Delhi District Court
State vs 1. Ajay @ Suraj S/O Krishan on 20 September, 2010
IN THE COURT OF SH. RAJ KAPOOR: LD. ASJ 1,
KARKARDOOMA COURTS: DELHI
Case ID Number. 02402R0439732006
Sessions Case No. 108 / 07
Assigned to Sessions. 15.09.06
Arguments heard on 04/09/10
Date of order. 18/09/10
FIR No. 306/ 06
State Vs 1. Ajay @ Suraj s/o Krishan
Kumar Srivastava R/o C16/2,
Kabir Nagar, Welcome, Delhi.
2. Smt. Shila w/o Krishankumar
Srivastava R/o C16/ 2, Kabir
Nagar, Welcome , Delhi.
Police Station Welcome
Under Section 498 A/ 304 B/ 306 / 34 IPC
JUDGEMENT
1. Briefly facts of the case are that accused Ajay @ Suraj married with Laxmi on 30.04.2005. After marriage deceased Laxmi stayed at Kabir Nagar, Shahdara in her matrimonial house and after sometime of marriage, Laxmi was not happy at her matrimonial house as accused persons started harassing her for bringing more dowry. Accused Ajay @ Suraj along with his mother Sheela now accused, subjected deceased Laxmi to cause physical and mental cruelty and used to demand more dowry and cash. Deceased Laxmi died unnatural death within seven years of marriage due to hanging on 08.06.2006 as accused persons harassed her for bringing more dowry.
2. In this regard on 08.06.2006 a DD No. 57 B mark 'X' was recorded in police station Welcome which was marked to SI Raj Kumar for investigation by the Duty Officer. He along with Ct. Sanjeev went to H. No. C16/2, Kabir Nagar, 1st Floor, Delhi. In one of the room of the said house, which was bolted from inside one lady was found hanging with the ceiling fan. Accused persons were present at the said house. He interrogated them. I.O. called the SDM, Shahadara as well senior officers at the spot. Senior officers of the police department as well as SDM, Shahadara reached there. Crime team was also called.
3. IO informed the parents of the deceased through telephone and they also reached there. On the direction of SDM the door of the said house was got broken and dead body was removed from the ceiling fan. Prior to death, dead body was got photographed. SDM recorded statement of Savitri mother of the deceased and also recorded statement of Urmila, Shanti and other family members of the deceased.
4. On the statement of Savitri SDM directed to register the case. S.H.O. made endorsement upon the said statement for registration of the FIR u/s 498A/304B/34 IPC and the investigation was given to him.
5. The crime team incharge after inspecting the spot prepared his report and handed over the same to IO. The photograph mark X1 to X9 were taken by the crime team at the spot.
6. SDM conducted proceeding under section 176 Cr.P.C. at the spot. The dead body was sent to Mortuary of GTB Hospital in the custody of Ct. Sanjeev. After postmortem it was handed over to relatives of the deceased. I.O. prepared site plan of the spot vide Ex.PW10/A after inspecting the spot. IO collected the marriage photograph of deceased with the accused as well as marriage card from the complainant vide seizure memo Ex.PW10/B. Accused Ajay and his mother accused Sheela were arrested and their personal search memos and arrest memos were prepared by IO.
7. I.O. seized the ligature material and one viscera box from GTB Hospital vide seizure memo already Ext. as PW8/A. Thereafter the exhibits were sent to CFSL, Hyderabad.
8. After completion of investigation the file was handed over to SHO who prepared the challan and submitted the same in the court.
9. After the completion of the investigation which was conducted by the police officials the challan was filed to the court of ld. MM concerned and the same was committed to the court of Sessions which was received on 22.09.2006. Consequent upon the committal of the case to the court of sessions charge against accused persons namely 1.Ajay @ Suraj and 2.Smt. Sheela for the offence punishable under section 498A/ 304B/306/34 IPC vide court order dated 22.09.2006 was framed.
10.To prove and substantiate its case the prosecution has examined 16 witnesses namely PW1 Raj Kumar - brother of deceased, PW2 Urmila sister of deceased, PW3 Shanti - Mausi of deceased, PW4 Savitri - mother of deceased, PW5 HC Vijay Pal - duty officer, PW6 Dr. Meghali, Jr. Demonstrator, PW7 S. K. Shah - the then SDM, PW8 HC Trilok Chand, PW9 Ct. Sanjeev Tomar, PW10 SI Raj Kumar - I.O. , PW11 Insp. Anil Kumar Pandey, PW12 Ct. Sanjeev, PW13 HC Ram Kishan, PW14 ASI Mahender Singh, PW15 Dr. Mohd. Afzal, Sr. Scientific and PW16 W/ ASI Sumitra Devi - formal witness.
