Delhi District Court
The State vs Todar Mal Dinesh on 2 January, 2012
-1-
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
FIR No. : 145/09
PS : Harsh Vihar, Delhi
U/s : 498-A/304-B/34 IPC
Unique Case ID : 02402R0 310252009
In the matter of
The State
Versus
Todar Mal Dinesh
S/o Sh. Gopi Singh
R/o D-1/355, Harsh Vihar
Delhi
...ACCUSED
Session Case No. : 161/2009
Date of Institution : 24.10.2009
Date of Committal : 17.11.2009
Date of reserving judgment/order : 24.12.2011
Date of pronouncement : 02.01.2012.
J U D G M E N T
1. Accused Todar Mal Dinesh and Madhu were sent up by police of PS Harsh Vihar, Delhi to stand trial for offences punishable under Section 498-A/304-B/120B IPC.
2. The prosecution case in brief is that on 25.07.2009, ASI Raghu Raj Singh on the receipt of DD No. 19-A, regarding one lady has hanged herself at Gali No. 24, Block D-1 Near Munna Chakki Harsh Vihar and he alongwith Ct. Kavinder reached at the place of occurrence at FIR No. : 145/09, PS Harsh Vihar. Page 1 of 27 -2- D-1/355, Gali No. 8, Harsh Vihar, Delhi, where, they found that deceased Sangeeta was married five years ago and since, she died in the suspicious circumstances, Executive Magistrate was informed who came at the spot. The Executive Magistrate recorded the statement of Smt.Rami (mother of the deceased) and other family members. The mother of the deceased Smt. Rami in her statement made to the Executive Magistrate has stated that her daughter was married with accused Todar Mal Dinesh about five years ago, according to Hindu Rites and Customs. Her son-in-law Todar Mal Dinesh was harassing her daughter from very beginning and was torturing her. Her daughter had made complaints to her many times that accused Todar Mal Dinesh used to beat her and demands dowry from her. The deceased has four years old son and she was living with the support of his son. She stated that her daughter used to make complaint that accused Todar Mal Dinesh has illicit relations with his sister-in-law namely Madhu, the co-accused. She requests the police to take action against the accused persons. In the same statement, it is written that today, at about 3.00 PM, her husband received a telephonic call from accused Todar Mal Dinesh and he said that "your daughter has ran away, you come and get her traced". Thereafter, father of the girl called their brother-in-law Manbir Singh to know the status. He went to the house of Todar Mal Dinesh and found that 20-25 persons were standing in their house and deceased Sangeeta had committed suicide by strangulating herself with fan and when he reached there, he saw that his daughter's feet were touching the ground and he suspects that she has been killed and thereafter, FIR No. : 145/09, PS Harsh Vihar. Page 2 of 27 -3- she has been hanged with the fan. Her daughter used to make her phone call and told her that Todar Mal Dinesh was making planning with his co-accused Madhu and her family members for killing her. Below the statement of the mother of the deceased, her signature is obtained. Below the signature of the mother, the statement of father of the deceased is recorded that he is fully agreeing with the statement made by his wife. Below the statement of father, the statement of sister of deceased namely Sheetal is written that she is fully agreeing with the statement made by her mother and witness of the sequence of the event. The same was forwarded to the SHO for the registration of the FIR. On the basis of the same, FIR was registered. The place was got photographed. The postmortem on the dead body was got conducted. As per the postmortem report, the cause of death is given as Asphyxia due to antemortem hanging. The ligature mark corresponds with the ligature material present around the neck. Thereafter, accused Todar Mal Dinesh was arrested on 26.07.2009. On 05.09.2009, co-accused Madhu was also arrested. The mobile phone of Madhu was seized. The subsequent opinion was taken with respect to the chunni. Thereafter, accused Babli @ Chander Kanta and Sh. Bhikam Singh were not sent up for trial as there were no allegations against them for dowry demand and harassment.
3. Ld. Metropolitan Magistrate, however, vide order dated 24.10.2009 summoned all the accused persons. Thereafter, after supplying the necessary copies to the accused persons, committed the case to the court of sessions vide order dated 05.11.2009.
FIR No. : 145/09, PS Harsh Vihar. Page 3 of 27 -4-4. Vide order on charge dated 04.02.2010, accused persons namely Madhu, Babli @ Chander Kanta and Bhikam Singh were discharged. However, after finding prima-facie offence, accused Todar Mal Dinesh was charged for offence punishable U/s 498-A IPC and U/s 306 IPC, to which he pleaded not guilty and claimed trial.
5. It is worthwhile to mention here that during the hearing of the bail application of the accused, the IO was called to find out as to what was the circumstances, when the deceased was seen hanging. The IO stated that when he visited the spot, the main door of the house was lying locked. They made entry from the neighbourer's house and the deceased was found hanging and her toes were touching the ground and not the feet.
