Delhi District Court
State vs 1. Kanhaiya Lal S/O Sh. Prabhu Dayal on 27 April, 2010
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In the Court of Ms. Shalinder Kaur
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 130/09
State versus 1. Kanhaiya Lal S/o Sh. Prabhu Dayal
R/o J26, Jhandewalan Road,
Sadar Bazar, Delhi.
2. Anaro Devi W/o Kanhaiya Lal
R/o J26, Jhandewalan Road,
Sadar Bazar, Delhi.
3. Gautam Kumar S/o Kanhaiya Lal
R/o J26, Jhandewalan Road,
Sadar Bazar; Also at 228/ BB, Nabi Karim,
Delhi.
4. Ajay S/o Kanhaiya Lal
R/o J26, Jhandewalan Road,
Sadar Bazar; Also at 228/ BB, Nabi Karim,
Delhi.
5. Jyoti W/o Chattar Pal
R/o T298, Kabir Nagar, Delhi.
6. Lata W/o Bal Kishan
R/o Village Daulatpur, Delhi.
Case arising out of:
FIR No. : 258/04
Police Station : Sadar Bazar
Under Section : 304B/498A/406/201/34 IPC
Judgment reserved on : 20.04.10.
Judgment pronounced on : 27.04.10.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
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JUDGMENT
Case History:
1. Prosecution has been launched against six accused persons namely Kanhaiya Lal, Anaro Devi, Gautam Kumar, Ajay, Lata and Jyoti for offence punishable U/s 304B/498A/201/406/34 IPC. Accused Gautam Kumar was the husband of deceased Deepmala, accused Kanhaiya Lal & accused Anaro Devi are parents of accused Gautam Kumar, accused Lata & Jyoti are his sisters while accused Ajay is brother of accused Gautam Kumar.
2. The investigations of the case commenced on recording of DD No.32A dated 30.04.05 (Ex.PW10/A) in police station Sadar Bazar. The said DD was got recorded by SI Raj Dhari Singh that Deepmala W/o Gautam Kumar was admitted in RML Hospital in burnt condition. The DD was handed over to SI Shiv Raj Singh Bisht who along with Constable Gurcharan reached RML Hospital. He obtained the MLC of Deepmala who was admitted with 60% burn injuries and was declared unfit for statement by the doctor. In the hospital, no eye witness of the occurrence was found by SI Shiv Raj. He also tried to trace the burnt clothes of Deepmala but could not succeed. Sub Divisional Magistrate (SDM), Sadar Bazar was informed. In the meanwhile, SI Shiv Raj got the place of occurrence inspected from the Crime Team.
Photographs were obtained. One plastic bottle containing some kerosene oil and a stove with open lid and lid of stove were seized from the place of occurrence. No eye witness met with SI Shiv Raj on 30.04.05. On 31.05.04, when injured Deepmala was declared fit for statement, SDM, Sadar Bazar SC No:103/09 State vs. Kanhaiya Lal & Ors.
:3:recorded her statement in the hospital which is Ex.PW18/A. The said statement was recorded in questionanswer form and bears right leg toe impression of the injured. In the statement, Deepmala disclosed to the SDM that, she had self burnt herself after pouring kerosene oil from the stove. Accordingly, DD No.32A (Ex.PW10/A) was kept pending. On 12.06.04, Deepmala died and again SDM, Sadar Bazar was informed. On 14.06.04, the SDM recorded the statements of parents of the deceased Deepmala. Inquest proceedings were conducted. Dead body was sent for postmortem. On 15.06.04, on the statement of father of deceased namely Sh. Laxmi Narayan, recorded by SDM on 14.06.04, the FIR Ex.PW1/B U/s 498A/304B was got registered. In the FIR Ex.PW1/A, Sh. Laxmi Narayan alleged that dowry demands were raised by the accused persons on account of which his daughter Deepmala was harassed by them and she was burnt by the accused persons. He prayed for legal action against the accused persons.
3. During investigations, the site plan was prepared. Statements of parents of the deceased were recorded who stated to the Investigating Officer that on 31.05.04, their daughter Deepmala had made statement Ex.PW18/A to the SDM under the pressure of her inlaws. Marriage photographs and dowry articles of deceased were seized. The exhibits lifted from the place of occurrence were sent to CFSL. Section 201 & 406 IPC were added in the FIR. The charge sheet for offence punishable U/s 304B/498A/201/406/34 IPC was laid against accused Kanhaiya Lal and Anaro Devi only as the other four accused persons had absconded. Subsequently accused persons namely Gautam Kumar, Ajay, Lata and Jyoti SC No:103/09 State vs. Kanhaiya Lal & Ors.
:4:had obtained anticipatory bail. These accused persons were formally arrested and a supplementary charge sheet was filed against them on 27.11.04.
4. After the case was committed for trial to the Sessions, vide order dated 16.02.05, Charge for offence punishable U/s 498A/34 IPC, 406/34 IPC, 304B/34 IPC and 201/34 IPC was framed against all the accused persons to which they pleaded not guilty. The prosecution examined 20 witnesses in order to substantiate the charge against the accused. Evidence:
5. The complainant Sh. Laxmi Narayan who is the father of deceased has been examined as PW3. PW4 Smt. Kamlesh is the elder sister of the deceased. Smt. Sona Devi, mother of deceased has been examined as PW8 and Sh. Narender Kumar, brother of the deceased was examined as PW14.