11.I have perused the testimony of PW1 Raj Kumar who happens to be the brother of deceased Laxmi. He testified that after marriage deceased Laxmi stayed at Kabir Nagar, Shahdara in her matrimonial house and after sometime of marriage, Laxmi was not happy at the house of accused persons since accused persons had started harassing her for bringing more dowry. It has also been deposed by PW1 that whenever PW1 and other family members of deceased Laxmi visited the matrimonial house of deceased Laxmi to take her, accused Ajay and his mother accused Sheela refused to send her back with them and ultimately Laxmi was sent to her house without proper clothing. He further deposed that accused persons demanded clothes and Rs.75,000/ in cash on the occasion of Lagan and same was paid in cash to the father of accused Ajay on the occasion of Lagan. This witness further deposed that on the occasion of Holi father and mother of accused Ajay demanded motorcycle from PW1 and from their family members. PW1 and her mother told that they would give motorcycle after the marriage of their other sister. He further deposed that on 07.06.2006 deceased Laxmi made a call to PW1 and their family members and he told them that accused persons would kill her and she should be taken away from her matrimonial house upon which PW1 told her sister that she would be taken back on Sunday. This witness has made allegations against police that accused persons i.e. Dever, Nanad and fatherinlaw of deceased were let off by police after taking bribe of Rs.60,000/. This witness has been crossexamined at length. I have perused the same.
12.PW2 Urmila is the elder sister of deceased. She came to the witness box and deposed that deceased Laxmi was married on 13.04.05 with accused Ajay @ Suraj as per Hindu customs at Kabir Nagar, Shahdara. The family of Ajay belonged to Ghonda, UP but at the time of marriage, he was residing in Delhi at Kabir Nagar. Her sister Laxmi after marriage went to her in laws house in Kabir Nagar where parents of Ajay also used to reside. The in laws includes Guddu, Rinku (Dewars) and Neelu (Nanand). She testified that her sister remained happily with her inlaws for about 3 months and thereafter, she was started torturing by her inlaws. The family members of Ajay came to knowledge that her father had been paid the retirement benefits from his office. Her father deposited the remaining money in the bank. After 3 months of marriage of her sister Laxmi, her fatherinlaw and motherinlaw started asking to bring money (Rs. 10,000/ and one motorcycle). She testified that her sister came at her parental house and told this fact to her father. She further deposed that her sister had a talk with the mother and brother regarding the aforesaid demand by her inlaws. She further deposed that accused Ajay @ Suraj husband of her sister Laxmi came on the day of Janam Ashtami to take her sister back, her mother gave Rs.10,000/ to accused Suraj. She again deposed that her sister did not accompany Ajay @ Suraj as she was afraid of being tortured. Suraj left alone. After about one month of Janam Ashtami, the fatherinlaw of her sister and one more person came to their house to take her sister. In view of this assurance, her mother allowed Laxmi to accompany with her fatherinlaw. After 23 days of reaching at her matrimonial home, Laxmi was given beatings by Guddu, Rinku and Neelu and her fatherinlaw and motherinlaw. This fact came in knowledge as her sister Laxmi made a telephone call to them. Her mother in law disconnected the phone by removing wire. After 8 days of Laxmi returning to her inlaws house, father inlaw of Laxmi made a telephone call and told them to immediately reach at their home without telling any reason. She further deposed that her younger sister Neelu made a telephone call at residence of Laxmi for having a talk with Laxmi but her mother in law told Neelu that Laxmi is sleeping. At about 5.45 pm, motherinlaw and fatherinlaw made a telephone call to their house and told to immediately reach at their residence. She along with her mother and brother reached at the inlaws house of Laxmi and found that police officials were already present there. Police took them on the third floor of the house and told that her sister had been hanged. She further deposed that first police official as well as Magistrate were sitting there and they recorded her statement as well as statement of her mother namely Shanti. She got exhibited her statement vide her statement Ex. PW2/A which bears her signatures at point A. She further testified that her sister Laxmi used to visit bare handed at the house and her mother arranged bangles for her whenever she used to visit at the home. This witness further deposed that on the last date of hearing, accused Suraj threatened her that "Hum tumhe aisa kar denge ki tum taarikh par aane layak nahi rahnonge". This witness has been crossexamined at length. I have perused the same. In the crossexamination it has come on record that she has improved her testimony on many points.