6. The prosecution in support of their case examined as many as 17 witnesses.
7. The prosecution examined following material witnesses :
(i) PW-5 Smt. Rami is the complainant and mother of the deceased. She proved her statement made to the Executive Magistrate as Ex.PW2/A. She partly turned hostile on behalf of the prosecution.
(ii) PW-3 Ms. Sheetal is the sister of the deceased Sangeeta.
She admitted her signatures on the statement Ex.PW2/A.
(iii) PW-4 Sh. Prakash Chand is the father of the deceased, who in addition to some other memos, proved the FIR No. : 145/09, PS Harsh Vihar. Page 4 of 27 -5- photographs as Ex.PW4/P1 to Ex.PW4/P5 and its seizure memo as Ex.PW4/A..
(iv) PW-2 Sh. Vimal Kumar, Executive Magistrate. He proved the statement of mother of deceased Smt. Rami as Ex.PW2/A, form of request of postmortem as Ex.PW2/B, brief fact of the spot inspection as Ex.PW2/C, form 25.35 as Ex.PW2/D. He also recorded the statements of Prakash Chand and Mahvir Singh regarding identification of dead body of deceased Sangeeta which are Ex.PW2/E and Ex.PW1/A respectively.
8. The prosecution also examined following formal witnesses :
(i) PW-1 Sh. Mahavir Singh is the relative of the deceased who identified the dead body of Sangita at GTB Hospital Mortuary vide his statement Ex.PW1/A and also received the dead body after postmortem vide receipt Ex.PW1/B.
(ii) PW-6 H.C Danraj Meena was the duty officer who on the receipt of rukka registered the FIR U/s 498-A/304B/34 IPC and proved the copy of the same as Ex.PW6/A and also proved his endorsement on the rukka as Ex.PW6/B. He also recorded DD No. 19-A and proved the copy of the same as Ex.PW6/C.
(iii) PW-8 ASI Rajender Singh was the photographer who took 10 photographs of the spot and proved the same as Ex.PW8/P-1 to P-10 and its negatives as Ex.PW8/P-11 to FIR No. : 145/09, PS Harsh Vihar. Page 5 of 27 -6- P-20.
(iv) PW-9 Sh. R.K Singh was the Nodal Officer at Bharti Airtel Ltd. He proved the certified copy of the call detail pertaining to Mobile No. 9871376700 as Ex.WP9/A-1 to A-18. He also proved the certified copy of customer enrollment form with ID proof i.e DL and form no. 60 as Ex.PW19/B1 to B-3.
(v) PW-13 Ct. Sukh Lal who alongwith IO went to GTB Hospital where Executive Magistrate met them and in his presence, IO got conducted the postmortem upon the deceased Sangeeta and thereafter, her dead body was handed over to her relatives.
(vi) PW-14 Dr. Atul Gupta who conducted the postmortem examination on the dead body of deceased Sangeeta. He opined that the time since death was about 18 hours and the cause of death was asphyxia due to antemortem hanging and the ligature mark corresponds with the ligature material present around the neck. He proved the postmortem report as Ex.PW14/A and subsequent opinion as Ex.PW14/B.
(vii) PW-16 H.C Sandeep Tyagi was the MHC(M) with whom the case property was deposited in the malkhana. He proved the copy of the relevant entries as Ex.PW16/A.
9. The prosecution also examined following witnesses of arrest and investigation :
FIR No. : 145/09, PS Harsh Vihar. Page 6 of 27 -7-(i) PW-7 PSI Sanyogita is the witness of arrest of accused Madhu. She proved her arrest memo as Ex.PW7/A, her personal search memo as Ex.PW7/B and her disclosure statement as Ex.PW7/C. He is also the witness of seizure of mobile phone of Madhu which was seized vide memo Ex.PW7/C-1.
(ii) PW-10 Inspector V.S Punia who had got the subsequent opinion in respect of ligature material vide his request Ex.PW10/A.. He received the five marriage photographs Ex.PW4/P1 to P5 of the deceased with accused and seized the same vide memo Ex.PW4/A. He also prepared the charge-sheet and handed over the same to SHO to sent to the court.
(iii) PW-11 H.C Shashi Bhushan is the witness who got the subsequent opinion from the doctor.
(iv) PW-12 H.C Manoj Kumar is the witness of arrest of accused Madhu and also the witness of seizure of her mobile phone.
(v) PW-15 ASI Raghuraj Singh is the initial Investigating Officer who in addition to other memos proved the seizure memo of chunni as Ex.PW15/A, seizure memo of one sealed envelope sealed with the seal of AG containing chunni and sample seal of AG as Ex.PW15/B, arrest memo of accused Todar Mal as Ex.PW15/C and his personal search memo as Ex.PW15/D. FIR No. : 145/09, PS Harsh Vihar. Page 7 of 27 -8-
(vi) PW-17 Inspector Udaiveer Singh is the subsequent IO. He in addition to other memos proved the site plan as Ex.PW17/A. He identified the chunni seized by him from the spot as Ex.PW15/Article-2.