Their testimonies shall be dealt with subsequently in detail.
6. PW1 ASI Mahavir Singh was posted as Duty Officer in police station Sadar Bazar on 15.06.04. On the statement Ex.PW1/A, handed over to him by Inspector R.S. Adhikari, PW1 recorded the FIR of the case which he has proved as Ex.PW1/B. The testimony of this witness is unchallenged.
7. PW2 Asha Bajaj was posted as Constable Home Guard in the police station. She had accompanied Assistant SI Shiv Raj for the SC No:103/09 State vs. Kanhaiya Lal & Ors.
:5:investigations of the case on 13.07.04. PW2 is a witness to the arrest of accused Anaro Devi. The arrest memo of the accused has been proved as Ex.PW2/B and the personal search memo as Ex.PW2/A. In cross examination, the witness could not tell about the number of storeys of the house of accused Anaro Devi but stated that the police party had gone on nd the 2 floor.
8. PW5 Head Constable Devi Singh was the DD Writer who was posted as Duty Officer in police station Pahar Ganj on 30.05.04. He had recorded DD NO.45B which he proved as Ex.PW5/A. The testimony of this witness is unchallenged.
9. PW6 Sh. David is the landlord of the house in which the accused persons were residing as tenants. The witness deposed that on 13.07.04, police had seized dowry articles of deceased from her matrimonial home i.e the tenanted premises vide memo Ex.PW3/A.
10. PW7 Inspector Devender Singh Draughtsman had prepared the scale site plan on 16.09.04 of the place of occurrence. The site plan is Ex.PW7/A. The testimony of this witness is unchallenged.
11. PW9 Constable Govind Ram was posted as a Photographer in Crime Team which had visited the place of occurrence on 30.05.04. PW9 had taken the photographs at the spot which he has proved as Ex.PW9/1 to SC No:103/09 State vs. Kanhaiya Lal & Ors.
:6:Ex.PW9/3. The negatives of the same are Ex.PW9/4 to Ex.PW9/6. The testimony of this witness is unchallenged.
12. PW10 SI Hukum Chand is another DD Writer. He deposed that on 30.05.04, he had recorded DD No.32A on the information given by SI Rajdhari Singh at 10.30 PM from police station Pahar Ganj regarding admission of Deepmala W/o Gautam Kumar in RML Hospital in burnt condition. As the place of occurrence fell within the jurisdiction of police station Sadar Bazar, thus, this information was given in police station Sadar Bazar. The DD has been proved by the witness as Ex.PW10/A. The testimony of this witness is unchallenged.
13. PW11 Surender Singh, Record Clerk from RML Hospital has proved the MLC, prepared by Dr. Ashok Kumar on 30.05.04 as Ex.PW11/A. Vide the said MLC, Deepmala was examined. The death report of deceased prepared by Dr. Hage Sonia has also been proved by PW11 as Ex.PW11/B. The MLC of accused Gautam Kumar, prepared by Dr. Ashok Kumar is Ex.PW11/C which has also been proved this witness. The testimony of this witness is unchallenged.
14. PW12 Constable Guru Charan Singh had joined the investigations of the case on 30.05.04. He accompanied SI Shiv Raj Bisht on receipt of DD No.32A and reached RML Hospital. From there, they came to the place of occurrence and got the same photographed. One stove, lid of the stove and a plastic bottle containing some kerosene oil were seized by the Investigating SC No:103/09 State vs. Kanhaiya Lal & Ors.
:7:Officer vide seizure memo Ex.PW12/A. The witness admitted in cross examination that no independent witness was joined during these proceedings. The rest of the suggestions have been denied by the witness.
15. PW13 SI Rajdhari Singh deposed that on 30.05.04 while he was posted in police station Pahar Ganj, he was handed over DD No.45B of police station Pahar Ganj by the Duty Officer. He went to RML Hospital and came to know that the place of occurrence fell within the jurisdiction of police station Sadar Bazar. Thus, he gave this information to Duty Officer police station Sadar Bazar and also made a DD Entry vide NO.5B in police station Pahar Ganj which the witness has proved as Ex.PW13/A. The testimony of this witness is unchallenged.
16. PW15 Dr. V.K. Goel had conducted the autopsy on the dead body of deceased on 14.06.04. He has proved his report as Ex.PW15/A. The testimony of this witness is unchallenged.
17. PW16 SI Saket Kumar had formally arrested accused Gautam Kumar, accused Ajay, accused Lata and accused Jyoti on 12.10.04 vide arrest memos Ex.PW16/A to Ex.PW16/D respectively. The witness further proved the personal search of accused Gautam Kumar and Ajay, conducted vide memos Ex.PW16/A1 & Ex.PW16/B1 respectively. The testimony of this witness is unchallenged.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
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18. PW17 Head Constable Sube Singh was given up as a witness on the request made by Learned APP as the witness was repetitive in nature.