13.PW3 Shanti is the mausi of deceased. I have perused her testimony carefully. It has come on record that deceased remained happy with accused for 3 months. In her testimony it has also come on record that whenever deceased visited the house of PW3, deceased used to complaint that her motherinlaw is demanding cash and motor cycle from her otherwise she would be hanged if the demand of cash as well as motorcycle is not fulfilled. It has also come in her examination in chief that her sister (Shantimother of deceased) did not pay any amount to the accused persons. This witness further deposed that her sister told them that she would pay the cash within some period but prior to that she was killed. This witness has been crossexamined by defence counsel. I have perused the same. I found some minor contradictions which are attributable due to the long duration of time and memory of a human being. These do not go to the root of this case.
14.In this case the most material witness is PW4 Savitri who happens to be the mother of deceased Laxmi. For the sake of brevity and convenience let her statement be reproduced verbatim which is as under: "Deceased Laxmi was my daughter. She was married on 30.04.05 with accused Ajay @ Suraj today present in the court. Accused was doing job in a courier service. The marriage took place at Rampura and my daughter was taken away by the accused at her Matrimonial house at Shahdara. I had given sufficient dowry in the marriage of my daughter mentioned as one Colour TV, Freez, Almirah, Sewing Machine, Single Bed, 151 utensils, jewellary articles weighing 7 tolas as well as clothes. I had also paid Rs.75,000/ in cash on the ceremony of Lagan paid to the father inlaw of my daughter. Accused Ajay as well as his father was demanding one motor cycle on the occasion of Holi as well as Diwali. I told the accused Suraj that I would give motor cycle to him at the time of marriage of my younger daughter Poonam (Munni).
Accused told me that he would not bring my daughter to my house again. My younger daughter Poonam had gone to the inlaws house of deceased. My daughter Laxmi was given beatings by accused as well as her fatherinlaw and other family members with chappal. This fact was told to me by my younger daughter.
All of a sudden, I had gone to the matrimonial house of my daughter two days prior of Janamastmi, and I saw that accused was giving beatings to my daughter Laxmi.
I asked my daughter Laxmi why accused was giving beating to her, she told me that she had demanded clothes for wearing but accused is not providing the same as he had kept her clothes in a box, locked by him.
On 08.06.06 my daughter Nirmala made a telephone call at 1 p.m. at matrimonial house of Laxmi, motherinlaw of deceased attended the call and she informed that deceased was sleeping. My daughter again made telephone call around 4 p.m. again, reply was that she was sleeping. At 3rd time ,a telephonic message received from fatherinlaw of deceased and he told me that "fansi Latka Diya". I immediately went to the inlaws of my daughter along with my son and other family members. I found my daughter was hanging with the sealing fan. I found police officials present there. My statement was recorded by the SDM but same was not read over to me. My statement is Ex.PW4/A which bears my thumb impression at pt. A. I had seen the dead body of my daughter in the mortuary of GTB hospital and my statement in this regard recorded which is Ex.PW4/B bears my thumb impression at point A. After postmortem police handed over dead body to me vide handing over memo already Ex.PW1/B bears my thumb impression at point B but accused took away the dead body of my daughter from us for last rites.
None of our family members had participated in the last rites of my daughter. I had made payment to my daughter two or three times such as one thousand or fifteen hundred. My daughter used to come at my house along with her Nanad and Dever.
xxxxby Sh. Dharmender Singh counsel for accused persons.
I am having five daughters besides deceased Laxmi and two sons. I am doing job of labour in an export factory. At the time of marriage of deceased Laxmi I was doing same job. I was drawing Rs.3000/ per month at the time of marriage of my daughter. At the time of marriage of Laxmi I and my son were earning members. Raj Kumar was also earning salary of Rs.3500/ to 4000/ at the time of marriage of Laxmi.
Deceased was matriculate. The mediator in the marriage of Laxmi was one Rakesh who is soninlaw of my daughter's Jethani.
