Delhi District Court
State vs Sujeet Kumar on 8 August, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.23/1/11
FIR No.415/10
U/s 498A/304B/302 IPC
PS Dwarka North
State
Vs.
Sujeet Kumar s/o Sh. Ram Vinay Mehto
....... Accused
Challan filed on : 24.03.2011
Reserved for Order on : 21.07.2014
Date of Pronouncement : 08.08.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 29.12.10 on receipt of DD no. 13A Ex.PW14/A Insp. Naresh Kumar alongwith his staff reached at the spot where he found two portions of jhuggi and on its back side he found a dead body of a lady lying on takhat and near the body a chunni was lying. One knife was also lying on the rack, the door of the jhuggi was temporary and it was broken. Many persons gathered there. The name of the said lady revealed as Pooja w/o Sujeet. Parents of State Vs.Sujeet Kumar FIR no.415/10 Page No. 1 of 50 Pooja were also found at the spot. The information regarding death of Pooja was given to Executive Magistrate and crime team was also summoned. Sh Amod Bharthwal, Executive Magistrate reached at the spot and recorded statements of father and mother of deceased. Photographs of the spot was taken. Ornaments from the dead body were removed. Two pieces of chunni were seized from the spot. The dead body was sent to hospital. The present case was registered on the statement of Santosh Mehto(father of deceased). In his statement he has alleged that he has solemnized the marriage of his daughter as per his status near about Holi. His damad/sonin law used to demand a motorcycle, ring and chain. He used to threaten his daughter. He is not able to give all this. He suspects that his daughter has been killed by her inlaws for want of dowry and she has not committed suicide. On this statement Ex.PW2/A, Executive Magistrate made endorsement to take action as per Law and thereafter present case vide FIR no. 415/10 was registered.
2. It is further the case of the prosecution that postmortem on the dead body was conducted and site plan was prepared by the IO. Statements of witnesses were recorded and thereafter accused Sujeet was arrested. Subsequent opinion on the weapon of offence i.e. chuni was taken. Statements of the witnesses were recorded and after completion of investigation challan was filed. State Vs.Sujeet Kumar FIR no.415/10 Page No. 2 of 50
3. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions.
4. The charge against accused Sujeet was framed on 1.4.2011 u/s 498A/304B/ IPC and in alternate u/s 302 IPC on 1.4.2011 to which accused pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, in all has examined as many as 24 witnesses. PW1 Smt. Renu Devi is the mother of deceased and she has deposed that Pooja was married to Sujeet on 25.2.2010. She had given 10 gms gold, 250 gms silver, Rs.11000/ in cash and five utensils of brass in marriage. She has stated that after 1015 days of marraige accused started giving beatings to her daughter and used to ask her to bring one motorcycle and a gold chain from them. She has further stated that they mortgaged their house measuring 25 yards for Rs.50,000/ to Manoj. When they could not pay the same amount, they had to sell the same and purchased another house measuring 12 yards. Thereafter, the accused started making demands for a motorcycle and a gold chain under the impression that they have plenty of money but they could not fulfill the demand of chain and State Vs.Sujeet Kumar FIR no.415/10 Page No. 3 of 50 motorcycle. After one month of marriage, accused had given beatings to her daughter and sent her to their house. On the same day,her mother in law came to her house to bring her back and on her assurance, she was sent back but after 45 days accused Sujeet made a telephonic call to her husband saying that her daughter Pooja had committed suicide by hanging. Thereafter they reached in the house of accused and found dead body of her daughter. Her statement was recorded by SDM which is Ex.PW1/A. She has further deposed that some ornaments worn by daughter, two pieces of dupatta, one knife which was lying near the dead body were taken into possession by the police. The accused used to taunt and quarrel with her daughter for demand of motorcycle and gold chain. In cross examination she has stated that after marriage of her daughter she sold the jhuggi to clear the debts incurred on the expenses of marriage. She denied the suggestion that only a plot of 25 sq.yard was alloted to her in lieu of their jhuggi at Hari Nagar Vol. The house was built thereon. The said jhuggi was sold for Rs.5.50 lacs. No engagement ceremony had taken place for the marriage of her daughter and she was straight way married 6 days prior to Holi. Her daughter was married from her house I53 Sec.16 Dwarka, Kakrola. Her statement was recorded twice. The accused had informed her husband on the day of incident that her daughter had hanged herself. At that time she was on job. VOL. Her husband State Vs.Sujeet Kumar FIR no.415/10 Page No. 4 of 50 on receiving the telephone call, had gone to the matrimonial house of their daughter and thereafter, her husband informed her about the incident. AS such, she could not accompany him to the matrimonial house when he went there on receiving the call. She had not entered the room where the dead body of her daughter was lying. She stayed there for about one hour and thereafter went back to her house after her daughter was removed to hospital. She does not remember she had stated in her statement that accused had demanded a gold chain. After 1520 days of marriage, she came to know from her daughter that accused used to give her beatings. Her daughter visited her house three times after marriage. Once she visited on Handshaking and she also visited after 9 days of marriage and on both the times accused accompanied her. Her husband never visited the matrimonial house of her daughter except on two occasions when he gone to make the accused not to harass the daughter. His last visit to her house was after one week of chhat pooja before her death. Thereafter neither she nor her husband visited her house. After they sold their house of 25 sq.yards, the accused became greedy and thereafter, he realised the demand of goldchain and motorcycle for the first time. They had not lodged any report in this regard with the police. No photographs of marriage were taken. No marriage card was got printed. About forty persons had attended the marriage. She never visited the State Vs.Sujeet Kumar FIR no.415/10 Page No. 5 of 50 matrimonial house of her daughter. He had never stated to the police that they had mortgaged house no.I53 for Rs.50,000/ to one Manoj belonging to her village. Her daughter visited for the first time on Raksha Bandhan. She does not know if the mother of accused used to hand over the entire earnings of family to Pooja to run the household. She does not know if her mother in law used to give her money to be kept in safe custody. It is correct that she had stated before the police that the money which used to be given to Pooja by her mother in law, the accused used to snatch from her. Her daughter had informed her that her husband used to snatch money from her. This fact was informed by her when she visited in their house on Rakhi. The accused had not demanded motorcycle of any particular make. She denied the suggestion that her daughter was married to accused against her wish, for this reason she committed suicide.
