Delhi District Court
State vs . Sumit, on 28 September, 2011
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 152/08.
Unique Case ID No.02405R0845642007.
State Vs. Sumit,
S/o Sh. Sohan Singh,
R/o B502, Hind Cooperative
Group Housing Society,
Sector5, Plot No.12,
Dwarka,
New Delhi.
Date of Institution : 25.6.2007.
FIR No. 316 dated 26.3.2007.
U/s. 498A/302/304B IPC.
P.S. : Dwarka.
Date of reserving judgment/Order : 20.9.2011.
Date of pronouncement : 28.9.2011.
JUDGMENT
1. A young lady named Divya breathed her last on 25.03.07. She was the wife of the accused herein. She was found dead in Flat SC No.152/08. Page 1 of 47 No.B502, Hind Apartments, Sector5, Dwarka, New Delhi, where the couple was staying at that time. Ligature mark was found on the throat of the deceased. This Court is called upon to decide whether the death of Divya was suicidal and if so, whether it is a dowry death or was she killed by her husband i.e. accused Sumit. Prosecution alleges that she was murdered by the accused whereas the accused says that she committed suicide, being fed up with some gynecological ailment.
2. Interestingly, it may be noted here, this case has come up for judgment before this Court for second time. Earlier, judgment was pronounced by this Court in this case on 18.2.2011 whereby the accused was acquitted of the Charge u/s.302 IPC but was convicted for having committed the offences punishable u/s.498A IPC and 304B IPC. It so happened that initially, a Charge Sheet was filed in this case on 25.6.2007 by the investigating agency. Upon the material brought before the Court alongwith the Charge Sheet, Charges were framed against the accused and the trial was commenced. Later on, a supplementary Charge Sheet dated 18.3.2010 was filed by the investigating agency relying upon the FSL report dated 20.9.2007, the opinion of Dr. Komal Singh on the postmortem report of the SC No.152/08. Page 2 of 47 deceased , the report of FSL team on the basis of inspection of the crime spot conducted on 07.9.2007 and the statements of the relatives of the deceased namely Smt. Rajbala, Smt. Dayawati, Sh. Mohan Lal and Smt. Anjali. The Ld. Predecessor of this Court, vide order dated 01.5.2010 accepted only a part of the Charge Sheet, which contained the statements of the relatives of the deceased as mentioned herein above and rejected the remaining part of the Charge Sheet, which was based upon the FSL report, opinion of Dr. Komal Singh and the inspection of the crime spot dated 07.9.2007. The aforesaid order of my Ld. Predecessor was challenged by the father of the deceased in the High Court by way of Criminal Revision Petition No.267/2010. The same was, however, dismissed by the High Court vide order dated 10.8.2010.
3. The complainant then challenged the aforesaid order of the High Court before the Supreme Court by way of Criminal Appeal No.493/2011. However, since the Supreme Court did not direct the stay of the trial of the case, the trial of the case was carried on, which concluded on 17.1.2011 and the case was listed for final arguments. The final arguments concluded on 09.2.2011 and accordingly, as aforesaid, the judgment was pronounced on 18.2.2011. The case was SC No.152/08. Page 3 of 47 adjourned to 22.2.2011 for arguments on the point of sentence. However, on that day, this Court was informed that the Supreme Court vide order dated 18.2.2011 has allowed the aforesaid criminal appeal and prayer was made on behalf of the complainant for permission to examine the witnesses named in the supplementary Charge Sheet, which were earlier disallowed vide order dated 01.5.2010. It is in these circumstances, further trial was conducted in this case in view of the order dated 18.2.2011 of the Supreme Court. The witnesses mentioned in the supplementary Charge Sheet dated 18.3.2010 were examined. Further statement u/s.313 Cr.PC of the accused was recorded on 10.6.2011. The accused examined himself in his defence as DW6. He had already examined five witnesses in his defence during earlier part of the trial of this case. Final arguments were heard. This is how the case has come up before this Court second time for judgment.
4. Now the prosecution case first.
As per the prosecution case, an information was received in the police station Dwarka on 25.3.07 at 7.30 p.m. vide DD No.31A through PCR that a suicide has taken place at Flat No.B502, Hind Apartment, Sector5, Dwarka, New Delhi. SHO Inspector Ravinder SC No.152/08. Page 4 of 47 Kumar and ACP Dwarka, reached the spot immediately where they found a dead body of a female named Divya aged 28 years lying on the bed in the bedroom of the flat. It is further stated in the Charge Sheet that the accused, the parents of the deceased and the brother of the deceased were also found present at the spot. SDM, Najafgarh was informed immediately, who conducted the inquest proceedings and on the basis of the statement of the parents of the deceased, FIR No. 316/07 dated 26.3.07 U/s.498A/302 IPC was got registered at P.S. Dwarka. Accused was arrested on 27.3.07 and since then has been in judicial custody. Initially, the case was investigated by Inspector Ravinder Kumar, SHO of P.S. Dwarka, but later on the investigation was transferred to Crime Branch, Delhi, vide order dated 04.4.07 issued from Police Headquarters, Delhi. The case was thereafter investigated by Inspector Anil Kumar of Anti Homicide Section. The investigation was transferred second time to Inspector Ajay Sharma, who took up the same on 18.5.07.
5. Report from Biological Division of FSL, Rohini, was received by the investigating officer on 20.9.2007, which showed that no foreign material could be detected in the nail clippings of the deceased, cotton swab of the deceased etc. The FSL team also visited SC No.152/08. Page 5 of 47 the crime spot on 07.9.2007 and gave a report regarding position and condition of the ceiling fan in the room where the dead body of the deceased was found.
6. It is the case of the prosecution that the accused had been inflicting acute torture and cruelties upon the deceased right since the marriage and also had been making regular demands for more dowry to her and ultimately, strangulated her on 25.3.07.
7. On 04.4.2008, Charges u/s.498A IPC and 304B IPC were framed against the accused. Alternatively, the Charge u/s.302 IPC was also framed against the accused. However, the Charges were amended later on. Amended charges framed on 30.4.2009 against accused read as under :
"That Divya was married with you on 15.1.2005 as per Hindu rites and customs and you being husband subjected her to cruelty for dowry and thereby committed an offence punishable U/s. 498A IPC and within the cognizance of the court of Sessions.