10. After the conclusion of the prosecution evidence, statement of accused Todarmal Dinesh was recorded U/s 313 Cr.P.C, wherein, he denied the prosecution evidence and claimed innocence. He admitted his marriage with deceased. He stated that this is a false case. The house in which he was living was in the name of his father and was constructed out of the saving of his deceased brother namely Tikam Singh who was in Delhi Police. His in-laws were instigating his wife that family of Tikam Singh should not get the right in the property and were instigating her to create drama to put pressure on him and his family members to transfer the title of the house in her name and not to turn her out of the house. In the said process, she in order to put pressure on him created false drama of suicide but unfortunately, she while committing the drama, committed some error and got hanged. He is innocent. He and his family members have never demanded any dowry or any cash for any purpose. On the date of incident, he alongwith his other family members was present in the court of Sh.R.K Sharma, Ld.PO MACT, KKD, Delhi and attending date of hearing in respect of claim of death of his deceased brother Tikam Singh and not present in his house. He has been falsely implicated in this case at the instance of parents of deceased by the police officials. He, however, chose not to lead any evidence in his defence.
FIR No. : 145/09, PS Harsh Vihar. Page 8 of 27 -9-11. I have heard Sh. Virender Singh, Ld. Addl. PP for State and Sh. Udaivir Singh and Sh. S. P. Singh, Advocates for accused Todarmal Dinesh. Sh. Umesh Sinha, Ld. counsel on behalf of complainant also addressed the arguments. I have also gone through the records.
12. PW-5 Smt. Rami is the mother of the deceased who testified that on 7.2.2004 his deceased daughter Sangeeta was married with accused Todarmal and they had given dowry i.e. almirah, T.V., Cooler, clothes and cash Rs.71,000/-, jewellery etc. in the marriage of her daughter as per their capacity and motorcycle make Hero Honda was also given to the accused in the marriage but the in-laws of her daughter i.e. jeth Tikam and jethani Madhu and husband of her daughter were not satisfied with the given dowry articles and after the marriage, they started harassing her daughter on account of insufficiency of dowry and they also used to give beatings to her and asked to bring more dowry. Husband of her daughter accused Todermal and Madhu Jethani used to demand Rs.3 lacs from her daughter to bring the same from them. One male child was born to her daughter in the year 2005, she had given items of Rs 50,000/- and out of which Rs. 21,000/- cash on the occasion of chhochak (birth ceremony of son of her daughter). Despite the birth of male child and amount spent of chochhak, accused Todarmal and Madhu Jethani used to beat and harass her daughter. She used to teach her daughter to live alongwith them to save the family. Her deceased daughter used to tell her about the these harassments caused by the accused Todarmal and Madhu Jethani. Jeth Tikam used to tell her daughter to not to disclose the FIR No. : 145/09, PS Harsh Vihar. Page 9 of 27 -10- harassment to them. Tikam also used to make his wife and accused Todermal and her deceased daughter to understand not to pick-up quarrel. Jethani Madhu having jealousy with her deceased daughter Sangeeta because she was educated and beautiful. She also stated that about 5 months back to death of her daughter, jeth Tikam Singh expired and thereafter, accused Todermal and his sister-in-law (bhabhi) came close to each other and her daughter used to tell her that both used to sit on the same cot and they used to feed each other with their own hands. After the death of Tikam, her deceased daughter and accused Todermal started living at the house of Madhu which was at Gali No.4 Mandoli, Delhi. After two months from the death of Tikam, Madhu Jethani made her daughter to leave the house and thereafter she came to her own house (in-laws) at Harsh Vihar where she was joined by her father-in-law and mother-in-law. Accused Todermal continue to live in the house of Madhu. She further stated that on 22nd July, 2009, she received a call of her daughter who her over the telephone that her husband, her jethani Madhu, her father Bhikam and her sister Babli are conspiring to kill her and the water has now gone above the head and on this she (witness) told her (deceased) that they would come on coming Sunday alongwith two/four persons and bring her back after the settlement and further stated but before coming Sunday, on 25th July, 2009, accused Todermal made telephonic call to them at about 3:00 pm and stated that her daughter has run away from the house and to come to trace her. On this she asked husband of her daughter accused Todermal regarding son of her daughter and on this he (accused) replied that FIR No. : 145/09, PS Harsh Vihar. Page 10 of 27 -11- he is with him. She also heard the noise of crying of son of her daughter over the telephone. She replied to him that her daughter cannot survive without her son and you have killed her and thereafter he disconnected the phone. Thereafter she made telephonic call to Manbir, the husband of her sister, who lives in the Bank Colony near the house of her daughter from STD and told him to search Sangeeta at her home. Thereafter he went there and informed them that accused had killed your daughter and has been hanged and public persons 20/25 in number also gathered there. On hearing the same, she alongwith family members reached at the matrimonial house of her daughter at Harsh Vihar. She alongwith her jethani namely Santosh entered in the room of matrimonial house of her daughter and saw that her daughter hanging with ceiling fan with the help of chunni and her feet were touching the ground and she had injury mark on her right cheek and her hairs were stained with blood. She also noticed broken pieces of bangles which were scattered in the room. The dead body of her daughter was in the stage of rigor mortis (akari hui thi) and one double bed was also lying in the room and the bed sheet on the same was in disturbed condition. Thereafter police officials removed the dead body to the hospital and they were called at the police station where executive magistrate recorded her statement.