6. PW2 Santosh Mehto is the father of deceased and he has stated that at the time of marriage he had given Rs.11000/ cash, one bhari (tola) gold in the form of one pair of ear rings, 250 gms silver articles/jewellery, 5 utensils and some metal called 'phooli'. After 23 months of marriage, his daughter told him that she was being harassed by accused Surjeet, his mother and sister as they were demanding a motorcycle. He is a poor person, he did not have State Vs.Sujeet Kumar FIR no.415/10 Page No. 6 of 50 the capacity to fulfill their said demand. He had taken loan of Rs.50,000/ at the time of marriage of his daughter from Manoj and Rs.60,000/ from Sehdev. He has further stated that when they started demanding repayment of loan, after 67 months he sold his house for Rs.5,90,000/ and purchased another house of Rs.3.40 lacs and returned the loan. The demand of motorcycle was raised by accused to his daughter after he had sold his house and this was conveyed to him by his daughter. Accused also demand a gold chain from him after about a week when he sold his house. His daughter had told him that she was beaten up by the accused and once she was also thrown out of her house on the festival of Bhaiya Teej. Accused also threaten her to throttle her neck. She was brought by his son on Bhai Teej and after 34 days Surjeet took her back. He did not say anything at that time. After 56 days of her daughter joining her matrimonial house, some female neighbour of her daughter had informed his wife at the house where she was working as maid that her daughter was being harassed by her inlaws but he cannot tell the names of those females. He has further stated that after 34 days his daughter had given him a telephone call on his mobile phone from STD booth that Sujeet Kumar was harassing her a lot and was demanding a gold chain as well as motorcycle. Hence, after 1012 days i.e. on 25th Dec. during the same year, he had gone to the matrimonial house to make the State Vs.Sujeet Kumar FIR no.415/10 Page No. 7 of 50 accused and his mother understand. He had told that he had not money to get him motorcycle and gold chain and then came back. After 34 days, he got a telephone call from accused Surjeet on his mobile that his daughter had died. He went there and found dead body of his daughter lying on takhat and near dead body, a knife and chunri or red colour in two pieces was lying. He brought the original documents of house no. G18 JJ Colony which are notarized on 13.11.2010, copies of the same are Ex.PX. The police seized dupatta and knife vide memo Ex.PW2/B. The jewellery which his daughter was wearing at the time of death was taken into possession vide seizure memo Ex.PW2/E and after post mortem dead body was handed over to him vide receipt Ex.PW2/F. He identified the chunni Ex.P1 and Knife Ex.P2. In cross examination he has stated that he did not lodge any complaint to the police against demand made by Surjeet. It is correct that he had not stated in any of his statement recorded by the police that Sehdev and Manoj were demanding back their money. His daughter and Sujeet visited his house thrice after marriage. His daughter told him at the time of visit to his house that she was being harassed for demand of dowry. He denied the suggestion that his daughter was not having any liking for accused Sujeet or that he got her married with accused forcibly. The chunni shown to him on 10.1.2011 in the court during his statement was of red colour. He denied the State Vs.Sujeet Kumar FIR no.415/10 Page No. 8 of 50 suggetion that her daughter had quarreled with her husband and in laws in her matrimonial home and she came to her home on her own. He does not recollect the amount incurred by him on the marriage of his daughter. The jewellery was got prepared from Bihar. He does not remember now the money spent by him for purchase of jewellery. When Pooja used to tell him about beating and harassment, his wife used to be present there. He had not stated in his statement recorded by SDM that whenever his daughter used to visit his home she used to tell her that she was being harassed and tortured by accused for demand of dowry. He had not stated to the police regarding visit of his daughter to his house on the occasion of chhat pooja or Raksha Bandhan.
7. PW3 Shahnawaj has deposed that during Nov. 2010, he had sold the House no.G18 to Santosh Mehto through property dealer Manoj for Rs.3,40,000/ and the documents for Rs.2.00 lacs were prepared. Documents Ex.PX bears his signatures at point X. He has no knowledge if Santosh had any other house. He was declared hostile by the prosecution and cross examined by the Ld. Addl.PP for the State and his statement mark PW3/PA is read over to him which he denied having made to the police. He denied the suggestion that he was introduced to Santosh Mehto by Manoj and he was having 25 sq.yard plot and he spent sufficient amount on State Vs.Sujeet Kumar FIR no.415/10 Page No. 9 of 50 the marriage of his daughter or that now he want to repay the debt of that due to said reason he wanted to purchase his plot of 12 sq.yards.
8. PW14 Bhushan Shah has stated that he know Santosh Mehto who approached him and told that he had married his daughter and he had incurred huge expenses and wanted to sell his plot no.I53. He introduced Palvinder Singh who wanted to purchase plot and the said plot was sold to Palvinder for Rs.5,90,000/.
9. PW5 Manoj Yadav has deposed that he is a commission agent in property dealing and that he got purchased a plot to Santosh Mehto from Shah Nawaz. The said plot is G18 PktII, Sec.16A Dwarka which was purchased for Rs.3,40,000/ and one and one and half floor was constructed thereon.
10. PW6 Sehdev Pradhan has deposed that daughter of Santosh namely Pooja was married in the year 2010 with Sujeet and for the occasion of marriage, Santosh Mehto had borrowed Rs.50,000/ from him and Rs.60,000/ from Manoj . After sometime he paid the said amount to him and his brother. State Vs.Sujeet Kumar FIR no.415/10 Page No. 10 of 50
11. PW7 ASI Khajan Singh has deposed that on 29.12.2010, he received intimation from SHO to be present at C124 Sec.15 and he reached there where SI Sandeep met him. Inside the jhuggi on the bed on takhat, the dead body of a female namely Pooja was lying. The jhuggi was divided into two parts. There was only one entrance to both the parts. The door was found broken and it was appearing to have been pushed from the outside and then broken. HC Ram Prakash took 15 photos of the spot. He prepared crime team report which is Ex.PW7/A.
12. PW8 Ct. Narender Kumar has deposed that the dead body was handed over to him for removing to DDU Hospital. He deposited the dead body in mortuary. He remained in the hospital till 30.12.2010 when the post mortem was conducted on the dead body. After post mortem a sealed pullanda alongwith one document was handed over by the doctor and he handed over the said pullanda to IO which he deposited in malkhana. The said document is Ex.PW8/A.
13. PW9 Palvinder Singh has deposed that he purchased a plot no.I53 from Santosh Mehto on 29.10.2010. On 21.10.2010, he had given bayana to Santosh. While selling the plot, Santosh had told him that he is under debt due to marriage of his daughter. State Vs.Sujeet Kumar FIR no.415/10 Page No. 11 of 50
14. PW10 Dr. Santosh Kumar has appeared for Dr. Sushil Kr since the said doctor had expired in road traffic accident. He has deposed that Dr. Sushil had conducted the post mortem on the dead body of Pooja aged about 19 years. The PM report is Ex.PW10/A.
15. PW11 Dr. Dhananjay Kumar has deposed that on 29.12.2010, Pooja was brought to casualty and she was medically examined by Dr. Kama. Her BP and pulse were not recordable. CVS showed no heart sound. ECG showed straight line. She was declared dead. He identified the signatures of Dr.Kamal on MLC Ex.PW11/A.