19. PW18 is Sh. Dharampal Singh who was posted as Sub Divisional Magistrate (SDM), Sadar Bazar. The witness deposed that on the night intervening 30/31.05.04 at about 12.45 AM, he had received a message from SI Shiv Raj Singh that one Deepmala was admitted in RML Hospital in burnt condition. On enquiry from SI Shiv Raj, the witness came to know that Deepmala was not fit for statement. On 31.05.04, at about 5 PM when she was declared fit by the doctor to give statement, PW18 recorded her statement at about 5.20 PM to 5.40 PM in the hospital. The witness has proved the said statement as Ex.PW18/A which bears the right leg thumb impression of Deepmala. The witness deposed that the hands of Deepmala were bandaged at that time. The attestation given by the witness on the statement has also been proved as Ex.PW18/A. The inquest proceedings conducted by PW18 have been proved by him as Ex.PW18/B. The witness further deposed that he had recorded the statement of Smt. Sona Devi mother of the deceased which is Ex.PW8/A. The statement of Sh. Laxmi Narayan, father of deceased is Ex.PW1/A. The identification of the dead body was done vide identification memo Ex.PW3/A. The request by PW18 to Medical Superintendent for conducting the postmortem on the dead body was made vide Ex.PW18/D & Ex.PW18/E. The brief facts of the case, prepared by the witness are proved by him as Ex.PW18/F. He directed the Station House Officer of police station Sadar Bazar for taking necessary action vide Ex.PW1/A. He further deposed that after postmortem, the dead SC No:103/09 State vs. Kanhaiya Lal & Ors.
:9:body was handed over to father of deceased vide handing over memo Ex.PW3/A. The testimony of this witness is unchallenged.
20. PW19 Inspector Rajender Adhikari and PW20 SI Shiv Raj Singh are the Investigating Officers of the case who had conducted the investigations on different dates which they have proved and their testimonies shall be adverted to subsequently.
21. In the statement recorded U/s 313 Cr.P.C., the accused persons have denied the case of prosecution and claimed to be innocent. They submitted that they have been falsely implicated in this case. In defence, the accused persons have examined Smt. Lata as DW1 who was their landlord at the relevant time.
Contentions:
22. On behalf of the State, Learned APP urged, the prosecution case primarily rests on the testimony of PW3 Laxmi Narayan, PW4 Kamlesh, PW8 Sona Devi and PW14 Narender Kumar who are the near relatives of deceased. All these witnesses have proved that Deepmala was treated with cruelty and was harassed on account of dowry demands which were also made soon before her death. She was admitted in burnt condition in RML Hospital and subsequently succumbed to the burn injuries. It was submitted that deceased met with an unnatural death within six months of her marriage with accused Gautam Kumar and the reasons due to which she was burnt have been proved by the prosecution witnesses.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
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23. It was argued that no doubt deceased has stated to SDM on 31.05.04 that she had burnt herself by pouring kerosene oil on her and no untoward incidence had happened with her does not absolve the accused persons from the alleged commission of offence. As Section 304B IPC does not provide that the accused persons should themselves directly burn the bride but even if such circumstances are created by them due to which she is forced to burn herself is also covered U/s 304B IPC.
24. Learned APP submitted that PW3 Laxmi Narayan, father of deceased has given an explanation for making such a statement by his daughter to the SDM that she had made the statement under the pressure of her inlaws who had assured her to take her back in the matrimonial home even if she may be disabled. Thus, on such an assurance, she had made the said statement to the SDM. It was submitted that the investigations have been conducted promptly and properly which have been proved by the police witnesses. Thus, the prosecution case has been established beyond reasonable doubt.
25. The prosecution case has been challenged by the accused persons. It was argued that the statement made by deceased to the SDM is completely reliable. The said statement has been record in questionanswer form while Deepmala was fully conscious and she had told the truth before the SDM. The said statement is her dying declaration to which complete sanctity is attached. She has not mentioned about any dowry demand or harassment done to her by any of the accused persons. Moreover, deceased SC No:103/09 State vs. Kanhaiya Lal & Ors.
:11:and accused Gautam Kumar were residing separately from the other family members of accused Gautam Kumar on the ground floor of the same house. It was submitted that the argument raised by Learned APP regarding the explanation for making such a statement by deceased to SDM is an afterthought on the part of the complainant. As the prosecution has failed to explain that even though the parents of deceased had come to know that she had made the statement to SDM under pressure still they did not lodge any complaint with the police. Completely relying upon the statement of deceased made to SDM, Learned Defence Counsel submitted that there is no truth in the prosecution version and same should not be believed. Findings:
26. The provision of Section 304B IPC has application when 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. A reading of Section 113B of Indian Evidence Act and Section 304B IPC shows that there must be evidence to prove that soon before her death, the victim was subjected to cruelty or harassment by her husband or his relatives. Such cruelty or harassment should be for or in connection with any demand of dowry. The prosecution has to rule out any possibility of a natural or accidental death so as to bring it within the purview of dowry death as made punishable U/s 304B IPC.
27. In the judgment reported as Hira Lal vs. State (Govt. of NCT), Delhi (2003) 8 SCC 80, the Hon'ble Supreme Court observed : SC No:103/09 State vs. Kanhaiya Lal & Ors.
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"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 test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession'. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon 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 live link 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."