Prior to marriage of deceased with accused we had gone to his house to see him 2/3 months prior. We had gone 34 persons to see Ajay including my son, my daughter and my son Raj Kumar. I only visited the house of the accused once prior to her marriage of my daughter. Accused Ajay was also shown to my deceased daughter. Prior to 3/4 days of Lagan ceremony accused was shown to my daughter at Shiv Mandir, Kabir Nagar, Delhi. My elder daughter Urmila had accompanied my deceased daughter when both gone to see accused Ajay in the Shiv Temple. At the time of marriage accused Ajay was idle. We had not seen any boy prior to seeing the accused for the purpose of marriage. We were residing in a rented accommodation at the time of marriage of deceased as well as today. It is correct that my deceased daughter was very smart in comparison to accused. It is wrong to suggest that my daughter was not agreed for the marriage with the accused. The father of accused Ajay was running a shop of Kabari.
The house of accused is in the area of 150/175 sq. yards and out of which 50 sq. yards was in the name of accused Ajay.
My daughter had visited my house for the 'Phera' ceremony after four days of her marriage. I had visited the house of accused four times after the marriage of my daughter. I do not know whether the younger brother of accused Vijay was having a motor cycle. My deceased daughter only visited twice after her marriage. Volt. she was not allowed to visit my house by her in laws. I had told this fact to the SDM but I am not aware whether this fact was recorded in my statement or not. I had not lodged any report with the police.
Accused demanded motor cycle on the occasion of Holi when he had visited my house with my deceased daughter. It is wrong to suggest that I had not made any complaint with the police in this connection as there was no demand. No Panchayat was organized on the issue of harassment and torture of my daughter by the accused persons. I made statement to the SDM and on my dictation he recorded the same.
I had not stated before the SDM that I had given sufficient dowry in the marriage of my daughter mentioned as 1 colour TV, Freez, Almirah, Sewing Machine, Single Bad, 151 utensils, jewellary articles weighing 7 tolas as well as clothes.
Confronted with statement Ex.PW4/A where it has not been so recorded. I had stated in my statement before the SDM that I had also paid Rs.75000/ in cash on the ceremony of Lagan paid to the father in law of my daughter. Confronted with statement Ex.PW4/A where it has not been so recorded, where it has been recorded that the amount of Rs.75000/ was demanded by Shila Shrivastava, mother in law of deceased and we had paid. I had stated in my statement that fatherinlaw and son inlaw of my deceased daughter had demanded a motor cycle on the occasion of Holi and Diwali. Confronted with statement Ex.PW4/A where it has not been so recorded, further it has been recorded there that accused Ajay had demanded the motor cycle on the occasion of Holi when he visited with the deceased to my house.
Lastly I had visited the house my deceased daughter 10 to 15 days of Holi. I did not notice the motor cycle at that time at the house of accused persons. I had stated before the SDM that my younger daughter Poonam had gone to inlaws of my deceased daughter and my daughter was given beaten by the accused as well as her father in law and other family members with chappal and this fact was told to me by my younger daughter.
Confronted with statement Ex.PW4/A where it has not been so recorded. I had stated before the SDM all of a sudden I had gone to the matrimonial home of my daughter two days prior of Janamashtmi and I saw that accused was giving beatings to my daughter Laxmi and I asked my daughter Laxmi why accused was giving beating to her, she told me that she had demanded clothes for wearing but accused is not providing the same as he had kept her clothes in a box locked by him. Confronted with statement Ex.PW4/A where it has not been so recorded. I had stated before the SDM that on 08.02.06 my daughter Nirmla made a telephone call at 1 p.m. at matrimonial house of Laxmi, mother in law of deceased attended the call and she informed that deceased was sleeping and my daughter again made a telephone call around 4 p.m. Again reply was that she was sleeping.
Confronted with statement Ex.PW4/A where it has not been so recorded. I had stated before the SDM that at 3rd time a telephonic message received from father inlaw of deceased and he told me that 'Fasi Latka Diya' and I immediately went to the inlaws of my daughter along with my son and other family members and I found that my daughter was hanging with the ceiling fan and I found police officials present there. Confronted with statement Ex.PW4/A where it has not been so recorded. I had not lodged any complaint regarding that my statement recorded by SDM as my statement was read over to me. I had not stated in my statement Ex.PW4/A that I had made payment to my daughter 2 or 3 times such as one thousand or fifteen hundred. I had stated before the SDM that my daughter used to come at my house along with her Nanad and dever. Confronted with statement Ex.PW4/A where it has not been so recorded. It is correct that accused persons made last rites of my daughter.