13. She was, however, cross-examined by the prosecutor. However, on his cross-examination she admitted that she had stated in her statement that daughter had told her over the telephone about two/three days prior to the incident while crying her husband FIR No. : 145/09, PS Harsh Vihar. Page 11 of 27 -12- Todermal was talking with Madhu till the late night just like his wife and her daughter had also told her that Madhu used to phone him till late night and accused Todermal also used to make call to Madhu till late night. She also admitted that her deceased daughter had told her over the telephone that her husband used to speak to Madhu in her presence with the words "Jaanu" and "Darling" and used to say "chinta mat karo ham jaldi ek ho jayenge, hame ab koi rok nahi sakta"
and that her deceased daughter told her that there is illicit relation in between accused and Madhu.
14. PW-4 Sh. Prakash Chand is the father of the deceased. He corroborated his wife i.e. PW-5 Smt. Rami regarding harassment of deceased by accused Todarmal on account of insufficiency of dowry. He deposed that her daughter had told him that accused Todar Mal, Madhu (jethani) and one Bikam Singh (father of Madhu) and Babli (sister of Madhu) used to beat her and they also used to tell his daughter that "hum tujhe raste se saaf kar denge". In the month of January 2009, the husband of Madhu had expired and as such, accused Todar Mal Dinesh and Madhu came more close to each other and Madhu, Todar Mal Dinesh, Babli and Bikam Singh started harassing his daughter more vigorously. The husband of his daughter i.e accused used to demand Rs.3,00,000/- to open the medical store as accused Todar Mal is the pharmacist and he was working at the medical store at Dilshad Garden. He stated that on 22.07.2009, his daughter Sangeeta (deceased) had told his wife over the telephone that accused Todar Mal, Madhu, Babli and Bikam Singh are planning to kill her. He also corroborated regarding the telephone call of FIR No. : 145/09, PS Harsh Vihar. Page 12 of 27 -13- accused on 25.07.2009. He further deposed that thereafter, he alongwith his wife, four daughters and one son Ashok reached at her matrimonial home and saw that his daughter (sic) was found hanging with the ceiling fan with 'chunni' in her room and her feet were touching the floor. There was bed and dressing table lying in her room. The bed sheet was not properly spread (sikudi hui thi) and they also found that there were scratches on the face of her daughter and her hairs were having blood. Her bangles were broken which were lying on the floor. Her body was tight (akdi hui thi). He further stated that he had given statements to the police officials several time but they did not recorded proper statement but they recorded the statements at their own. He had not made any complaint to the police prior to the incident regarding the harassment or cruelty upon his daughter to not to disturb the married life of her daughter and he want to solve the problem socially. He also stated that his daughter Sangeeta (deceased) also used to tell him and his wife personally as well as on telephone, that accused Todar Mal Dinesh and Madhu behaved with each other like husband and wife and they also used to talk with each other over the telephone for the long duration in the night time. Accused Madhu and Todar Mal used to tell her daughter that no one can stop us. She told him that they were having illicit relations with each other.
15. PW-3 Ms. Sheetal is the younger sister of the deceased Sangeeta who also corroborated her parents regarding harassment by accused Todar Mal on account of insufficiency of dowry and he also used to beat her in this regard. She deposed that accused Todar Mal Dinesh FIR No. : 145/09, PS Harsh Vihar. Page 13 of 27 -14- was not satisfied with the dowry articles given in the marriage and her sister had also told him that her husband used to demand Rs.3 lacs to open the shop of pharmacist as accused Todar Mal is the pharmacist. She and her sister had also told this fact to her parents and her parents did not make complaint in the police in this regard as they did not want to disturb the family of her sister. She also stated that her sister had also told her that her sister-in-law (jethani) namely Madhu also used to harass her on account of jealousy as her sister was more educated and beautiful than her jethani. She also stated that her sister had also told him that her husband was having illicit relations with her jethani Madhu and her husband used to beat her sister on the instigation of her jethani Madhu. She also stated that her sister had given birth to one son namely Ayush in the end of the year 2004 and her mother used to tell her sister that now she is having male child and he would not torture her but he had not mended his ways and harassing her sister on account of insufficient dowry and on account of his illicit relation with her jethani Madhu. She also corroborated regarding telephonic call of accused on 25.07.2009. She further stated her mother had doubted about some mis-happening because on 22.07.2009, her sister Sangeeta had talked with her mother and father and she told that her in-laws were planning to kill her. She also stated that she alongwith her parents and three other sisters and brother reached at matrimonial home and saw that her sister was found hanging with the ceiling fan with 'chunni' in her room and her feet were touching the floor. They also found that there were blue signs on the face of her sister and on other parts of FIR No. : 145/09, PS Harsh Vihar. Page 14 of 27 -15- body and her hairs were having blood.