28. "Dowry" has not been defined U/s 304B IPC. But the explanation to Section 304B IPC provides that for the purpose of this sub section "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act defines dowry as under : "Dowry" means any property or valuable security given or agreed to be given either directly or indirectly - (a) by one party to a marriage to the other party to the marriage, or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
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29. In the judgment reported as Satvir Singh vs. State of Punjab (2001) 8 SCC 633, the Hon'ble Supreme Court held : Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is 'at any time' after the marriage. The third occasion may appear to be an unending period. But the crucial words are 'in connection with the marriage of the said parties'. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of 'dowry'. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.
30. In the light of the above cited law and provisions, let us consider the evidence on record.
31. From the evidence of prosecution witnesses, it emerges that Deepmala was brought by her husband Gautam Kumar in RML Hospital with alleged history of burn by stove. She was admitted with 60% burn injuries on 30.05.04 at 8.30 PM and was unfit to make statement on the said day. On 31.05.04, at about 1.35 AM also she was unfit for statement. However, on 31.05.04 at 5 PM, she was declared fit to make statement. It is admitted case SC No:103/09 State vs. Kanhaiya Lal & Ors.
:14:that Deepmala expired in the hospital on 12.06.04 at 4.45 PM. In the post mortem report Ex.PW15/A, prepared by Dr. V.K. Goel, the cause of death has been opined to be 'Septicaemia consequent upon infected burn injuries. The burns were found to be antemortem in nature involving about 60% of body surface area. Accordingly, the prosecution has proved that the death was unnatural in this case.
32. It is further an admitted case that deceased was married with accused Gautam Kumar on 23.11.03 and she died within more than six months of her marriage in her matrimonial home. The question to be considered is whether the said unnatural death of deceased can be termed as "dowry death" made as punishable U/s 304B IPC or not. PW18 Sh. Dharampal, SDM has proved the statement of deceased as Ex.PW18/A. In the said statement in answer to question that how the incidence occurred, the deceased had stated, a verbal altercation took place between her and her husband Gautam Kumar in the evening of 30.05.04. In anger, she picked up the stove filled with kerosene oil and poured on her and then lit fire on her by lighting a matchstick. On catching fire, she started screaming, hearing her screams, her husband who was downstairs came up and tried to extinguish the fire due to which he also sustained burn injuries. Her husband and her mother inlaw did not have any involvement in this incidence. She had a separate kitchen. Earlier when she was residing together with her inlaws, they used to quarrel with her but now they were living separately and on 30.05.04, she did not have any quarrel with them. The deceased had certified that she was giving this statement voluntarily and SC No:103/09 State vs. Kanhaiya Lal & Ors.
:15:without any pressure. The statement was read over to her which she had admitted to be correct.
33. The prosecution has not alleged that after recording of statement Ex.PW18/A on 31.05.04 at 5.20 PM till she expired on 12.06.04 at 4.45 PM, Deepmala was unconscious or was unable to communicate with anyone. To the contrary, PW3 Laxmi Narayan, father of deceased has deposed that condition of his daughter became stable after 56 days of her admission in the hospital. She was conscious and talked with him. PW4 Kamlesh, elder sister of deceased has corroborated this fact. She deposed that she knew that her sister was in conscious state of mind before her death and she had been visiting the hospital everyday and used to sit by the side of her sister for 510 minutes everyday. PW14 Narender Kumar, brother of deceased has deposed that he had talked with his sister Deepmala on 04.06.04 after she was shifted to a ward. Thus, from the testimony of PW3 Laxmi Narayan, PW4 Kamlesh and PW14 Narender Kumar, it is evident that deceased was shifted to hospital ward and she had also been conscious.
34. It was vociferously argued by Learned APP that from the statement Ex.PW18/A, made by deceased, it does not appear that the deceased was not being harassed for dowry demands. Learned APP explained the said statement on two counts; first, that the statement is incomplete as the SDM had only enquired from the deceased about the incidence of the previous night. Second, the prosecution witnesses i.e the SC No:103/09 State vs. Kanhaiya Lal & Ors.
:16:relations of deceased have consistently deposed that this statement was made by her under duress and pressure from her inlaws.
35. PW3 Laxmi Narayan has deposed that after 56 days of the admission of his daughter in the hospital, when she was conscious, he had talked with her. She told him that her husband accused Gautam Kumar poured kerosene oil on her on 30.05.04 and her both sistersinlaw, mother inlaw and fatherinlaw were present there. She was caught hold by her sisters inlaw and her mother inlaw was abusing her, her father inlaw was standing at the door to keep a watch. A matchstick was lighted by her husband accused Gautam Kumar and she was set on fire. However, in crossexamination, the witness admitted that he did not state these facts to SDM in his statement Ex.PW1/A. PW3 further deposed that he asked his daughter as to why she had not disclosed this to SDM, upon this, she had replied that her father inlaw had requested her not to complain against them and they shall keep her in their house even after she would become disabled due to burns.
36. PW4 Kamlesh has deposed, her sister did not tell anyone while she was admitted in the hospital including her as to how she had received burn injuries. The witness was got declared hostile by Learned APP as she was found to be resiling from her previous statement, made to the police. In crossexamination by Learned APP, the witness admitted that deceased had told her father in the hospital that her inlaws had assured her that she will be taken back to her inlaws house after she will recover and she will not be SC No:103/09 State vs. Kanhaiya Lal & Ors.