Secondly, that you on 25.3.2007 caused death of your wife by strangulation and thereby committed the SC No.152/08. Page 6 of 47 offence punishable U/s. 302 of IPC and within the cognizance of the court of Sessions.
Alternatively On 25.3.2007, you at Flat No.B502, Hind Apartment, Sector5, Dwarka, committed dowry death by causing death of Smt. Divya your wife and thereby committed the offence punishable U/s. 304B of IPC and within the cognizance of the court of Sessions.
And, I hereby direct that you accused be tried by this court for the said offence."
8. The prosecution has examined 31 witnesses to prove the Charge against the accused, whereas the accused produced five witnesses in his defence and also examined himself as DW6. In his statement u/s.313 Cr.PC recorded on two dates, the accused denied all the incriminating evidence, which was put to him. He stated that Divya was suffering from some gynecological problem, for which she was undergoing treatment from Apollo Hospital, Delhi. He also stated that the parents of Divya have implicated him falsely in this case as they were against his marriage with Divya. He also stated that on the SC No.152/08. Page 7 of 47 date of incident, he had reached this flat after 6 p.m. and by that time the deceased had already hanged herself.
9. I have heard Ld. Chief Prosecutor for State, Ld. Counsel for the Complainant and Ld. Counsel for the accused. I have also scrutinized the deposition of the witnesses minutely as well as documents proved on record.
10. Ld. Chief Prosecutor as well as Ld. Counsel for the Complainant submitted that it is established from the testimony of the prosecution witnesses that the accused was inflicting acute torture upon the deceased and always asked her to bring more money from her parents. He did not treat the deceased properly as a wife, but only was interested in the money, which she used to bring from her parents. It was also submitted that there had been quarrels between the couple regularly and ultimately, the accused killed the deceased on 25.3.07 by strangulating her with bed sheet. It was further submitted that opinion of Dr. Komal Singh as well as the postmortem report make it explicit that the accused caused death of the deceased either by strangulation or by garroting.
SC No.152/08. Page 8 of 47
11. On the contrary, submission of the Ld. Counsel for the accused was that the deceased committed suicide as she was suffering from some acute gynecological problem, for which she was undergoing treatment from Apollo Hospital, Delhi, and the accused had no hand at all in her death. It was also submitted that the accused treated the deceased very well and her parents had falsely implicated the accused as the marriage between the couple was a love marriage as well as intercaste marriage and the same was not to the liking of the parents of the deceased. The Ld. Counsel urged this Court to hold the accused innocent and to acquit him.
12. From the testimony of various witnesses, documents proved on record and the submissions of the Ld. Counsels, following facts emerge undisputed in the present case. The deceased had solemnized a run away court marriage with the accused on 27.11.04, which was duly registered in the office of Registrar of Marriage, South District, Delhi, on the same day and thereafter, the deceased had been staying with the accused as husband and wife. Thereafter, the parents of the deceased accepted marriage and also got solemnized an arranged marriage between the two on 15.01.05 as per Hindu rites. The couple had been residing in Flat No.B502, Hind Apartments, SC No.152/08. Page 9 of 47 Sector5, Dwarka, which flat was in the name of mother of the deceased and was given to the couple for use. The death of Divya was unnatural and took place within seven years of her marriage with the accused. Nobody else was residing alongwith couple in the aforesaid flat. It was the accused, who saw the dead body of the deceased first of all in the evening of 25.03.07 and called the mother of the deceased saying that Divya is unwell, upon which she went to the flat alongwith her nephew.
13. The submissions of the Ld. Chief Prosecutor is that it is clear case of murder. According to him, the accused killed the deceased by pressing his throat with great pressure, which form of death is known as garroting. He submitted that the report of the FSL team, who had inspected the crime scene on 07.9.2007 indicates that the ceiling fan in the room of the deceased was intact and was in working order with no sign of any ligature having tied to it or heavy object having been hanged from the same. He argued that the blades of the fan would have got bent or it would have become out of order, had a human body remained suspended from it for a considerable time or atleast the impression of the ligature material tied to it would have been found on it. He also submitted that if in fact, the deceased had SC No.152/08. Page 10 of 47 hanged herself from the ceiling fan with the help of a bedsheet. It would not have been possible for the accused to untie the ligature from the ceiling fan and only way to bring down the deceased from the hanging position would have been to cut the same in the middle, which has not been done in this case. He also referred to the opinion of Dr. Komal Singh, who on the basis of findings of the postmortem report, opined that since dry salivary stains were absent on the angle of the mouth, surface under the ligature mark was not white glistening and there was no parchmentisation or leathery feeling on the ligature mark, the possibility of suicide hanging is ruled out and it appears to be a case of garroting resulting into strangulation and ultimately, to death. She opined that it appears to be a case of strangulation from the front. Ld. Prosecutor submitted that the theory that the accused found Divya hanging from the ceiling fan is explicitly negated by the aforesaid evidence on record.
14. The Ld. Counsel for the accused argued that the mother of the deceased was accompanied by the brother of the deceased Sh. Parkshit also to the spot on 25.3.07 and when they both realised that the deceased had committed suicide, the brother of the deceased called police from his mobile phone stating that his sister has committed SC No.152/08. Page 11 of 47 suicide. He would submit that there is nothing on record that the accused was instrumental in killing the deceased. He also submits that the inspection of the crime spot carried out by FSL team on 07.9.2007 has no evidenciary value as the same has been done after a gap of almost six months from the date of the incident and the possibility of crime scene having been tampered with during that period cannot be ruled out.
15. In view of the aforesaid rival contentions of the Ld. Counsels regarding the nature of death of the deceased, it is necessary to first determine whether it was suicidal or homicidal. Both the Ld. Counsels advanced lengthy arguments in order to bring home their respective points. The Ld. Counsel for the Complainant referred to Modi's Medical Jurisprudence and Toxicology, 22nd Edition, in this regard whereas Ld. Counsel for the accused took me through relevant portion of a book on Forensic Pathology, 2nd Edition by Vincent J. Di Maio and Dominick Di Maio.