16. PW-15 ASI Raghuraj Singh is the initial IO who on the receipt of DD reached at the spot. He testified that on 25.07.2009, on the receipt of DD No.19-A he alongwith Ct. Kavinder reached at the spot i.e. D-1/357, Harsh Vihar, Delhi where he came to know that a woman has hanged herself. He found that house was locked from inside hence from the adjoining house from the roof, he sent one boy to enter in the said house to open the door. The boy went there and opened the door. He entered in the house and at the ground floor inside room, he found one woman hanging with the ceiling fan with help of chunni and her toe (panje) were touching with the ground. He cut the chunni in the middle and laid down the dead body on the floor. He came to know that her marriage took place about four years back. Hence he informed the executive magistrate concerned. Sh. Vimal Kumar, the executive magistrate came at the spot. He also informed the parents of the deceased. He called the crime team and photographer. The crime team alongwith photographer reached at the spot, who inspected the spot and photographer took the photographer of the dead body as per the instruction of the executive magistrate. As per the instruction of the executive magistrate, he took the dead body of the deceased Sangeeta alongwith the chunni which was tied on her neck to GTB Hospital and got preserved the same in the mortuary, GTB Hospital.
17. PW-2 Sh. Vimal Kumar is the executive magistrate at the relevant time who testified that on 25.07.2009, he received telephonic FIR No. : 145/09, PS Harsh Vihar. Page 15 of 27 -16- message at about 6:00 pm from the SHO PS Harsh Vihar regarding committal of suicide by a lady by hanging at D-1/357 Harsh Vihar. Delhi and after receiving the said message, he reached at the spot at about 6:20 pm. He found there was crowd at the spot. He entered in the home and found that in the inner room of the house, one female was hanging with the help of chunni with ceiling fan and her feet were touching the floor. He alongwith parents of deceased came to the police station and recorded statement of Rami which was endorsed by sister and father of deceased. He got the dead body preserved for postmortem at the Mortuary, GTB Hospital.
18. PW-14 Dr. Atul Gupta is the doctor who conducted postmortem upon the dead body of deceased Sangeeta and found pink and white colour chunni present around the neck with knot on the right side of the neck and salivary stains were coming out of the mouth on the left side, rigor mortis present all over the body and postmortem staining was present and found external antemortem injuries as pale brown, dry, hard, parch mentized ligature mark was present around the neck.
19. Ld. Defence Counsel submitted that there are material inconsistencies in the testimony of witnesses. As per the statement of the witnesses, there were scratches on the face and hairs were having blood whereas as per the postmortem there were no such findings. It is further submitted that witnesses have deliberately made improvements and there is no specific allegation on cruelty or dowry harassment or abatement to commit suicide and witnesses are not reliable and hence accused Todar Mal Dinesh is entitled to acquittal.
FIR No. : 145/09, PS Harsh Vihar. Page 16 of 27 -17-He cited L.L. Kale v. State of Maharashtra & Ors. 2000 Crl. L. J. 494, the judgment of hon'ble Supreme Court in support of his arguments.
20. On the other hand, Ld. Counsel on behalf of complainant, submitted that the prosecution has successfully proved the essential ingredients to prove offence punishable u/s 306 IPC and 498-A IPC and cited M. C. Narayana v. State of Karnataka, 2005 (1) RCR (Criminal) RCR
529. The said judgment is of Hon'ble Karnataka High Court wherein the charges were framed for offence u/s 304-B IPC and 498-A IPC and the accused was convicted for offence u/s 306 IPC though no charge was framed u/s 306 IPC and the conviction was upheld. However, this judgment is not attracted to the facts of the present case as in the present case charges are not for offence u/s 304-B IPC but u/s 306 IPC itself. Ld. Counsel also cited Kans Raj v. State of Punjab AIR 2000 SC 2324. It is celebrated judgment of Hon'ble Supreme Court on dowry death in which statements made by the deceased are held to be admissible u/s 32 of Indian Evidence Act. It also explained as to what is the soon before death and held that minor inconsistency, contradiction or ommission can be ignored. He also cited Angoori v. State of Rajasthan (SC) 2005 (4) RCR (Criminal) 702. In the said case, Hon'ble Supreme Court held that offence u/s 304-B IPC is not proved, however, husband is held guilty u/s 306 IPC. He also cited Narwinder Singh v. State of Punjab, AIR 2011 SC 686. In the said case wife was suffering from depression after murder of her father by extremist, harassment caused by accused husband compounded acute depression from which deceased was suffering, cruelty or harassment sans any dowry FIR No. : 145/09, PS Harsh Vihar. Page 17 of 27 -18- demand which drives wife to commit suicide attracts offence u/s 306 IPC.