:17:harassed in future and on this assurance, she had made a false statement to the SDM. During crossexamination, on behalf of accused persons, the witness has given a contradictory statement. On one hand, she deposed that she had no occasion to talk to her sister in the hospital during her hospitalization. On the other hand, she deposed that on 10.06.04, her sister had told her that her inlaws family had been harassing her all along.
37. PW8 Sona Devi, mother of deceased has shown complete ignorance that whether the SDM had recorded the statement of her daughter or not.
38. PW14 Narender Kumar has deposed that he did not talk with his deceased sister Deepmala in the hospital. He was also got declared hostile by the Learned APP and during crossexamination, he admitted that when his sister regained consciousness, she told her family members that SDM had not recorded her statement correctly and she had given the statement under pressure as the accused persons told her that they will not harass her in future. But in crossexamination, on behalf of the accused persons, the witness deposed that on 04.06.04, when he had a talk with deceased, she did not tell him that her statement was not correctly recorded by the SDM.
39. Thus, from the testimony of PW3 Laxmi Narayan, PW4 Kamlesh, PW8 Sona Devi and PW14 Narender Kumar, it emerges that all the witnesses have been making a contradictory and improved version regarding the fact that Deepmala had told PW3 that she had made statement to SDM SC No:103/09 State vs. Kanhaiya Lal & Ors.
:18:Ex.PW18/A under pressure from her inlaws. PW3 Laxmi Narayan has claimed that deceased had told him after 56 days that she had not stated the entire facts to the SDM as her inlaws had assured her to keep her in their house even if she became disabled. PW4 Kamlesh and PW14 Narender Kumar though had talked with deceased while she was in the hospital yet their sister did not tell them about the said important fact. PW4 Kamlesh admitted during crossexamination by Learned APP that Deepmala had told this fact to her father whereas PW14 Narender Kumar has stated that deceased told this fact to his other family members. Both the witnesses have stated that the inlaws of deceased had given her this assurance and pressurized her to make this statement. Both these witnesses have not stated that deceased had told this fact only to PW3 Laxmi Narayan or whether it was told in their presence or not.
40. On the other hand, statement of PW3 Laxmi Narayan was recorded by the SDM on 14.06.04 i.e on the second day of death of deceased. But he did not state this important fact to the SDM of making a false statement by Deepmala on 31.05.04 to the SDM. The Prosecution has not explained the delay in lodging the FIR that even though the SDM had recorded the statement of PW3 on 14.06.04 at 1.15 PM but the FIR was registered on 15.06.04 at 6.15 PM. Moreover, for the first time on 17.06.04, PW3 had disclosed to the police that statement Ex.PW18/A of Deepmala was made under pressure. Wherein also the detailed deposition as made by PW3 in the Court regarding the incidence is not stated. The prosecution has tried to explain for not disclosing this fact by PW3 to the police/ SDM at the SC No:103/09 State vs. Kanhaiya Lal & Ors.
:19:first opportunity as PW3 has testified that he was disturbed due to the death of his daughter and her postmortem. However, the FIR was registered on 15.06.04 still he did not tell about it to the police and waited till 17.06.04 to tell the police about it.
41. From the entire evidence, it emerges that deceased had been conscious since 31.05.04 and her parents, brother and sister were meeting with her and also talking to her. Even if it is assumed that Deepmala had told PW3 on the 5th/6th day of her admission in the hospital that she made the statement Ex.PW18/A to SDM under pressure still till she was alive her father or any member of her family did not complain about it to police nor asked the Investigating Officer to record her fresh statement. It has not come in evidence that PW3 or his any other family member had tried to confront about this fact with the accused persons. Even it was not disclosed to police immediately after the death of Deepmala but was told on 5th day after her death. Thus, it creates a doubt on the said part of version of the prosecution witnesses that if actually, Deepmala had told about it to her father.
42. Accordingly, there is no reason to disbelieve the statement Ex.PW18/A made by deceased to SDM that the burn injuries were self caused in an anger as she had a verbal altercation with her husband. She had stated that while trying to save her, her husband also sustained burn injuries. The MLC of accused Gautam Kumar has been proved as Ex.PW11/C. He had also been examined by the doctor on 30.05.04 at 8.30 PM in RML Hospital and 25% burn injuries were found on his person. As per SC No:103/09 State vs. Kanhaiya Lal & Ors.
:20:the sketches made on the MLC, it can be seen that he had sustained burn injuries on front and back side of his arms, on the front side of his body and some portion near shoulder and waist also. From the MLC Ex.PW11/C, it appears that he had actively participated to save deceased from burning.
43. It is true that there is force in argument raised by the Learned APP that "dowry death" may be directly caused by the accused persons or they may create circumstances those force the victim to meet with her own death. But to be punishable U/s 304B IPC, the said "death" should have a direct nexus with "dowry demands" made "soon before the death". As per Ex.PW18/A, Deepmala had burnt herself on account of a verbal altercation with her husband only and not on account of any dowry demand. The deposition made by PW3 Laxmi Narayan, PW4 Kamlesh and PW14 Narender Kumar that the statement Ex.PW18/A was made by the deceased under pressure is an afterthought which is not explained. Thus, the prosecution has not been able to prove beyond doubt that the deceased met with an unnatural death on account of dowry demands made soon before her death.