The statement of my daughter, my son and my sister was recorded by the SDM. We remained at the spot for about 15 minutes.
We returned back to my house from the in laws of my daughter. Police did not meet me at any point of time after registration of the case. I do not know what has been written in my statement by SDM. It is wrong to suggest that my daughter was happy in her matrimonial house but I used to pressurize her to break up her marriage with accused Ajay on account of non matching of pair. It is wrong to suggest that my daughter never treated with cruelty in connection with demand of dowry by the accused persons. It is wrong to suggest that my daughter has committed suicide herself.
It is also wrong to suggest that I had falsely implicated the accused persons just to extract money from them. It is also wrong to suggest that I am deposing falsely. It is also wrong to suggest that I have been tutored by my counsel. It is also wrong to suggest that other witnesses have also deposed at my instance."
On careful perusal of her testimony it has come on record that deceased Laxmi was her daughter. She was married on 30.04.05 with accused Ajay @ Suraj. The marriage took place at Rampura and her daughter was taken away by the accused at her Matrimonial house at Shahdara. She had given sufficient dowry in the marriage of her daughter mentioned as one Colour TV, Freez, Almirah, Sewing Machine, Single Bed, 151 utensils, jewellary articles weighing 7 tolas as well as clothes. She had also paid Rs.75,000/ in cash on the ceremony of Lagan paid to the father inlaw of my daughter. Accused Ajay as well as his father was demanding one motor cycle on the occasion of Holi as well as Diwali. All of a sudden, she went to the matrimonial house of her daughter two days prior to Janamastmi, and saw that accused was giving beatings to deceased Laxmi. She asked her daughter Laxmi why accused was giving beating to her, she told that she had demanded clothes for wearing but accused was not providing the same as he had kept her clothes in a box, locked by him. It has also come on record that on 08.06.06 her daughter Nirmala made a telephone call at 1 p.m. at matrimonial house of Laxmi, motherinlaw of deceased attended the call and she informed that deceased was sleeping. Her daughter again made telephone call around 4 p.m. again, reply was that she was sleeping. At 3rd time , a telephonic message received from fatherinlaw of deceased that "fansi Latka Diya". She immediately went to the inlaws of her daughter Laxmi along with her son and other family members. She found her daughter hanging with the sealing fan. Police officials were already present there. Her statement was recorded by the SDM vide Ex.PW4/A which bears her thumb impression at point A. After postmortem police handed over dead body to her vide handing over memo already Ex.PW1/B but accused took away the dead body of her daughter from them for last rites. None of their family members participated in the last rites of her daughter. She had made payment to her daughter two or three times such as one thousand or fifteen hundred. Her daughter used to come at the house along with her Nanad and Dever. In the cross examination it is admitted that deceased was very smart in comparison to accused. It has also come in the crossexamination that she had not lodged any report with the police. Accused demanded motor cycle on the occasion of Holi when he had visited the house with deceased. She denied the suggestion that she had not made any complaint with the police in this connection as there was no demand. No Panchayat was organized on the issue of harassment and torture of deceased by the accused persons. She made statement to the SDM and on her dictation he recorded the same. On further, perusal of her crossexamination I found that she has improved her statement.
15.PW5 HC Vijay Pal is the formal witness being duty officer. He came to the witness box and deposed that on 08.06.06 he was posted as HC at Police Station Welcome and was doing the job of duty officer from 5 p.m. to 1 a.m. He received a rukka brought by Ct. Sanjeev sent by SI Raj Kumar. On the basis of the said rukka he recorded the present FIR u/s 498A/304B/34 IPC. This witness got exhibited the carbon copy of the same vide Ex.PW5/A. This witness has not been crossexamined.
