally it is expected that motherinlaw would play the role of a mother. But there is vast difference between mother and "mother like" and the same is manifested from record that convict Kusum Lata was also active participant in abetting commission of suicide by Anuradha. Instead of mending ways of her son, her willful conduct was of such a nature that deceased was compelled to commit suicide. Moreover, she is working in Delhi Police, and as such is protector of law but instead of discharging that duty, even her influence led the police officials not to lodge the complaint made by the father and brother of deceased. As observed in judgement dated 09.08.2010, every girl goes to her matrimonial home with bright dreams in her eyes and unless compelled by the circumstances would not even think of committing suicide. Under these circumstances, present case is not the case where leniency is warranted, and in fact imprisonment under section 360 Cr.P.C extend to 10 years and fine. Therefore the facts and circumstances of the case does not warrant granting relief of probation to convict Kusum Lata u/s 360 Cr.P.C.
4. However, balancing the mitigating and aggravating circumstances, convict persons are hereby sentenced to undergo RI for seven years each and to pay a fine of Rs.5,000/ each for offence punishable under section 306 IPC. S.C. No. 20/09 Page 35/36
36 In default of payment of fine, they would further undergo RI for one year each. They are further sentenced to undergo RI for three years each and to pay a fine of Rs.3,000/ for offence punishable under section 498A IPC. In default of payment of fine, they would further undergo RI six months each.
5. Substantive sentences awarded to convict persons shall run concurrently. Convict persons shall get benefit of period already undergone in detention during investigation and trial of the case.
6. A copy of the judgement and order on sentence be supplied to the convict persons free of cost.
Announced in the Open Court (Sunita Gupta)
th
On this 12 day of August, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 20/09 Page 36/36