44. Now, let us come to the next question that whether deceased was subjected to cruelty by the accused persons as punishable U/s 498A IPC. The explanation to Section 498A defines cruelty in two limbs :
(i).Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or heath (whether mental or physical) of the woman;
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(ii).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.
45. In the judgment reported as Hans Raj Sharma & Ors. vs. State, nd decided on 2 March, 2010 in Criminal Appeal No.33941/05, the Hon'ble High Court observed : In order to succeed in charge under Section 498A IPC, the prosecution was required to prove that the appellants had subjected deceased Lovely to cruelty, as defined in the explanation to the Section. It is not every cruelty which is punishable under Section 498A IPC. The cruelty, as defined in the explanation to Section 498A IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so as to attract panel provisions, contained in Section 498A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression willful in the explanation to Section 498A IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and SC No:103/09 State vs. Kanhaiya Lal & Ors.
:22:such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is like to perceive such a behaviour. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A IPC. Of course, the expression cruelty would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisages in Section 498A IPC. It was further observed, if the woman has harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498A IPC. The expression harassment has not been defined in Section 498A IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness etc. But, it is not harassment of every nature which is punishable under Section 498A IPC. In order to attract criminal liability, there should be torture physical or mental by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
:23:
46. To consider whether deceased was treated with cruelty by the accused persons or not, once again, we will have to go back to statement Ex.PW18/A of Deepmala wherein she has explained about the incidence dated 30.05.04. In this statement, she has stated that earlier when she was living with her parents inlaw, they used to fight with her and now they were living separately. On 30.05.04, she did not have any quarrel with them. PW3 Laxmi Narayan has avoided an answer to the question that whether his daughter was living separately from her inlaws by deposing that he did not know if accused Gautam Kumar used to reside with deceased in separate portion at ground floor in the same building with separate kitchen and was paying rent separately.
47. DW1 Smt. Lata has deposed that the accused persons were her tenants for about 78 months and the incidence had occurred then. Her house was built upto three storeys. Accused Gautam Kumar and deceased were residing on the ground floor and she was living on the first floor. Whereas accused Kanhaiya Lal with his wife accused Anaro Devi was living on the second floor of the house. The witness also deposed that the accused persons were paying rent of Rs.700/ for the second floor and for the first floor, the rent was Rs.600/. Although the witness could not produce any document to show that the accused persons were living as tenants in the house of DW1. But the address of matrimonial home of deceased as given by PW3 Laxmi Narayan in his statement Ex.PW1/A is same. Accordingly, it is evident that deceased and accused Gautam Kumar were residing separately SC No:103/09 State vs. Kanhaiya Lal & Ors.
:24:in the same building but prior to that, there had been quarrels only with her parents inlaw.
48. PW3 Laxmi Narayan has deposed that at the time of marriage, there were no negotiations for giving any dowry. After some days of marriage, motherinlaw of his daughter Deepmala started taunting his daughter and harassing her for dowry. When they used to visit her matrimonial home for bringing her to their house, her inlaws used to refuse to send her on one pretext or the other. Her husband used to beat her after consuming liquor. Her motherinlaw and sistersinlaw used to taunt her that father of the deceased had not given fridge and costly clothes in marriage. After 2 & 2 ½ months of the marriage when she visited his house with her husband accused Gautam Kumar, PW3 asked her the reason for her unhappiness and she told him that she was harassed by her inlaws for not bringing sufficient dowry.
49. PW3 Laxmi Narayan further deposed that in the month of April 2004, there was a quarrel in the matrimonial home of deceased and his daughter had told him on telephone that her husband and other members of his family were beating her and her husband had consumed liquor. On receiving this information, he along with his wife, son and friend of his son went to the inlaws house of his daughter at about 1112 in night. He tried to make her inlaws understand. On 30.05.04, at about 6.30 PM, his daughter informed him that on the festival of Ekadeshi, as none from the parental family of deceased had visited her inlaws, so, the accused persons who SC No:103/09 State vs. Kanhaiya Lal & Ors.
:25:were present there were demanding that someone from her parents' house should have visited them with fruits and cooler etc. He had assured his daughter that he would come on the next day as it was not proper to visit daughter's house on the day of festival. On the same day, at about 8/8.15 PM, his elder daughter Kamlesh informed him on phone that Deepmala had been burnt by her inlaws and she was admitted in Lady Harding Hospital but while he was on his way, he was again informed by Kamlesh that Deepmala was admitted in RML Hospital. So, he reached there.
50. PW4 Kamlesh testified that on enquiry from inlaws house of deceased Deepmala, she came to know that the accused persons used to harass Deepmala but she did not inform her father as she believed that the things will be alright in future. Seeing the behaviour of the accused persons, PW4 visited the house of accused persons but accused Jyoti did not allow PW4 to enter in the house. The witness has narrated an incidence dated 14.05.04 when she had gone to her father's house and Deepmala came there on 15.05.04. The witness saw an injury mark on her neck. On enquiry, deceased told her that she was given beatings by her husband Gautam Kumar on last night. In crossexamination, in reply to a specific question that whether her sister had told her anything about the cause of incidence during her talks, the witness replied that her sister Deepmala had told her that her inlaws family had all along been harassing her but she did not want to share this with anyone for the reason that she wanted to live with her inlaws family.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
:26:
51. PW8 Sona Devi testified that after marriage, accused Gautam Kumar did not permit deceased to visit her parental house and only occasionally, she came there. Her sistersinlaw used to tease her daughter for not bringing sufficient dowry and used to say that her father did not give fridge and gave cheap sarees of Rs.100/ but they were in the habit of wearing sarees worth Rs.1000/. Her sistersinlaw used to quarrel with her daughter. In Chaitra Navratra, her husband gave beatings to her daughter after consuming liquor. Deepmala had telephoned them and she along with her husband went to her inlaws house where bua of accused Gautam Kumar had come and got the matter settled. She also deposed that all the accused persons used to harass her daughter for dowry. She and her husband used to talk to fatherinlaw of Deepmala about the harassment and cruel treatment on which the fatherinlaw of her daughter had told that Deepmala will not be harassed in future.