16. PW12 Sunita has deposed that she and Pooja(since deceased) were preparing food in the morning hours on a common chullah. Thereafter she went to her house and Pooja went to her house. At about 11 a.m, Pinki, sister in law of Pooja came and she knocked the door as she wanted a cooker. She continued knocking the door but it was not opened. Pinki called her husband. Sujeet came there. The door of the house was broke open by Sujeet and husband of Pinki and thereafter they saw Pooja hanging with bamboo with dupatta. The chunni was cut by Sujeet with knife. Doctor was called. Police also reached there and removed her to hospital. She was declared hostile by the prosecution and cross State Vs.Sujeet Kumar FIR no.415/10 Page No. 12 of 50 examined by the Ld. Addl.PP for the State wherein she denied the suggestion that when they were preparing food, Sujeet had snatched Rs.500/ from Pooja due to which altercation took place between Pooja and Sujeet or that thereafter Pooja put the said note in the pocket of Sujeet or that thereafter she went inside and bolted the door or that thereafter her husband Sujeet had left from there or that after sometime her brother in law Raja Babu reached there and knocked the door or that when the door was not opened after sometime his sister and her husband also reached.
17. PW13 Sh Amod Bharthwal has deposed that on 29.12.2010, he was informed about the death of Pooja. He reached at the Jhuggi and on seeing door of jhuggi it appeared that the door of jhuggi was broke open from outside. He came to know the name of deceased as Pooja. He recorded the statement of Renu Ex.PW1/A and Santosh Ex.PW2/A. He made endrosement Ex.PW13/A and directed SHO to register a case. The jewellery lying on dead body was taken off from the body vide memo Ex.PW2/E. A piece of chunni in two pieces and one knife were seized vide memo Ex.PW2/B. He made application for post mortem which is Ex.PW13/B. He filled up form no.25.35 Ex.PW13/C. He directed SI Sandeep to take the possession of dead body after post mortem on Ex.PW13/B. The inquest papers of deceased Pooja is State Vs.Sujeet Kumar FIR no.415/10 Page No. 13 of 50 Ex.PW13/D. The brief facts is Ex.PW13/E.
18. PW14 ASI Renu has deposed that she recorded DD no.13A Ex.PW14/A regarding hanging of a lady which was handed over to SI Sandeep Shah. She has further stated that at about 3.25 p.m., Ct. Umed had brought rukka which is Ex.PW13/A and she recorded FIR, copy of which is Ex. PW14/B.
19. PW15 Raja Babu has deposed that on 29.12.2010, his bhabi Pooja was preparing potato parantha on chulla outside their jhuggi at about 7 a.m. His brother Sujeet was also present. His brother asked his bhabi as to where his mother is to which she replied that she had gone for work. At this Sujeet told her to give him Rs.100/ out of Rs.500/ which he told her to had been given to her on previous night. His bhabi refused to give the money to his brother Sujeet. Thereafter he went to the house of his sister Pinki. After sometime, he returned and knocked the door but his bhabi did not open the door. He went to call his sister Pinki and informed her that his bhabi Pooja was not opening the door of Jhuggi locked from inside. His sister was also to take cooker and she knocked the door but the door was not opened. She went to other side of jhuggi. His bhabi was seen standing wearing red saree but not opening the door. He called his brother in law. His brother Sujeet also reached State Vs.Sujeet Kumar FIR no.415/10 Page No. 14 of 50 there. His brother Sujeet broke open the door by giving a kick. They all entered in jhuggi and saw that his bhabi was handing with the bamboo using dupatta. Sujeet cut the chunni with knife and lie down his bhabi. He was declared hostile by the Ld. Addl.PP for the State wherein he has stated that he has not stated to the police in statement that when his brother reached on being called his sister there he told them that he had a quarrel with his wife due to which reason she was not opening the door. In cross examination he has stated that his brother Sujeet and his wife Pooja were living happily. He never saw them quarreling.
20. PW16 HC Ram Prakash has deposed that on receipt of DD no.13A he reached at C124 Bharat Vihar, Sec.15 Dwarka, inspected the spot and took photographs which are Ex.PW16/A1 to Ex.PW16/A14, the negatives are Ex.PW16/A28 (coly.).
21. PW17 Ct. Umed has stated that on 29.12.2010 he alongwith SI Sandeep reached at C124 and found gathering there where one lady was lying dead on bed. Executive Magistrate and crime team were called and Executive Magistrate recorded the statements of parents of deceased. Case was got registered through him. He has further deposed that the dead body was removed to DDU Hospital. The chunni (two pieces) and jewellery was seized State Vs.Sujeet Kumar FIR no.415/10 Page No. 15 of 50 vide memo Ex.PW2/B&E. The husband of deceased was not found there. Statements of witnesses were recorded and seal after use was given to him. Chunni is Ex.P1, knife is Ex.P2, and jewellery is Ex.P3 to P9.
22. PW18 Ct. Sushil Kumar has deposed that he was handed over one application for seeking opinion regarding dupatta, copy of which is Ex.PW18/A. He produced the same before Dr. BN Mishra. After sometime Dr. BN Mishra handed over him the said pullanda alongwith subsequent opinion.
23. PW19 Ct. Ramesh Kumar has stated that on 30.12.2010 accused Sujeet was arrested vide memo Ex.PW19/A and his personal search was conducted vide memo Ex.PW19/B. He was interrogated and his disclosure statement was recorded which is Ex.PW19/C.
24. PW20 HC Satyaveer Singh is the MHCM who made entries regarding deposit of case property in malkhana. The entry no.1004 is Ex.PW20/A. RC no.10/21 Ex.PW20/B, acknowledgement Ex.PW20/C, another RC no.4/21 Ex.PW20/D.
25. PW21 Insp. Naresh Kumar has deposed that on receipt State Vs.Sujeet Kumar FIR no.415/10 Page No. 16 of 50 of DD no.1A Ex.PW14/A he reached at C124 where two portions of jhuggi were notice and a the back portion a lady was lying on takhat. A chunni and knife were lying near the dead body. He found the door of the jhuggi temporary broken. Mother of Sujeet was there SDM and crime team were informed. At about 1.45 Executive Magistrate came at the spot. The statements of mother and father were recorded by him and he directed to take action. He made his endorsement Ex.PW21/A and got registered a case. Crime team reached there and took photographs. The report of crime team is Ex.PW7/A. He took up the investigation on 14.2.2011. He sent the exhibits to FSL vide RC no.10/21 already Ex.PW20/B. He collected the FSL result which is Ex.PW21/B and C. He prepared the challan and filed in the court.
26. PW22 Dr. B.N.Mishra has deposed that he examined the ligature material and he is of the opinion that the ligature material was quite comfortable to bear the body weight of deceased during the phase of hanging and it was possible that the ligature material could inflict the ligature mark on the neck of the deceased as mentioned in the PM report. His report is Ex.PW22/A. He opined that the cause of death was the same as opined by concerned autopsy surgeon and manner of death was compatible to suicide. The detailed opinion is Ex.PW22/B. State Vs.Sujeet Kumar FIR no.415/10 Page No. 17 of 50
27. PW23 Shambhu has deposed that he alongwith his brother Santosh had identified the dead body of Pooja and it was received vide memo Ex.PW2/F.
28. PW23 (PW number given wrongly) Amarpal Singh has deposed that on 1.3.2011, case property was received in FSL and after examination he gave his detailed report Ex.PW21/C.