16. There is marked difference between hanging & strangulation and in the appearance of dead body after death by hanging, which normally is suicidal and after death by strangulation, SC No.152/08. Page 12 of 47 which normally is homicidal. Hanging is a form of death produced by suspending the body with a ligature round the neck, constricting force being the weight of the body (or a part of the body weight). In Modi's Medical Jurisprudence, it has been observed that:
"In hanging from a high point of suspension, the victim is either fully suspended, with his feet clear off the ground or he is suspended in a standing posture with his knees slightly flexed.
In hanging from a low point of suspension (partial hanging), a comparatively little force, about 4.5 kg is enough to occlude blood vessels of the neck. The term 'partial hanging', is used for such cases in which the bodies are partially suspended, or for those in which the bodies are in a sitting, kneeling, reclining, prone, or any other posture. In all such cases, death is inevitable from slow asphyxia, if there is enough force upon the ligature to constrict the neck.
When the point of suspension is over the centre of occiput, there is a maximum possibility of occlusion of the arteries and this is known as typical hanging, while all SC No.152/08. Page 13 of 47 other points of suspension are called atypical hanging."
17. Strangulation is a violent form of death which results from constricting the neck by means of a ligature or of any other means without suspending the body. It is called throttling when constriction is produced by the pressure of the finger and palms upon the throat. It is called mugging when it is brought by compressing the throat with a foot, knee, bent elbow or some other solid substance. Another form of strangulation is called garroting wherein the victim is killed by silently throwing a rope or a linen cloth over his head from behind and quickly tightening the same around neck. In such a case due to sudden loss of consciousness, there is no resistance at all and the assailant is then able to tight the ligature.
18. The difference between hanging and strangulation is succinctly explained in the Modi's Book by the help of a table, which is reproduced herein below :
Hanging Strangulation
1. Mostly suicidal. 1. Mostly homicidal.
2. Face- Usually pale and 2. Face- Congested, livid and
SC No.152/08. Page 14 of 47
petechiae rare. marked with petechiae.
3. Saliva - Dribbling out of the 3. Saliva - No such
mouth down on the chin and dribbling.
chest.
4. Neck - Stretched and 4. Neck - Not so.
elongated in fresh bodies.
5. External signs of asphyxia, 5.External signs of asphyxia, usually not well marked. very well marked (minimal if death due to vasovagal and carotia sinus effect).
6. Bleeding from the nose, 6. Bleeding from the nose, mouth and ears very rare. mouth and ears may be found.
7. Ligature mark - Oblique, 7. Ligature mark Horizontal noncontinuous placed high or transverse continuous, up in the neck between the round the neck, low down chin and the larynx, the base in the neck below the of the groove or furrow being thyroid, the base of the hard, yellow and parchment groove or furrow being like. soft and reddish.
8. Abrasions and ecchymoses 8. Abrasions and ecchymoses round about the edges of the round about the edges of ligature mark, rare. the ligature mark, common.
9. Subcuntaneous tissues under 9. Subcuntaneous tissues the mark - White, hard and under the mark glistening. Ecchymosed.
10. Injury to the muscles of the 10. Injury to the muscles of neck - Rare. the neck - Common.
11. Carotid arteries, internal 11. Carotid arteries, internal SC No.152/08. Page 15 of 47 coats ruptured in violent coat ordinarily ruptured. cases of a long drop.
12. Fracture of the larynx and 12. Fracture of the larynx and trachea - Very rare and that trachea - Often found also too in judicial hanging. hyoid bone.
13. Fracture - dislocation of the 13. Fracture dislocation of the cervical vertebrae - Common cervical vertebrae - Rare. in judicial hanging.
14. Scratches, abrasions and 14.Scratches abrasions bruises on the face, neck and fingernail marks and other parts of the body -
bruises on the face and
Usually not present. neck and other parts of the
body - Usually present.
15. No evidence of sexual 15. Sometimes evidence of assault. sexual assault.
16. Emphysematous bullae on 16. Emphysematous bullae on the surface of the lungs - Not the surface of the lungs -
present. May be present.
19. PW22 Dr. Anil Shandilya, who has conducted the postmortem of the dead body of the deceased, has not given any definite final opinion regarding the manner of death of the deceased, whether it was suicidal hanging or homicidal strangulation. He has merely opined that the postmortem findings are consistent that the pressure over neck or throat by some ligature material and the SC No.152/08. Page 16 of 47 possibility of strangulation, as observed by the Executive Magistrate cannot be ruled out. The postmortem report Ex.PW22/A as well as the testimony of PW22 show that the only external injury found on the body of the deceased was faint ligature mark present over neck in front, the width was 7 cm and it gradually tapered over side of neck and the width of each wing was 4 cm approximately. It is absent over back of neck. The ligature mark ran over middle 1/3rd of neck and its disposition with the side of the neck was not clearly visible. The disposition of whole of ligature mark could not be determined and its length is mentioned as 17 cm. No petechiae were seen in facial region, cartilages in the neck and hyoid bone were intact. This alongwith the fact that ligature mark was oblique, tapering over the side of neck and was absent over the back of the neck go on to suggest that it was a suicidal hanging. Had it been a case of homicidal strangulation, the ligature mark would have been well marked and horizontally around the neck.
20. As noted hereinabove, that garroting involves throwing a rope or a linen cloth over the head of the victim from behind and quickly tightening the same around the neck, so that the victim does not get any time to show any resistance and the assailant is able to SC No.152/08. Page 17 of 47 tighten the ligature. For sure, garroting cannot be done with the help of such a thick ligature material like a full bedsheet. Even strangulation by a full bedsheet is not possible. It would definitely take a lot of time for the assailant to tighten such a thick ligature material and to tie its knot, which would afford a reasonable time for the victim to offer resistance to the attack and to escape from the clutches of the assailant. Since, in the instant case, the death of the deceased appears to be peaceful, without any violence or resistance, the possibility of strangulation or garroting become improbable and hence have to be ruled out.