52. PW14 Narender Kumar deposed that after one month of marriage of her sister Deepmala, her inlaws i.e the accused persons started harassing his sister on account of dowry. They used to beat her and also demanded cash, fridge and cooler. Once as there was a quarrel, he went to her inlaws house with his parents and his friend namely Rinku and pacified the matter. He further deposed that they did not make any complaint to the police earlier as they were thinking that the things will be alright in future.
53. From the statement Ex.PW18/A made by deceased to the SDM, it has emerged that her parents inlaw used to quarrel with her before she SC No:103/09 State vs. Kanhaiya Lal & Ors.
:27:started living separately on the ground floor. From the testimonies of PW3 Laxmi Narayan, PW4 Kamlesh, PW8 Sona Devi and PW14 Narender Kumar, it is revealed that the motherinlaw and sistersinlaw of deceased used to taunt and harass her for bringing insufficient dowry and they taunted her for bringing cheap sarees. These witnesses have deposed about a single demand raised for fridge, cooler and cheap sarees. But all these allegations are general in nature. Moreover, deceased has not named any other relative of her husband except her parents inlaw with whom she had quarreled before the SDM. Whatever has been deposed by the witnesses in the Court is as was told to them by Deepmala. PW3 Laxmi Narayan has admitted that sisters of accused Gautam Kumar are married and are living in their matrimonial homes. Thus, it has not been shown by the prosecution that when the said sisters inlaw came to the matrimonial home of the deceased and taunted her for not bringing fridge and costly clothes in marriage. Similarly, no specific allegations have been raised against accused Kanhaiya Lal and accused Ajay. PW8 Sona Devi has also levelled general allegations against accused Anaro Devi and accused Kanhaiya Lal. The witnesses have also not categorically stated that on what occasions, the motherinlaw and sistersinlaw had taunted her for not bringing fridge and costly clothes. But these witnesses have also deposed about the quarrel which took place in the month of April 2004 when PW3 Laxmi Narayan, PW8 Sona Devi and PW14 Narender Kumar along with friend of PW14 Narender Kumar went to the house of inlaws of deceased and pacified the matter. On 30.05.04 also a verbal altercation took place between accused Gautam Kumar and deceased which became the cause of her death. The witnesses have consistently SC No:103/09 State vs. Kanhaiya Lal & Ors.
:28:deposed that her husband accused Gautam Kumar used to beat her and he used to consume liquor. PW3 Laxmi Narayan has deposed that this was told to him by his daughter in the month of April, 2004. In the statement Ex.PW18/A, made by Deepmala, she has stated that on 30.05.04, there was a verbal altercation between her and her husband Gautam Kumar. PW4 Kamlesh has deposed that on 15.05.04 when she had met her sister at her parents' house, deceased had told about an injury mark on her neck caused due to beatings given to her by accused Gautam Kumar. Thus, from the testimonies of the prosecution witnesses, it emerges that accused Gautam Kumar had caused mental and physical cruelty to deceased by his willful conduct of giving beatings to her.
54. The accused persons have also been charged for offence punishable U/s 406 IPC. The prosecution has not led even an iota of evidence that which dowry articles of the deceased was entrusted by her or by her parents and to which of the accused persons. PW3 Laxmi Narayan has merely testified that the list on file Ex.PW3/E bears his signatures at point A. It has not been deposed categorically that out of the said list which articles were entrusted to which of the accused persons. Thus, the prosecution has not been able to establish the charge under Section 406 IPC against the accused persons.
55. In addition, charge for offence punishable U/s 201 IPC for making the evidence of commission of offence to disappear has been framed against the accused persons. PW4 Kamlesh deposed that on 30.05.04 at about SC No:103/09 State vs. Kanhaiya Lal & Ors.
:29:8/8.15 PM, she had received an information from one boy that her sister Deepmala had been burnt. PW4 went to the house of her inlaws which was situated in Sadar Bazar itself. She saw that accused Jyoti, sisterinlaw of deceased was cleaning the room situated on the ground floor in which her sister deceased had been burnt. She made enquiries from accused Jyoti about Deepmala who told her that Deepmala had been taken in burnt condition to Lady Harding Hospital. Although PW4 Kamlesh has not been crossexamined qua this fact yet the photographs Ex.PW9/1 to Ex.PW9/3 of the place of occurrence show that various articles like a rabber jug, some utensils, bed sheet or a saree are lying scattered on a bed. A photograph of a stove kept there is also on record. The police had seized a stove, a bottle containing some kerosene oil and the lid of the stove from the place of occurrence. Thus, the photographs and the recovery of articles from the place of occurrence demolish the plea of the prosecution for wiping of the evidence as had accused Jyoti made an effort to clean the room, she would have removed all these articles from the said place. Moreover, besides no other witness has deposed about this allegation against any other accused.