29. PW24 SI Sandeep Shah is the IO of this case and he has deposed that on 29.12.2010 on receipt of DD no.13A Ex.PW24/A, he alongwith Ct. Umed reached at the C124 Bharat Vihar where one dead body of a lady was found whose name revealed as Pooja. After enquiry, Executive Magistrate was informed, crime team was called. Executive Magistrate recorded the statement of parents of deceased and crime team inspected the spot. He has further deposed that on the instruction of Executive Magistrate, the ornaments from the dead body were removed and seized vide memo Ex.PW2/E. He seized the two pieces of chunni vide memo Ex.PW2/B. He also seized one knife vide memo Ex.PW2/C and seal after use was given to Ct. Umed. On the direction of Executive Magistrate, case was registered. He prepared the site plan Ex.PW24/B. After post mortem report, deadbody was handed over to the father of deceased vide receipt Ex.PW2/F. He seized the jar after post mortem vide State Vs.Sujeet Kumar FIR no.415/10 Page No. 18 of 50 memo Ex.PW8/A. He has further deposed that accused Sujeet Kumar was arrested on 30.12.2010 vide memo Ex.PW19/A and his personal search was conducted vide memo Ex.PW19/B. His disclosure statement was recorded which is Ex.PW19/C. He obtained subsequent opinion which are Ex.PW22/A. He collected the relevant medical record including post mortem report, deposited the case property in malkhana, recorded the statements of witnesses. He collected the FSL report and obtained subsequent opinion of the doctor. He identified the case property.
30. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case. The accused has also examined three defence witnesses.
31. DW1 Smt. Manju has deposed that on the the day of incident she heard the noise of crying of child in the house of Sujeet. She came out and asked what happened to which he informed that his sister in law is not opening the door from inside. She peeped inside the room and saw Pooja hanging with fan. She called the pradhan Ram Kumar. Thereafter she made call to the police from her mobile.
State Vs.Sujeet Kumar FIR no.415/10 Page No. 19 of 50
32. DW2 Ram Kumar has also deposed that he heard a noise of boy and came out of the house. The said boy disclosed that his bhabi is not opening the door. Sujeet had also come there. He broke the door. He asked Manju to make call at number 100. Sujeet had also made call to the father of deceased. During the lifetime of the wife of accused, she left her matrimonial house twice and went to her parental house. He accompanied to the house of the inlaws of the accused with his family members and the wife of accused has hanged herself after 45 days when she came back to the house of accused from her parental house second time.
33. DW3 Ajmeri Begum has deposed that she saw Raja Babu crying and weeping at about 10/10.30 a.m. Many public persons gathered there. They were asked by the pradhan to break open the door and the same was broken. She saw that Pooja was hanging. Pooja was of her village. She never saw any quarrel in the house of accused after marriage. Pooja never complained her against the accused and her inlaws.
34. I have heard the Ld.counsel for the accused persons as well as Ld.APP for the State. During the course of arguments Ld. Counsel for the accused has submitted that there is no evidence in this case for the commission of offence u/s 498A/304B IPC. He has State Vs.Sujeet Kumar FIR no.415/10 Page No. 20 of 50 drawn the attention of the court on the ingredients of above stated section and stated that the accused cannot be convicted considering the evidence on record. Ld. Counsel has drawn the attention of the court on the testimonies of PW1 Renu Devi and PW2 Santosh Mehto who are mother and father of deceased and stated that they have made contradictory statements. So, they cannot be believed. It is submitted that the accused may kindly be acquitted.
35. Ld.APP for the State has also drawn the attention of the court on the statements of PWs and stated that the court should not over look that a lady has died within 7 years of marriage and that she must have died due to attrocities committed upon her by the inlaws. It is submitted that there are specific allegation for demand of dowry. So, the accused persons may kindly be convicted.
36. In the overall analysis of the testimonies of all the PWS, it is revealed that PW1 Smt. Renu Devi is the mother and PW2 Santosh Mehto is the father, PW12 Sunita is the neighbourer and PW15 Raja Babu is the brother in law(devar) of deceased Pooja. Before discussing their deposition made in the court and to bring home the guilt of the accused persons u/s 498A/304B IPC it is necessary to discuss the relevant provisions. Section 304B relates to dowry death. The same was introduced in the Indian Penal Code State Vs.Sujeet Kumar FIR no.415/10 Page No. 21 of 50 and it reads as under: Sec.304 B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demands for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death.
For the purpose of this sub section dowry shall have the same meaning as in section 2 of the dowry prohibition Act 1961. 'Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life'.
And if the ingredients of section 304B have been completed then the presumption u/s 113 B in the Indian Evidence Act is required.
Section 113 B Presumption as to dowry death when the question 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.
In a case of dowry death cruelty on part of husband towards his wife by prosecution has to be proved beyond reasonable doubt and section 113 B of Evidence Act does not alter this requirement of stick proof.
State Vs.Sujeet Kumar FIR no.415/10 Page No. 22 of 50 Section 498 A IPC reads as under: 'Husband or relatives of husband of a woman subjecting her to cruelty - Whoever being the husband or the relative of the husband or a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine'.
There is explanation for the purpose of this section cruelty means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical ) of the woman or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
37. From the conjoint reading of section 304B of the IPC and Sec. 113B of the Indian Evidence Act, it is apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Sec.304B of IPC. The ingredients of the aforementioned provisions are : That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;
Such death occurs within 7 years from the date of her marriage That the victim was subjected to cruelty or harassment by her husband or any relative of her husband Such cruelty or harassment should be for or in connection with demand of dowry and Such cruelty and harassment was made soon before her death. State Vs.Sujeet Kumar FIR no.415/10 Page No. 23 of 50
38. In the normal circumstances though cruelty at any time after marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged in section 304B is to be seen before the death of a woman and it is the duty of the court to scrutinize the evidence carefully because cases are not rare in which occasionally there is demand and then the atmosphere becomes calm and quiet and then again there is demand. Where a wife dies in the house of the husband within the short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined within the four walls of the house. However, the courts are to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and her in laws are strained for any reason whatsoever it might be.
39. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological trouble or mental agony or such circumstances that the person committing suicide may think that the life he or she is living is more miserable than the pangs and agony of death. The power of State Vs.Sujeet Kumar FIR no.415/10 Page No. 24 of 50 tolerance would vary from person to person. Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life.
40. Reverting back to the testimonies of witnesses, firstly I would consider the testimonies of the public witnesses and relatives of deceased Pooja. PW12 Sunita (neighbourer) has only stated that Sujeet broke open the door and thereafter they saw Pooja hanging. The chunni was cut by Sujeet with knife. She did not level any allegation against the accused for demand of dowry, torture or harassment by the accused. From her statement, it can be established that PW12 and deceased Pooja used to prepare food in common 'chulha'. They must have been very good friends and known to each other. They must have been also sharing their problems. But PW12 has not stated that she was disclosed about any torture or harassment meted to her by the accused.