21. Another aspect of the matter, which is also very material, is that in case of both the strangulation and garroting, there will be fracture of larynx, trachea and hyoid bone. In the present case, the postmortem report of the deceased shows that her hyoid bone, thyroid cartilages and tracheal rings were intact. One more aspect of the difference between hanging and strangulation or garroting is that in case of hanging, the ligature mark is oblique, non continuous, placed high up in the neck between chin and the larynx, whereas in case of strangulation it is horizontal or traverse, continuous, round the neck, low down in the neck below the thyroid. The postmortem report of SC No.152/08. Page 18 of 47 the deceased in the present case as well as the testimony of autopsy surgeon (PW22) shows that there was faint ligature material mark present over the neck of the deceased. The position of the ligature mark is not given either in the postmortem report or in the testimony of PW22. However, photographs of the dead body on the court record, which were taken by photographer of the Crime Team (PW13) show that the ligature material is present high up in the neck near the chin, which also suggests that it is a suicidal hanging.
22. So far as, the report of the FSL team based upon their inspection of the crime spot on 07.9.2007 is concerned, I am in agreement with the submissions of the Ld. Counsel for the accused that same is doubtful and cannot be relied upon. Apparently, the inspection has been done after a gap of about six months. During this period, the keys of the flat were with the complainant i.e. father of the deceased. It has nowhere come on record that the flat was sealed and secured by the investigating agency during this period. In view of the same, the tampering of the crime spot cannot be ruled out and hence the aforesaid report of FSL team becomes irrelevant and immaterial. Further, as argued by the Defence Counsel, it is not clear which fan has been inspected by the FSL team as no photographs were taken SC No.152/08. Page 19 of 47 during the inspection. There is no public witness to the inspection. In my opinion, it would have been proper for the police to get the crime spot inspected in presence of the accused, who was in custody at that time and it was not difficult to secure his presence. That having not been done, the said report cannot be accepted in view of long lapse of time between date of incident and the said inspection.
23. Coming to the submissions of the Ld. Chief Prosecutor that it could not have been possible for the accused to untie the knot of ligature material near the ceiling fan. In this regard, I may refer to a photograph on record, which is Ex.PW8/DA, which has been proved by PW8 who was the Incharge, Crime Team, which visited the spot of occurrence. The photograph shows a cane chair near the bed, on which the dead body of the deceased Divya is lying. This signifies two things. This chair may have been used by the deceased to climb up and to tie the knot of the ligature material with the ceiling fan and then pushed off the same and secondly, it may have been used by the accused to climb up in order to untie the knot of the ligature material near the ceiling fan.
24. That apart, it is apparent that there was no external injury SC No.152/08. Page 20 of 47 on the body of the deceased except the aforementioned ligature mark. It is the case of the prosecution itself that the deceased was quite healthy and without any infirmity at all. Given such a situation where the victim was quite hale and healthy and she did not receive any injury at all during the process of hanging, I find it very difficult to believe that she has been strangulated to death by the accused. It is virtually impossible for an adult person to strangulate any other person, who equally matches the former physically. It was impossible for the accused to strangulate the able bodied deceased without either first beating her till she became unconscious or rendering her helpless by administering alcohol or any other drug. Even in such a situation also, the deceased could have resisted the sinister moves of the accused and would have retaliated, in the process getting injuries on her own person or inflicting injuries upon the accused. However, the viscera report from FSL, Rohini, filed on record by the prosecution shows that it is negative. No poisonous substance, alcohol or tranquilizers could be detected in the same. Evidently, therefore, the death of the deceased was a suicidal one and not homicidal.
25. One more fact, which needs to be taken note of, is that when the accused called the mother of the deceased saying that Divya SC No.152/08. Page 21 of 47 is in serious condition, the mother of the deceased (PW6) reached the flat no.502, immediately alongwith her son Parikshit and a nephew. The prosecution denies that PW6 was accompanied by her son Parikshit when she reached the flat. However, it is apparent from the cross examination of PW6 recorded on 22.8.2009 (page6) that she was also accompanied by her son Parikshit Dagar apart from her nephew when she reached the aforesaid flat on the date of incident on receipt of call from the accused. She has voluntarily stated that all of them had come there in a car together. She has also admitted that she had mentioned in her statement u/s.161 Cr.PC also that she had reached the house of the accused alongwith her son and the nephew. Therefore, obviously, either son of PW6 or her nephew had informed the police about the incident, which has been recorded in the form of DD No.31A in P.S. Dwarka. The information is that "my sister has committed suicide". Intriguingly, none of them has been examined as a witness in this case. They, having seen the dead body first of all alongwith PW6, were material witnesses for the prosecution. They could have thrown light upon the condition of the dead body when they reached the spot and why they informed the police that their sister has committed suicide. Nonexamination of these two material witnesses casts a doubt in the mind of the court regarding deposition SC No.152/08. Page 22 of 47 of PW6 that when she reached the flat, she saw her daughter lying in a sleeping posture in inner bedroom.
26. Ld. Prosecutor also submitted that the accused had made an extra judicial confession about the crime in front of PW6 and therefore, he is liable to be convicted u/s.302 IPC. In this regard, he referred to following portion contained in examination in chief of PW6 :
"My husband asked me to give a ring to the police. The moment I told that I will give a ring to the police, accused Sumit fell down on my feet and asked me not to call police. After sometime, my husband came there alongwith relatives. One of our relatives in a fit of anger slapped the accused and asked the accused as to why he had killed Divya and the accused told that he has committed a mistake."
27. Apparently, even as per the aforesaid deposition of PW6, accused has not made any confession to her. At the most, he is stated to have admitted his guilt to a relative of PW6, who had slapped the accused and asked him why he had killed Divya. However, the name SC No.152/08. Page 23 of 47 and particulars of that relative have nowhere been mentioned. He has not been examined as a witness by the prosecution. The exact words allegedly uttered by the accused have not come on record. Therefore, it is very difficult to hold that the accused has made any extral judicial confession. For basing a conviction, an extra judicial confession, it must be shown that the confession was made voluntarily and in a fit state of mind. The words of its maker should unambiguously convey that he and only he has committed the crime. The extra judicial confession can be accepted only if it passes the test of credibility, which is not the case here. The accused having been slapped indicates application of force upon him to extract the alleged confession.