56. To sum up, the prosecution has failed to establish beyond reasonable doubt the charge framed for offence punishable U/s 304B/498A/406/201 IPC against accused persons namely; accused Kanhaiya Lal, accused Anaro Devi, accused Ajay, accused Lata and accused Jyoti who are acquitted accordingly after giving them benefit of doubt. The prosecution has also not established the charge framed for offence punishable U/s 304B/406/201 IPC against accused Gautam Kumar SC No:103/09 State vs. Kanhaiya Lal & Ors.
:30:who is also acquitted from the said charge after giving him benefit of doubt. However, the prosecution has been able to prove its case beyond reasonable doubt for offence punishable U/s 498A IPC against accused Gautam Kumar who is held guilty for the said offence. Announced in the Open Court On 27.04.10.
(Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
:31:
FIR No. 258/04
PS : Sadar Bazar
SC No. : 130/09
27.04.10
Present : Sh. Mohd. Iqrar, Learned APP for State.
All the six accused on bail with Counsel Sh. R.S. Gupta. Vide judgment announced of even date on separate sheets, accused Kanhaiya Lal, accused Anaro Devi, accused Ajay, accused Lata and accused Jyoti are acquitted from the charge for offence punishable U/s 304B/498A/406/201/34 IPC after giving them benefit of doubt. Accused Gautam Kumar is also acquitted from the charge for offence punishable U/s 304B/406/201/34 IPC after giving him benefit of doubt. However, accused Gautam Kumar is held guilty for offence punishable U/s 498A IPC.
Put up for Order on Sentence on 30.04.10.
(SHALINDER KAUR) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
:32:In the Court of Ms. Shalinder Kaur Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 130/09 State versus 1. Kanhaiya Lal S/o Sh. Prabhu Dayal R/o J26, Jhandewalan Road, Sadar Bazar, Delhi. (Acquitted on 27.04.10)
2. Anaro Devi W/o Kanhaiya Lal R/o J26, Jhandewalan Road, Sadar Bazar, Delhi. (Acquitted on 27.04.10)
3. Gautam Kumar S/o Kanhaiya Lal R/o J26, Jhandewalan Road, Sadar Bazar; Also at 228/ BB, Nabi Karim, Delhi.
4. Ajay S/o Kanhaiya Lal R/o J26, Jhandewalan Road, Sadar Bazar; Also at 228/ BB, Nabi Karim, Delhi. (Acquitted on 27.04.10)
5. Jyoti W/o Chattar Pal R/o T298, Kabir Nagar, Delhi.
(Acquitted on 27.04.10)
6. Lata W/o Bal Kishan R/o Village Daulatpur, Delhi.
(Acquitted on 27.04.10) Case arising out of:
FIR No. : 258/04 Police Station : Sadar Bazar Under Section : 304B/498A/406/201/34 IPC Judgment pronounced on : 27.04.10. SC No:103/09 State vs. Kanhaiya Lal & Ors. :33: ORDER ON SENTENCE: 1. Heard on the point of sentence.
2. It is submitted by the Learned Counsel that the convict himself had sustained burn injuries while trying to save the deceased. He is a young man and is 30 years of age. He is not involved in any other criminal offence and has suffered rigours of the trial for the last six years. Thus, a lenient view be taken against him and he be given the benefit of probation.
3. Learned APP submits that keeping in view the totality of the circumstances, convict does not deserve any leniency and should be given the maximum punishment.
4. In view of the submissions made on both the sides, antecedents of the convicts, placed before me as well as the facts & circumstances of the case, the convict Gautam Kumar is sentenced for offence punishable U/s 498A IPC to RI for two years and is directed to pay a fine of Rs.2000/, in default SI for two months. Copies be given free of cost to the convict. Announced in the Open Court On 30.04.2010.
(Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No:103/09 State vs. Kanhaiya Lal & Ors.
:34:
FIR No. 258/04
PS : Sadar Bazar
SC No. : 130/09
30.04.10
Present : Sh. Mohd. Iqrar- Learned APP for State.
Convict Gautam Kumar in person with Counsel Sh. R.S. Gupta. Arguments heard on point of Sentence.
Vide Order on Sentence announced of even date on separate sheets, convict Gautam Kumar is sentenced for offence punishable U/s 498A IPC to RI for two years and is directed to pay a fine of Rs.2000/, in default SI for two months. Copies be given free of cost to the convict.
An application for bail U/s 389 Cr.P.C. moved on behalf of convict. Heard. It is submitted that the accused was on bail during trial and he had been regularly attending the trial. The accused is admitted to bail on furnishing personal bond in the sum of Rs.10,000/ each with one surety in the like amount for filing the appeal till 28.05.10.
Reader to report whether fine has been deposited. Reader has reported that fine has been deposited. Bail bond furnished.
File be consigned to Record Room.
(Shalinder Kaur) ASJ FTC (Central) : Delhi.
30.04.10 SC No:103/09 State vs. Kanhaiya Lal & Ors.