41. PW15 Raja Babu is the brotherinlaw(daver) of deceased Pooja and brother of accused Sujeet. He is a minor witness and after satisfying, the court has recorded his statement. He has stated that his bhabi was preparing potato prantha outside jhugi. He has stated that his brother asked from his bhabi about his mother and his bhabi replied that she had gone for work. At this State Vs.Sujeet Kumar FIR no.415/10 Page No. 25 of 50 Sujeet asked her to give Rs.100/ out of Rs.500/ which he told her to had been given to her on previous night. His bhabi refused to give money to Sujeet. Thereafter he went to the house of his sister Pinki. He further deposed about hanging of his bhabi and that the door was bolted inside which was broken by his brother. In cross examination he has stated that his brother accused Sujeet and his wife were living happily. He never saw them quarreling. From the statement of PW15 what an be established is that accused Sujeet demanded Rs.100/ out of Rs.500/ which she refused to give. He has not alleged that quarrel had taken place thereafter. On the other hand, in cross examination he has stated that his brother and sister in law were living happily. He never saw any quarrel between them. From the statement of PW15, it cannot be established that accused used to harass, torture or made demand for dowry from deceased Pooja.
42. PW13 Amod Barthwal, the then Executive Magistrate recorded the statement of PW1 Renu and PW2 Santosh Mehto and on the statement of Renu he made endorsement Ex.PW13/A. He conducted inquest proceedings. Before discussions of their statements, I would like to mention here the initial statement of Renu and Santosh recorded by Executive Magistrate on the basis of which the present case was registered. The statement of Renu State Vs.Sujeet Kumar FIR no.415/10 Page No. 26 of 50 (complainant) recorded by PW13 is as under: 'Aaj dinak 29.12.2010 ko vyan kiya ki humne meri beti ki shadi apni hasiyat ke anusar ishi saal ki thi. Meri beti ka pati, saas aur nanad use dahej ke liya pareshan karte the. Ye log meri beti ko jaan se marne ki dhamki bhi dete the and maar pitai bhi karte then. Hamari hasiyat motorcycle dene ki nahi thi, ishliye meri beti ke sasural walon ne meri beti ko maar dala. Yah vyan maine apni marzi se Magistrate sahab ke samni diye hai, jinhe maine sunkar samjh liya hai aur sahi manti hu. Mere aur magistrate saha ke siva kamre mai koi aur maujood nahi hai.' sd/ RIT of Renu Statement of Santosh Mehto who is father of deceased is as under: 'Aaj dinak 29.12.2010 ko vyan kara ki maine meri beti ki shadi Holi ke aaspass ishi saal apni hasiyat ke anusar ki thee. Mera damad Sujeet Kumar motorcycle ki mang karta tha aur angoothi aur gale ki chain bhi mangta tha. Meri ladki ko dhamki deta tha. Meri hasiyat yah sub dene ki nahi thi. Mujhe pura yakeen hai ki meri beti ko uske sasural walo ne dahej ke lalch mai maar dala hai aur usne atmhatya nahi ki hai, yah vyan maine apni marji se puchche gaye sawalo ke jabab mai magistrate sahab ke samne diye hai joki satya hai aur sunkar samajh liye hai. Ish samay kamre mai koi aur maujood nahi hai.' sd/ Santosh State Vs.Sujeet Kumar FIR no.415/10 Page No. 27 of 50
43. PW1 Renu Devi has alleged in her statement recorded before the court that she had given 10 gms gold, 250 gms silver, Rs.11000/ in cash and five utensils. PW2 Santosh has also corroborated her version. However, these articles were given by them on their own as gift and it does not amount to demand of dowry.
44. PW1 has further stated that after 1015 days of marriage, accused started beating and asked her daughter to bring motorcycle and gold chain. PW2 Santosh Mehto has stated that after 23 months of the marriage, his daughter told him that she was being harassed by accused Sujeet, his mother and sister as they were demanding a motorcycle. Both the witnesses have contradicted to each other. PW1 has stated that after 1015 days of marriage accused started beating and asked for motorcycle and gold chain while PW2 Santosh has stated that after 23 months of marriage. PW1 has alleged that only accused Sujeet asked for the said articles while PW2 has stated that Sujeet, his mother and sister have demand motorcycle. Further, PW1 has alleged for demand of gold chain which is not find mentioned in the statement of PW2. Demand of gold chain by accused is also not found mentioned in the statement of PW1 recorded by Executive Magistrate. So, she has improved her statement in this respect. As far as beatings to State Vs.Sujeet Kumar FIR no.415/10 Page No. 28 of 50 deceased Pooja is concerned, there is no medical evidence or prior complaint available on file in this respect.
45. PW1 Renu Devi (mother of deceased) has stated that at the time of marriage, they mortgaged house of 25 sq.yard to Manoj. PW2 has stated that he had taken loan of Rs.50,000/ from Manoj and Rs.60,000/ from Sehdev. He has also stated that the said loan was taken before marriage of his daughter in the same year. The prosecution has examined PW6 Sehdev who has stated that Santosh had taken loan of Rs.50,000/ from him and Rs.60,000/ from Manoj. But PW5 Manoj has not stated that PW2 Santosh had taken loan of Rs.60,000/ from him. He simply stated that he got purchase plot no. G18 for him. PW1 Renu Devi has stated that the house of mortgaged at the time of marriage of their daughter while PW2 has stated that he had taken loan of Rs.50,000/ from Manoj and Rs.60,000/ from Sehdev. Both have given contradictory statements as PW2 has not stated that he mortgaged his house at the time of marriage of his daughter. However, he has stated that after 67 months both Manoj and Sehdev started demanding repayment of loan and he sold his house bearing no. I53, Sec.16 for Rs.5,90,000/. This falsify the statement of PW1 that the house in question was never mortgaged.
State Vs.Sujeet Kumar FIR no.415/10 Page No. 29 of 50
46. PW1 Renu has stated that they mortgaged the house for Rs.50,000/ to Manoj and thereafter accused started making demand for motorcycle and gold chain under the impression that they have plenty of money becuase of selling the said house but they could not fulfill the same. The mortgage of house has been alleged by her at the time of marriage and therefore alleged demand of motorcycle and gold chain would have been made at that time which means it may have been prior to marriage. But there is no evidence on record adduced by PW1 & 2 that there was any demand of dowry from the accused prior to marriage.