28. The Ld. Prosecutor has relied upon various judgments of the Supreme Court to canvass where the husband and wife were living alone and no third person had been staying with them and the medical opinion is that the death has been caused due to asphyxia, the husband should be held guilty of murder and convicted u/s.302 IPC. I may say that there is no such general proposition of law. In certain cases, the courts may have held the husband guilty on the strength of facts and circumstances appearing in those cases, but it cannot be said that in every case where husband and wife stayed alone and the cause of SC No.152/08. Page 24 of 47 death of the wife is asphyxia, it is a case of murder. I may also add that every criminal case is a unique voyage in itself and its result depends upon the facts and circumstances proved on record by the prosecution. The fact of no two criminal cases have been seen to be absolutely identical or similar. No two criminal trials would unfold the same story and the same evidence. The courts have to be very circumspect and careful in applying a decision reached in a particular criminal case in a subsequent criminal case, unless a legal point has been settled in the former. The Supreme Court in its own judgment reported as 2011 (IX) A.D. SC 306, C. Ronald and anr. Vs. State of Union Territory of Andaman and Nicobar Island, has observed that judgment of a court of law should not be read as an Euclid's theorem nor as a provision in a statute.
29. I have carefully gone through the judgment cited at Bar by the Ld. Prosecutor in this regard. In my opinion, none of the judgments is material and relevant to the facts and circumstances coming out from the evidence led by the prosecution in this case.
30. It was also submitted by the Ld. Prosecutor that the conduct of the accused after the incident clearly shows that he is the SC No.152/08. Page 25 of 47 perpetrator of the crime. In this regard, he took me through the relevant portion of the cross examination of the accused appearing as DW6 where he admits that after seeing Divya hanging, he did not call any of his own relatives including his brother, Mausi of the deceased who lives in the same housing society or even the doctor. According to him, such conduct of the accused is highly unnatural and points to his guilt only. Here, I find some merit in the contentions of the Ld. Prosecutor but the conduct alone of the accused, which though is relevant, is not sufficient to determine his guilt when the other attending circumstances, as discussed hereinabove, negate such hypothesis. It is an established principal of law that in the cases based upon circumstantial evidence, each and every circumstance proved must necessarily point towards only one hypothesis i.e. guilt of the accused. It should be complete chain of events, with no missing link in between, and every link in the chain should lead to only one inference that the accused is guilty. I am afraid, that it not the case here. Even otherwise also, it can be said that there was nothing unnatural in the conduct of the accused when he, first of all, informed the mother and brother i.e. the nearest relations of the deceased about the incident.
SC No.152/08. Page 26 of 47
31. The Ld. Prosecutor then submitted that there is ample evidence on record that the accused has been ill treating and torturing the deceased and sometimes even beating her mercilessly. He also submits that there is ample evidence on record that the accused have been demanding more dowry from the deceased regularly. His submission is that these facts also point to the complicity of the accused in the murder of the deceased. I am afraid, the submissions of the Ld. Prosecutor, are not acceptable. Even if the prosecution has been successful in proving that the accused had been inflicting cruelties and torture upon the deceased in various forms, which would be considered in detail in later part of this judgment, then also it does not make out a case of murder, but at the most a case of dowry death u/s.304B IPC.
32. Thus, I hold that the deceased was not strangulated or garrotted to death by the accused but has committed suicide. So, the prosecution has failed to prove the Charge U/s.302 IPC against the accused. The accused is acquitted of the Charge U/s.302 IPC.
33. It is to be seen now whether the prosecution has been able to prove the Charge U/s.498A IPC and U/s.304B IPC against the SC No.152/08. Page 27 of 47 accused.
34. As noted herein above, the deceased died an unnatural death within seven years of her marriage with the accused. Therefore, it is to be established by the prosecution that the deceased was subjected to cruelty and harassment in relation to dowry demand by the accused soon before her death in order to bring home the Charge U/s.498A and 304B IPC and also in order to attract the presumption U/s.113B of the Evidence Act.
35. It was argued by Ld. Counsel for the Complainant that in view of Section 103 of the Evidence Act, the burden to prove that the deceased suffered from any acute gynecological ailment, which compelled her to commit suicide, lies upon the accused and in view of Section 113B of the Evidence Act, it has to be presumed that the death of the deceased was dowry death. However, it may be noted here that before applying presumption contained U/s.113B of the Evidence Act, it is to be established by the prosecution that the deceased was subjected to cruelty or harassment in connection with dowry demands by the accused soon before her death.