21. Firstly I shall take the issue with respect to the position of the dead body and whether there were suspicious circumstances. PW-3 Ms. Sheetal younger sister of the deceased stated that the dead body of her sister was hanging with the ceiling fan and her feet were touching the floor and her hairs were having blood. Similarly PW-4 Sh. Prakash Chand, father of the deceased stated his daughter was found hanging with the ceiling fan with 'chunni' in her room and her feet were touching the floor and the bed sheet was not properly spread (sikudi hui thi) and he also found that there were scratches on the face of her daughter and her hairs were having blood and her bangles were broken which were lying on the floor. PW-5 Smt. Rami, similarly stated that her daughter was hanging with ceiling fan, her feet were touching the ground, she had injury mark on her right cheek and her hairs of her hair were stained with blood. She also noticed broken pieces of bangles scattered in the room, and bed sheet on the bed lying in the room in disturbed condition. The initial investigating officer PW-15 ASI Raghuraj Singh who visited the place for the first time got the door opened had not notice any bangles. The inquest form signed by father does not find mention any injury mark or blood on her hair. The doctor who conducted the postmortem on the dead body found no injury on her face and opined cause of death as asphyxia due to antemortem hanging and the ligature mark corresponds with the ligature material present around the neck. The investigating officer (IO) had stated in his statement that her toes were touching on the FIR No. : 145/09, PS Harsh Vihar. Page 18 of 27 -19- ground and not the feet. Therefore, the possibility of body having been tempered after death is ruled out. Although the witnesses who are parents and sister of deceased have given version of blood on the body and some injury marks on the face. But this only appears to be exaggeration as PW-3 Ms. Sheetal has stated in his cross- examination that she does not remember by which mode of conveyance they went to matrimonial house of her sister on the date of incident as she was not in her full senses. She stated that she entered into the matrimonial house of her sister but she remained outside the room of her sister and seen her through the window. She does not remember whether there was jali or doors on the window. She had visited the house of her sister before the date of the incident also about three-four years ago and she could not tell as to who had entered into the room of her sister at that time. She does not remember about the other articles which were seen by him through window. Therefore apparently she did not see the dead body at all and had only given the improved version. PW-4 Sh. Prakash Chand father of deceased also states that police had brought down her daughter from the hanging position in his presence and the knot was opened by the IO before bringing her down and it was not cut. The knot was within the reach of the IO in standing position. However, the chunni used for hanging was cut into two pieces, one was kept wrapped around the neck and other was opened from the ceiling fan. Therefore, it appears that this witness has also not seen the dead body or the same was not brought down in his presence. PW-5 Smt. Rami states in her cross-examination that she does not know as to FIR No. : 145/09, PS Harsh Vihar. Page 19 of 27 -20- who had brought the dead body down. All the three witnesses concocted the false version regarding injury mark on the dead body and hairs having blood or broken bangles found in room.
22. Now coming to the aspect of dowry related harassment. PW-5 Smt. Rami has stated three things : one dowry articles given at the time of marriage including cash and motorcycle but in-laws i.e. jeth Tikam and jethani Madhu and husband of her daughter were not satisfied with the given dowry articles and were harassing and beatings, second accused Todermal and Madhu Jethani used to demand Rs.3 lacs, and third they had given items of Rs 50,000/- including cash of Rs.21,000/- on the occasion of chhochak (birth ceremony of son of her daughter) and after birth of male child accused Todarmal Dinesh and jethani Madhu used to beat her daughter. She was confronted with the statement regarding dowry articles given at the time of marriage which she did not state in the statement made to the police and in-laws i.e. jeth Tikam and jethani Madhu and husband of her daughter were not satisfied with the given dowry articles and were harassing and giving beatings. Her statement with respect to the articles and cash given on the occasion of chochak i.e. at the time of birth of son of daughter was also confronted. Therefore as regards the demand and dowry related harassment she has made improvement therefore the portion in which she had made improvement cannot be relied upon.
23. PW-4 Sh. Prakash Chand father of the deceased also stated that accused Todarmal Dineh and Madhu were harassing her on account FIR No. : 145/09, PS Harsh Vihar. Page 20 of 27 -21- of insufficient dowry and they were not satisfied with the dowry and accused used to demand Rs.3 lacs to open the medical store as accused Todar Mal is the pharmacist. He was also confronted with the portion of his statement regarding dowry harassment by accused Todarmal Dinesh and Madhu. He was also confronted with the statement where he stated that accused Todarmal Dinesh used to demand Rs.3 lacs to open medical store. Therefore as regards dowry related harassment, witnesses have made improvement subsequently and therefore the same cannot be relied upon.