47. PW2 Santosh (father of deceased) has stated that after 6 7 months of marriage when demand for repayment of loan was made, he sold his house bearing no. I53. It is therefore clear that the house was sold after 67 months after marriage. The marriage had taken place on 25.02.2010. PW9 Palvinder Singh has stated that he has purchased the said house on 29.10.2010 and the seller was under debt due to marriage. The prosecution has failed to bring on record the GPA/Sale Deed of the said property. However, PW4 Bhushan Shah, property dealer had settled the said deal. The house in question is stated to have been sold on 29.10.2010. PW2 Santosh himself has stated that accused demand motorcycle and gold chain after selling of house and also demanded gold chain from him after State Vs.Sujeet Kumar FIR no.415/10 Page No. 30 of 50 a week of selling of the house. Also considering the statement of PW1, the demand was made by the accused under the impression that they had plenty of money. It is clear that alleged demand would have been made after about a week from 29.10.2010 while on the other hand PW1 has stated that after 1015 days of marriage accused started beating her daughter and asked her to bring motorcycle and gold chain and PW2 has stated that after 23 months of marriage his daughter told him that she was being harassed by accused Sujeet, his mother and daughter as they were demanding motorcycle. There is considerable difference between the time of demand of motorcycle and availability of money with PW1&2. Both the PWS have made contradictory statements in this respect.
48. PW1 has stated that after one month, Pooja was given beatings and she was sent to her house and thereafter on the assurance of her mother in law she was sent back. PW2 has stated that his daughter stated that she was beaten up and thrown out of the house on the occasion of Bhai Teej. However, in the later part of his statement he himself has stated that on the festival of bhai teej, his daughter was brought to his house by his son Rahul amicably. This version of PW2 clearly indicate that she was brought amicably on the occasion of Bhai Teej and there was no State Vs.Sujeet Kumar FIR no.415/10 Page No. 31 of 50 any kind of beatings given or that she was not thrown out of the house. Further, there is no complaint made by the parents of deceased or deceased herself in respect of beatings given to her or throwing her out of the matrimonial house. Both the witnesses could not given the date, month and time of such beatings or throwing her out of the house. PW2 has further alleged that he was told that accused threatened her to throttle her neck. This version of PW2 has not been corroborated by PW1 who is mother of deceased and who would have been nearer to deceased. PW1 has stated that accused used to taunt and quarrel with her daughter. She has failed to disclose as to how accused used to taunt her and what he used to say to her. PW2 has further stated that after 56 days of his daughter joining the matrimonial house, some female neighbourers of his daughter had informed his wife at the house where she was working as maid that his daughter was being harassed by her in laws, but he cannot tell the names of those females. Pw1 did not state even a word in this respect who has allegedly been informed by the ladies about harassment caused to deceased by inlaws. Further, the prosecution could not examine any such lady who informed PW1 regarding harassment caused to deceased.
49. In the present case, at the time of marriage, there was no demand from the side of accused. Whatever was given by the State Vs.Sujeet Kumar FIR no.415/10 Page No. 32 of 50 parents of deceased, the same was given as per their own wish. No photographs were taken in the marriage. It was attended by about 40 persons. The marriage was a simple marriage. There is alleged demand of motorcycle and gold chain in the initial statement recorded by Executive Magistrate. But from the statement recorded in the court and cross examination of the witnesses, it is revealed that both the witnesses have made contradictory statement regarding the said demand. The demand is stated to have been raised after 1015 days of marriage by PW1 while PW2 after 23 months but on the other hand it alleged to have been raised after about a week from 29.10.2010. In my opinion, the allegations made against the accused are vague and they are not specific and consistent. From the statements of both PW1 and PW2, the case of the prosecution becomes more doubtful and the allegations made by PW1 & PW2 regarding demand of motorcycle and gold chain cannot sustain.
50. In view of the deposition of star witnesses of the prosecution, I have also considered some case law and would like to mention the same for just decision of the case. In case law Sunil Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262 it is stated in head note: 'Section 304B It is pleaded that last letter of deceased did State Vs.Sujeet Kumar FIR no.415/10 Page No. 33 of 50 not mention any allegation of dowry demand - The letter of deceased does not speak of any demand of dowry and there is totally absence of demand of dowry and so sec.498A of IPC is not at all attracted - Thus the necessary ingredients of the offence of sec.304B of IPC is absent and so the conviction and sentence of the appellant cannot sustain and so the appellant is acquitted of the conviction u/s 304B IPC. It is further stated that : Both the courts below concurrently committed the appellant - But out of so many witnesses of the neighbour none could say that there was a dowry death and the deceased was soon before her death was subjected to demand of dowry which was necessary ingredient of the offence u/s 498A of IPC committed by the husband or by any of the family members or near relatives'.
In case law Baljeet Singh & Anr Vs. State of Haryana, 2004(1) JCC 627 it is stated in headnote that : 'Evidence Act. 1872 - Sec.113B Presumption Dowry death - Against accused persons to be drawn provided the prosecution establishes that soon before her death if the woman was subjected to cruelty or harassment within 7 years of marriage'.
'Dowry death - Onus of proof Preliminary facts - Proof of
- Onus lies upon the prosecution - High Court erroneously shifted the burden upon the accused - About the date of marriage - Prosecution is required to prove that death occurred within 7 days of marriage - PW4 father of the deceased was not creditworthy - So were other related PW5 - Prosecution failed to discharge its initial onus of proof - PW5 the mother stated that the deceased was depressed - This indicated that woman committed suicide in a state of depression - Hence conviction is set aside and appeal is allowed'.
In case Law Raman Kumar Vs. State of Punjab, 2009(3) JCC State Vs.Sujeet Kumar FIR no.415/10 Page No. 34 of 50 1840 it is stated in head note that :
'Sec. 304B - Evidence Act, 1872 - Sec. 113B - Dowry Death - No incidence of demand of dowry or cruelty or harassment 'soon before death' - Letter relied on shows demand of articles by her parents by her own and not on the behalf of appellant - Improvements in the statements of prosecution witnesses - Prosecution squarely failed to establish accusations against appellant - Appeal allowed - Conviction set aside'.
In case law Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 it is stated in head note that :
'Sec. 304B - Dowry death - soon before the death, deceased was subjected to cruelty or harassment by her husband for or in connection with demand of dowry - Once this is established, a legal fiction is created under section 304B IPC whereby such death would be called dowry death
- On facts held, ingredients of Sec.304B IPC r/ sec. 113 B Evidence Act not satisfied'.
In case law Tarsen Singh Vs. State of Punjab, 2009 (1) JCC 372 it is stated in head note that: 'One of the essential ingredients amongst others, is that the woman must have been 'soon before her death' subjected to cruelty or harassment for, or in connection with the demand for dowry - Nothing on record to show that any demand of dowry was made soon before her death The cause of action appears to be an ego problem on the part of the appellant, namely the deceased had not been coming to her matrimonial home - Conviction u/s 304B not proved'.
In case Law Durga Prasad & Anr Vs. State of M.P, 2010 (3) JCC 1852 it is stated in head note that: State Vs.Sujeet Kumar FIR no.415/10 Page No. 35 of 50 'Sec. 304B - Dowry death In order to hold an accused guilty of an offence of dowry death - it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of marriage - It has also to be shown that soon before her death she was subjected to cruelty and harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry'.
'Sec. 304B - In order to bring home a conviction u/s 304B, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim - But that such treatment was in connection with the demand for dowry'.