SC No.152/08. Page 28 of 47
36. Complainant Sher Singh Dagar, who is father of the deceased, has been examined as PW1. He stated that after marriage, the accused and the deceased resided at a house in Gurgaon, but thereafter, he got furnished the Flat No.B502, which is in the name of his wife and the couple started residing therein. He also testified that he came to know in February, 2006 about the behaviour of the accused when he fractured the leg of his daughter and gave beatings to her and did not take her to the hospital. It was his wife, who was informed about the same by the deceased and she took the deceased to Mahindra Nursing Home, Dwarka. He further deposed that 10 or 15 days after this, he called the accused and the deceased in his Farm House at Shahpur, Near Chhatarpur, and gave them a sermon about the importance of marriage and about living a happy married life. He also told the deceased that since she had married of her own choice, she should run the household in a proper manner and in case of any help, he would provide the same. According to him, he gave a sum of Rs. 2,75,000/ to the deceased by way of a cheque and cash. He also deposed that the deceased withdrew cash from his bank account on several occasions for booking a flat. He further states that on 25.3.07 when his wife had gone to the flat after receiving telephone call from the accused, she called him saying that Divya has died and the accused SC No.152/08. Page 29 of 47 opened the door after she has been pressing the door bell for about 2 or 3 minutes. He told his wife to call the police. He also reached the Dwarka flat immediately and police reached 10 or 15 minutes thereafter. Meanwhile, all his family members and relations also reached the flat. He states that one of his relatives threatened the accused by slapping him and the accused confessed that he had committed a mistake. According to him, he felt that the police is not investigating the matter properly and he got the investigation transferred to Crime Branch. He states that the official of Crime Branch visited the spot in May, 2007 and that after a search recovered certain papers of a diary in the handwriting of the deceased, wherein, the deceased had made reference to cruelties meted out to her by the accused. The Crime Branch also took into possession the photographs of accused showing him in the company of some foreign ladies and having drinks with them. According to him, police also recovered a forged certificate from the flat, as per which the flat was in the name of the accused. He states that his daughter used to write a diary in his presence and used to do homework in his presence. He has proved the handwriting of the deceased on diary pages allegedly written by her as Ex.P1, Ex.P2 and Ex.P3. Rest of the deposition of this witness in his examinationinchief is hearsay and hence not worth consideration. In SC No.152/08. Page 30 of 47 the cross examination, he has denied the suggestion that he ever scolded the deceased or the accused on the ground of their performing a run away marriage. He knew that the accused was working in a concern namely "Fidelity" but did not know about his earnings. He denied the suggestion that the deceased had suffered fracture in the thumb of her foot, as a result of a fall and Sumit had no role in the same and that she was removed to hospital by the accused on the same day. He also stated that when he had called the accused and the deceased to his Farm House in February, 2006, the deceased had narrated the incident of cruelty to him and also told him that she had already narrated all the incident to her mother. He further states that the deceased told him that the accused used to pressurize him to bring Rs.25 Lakhs or Rs.30 Lakhs from her parents as he intended to get the flat of Dwarka transferred in his name. He admitted that he did not told these facts to the SDM, but stated that he told to the SDM only what was asked for by the SDM. He stated that the cheque given by him to the deceased amounting to Rs.2,75,000/ was given from his personal account, but he did not remember the account number. He denied that the deceased used to take liquor. According to him, she was having a religious bend of mind. He admitted that in Ex.P3 the deceased had written that she used to drink occasionally. He denied SC No.152/08. Page 31 of 47 the suggestion that his wife had told him that the Divya had committed suicide.
37. The mother of the deceased Smt. Shakuntala has been examined as PW6 by the prosecution. She has stated in her examinationinchief that in June, 2005 Divya came alone to her hous and told her weepingly that Sumit came late in the night after consuming alcohol and gave beatings to her. Such things had happened on two or three occasions earlier also, but she intentionally did not disclose the same. Divya also asked her to call Sumit and prevail upon him. She further stated that she called Sumit and pevail upon him, who admitted his mistake. Divya again informed her in November/December, 2005 that Sumit again gave beating to her after consuming alcohol. She went to the matrimonial house of Divya at Dwarka on Sunday, where Sumit again admitted his mistake and promised not to repeat the same in future. She further deposed in February, 2006 that accused came in the night to his flat after consuming alcohol and gave beatings to Divya to such an extent that Divya suffered a fracture in the thumb of her foot. She alongwith her brother's wife Dayawati went to Dwarka and removed Divya to Nursing Home for treatment. Next day, she and Dayawati SC No.152/08. Page 32 of 47 accompanied Divya to her matrimonial house again and tried to prevail upon Sumit, treating him as their own child. Thereafter, she apprised her husband about all this. She states that her daughter used to ask the accused not to drink liquor as she was having a religious bend of mind and often performed Puja. She also told her husband that accused had demanded a flat and also asked her to furnish the flat.
38. According to her, lakhs of rupees were spent on furnishing the flat at Dwarka, which was spent by her husband. She further testified that many a times, accused demanded money from her daughter and her husband paid a sum more than Rs.5 Lakhs to Sumit in the shape of a cheque in the name of Divya. Sometime cash was paid directly to Sumit when Sumit and Divya visited their house. She further stated that Sumit used to pressurise Divya to get the flat at Dwarka transferred in his name through her mother. She also deposed that in November/December, 2006 again a dispute arose between Divya and Sumit and after being drunk, Sumit gave beatings to Divya. She further stated that on 25.3.07 she received a telephone call on her landline number from Divya between 8.30 or 9 a.m., who told her that there was a quarrel between her and Sumit. Divya also told her that Sumit threatened her that some day, he will kill her. Divya told her SC No.152/08. Page 33 of 47 that she will bring Sumit to their house in the evening on some pretext and they may talk to the accused in this regard. Divya also told her to prepare 'Kheer' as Sumit likes 'Kheer'. According to her when she was at her Farm House near Chhatarpur during the day at about 1 or 1.30 p.m., she again talked to her daughter, that time her daughter was in good mood. She gave phone numbers of the deceased as 9873820431 and 9810557817. She disclosed her mobile phone number, which she used at that time as 9891174777.
39. In the cross examination, this witness PW6 has denied the suggestion that the accused never wanted to have any favour from his inlaws. She has also denied the suggestion that it was on her insistence that Sumit and Divya shifted to her Dwarka flat. She also denied that whitewashing, cleaning and furnishing of the Dwarka flat was done by the accused. She was confronted with her statements dated 26.3.07 Ex.PW6/DA and dated 25.6.07 Ex.PW6/DB, wherein she has not mentioned that Divya had been given beatings by the accused after consuming alcohol, Divya was having a religious bent of mind and asked Sumit not to take liquor, her husband spent lakhs of rupees in furnishing Dwarka flat, she used to pay the amount in cash to the accused and that her husband paid a sum of Rs.5 Lakhs by SC No.152/08. Page 34 of 47 cheque to the deceased. She denied the suggestion that Sumit never pressurised Divya for getting the flat transferred in his name. She admitted that Sumit and Divya had booked the flat at Faridabad in their joint name, but volunteered that she had given cash to Sumit and he also withdrew money from Divya's account. She denied that in November or December, 2006, Divya had developed some kind of serious gynecological problem and that she was getting treatment from Apollo Hospital for the same. She also stated that Divya used to talk to her from her mobile phone almost daily. Suggestion was given to her that Divya talked to her on phone on 25.3.07 only at 1 p.m. or 1.30 p.m., which she denied.