16.PW6 Dr. Meghali, Jr. Demonstrator, GTB Hospital, Shahdara, Delhi came to the witness box and deposed that he has been deputed by Medical Superintendent to depose on behalf of Dr. Barkha Gupta (Sr. Demonstrator). This witness testified that as per the postmortem report the dead body was received on 9.6.2006 at 12:00 noon of one Laxmi aged about 20 years, female. The postmortem was conducted by Dr. Barkha Gupta. As per the opinion of the Doctor, the death was caused due to Asphyxia consequent to antemortem hanging. Postmortem report is Ex.PW6/A upon which he identified the signature of Dr. Barkha Gupta at point A. He is conversant with the handwriting and signature of Dr. Barkha Gupta as he remained junior to her and also worked under her supervision. Dr. Barkha Gupta had left the job from GTB Hospital. This witness was crossexamined by Sh. Dharmender Singh, counsel for both the accused. In the crossexamination this witness admitted the suggestion that neither the postmortem was conducted nor the postmortem report was prepared in his presence.
17.PW7 S K Shah, Dy. Secy. Finance, Govt. of NCT, Delhi Secretariat, Delhi appeared in the witness box. He deposed that on 8.6.06 he was working as SDM Shahdara, Delhi S.I. Raj Kumar from Police Station Welcome informed him regarding the incident. On receipt of his message, he reached at the spot i.e. C216/2, Kabir Nagar, Welcome, Delhi. He was taken to first floor of the aforesaid house where the dead body of lady was hanging on the ceiling fan. The door of the said room was broken as same was bolted from inside. The dead body was taken off from the ceiling fan as same was hanging with a duppata. The crime team officials were also called who took certain photographs of the deceased in the hanging position as well as thereafter. This witness further deposed that mother, sister and aunt of deceased came there. He recorded statement of her mother, Savitri vide Ext. PW4/A which bears his sign at point B. He further testified that he also recorded statement of Urmila the sister of deceased and Shanti, Mausi of deceased. Both the statements vide Ex.PW2/A and PW3/A bear his signature at point B. Thereafter, he handed over these statements to the police for taking necessary action as per law. This witness further testified that he prepared form 25.35, brief facts of the case and request for postmortem on the spot. This witness got exhibited these documents collectively vide Ext. PW7/A which runs into four pages. This witness further deposed that on 9.6.2006 he went to mortuary GTB Hospital and there he recorded statement of Savitri and Raj Kumar regarding dead body identification. I.O. recorded his statement regarding aforesaid facts. The witness has been shown nine photographs of the deceased as well as of the scene of occurrence and he identified the same vide mark X1 to X9. This witness has been crossexamined by Sh. Dharmender Singh, Adv. for both the accused persons. In the crossexamination it has come on record that he found the motherinlaw of deceased at the spot. He is not aware at what time the parents of deceased reached at the spot. First of all, he recorded statement of Savitri Devi, mother of deceased. After satisfying themselves the witnesses had signed/put their thumb impression.
18.PW8 HC Trilok Chand, is a formal witness. This witness came to the witness box and deposed that on 20.06.2006 he was posted as HC at Police Station Welcome. On that day, he accompanied SI Raj Kumar to the mortuary of GTB Hospital. He was handed over sealed parcels as well as sample seal by the doctors and same were handed over by him to IO who seized the same vide seizure memo Ex.PW8/A which bears his signature at point A. His statement was recorded by IO. This witness has not been crossexamined.