51. Considering the above discussion, to prove the case u/s 304B IPC these ingredients have to be proved (i) unnatural death
(ii) within 7 years of marriage and (iii) soon before death she was subjected to cruelty or harassment by her husband or relative of her husband (iv) such cruelty must be in connection with demand of dowry (v) such cruelty is shown to have been meted to the woman soon before her death. In this case, as per post mortem report Ex.PW10/A, the death is opined to have been occurred due to asphyxia from antemortem ligature. The subsequent opinion Ex.PW22/A find mention that the ligature material was quite comformable to bear the body weight of the deceased during the phase of hanging and it is also possible that the ligature material State Vs.Sujeet Kumar FIR no.415/10 Page No. 36 of 50 could inflict the ligature mark on the neck of the deceased. PW22 has opined that the cause of death in this case was the same as opined by concerned autopsy surgeon and manner of death was compatible to suicide. The death of deceased Pooja had taken place within 7 years of marriage and it was unnatural death. So, two ingredients have been proved by the prosecution. Now it is necessary to find out as to whether the deceased was being harassed soon before her death by subjecting her to cruelty and demand of dowry. It is now well settled in view of a catena of decisions of Hon'ble Apex Court that what would constitute 'soon before her death' depends upon the facts and circumstances of the case. In this case PW1 Renu and PW2 Santosh Mehto have stated that accused used to demand motorcycle. Whatever allegations they have made regarding demand of motorcycle are found to be contradictory to their statements and cannot be believed in view of the discussions made above. PW12 & PW15 have not levelled any such allegation for demand of dowry by the accused. Both the PW1&2 could not state the date and time of demand of motorcycle and gold chain. They have also not disclosed the date and time of beatings allegedly given to deceased Pooja. The demand of motorcycle cannot be believed since PW1 & PW2 have initially stated and it was made soon after marriage and thereafter stated that when the house was sold, the accused became greedy and demanded the same under the State Vs.Sujeet Kumar FIR no.415/10 Page No. 37 of 50 impression that they had sufficient money. The house was sold by PW2 prior to about 2 months before death of deceased Pooja while PW1 and PW2 have alleged that demand was made soon after marriage. There is contradictory person of both the PWS in this respect. Further, no complaint has been filed before any authority regarding harassment or torture meted out to the deceased by the accused. No demand of cash has been alleged by PW1&2. None of the witness has deposed that there has been difference in relation between accused and deceased Pooja. There is no complaint regarding beatings given to her on account of demand of motorcycle. They have not specified as to what the accused use to say to deceased.
52. What is alleged in this case is that accused used to snatch money from deceased Pooja. It is admitted by PW1 Renu, mother of deceased that the money which used to be given to Pooja by her mother in law, the accused used to snatch from her. From the cross examination of PW1, it is evident that Pooja used to be given money by her motherinlaw which in turn means that she was kept well at matrimonial home. PW15 Raja Babu has stated that his brother Sujeet has asked for Rs.100/ from Pooja out of Rs.500/ but she refused to give the same. It seems that altercation may have taken between husband and wife on this count but it cannot be State Vs.Sujeet Kumar FIR no.415/10 Page No. 38 of 50 terms as demand for dowry soon before death. The cause of action may have been ego problem on the part of the deceased.
53. PW1 Renu has stated that five days prior to the death of her daughter, she alongwith her husband went to the house of accused and at that time, her daughter told them that the accused used to taunt and quarrel with her for the demand of chain and motorcycle, however, they made him understand and expressed their inability to fulfill his demand. PW2 Santosh Mehto, father of the deceased has stated that on 25th December, he had gone to the matrimonial house of his daughter to make the accused understand not to harass his daughter and after 34 days he received call from ? Sujeet that his daughter had died. Considering the statements of both Pw1 and PW2, it is evident that PW2 has not corroborated the version of PW1 that she (his wife) has accompanied him to the house of deceased on 25th Dec.2010. Both have not alleged that their daughter had been beaten by accused prior to 25th Dec. or thereafter upto 29th Dec. on account of demand of motorcycle and gold chain. The alleged statement made by PW1 & 2 have also been improved by them as the fact about going to the matrimonial house of deceased is not found mentioned in the initial statements of both the witnesses which were recorded by Executive Magistrate and are Ex.PW1/A and Ex.PW2/A. From their statements, it can be inferred State Vs.Sujeet Kumar FIR no.415/10 Page No. 39 of 50 that they were not told about date and time of such harassment. The allegations are general in nature. They have not alleged that she was ever beaten soon before death or any word was uttered to her by the accused. Further, in cross examination PW1 has stated that on the festival of Raksha Bandhan, her daughter visited them last time. She has also stated that she cannot tell when her husband visited the matrimonial house of his daughter. His last visit to her house was after one week of Chat Pooja before her death. She has further stated that thereafter, neither she nor her husband visited her house. Chhat Pooja used to be performed immediate after Diwali. In the year 2010, Diwali was celebrated on 5th November and Chhatpooja was celebrated on 12/13th Nov. Therefore PW2 must have visited the house of deceased during third week of November 2010 but not on 25.12.2010. PW1 has clearly stated that after chat pooja neither she nor her husband visited the house of their daughter. Therefore, it is emphatically clear that they did not visit the matrimonial house of deceased on 25.12.2010 and it has been stated by them just to create false evidence against the accused. Both PW1 and PW2 have made contradictory statement regarding demand of motorcycle and gold chain The versions of above PWS cannot be termed as harassment for demand of dowry. So, there is no evidence for harassment on account of demand of dowry soon before death in this case. In my view there is no evidence available on file in this State Vs.Sujeet Kumar FIR no.415/10 Page No. 40 of 50 case that deceased Pooja was subjected to cruelty or harassment on account of demand of dowry. There is no indication that there was any cruelty or harassment meted out soon before the death of Pooja. Hence, ingredients of Sec.498A/304B IPC are not complete in this case.
54. I have also considered the statements of other PWS. PW7 ASI Khajan Singh is the witness from Crime team who prepared crime team report Ex.PW7/A. PW8 Ct. Narender removed the dead body to DDU Hospital. PW14 ASI Renu recorded DD no.13A Ex.PW14/A. She also recorded the FIR of this present case. The copy of FIR is Ex.PW14/B. PW15 HC Ram Prakash has taken the photographs of the spot which are Ex.PW16/A1 to Ex.PW16/A14. PW17 Ct. Umed also accompanied the IO to the spot. He was given the seal after use by IO. PW18 Ct.Sushil Kumar had taken the case property to malkhana and deposited there and PW20 HC Satyaveer made entries in malkhana register. PW19 Ct. Ramesh is the witness of arrest of accused. PW24 is the first IO and PW21 Insp.Naresh is the second IO.