40. From the deposition of the parents of the deceased, as stated hereinabove, it is apparent that the accused has been making regular dowry demands to the deceased and the deceased used to bring money in the shape of cheque and cash from her mother regularly. It is also apparent that behaviour of accused towards the deceased was very cruel and barbaric and on one occasion, he even fractured the thumb of her foot. It was argued by Ld. Counsel for the accused that the details of the bank account from which the cheques were issued by the father of the deceased in the name of the deceased have not been SC No.152/08. Page 35 of 47 mentioned and, therefore, such deposition cannot be believed at all. I am unable to accept the submission of the Ld. Counsel as parents are not expected to keep proper account of the money, which they give to their daughter or soninlaw. Amount of torture inflicted by the accused upon the deceased was only linked to dowry demands as otherwise, accused would not have shifted to the flat of her inlaws after solemnization of the marriage. It is apparent that accused had no love or respect for the deceased, but married her only in greed of money knowing fully well that her father is a very rich person. It was also argued by Ld. Counsel for the accused that the statements of PW6 U/s.161 Cr.PC Ex.PW6/DA and Ex.PW6/DB do not contain any averment regarding dowry demands or money paid by her either to deceased or to accused and, therefore, she has made a considerable improvement upon the same in her testimony before the Court, which should not be relied upon at all. In this regard, I may point out to the statement of PW2 and PW6 recorded by SDM on 26.3.07 i.e. just one day after the death of the deceased, wherein both have mentioned that the accused started harassing their daughter for more dowry right since the inception of the marriage. It is true that the details of dowry demands have not been mentioned in the statements as the same is very concise one. The reason for the same was that it was not possible SC No.152/08. Page 36 of 47 at that time for these poor parents to describe each & every incident in detail as they still had to come out from the trauma of seeing the dead body of their beloved daughter. So, it cannot be said that the testimony of these witnesses regarding dowry demands made by the accused to the deceased and the money paid by the parents of the deceased to the deceased and the accused is an after thought and is not reliable. From the testimony of PW2, the father of the deceased, it is evident that he was concerned about the well being of the couple and he had promised his help whenever they required, be it financially or otherwise. It is also apparent that for the sake of well beings of the deceased and the accused, the parents accepted their run away marriage and solemnized their regular marriage thereafter in January, 2005. Thus, it cannot be said that the parents of the deceased were unhappy over her marriage with the accused and that might have caused stress upon the deceased.
41. Smt. Dayawati, who is maternal aunt of the deceased appeared in the witness box as P25. She deposed that about three months after the marriage of Divya with Sumit, Divya told her that she is being harassed and beaten by her husband, her husband had fallen into a bad company, she was very disappointed with the SC No.152/08. Page 37 of 47 conduct of her husband, but was not in a position to tell the same to her parents and that is why, she disclosed all these to her. According to her, Divya further told her that they are facing financial crunch for the reason that her husband has been spending lavishly on his bad habits. She further stated that Divya told her that she had brought money from her parents twothree times, but now her husband is asking her to transfer the flat at Dwarka in his name, so that he can mortgage the same for the purpose of taking loan. She reiterated the incident dated 11.2.06 when she visited Divya in flat at Dwarka when Divya had suffered injury on her feet. According to her, Divya was first reluctant to tell the reason of her injury, but later on told that she suffered injury on account of beatings given to her by her husband. According to her, Divya further told her that she apprehends that her husband would kill her some day. In the cross examination, she stated that Divya used to talk to her on telephone, but did not recollect Divya's telephone number. She further stated that Divya used to call her on her landline phone no.230407 as she did not having any mobile phone at that time. According to her, she did not apprise Divya's parents about her plight in the matrimonial house as Divya had forbidden her to do so. She further stated that she used to meet Divya in her parental house at South Extension, where they used to talk SC No.152/08. Page 38 of 47 mostly in solitude. She further stated that she apprised the parents of Divya about her plight in the matrimonial house after Divya's 13th day Kirya was over.
42. Another witness examined by the prosecution in this regard is PW26 Ms. Anjali Upadhayay, who was a close friend of the deceased. According to her deposition, both of them were studying in St. Anthony Sr. Secondary School, Safdarjung Enclave, New Delhi, and since then they were friends. According to her, she knew Sumit about a year before his marriage with Divya and further stated that Divya and Sumit had met through some common friends. She herself got married in year, 2004 and thereafter, shifted to Mumbai. She states that she used to phone Divya from Mumbai regularly atleast once in a week and for the first time in February, 2006 Divya told her on telephone that she was unhappy with Sumit. Divya told her that Sumit drinks a lot, he is being aggressive with her at times, beats her and as a result of such beatings, she received fracture on her leg. She further stated that about 3 or 4 months thereafter, she came to her parents' house at Delhi and Divya came to meet her. They spent a full day together. That time, Divya told her that Sumit is pushing her to demand money from her parents and she is feeling afraid while in SC No.152/08. Page 39 of 47 company of Sumit. She further testified that one month thereafter, she again came to Delhi and spent a day with Divya. That time also, Divya also reiterated the aforesaid facts to Sumit. That time, she also went to Divya's place where she told her that Sumit is asking her to demand money from her parents. According to her, she apprised the mother of Divya about all what Divya had told her about Sumit in the first week of October, 2007. She further stated that she did not tell all these facts to the parents of Divya before as Divya had forbidden her from doing so. Nothing contrary has come out in the cross examination of this witness.
43. In my opinion, the deposition of PW25 and PW26 is quite natural and believable. It is natural for a girl to confide with her close friend or with her maternal aunt regarding her plight in the matrimonial house as the girl always feels reluctant to apprise her parents about the same. The deposition of the aforesaid two witnesses reaffirms that the accused had been treating the deceased with utmost cruelty and was regularly harassing her by pushing her to demand more and more money from her parents.