24. As regards PW-3 Ms. Sheetal, she also stated that accused Todarmal Dinesh started harassing her sister on account of insufficient of dowry and used to beat her and her sister had told her that her husband used to demand Rs.3 lacs to open pharmacist shop. She was also confronted with portion of her statement regarding demand of Rs.3 lacs. However, her statement to the effect that her sister had told her that her husband used to harass her and beat her on account of insufficient of dowry given in the marriage remains on record. However, this statement that her sister had told her that accused used to harass her on account of insufficient of dowry and beat her is not specific neither the time has been given as to when he demanded dowry and when he had given beatings and when she was told by her deceased sister of this fact. Therefore, the same being not specific and also not to be relied upon.
25. Now we are left with the portion of statement of the witnesses with respect to accused having illicit relation with Madhu and she was FIR No. : 145/09, PS Harsh Vihar. Page 21 of 27 -22- being harassed on account of that and whether this harassment amounts to abatement to suicide within meaning of Section 107 of Indian Penal Code. PW-5 Smt. Rami mother of deceased testified that after the death of Tikam Singh, accused Todarmal Dinesh and Madhu came close to each other and her daughter used to tell her that both used to sit on the same cot and used to feed each other with their own hands and after the death of Tikam, her deceased daughter and accused Todermal started living at the house of Madhu which was at Gali No.4 Mandoli, Delhi. After two months from the death of Tikam, Madhu Jethani made her daughter to leave the house and thereafter she came to her own house (in-laws) at Harsh Vihar where she was joined by her father-in-law and mother-in-law but accused Todermal continue to live in the house of Madhu. She further stated that on 22nd July, 2009, she received a call of her daughter who told her over the telephone that her husband, her jethani Madhu, her father Bhikam and her sister Babli are conspiring to kill her. She also stated that daughter had told her over the telephone about two/three days prior to the incident while crying her husband Todermal was talking with Madhu till the late night just like his wife and her husband used to speak Madhu in her presence with the words "Jaanu" and "Darling" and used to say "chinta mat karo ham jaldi ek ho jayenge, hame ab koi rok nahi sakta" and that her deceased daughter told her that there is illicit relation in between accused and Madhu. She was, however, confronted with the portion of her statement that accused Todarmal Dinesh and his sister-in-law Madhu came closed to each other after the death of Tikam Singh, and that the accused continue to FIR No. : 145/09, PS Harsh Vihar. Page 22 of 27 -23- live in the house of Madhu. On 22.07.2009, her daughter had made him telephonic call at about 8:00 p.m. and the said phone was made on STD. The mobile phone of his husband was not working at that time and the said phone was also not working prior to that day and the same is also not working now. She alone went to receive the call of her deceased daughter at STD Booth on 22.07.2009. The said STD booth belongs to one Rakesh. PW-3 Ms. Sheetal younger sister of deceased Sangeeta stated that on 22.07.2009, her sister Sangeeta had talked with her mother and father and she told that her in-laws were planning to kill her. In her cross-examination she stated that she came to know about the facts from her mother on the same day. Therefore apparently she is not witness of hearing the conversation from the deceased. Further, PW-3 stated in his cross-examination that on 22.07.2009 her sister Sangeeta had made a telephonic call at STD Booth at about 8 p.m. which was attended by her mother and father whereas PW-5 claims that she alone went to receive the call at STD Booth. PW-4 Sh. Prakash Chand categorically stated that on 22.07.20009 her daughter had told his wife over the telephone regarding planning to kill her. On this portion, he was also confronted as he has not stated so in his previous statement. Therefore it is only PW-5 Smt. Rami who had heard such conversation from her daughter. However, surprisingly, she states that her husband was having mobile phone but the same was not working at that time and it was not even working prior to that day or is also not working now, which clearly show that she is trying to hide material fact and have created version having received telephonic call from her daughter on FIR No. : 145/09, PS Harsh Vihar. Page 23 of 27 -24- 22nd of July, 2009 showing the same to be call received by them immediately before her death.
26. PW-4 Sh. Prakash Chand states that his wife had gone to attend the call at STD Booth on 25.07.2009 and thereafter she called his co- brother to go to see her daughter. However, in his cross-examination he stated that he and his wife had gone to attend the call. Cross- examination of this witness had taken place on another day whereas the cross-examination of PW-3 was conducted on the same day in which this version had come. Therefore he become wiser after knowing the cross-examination of his daughter. However, in further cross-examination he stated that on 25.07.2009 accused had made a telephonic call to them and on this his wife had gone to attend the call. PW-5 Smt. Rami stated that she had attended the call. Therefore these witnesses who are parents and sister of deceased are making substantial improvement from the statements given to the executive magistrate and police and also making improvement while in the cross-examination. Their testimony leaves lingering doubt about version of 22.07.2009 call.