55. In this case alternative charge has also been framed against the accused for the commission of offence punishable u/s 302 IPC. I have also perused the testimonies of official witnesses State Vs.Sujeet Kumar FIR no.415/10 Page No. 41 of 50 as well as relatives of deceased again. It is revealed that in this case no one had seen the accused killing the deceased. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujarat, 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof it has been indicated by this court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.71011, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: '10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. State Vs.Sujeet Kumar FIR no.415/10 Page No. 42 of 50 (2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
56. In the present case in hand, deceased Pooja has committed suicide by hanging. The prosecution could not examined Dr.Sushil (since deceased) who conducted the post mortem . However, PW10 Dr. Santosh Kumar has been examined in his place. PW11 Dr. Kamal who examined Pooja in the hospital also could not be examined. He declared her dead. I have perused the post mortem report Ex.PW10/A. The following injuries are mentioned in the PM report: 'The ligature mark present over the upper border of thyroid cartilage in the form of band type, base is dry and leathery, parchmentised reddish brown in colour, and placed oblilquely, going towards the right posterior side of the neck. The ligature mark encircling the whole neck except the right posterior aspect of the neck. Total circumference of the neck is 30.0 cm and ligature mark size 24x1.8 cm, upper border of the ligature mark 6.0 cm below from base of chin, lower border of the ligature mark 8.0 cm above from manubrium sternii, 4.0 cm from the right mastoid and 8 cm from left mastoid.' State Vs.Sujeet Kumar FIR no.415/10 Page No. 43 of 50
57. The cause of death was opined due to asphyxia from antemortem ligature hanging. No where in the post mortem report it has found mentioned that there was sign of any struggle on the body of deceased detected by the dcotor who conducted autopsy. Had the deceased been murdered, there must have been other medical evidence on that aspect but that is missing in this case. Therefore the allegation of PWS that Pooja was killed/murdered by the accused cannot sustain.
58. Further, PW22 has also given subsequent opinion Ex.PW22AB wherein it has been opined that the produced ligature material was quite conformable to bear the body weight of the deceased during the phase of hanging and it is also possible that the ligature material could inflict the ligature mark on the neck of the deceased as mentioned in the post mortem report. He has also stated that he was of the opinion that the cause of death in this case was the same as opined by the concerned autopsy surgeon and manner of death was compatible to suicide. Viscera was also sent to FSL but as per FSL result Ex.PW21/C, no poison could be deducted.
59. In case law 186(2012) Delhi Law Times 411 titled State Vs.Sujeet Kumar FIR no.415/10 Page No. 44 of 50 Jasvinder Saini & Ors. Vs. State it is stated in head note that : 'IPC 1860 - Sec. 498A, 302, 304B, 406, 34 - Criminal Procedure Code, 1973 - Sec. 216 - Cruelty, Dowry Death, Murder - Alternation of charges - Supreme Court in Rajbir @ Raju, VIII(2010) SLT 309 =IV(2010) CCR 381 (SC)= IV(2010) DLT (Crl.) 627 (SC) directed all Trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, IPC so that death sentences can be imposed in such heinous and barbarous crime against women - Charge of Sec 302 can only be added in cases where unnatural death is homicidal in nature - Perusal of autopsy surgeon's report shows that there was prima facie evidence on record to show that death of deceased could be homicidal in nature - Additional Sessions Judge justified in framing charges u/s 302 IPC against the petitioners.
60. In the present case as well as the medical evidence, the death in the present case was caused due to hanging. In my view the death in the present case was not a homicidal death. In the facts and circumstances of the case, I am of the view that sec.302 IPC is also not made out in this case.
61. In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) S.C.C 706 it is stated in head note that : 'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8.
State Vs.Sujeet Kumar FIR no.415/10 Page No. 45 of 50 'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'. It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 2627) that : 'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.
62. The onus to prove case u/s 302 IPC is on the prosecution. But in the present case prosecution could not discharge its onus by leading cogent and reliable evidence. Suicide is committed by living human beings for various reasons. There is no presumption that every suicide committed by married woman in her inlaw's house or at her parents house has to be because she was suffering harassment at the hands of her husband or her inlaws. Some commits suicide because of frustration of not achieving the State Vs.Sujeet Kumar FIR no.415/10 Page No. 46 of 50 desired goals. Pw15 has stated that accused Sujeet demand Rs.100/ from deceased Pooja out of Rs.500/ given to her but she refused. There may have some altercation in this respect between husband and wife but that does not mean that accused committed dowry death or in alternate murder of deceased. The defence has examined DW1 Manju who made call to police. DW2 Ram Kmar has asked Manju to call the police. He has stated that during the life time of wife of accused, she left her matrimonial house twice and went to her parental house. Both the witnesses have denied the suggestion of Ld. Addl.PP that deceased used to be harassed by accused. DW3 Ajmeri Begum has stated that she was having visiting terms with accused. Pooja was of her village. She never saw any quarrel in the house of accused after his marriage. Pooja never complained her against the accused and her in laws. It is stated by DW3 that Pooja was of her village. Therefore, she might have been sharing her problem with DW3. But DW3 has clearly stated that Pooja never complaint against accused.
63. In view of the above overall analysis of the testimonies of the witnesses and in brief whatever allegations have been levelled by PW1&2 regarding demand of dowry does not inspire confidence. The important ingredient of 'soon before death' is missing. The circumstances also does not connect the accused State Vs.Sujeet Kumar FIR no.415/10 Page No. 47 of 50 with the present case incident. So, in this case ingredients of section 304B IPC are absent and there is no allegation for soon before death for harassing deceased Pooja for demand of dowry because whatever allegations have been made in the statements recorded before the court and recorded by the SDM does not inspire confidence. So, I am of the opinion that deceased Pooja was not maltreated soon before her death or even at any time after marriage by the accused.
64. In view of my above discussions and considering the case laws discussed above, this case does not fall under the category of section 304B IPC and no presumption can be taken against the accused persons u/s 113 B of Indian Evidence Act. The prosecution has failed to bring home the guilt of the accused u/s 498A/304B IPC or in alternate u/s 302 IPC.
65. Realities of truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in State Vs.Sujeet Kumar FIR no.415/10 Page No. 48 of 50 which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. There is a long mental distance between 'may be true' and 'must be true' and this basic and this golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
66. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
67. In over all analysis of the testimonies of the witnesses, this case does not fall under the category of 304B IPC and I also did not find any evidence against the accused for the commission of State Vs.Sujeet Kumar FIR no.415/10 Page No. 49 of 50 offence punishable u/s 498A IPC. The prosecution also could not prove that the death of Pooja was homicidal in nature. So, I am of the considered view that the prosecution has failed to prove its case against the accused. In such circumstances, the accused is entitled to be given the benefit of doubt. I, therefore give the benefit of doubt to accused and I therefore, hereby acquit accused Sujeet for the commission of offence punishable u/s 498A/304B IPC and alternative charge u/s 302 IPC. Accused Sujeet is in JC. He is directed to furnish his personal bond in a sum of Rs.25,000/ with one surety in the like amount in view of the provisions contained u/s 437A Cr.PC. Bail bonds furnished and accepted. File be consigned to record room.
Announced in the open Court on 08.08.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Sujeet Kumar FIR no.415/10 Page No. 50 of 50