44. It was argued by the Ld. Counsel for the accused that the SC No.152/08. Page 40 of 47 prosecution has failed to establish that the accused made any dowry demand to the deceased or treated her with cruelty in relation to such dowry demands soon before her death. It was his contention that even if it may be taken that there were dowry demands from the accused to the deceased or he harassed her in relation to said demand, but since all this happened in year 2005 and 2006, the death of Divya on 25.3.07 cannot be linked to those dowry demands or harassment. I am afraid, the argument of the Ld. Counsel for the accused has no force at all. The word 'soon' appeared in Section 304B IPC and Section 113B of the Evidence Act has not been defined in any of the Statues and it has to be interpreted keeping in view the nature and circumstances of the each case. The expression 'soon' used in the aforesaid two provisions does not mean and necessarily imply that the harassment and the dowry demands should have been immediately prior to the death of the deceased. It only indicates that there should not be so wide a gap between harassment and dowry demands and the death of the victim so as to render it improbable that the death was in relation to the harassment caused by those dowry demands. In Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828, apex Court while interpreting the expression 'soon' used the aforesaid two provisions has held :
SC No.152/08. Page 41 of 47
"The expression 'soon before her death' used in the substantive section 304B, IPC and section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression 'soon before her death' is not defined. The determination by the courts, depending jupon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
45. In case at hand, it cannot be said that the harassment and torturous treatment meted out to the deceased in relation to dowry demands were so remote in time that they cannot be connected to the SC No.152/08. Page 42 of 47 death of the deceased. It is evident from the whole gamut of evidence led in this case by the prosecution as reproduced herein above that the dowry demands from the accused started soon after the marriage. As per the testimony of PW26, the deceased told her that the accused is pushing her to demand money from her parents regularly and is torturing her for the same. This was told by the deceased to the accused on 2 or 3 occasions during the year 2006. It is apparent that the deceased had become fed up with the regular demands of money made to her by the accused and she was in constant fear from the accused that he may kill her some day. She conveyed her state of mind to both her maternal aunt PW25 and her best friend PW26. The evidence nowhere suggests that the dowry demands came to an end and the accused stopped harassing and torturing the deceased for the same. In my opinion, the prosecution has succeeded in proving that the accused has been torturing and harassing the deceased in relation to dowry demands, which drove the deceased to commit suicide. Thus, the presumption contained in Section 113B of the Evidence Act squarely applies to the present case. The death of the deceased Divya is a dowry death and the accused is liable to be convicted U/s.304B IPC.
SC No.152/08. Page 43 of 47
46. It is necessary to note here that the accused has failed to rebut the presumption of dowry death, drawn against him. The alibi put forward by the accused, which led the deceased to commit suicide, which is manifest from the cross examination conducted on behalf of the accused and his statement U/s.313 Cr.PC, is that the deceased was suffering from same acute gynecological problem, for which she was getting treatment from Apollo Hospital, Delhi, and from which she has become fed up. Another alibi put forward by the accused is that the parents of the deceased implicated him falsely for the death of Divya as they were not happy with the run away and inter caste marriage of Divya with him. The accused has failed to prove both of these contentions. No document has been proved on record, which may suggest that Divya was suffering from some acute gynecological problem and she was getting treatment from Apollo Hospital for the same. No such treatment paper has been proved on record by the accused. So far as, the run away and inter caste marriage of deceased with the accused is concerned, it is evident that the same was duly accepted by the parents of the deceased and they had in fact, solemnized a regular marriage between the two on 15.1.2005. The accused was regularly visiting the parental house of the deceased alongwith deceased and there were good relations between him and SC No.152/08. Page 44 of 47 the parents of the deceased. There is nothing on record to suggest that the deceased committed suicide for any reason other than that she was being regularly harassed and treated cruelly in relation to dowry demands by the accused.
47. Suicide i.e. ending one's own life is a serious act. It is not a petty matter which is resorted to at a mere drop of hat unless it is shown that the victim was mentally unsound or short tampered. It is a fact that deceased Divya was neither mentally unsound nor so short tampered that she would end her life for no reason at all. There must have been very compelling reasons for her to commit suicide. No other reason comes out from the record that regular dowry demands and inhuman treatment meted out to her by the accused in relation tom dowry demands had gone beyond her tolerance level which drove her to commit suicide.
48. Having said all this, there hardly remains any doubt for the conviction of the accused U/s.498A IPC. It has come on record that the accused has been regularly beating the deceased and on one occasion even fractured the thumb of her foot. He was regularly coercing her to meet demands for more dowry including transfer of SC No.152/08. Page 45 of 47 Dwarka flat in his name. It has also come on record that the accused was a regular drunkard and used to be violent with the deceased when he returned to the house in the evening after being drunk. The High Court in Rita Vs. Brij Kishore, AIR 1984 Delhi 291 has observed :
"No doubt drinking is a constituent of culture all over the world, and is almost a cult in certain societies. Yet, even here as elsewhere a habit of excessive drinking is a vice and cannot be considered a reasonable wear and tear of married life. No reasonable person marries to bargain to endure habitual drunkenness, a disgusting conduct. And yet it is not an independent ground of any matrimonial relief in India, but it may constitute treatment with cruelty, if indulged in by a spouse and continued, in spite of remonstrances, by the other. It may cause great anguish and distress to the wife, who never suspected what she was bargaining for and may sooner or later find living together not only miserable but unbearable."
49. In the words of the Hon'ble Supreme Court in B.S. Joshi Vs. State of Haryana, AIR 2003 SC 1386, Section 498A was added SC No.152/08. Page 46 of 47 with a view to punishing the husband and his relatives, who harass and torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper technical view would be counter productive and would act against the interest of women and against the object for which the provision was added. Thus, I find sufficient evidence on record to convict the accused U/s.498A IPC also.
50. Resultantly, the accused is hereby acquitted of the Charge U/s.302 IPC, but is convicted U/s.498A IPC and 304B IPC.
Announced in open (VIRENDER BHAT)
Court on 28.9.2011. A.S.J. :Dwarka Courts
New Delhi.
SC No.152/08. Page 47 of 47