27. Now we are left with version of illicit relation. PW-5 Smt. Rami stated that Jethani Madhu having jealousy with her deceased daughter Sangeeta because she was educated and beautiful and they came close to each other after death of Tikam Singh about five months back to death of her daughter and her husband used to address Madhu as 'Janu' and 'Darling' in her presence and her daughter had told her about illicit relation between them. PW-4 Sh. Prakash Chand stated FIR No. : 145/09, PS Harsh Vihar. Page 24 of 27 -25- that his daughter Sangeeta (deceased) used to tell him and his wife that accused Todar Mal Dinesh and Madhu behaved with each other like husband and wife and they also used to talk with each other over the telephone for the long duration in the night time and having illicit relation. PW-3 Ms. Sheetal younger sister of deceased also states that her sister had told her that her husband was having illicit relatin with jethani and her husband used to beat her on the instigation of jethani. As regards PW-3 Sheetal, it appears that she alleging illicit relation even prior to birth of child whereas mother claims that after the death of Tikam Singh they had come closer. PW-5 in her cross-examination states that the distance between the house of Madhu and matrimonial house of her daughter was about 1 km. She however denied that Madhu and her sister Babli used to give respect to her deceased daughter and treated her as their younger sister. She admitted that husband of Madhu was working in Delhi Police and has died on account of accident and accused Todarmal was the only male member in the family. She also admitted that Madhu and her husband alongwith children left house of Harsh Vihar after one/two months of the marriage of her daughter and her father-in-law and mother-in-law remained there at Harsh Vihar. However, she denied the suggestion that Madhu and her husband did not come to the house of Harsh Vihar because her daughter was of quarrelsome nature. She further denied that accused treats her bhabhi as his mother or that there was no illicit relation between both of them or that accused never used words like 'jaanu' and 'darling' against her bhabhi Madhu. She also denied that accused ordinarily used to call to her bhabhi to know the FIR No. : 145/09, PS Harsh Vihar. Page 25 of 27 -26- well being of children of his deceased brother. However, she admitted that house of Harsh Vihar in which her deceased daughter alongwith her husband were residing had been constructed by Tikam Singh out of his own savings. This fact was however denied by Sh. Prakash Chand that no house was constructed by husband of Madhu. However, he admitted that the house in which his daughter and accused were residing was in the name of father of accused Todar Mal.
28. The version regarding conspiracy to kill Sangeeta and there was illicit relation between accused Todarmal Dinesh and her sister-in-law Madhu was told by their daughter on two/three days prior to the incident i.e. 22.07.2009 which as per the above discussion is not found to be reliable. Therefore this portion is also not proved that the accused Todar Mal Dinesh and Madhu were having illicit relation with each other. Further even if one believes that there was illicit relation between two or the same is so presumed by the deceased Sangeeta, the question arises whether it amounts to abatement and whether the presumption u/s 113 A of Indian Evidence Act would be available against the accused.
29. In order to raise the presumption u/s 113 A of India Evidence Act suicide must be committed within seven years of marriage. In this case the suicide was committed within seven years of marriage. The second ingredients is that the woman had been subjected to cruelty as provided u/s 498-A of Indian Penal Code (IPC). Explanation
(a) of 498-A IPC provides that any willful conduct which is of such a FIR No. : 145/09, PS Harsh Vihar. Page 26 of 27 -27- nature as is likely to drive the woman to commit suicide or to cause grave injury or danger of life, limb or health (whether mental or physical). Now question arises whether illicit relation with another woman would fall within ambit of Section 498-A IPC explanation (a). Apparently the man having illicit relation with another woman cannot amount to conduct which is likely to drive woman to commit suicide and therefore presumption is not attracted. Now coming as to whether having illicit relation with another woman can amount to abatement within definition of Section 107 of Indian Penal Code (IPC) which provides either to instigate any person or intentionally aids to doing that thing. The conduct of the accused does not amount to instigation or aiding within definition of S. 107 IPC. Therefore, the offence punishable u/s 306 IPC is not proved against accused. Further as per discussion above, offence punishable u/s 498-A is also not proved against accused Todarmal Dinesh.
30. As per discussion above, I am of the opinion that prosecution has failed to prove their case against accused Todarmal Dinesh beyond reasonable doubt. Therefore, accused is entitled to benefit of doubt. Accordingly accused is acquitted of the charges. His bail bond stand cancelled. His surety discharged. Case property, if any, be destroyed after the expiry of period of appeal. File be consigned to record room.
Announced in the open court today i.e on 02.01.2012 GURDEEP SINGH ASJ-04/NE/KKD/DELHI/02.01.2012 FIR No. : 145/09, PS Harsh Vihar. Page 27 of 27