19.PW9 Ct. Sanjeev Tomar and PW10 SI Raj Kumar, I.O. came to the witness box and deposed more or less on similar lines. They have deposed that on 08.06.2006 a DD No. 57 B mark 'X' was recorded in police station Welcome which was marked to PW10 SI Raj Kumar for investigation by the Duty Officer. He along with Ct. Sanjeev went to H. No. C16/2, Kabir Nagar, 1st Floor, Delhi. In one of the room of the said house, which was bolted from inside one lady was found hanging with the ceiling fan. Accused persons were present at the said house. He interrogated them. I.O. called the SDM, Shahadara as well senior officers at the spot. Senior officers of the police department as well as SDM, Shahadara reached there. Crime team was also called. I.O. informed the parents of the deceased through telephone and they also reached there. On the direction of SDM the door of the said house was got broken and dead body was removed from the ceiling fan. Prior to death, dead body was got photographed. SDM recorded statement of Savitri mother of the deceased and also recorded statement of Urmila, Shanti and other family members of the deceased. On the statement of Savitri SDM directed to register the case. S.H.O. made endorsement upon the said statement for registration of the FIR u/s 498A/304B/34 IPC and the investigation was given to him. The crime team incharge after inspecting the spot prepared his report and handed over the same to IO. The photograph mark X1 to X9 were taken by the crime team at the spot. SDM conducted proceeding of 176 Cr.P.C. at the spot. The dead body was sent to Mortuary of GTB Hospital in the custody of Ct. Sanjeev. After postmortem it was handed over to relatives of the deceased. I.O. prepared site plan of the spot vide Ex.PW10/A after inspecting the spot. IO collected the marriage photograph of deceased with the accused as well as marriage card from the complainant vide seizure memo Ex.PW10/B. Accused Ajay and his mother accused Sheela were arrested and their personal search memos and arrest memos were prepared by IO. I.O. seized the ligature material and one viscera box from GTB Hospital vide seizure memo already Ext. as PW8/A. Thereafter the exhibits were sent to CFSL, Hyderabad. After completion of investigation the file was handed over to SHO who prepared the challan and submitted the same in the court. These witnesses have been crossexamined. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
20.PW11 Inspector Anil Kumar Pandey came to the witness box and deposed that on 08.06.2006 he was posted as SubInspector, In charge Mobile Crime Team, NE District. On that day he received a message from police control room to reach at the spot i.e. C16/2, Gali No.16, 33 Ft. Road, Kabir Nagar, Welcome. He along with crime team official reached there. He inspected the spot. Ct. Sanjeev, crime team photographer took photographs of the deceased hanging with ceiling fan in one of the room. This witness identified the photographs vide mark1 to 9. This witness further deposed that he prepared the report vide Ex.PW11/A and handed over same to the IO which bears his signatures at point A. I.O. recorded his statement in this regard. This witness has been crossexamined by defence counsel Sh. Dharmender Singh, Counsel for both the accused. In the crossexamination it has come on record that 10/12 public persons were present at the spot. I.O. was already present there but he could not recollect whether SDM was present there or not.
21.PW12 Ct. Sanjeev is the formal witness in this case being photographer. This witness deposed that on 08.06.06 he was posted as Constable Photographer in the Mobile Crime Team, North East District. He along with SI Anil Kumar and crime team officials reached at H.No. C16/2, Kabir Nagar on the 1st Floor. He testified that he took 9 photographs of the deceased who was hanging with the ceiling fan. This witness got exhibited the photographs on the judicial file vide Ext. as PW12/1 to PW12/9. He has also brought the negatives of each photographs vide Ext. as PW12/10 to PW12/18. This witness has not been crossexamined.
22.PW13 HC Ram Kishan is also a formal witness. He appeared in the witness box and deposed that on 24.07.2006 he was posted as Ct. at Police Station Welcome. On that day, he took one sealed pullanda from the malkhana of Police Station Welcome and got deposited the said parcel at CFSL Office. Receipt of the same was handed over to MHC(M). So long as parcel remained in his custody he had not tampered the same. This witness has been crossexamined. I have perused the same. In the crossexamination it has come on record that he has not brought the road certificate in the court.
23.PW14 ASI Mahender Singh, is another formal witness. This witness testified that in the year 2006 he was posted as HC in Central Police Control Room, Delhi. An information was received in the office on 08.06.2006 regarding hanging by a lady at house no. C 16/2, Kabir Nagar, Seelampur, Delhi and said call was recorded in the police station vide DD No. 57B. He filledup the requisite form of the aforesaid call. The intimation was given to Police Station Welcome in this regard. The said form is not available in his office as the record pertaining to year 2006 has been destroyed vide Order dated 07.10.2009, ACP G.A., Police Control Room, Delhi, the photocopy of the said Order is Mark X2. This witness has been crossexamined. This witness deposed in the crossexamination that he had not handed over the form which was filledup by him in the PCR office to the I.O. This witness admitted the suggestion that the photocopy of order of ACP Mark X2 has not been attested by any official.
24.PW15 Dr. Mohd. Afzal, Sr. Scientific Officer, (Toxicology), CFSL, Hyderabad, Andhra Pradesh. This witness deposed that on 28.07.2006 one sealed wooden box with the seal of BG was received in his office and same was marked to him for chemical examination. The seal was tallied with the specimen seal and found correct. The wooden box contains two glass jars and one small plastic jar which were marked by him as Ex 11877/1 11877/2 and 11877/3 respectively in the laboratory. The exhibits marked as above were found containing viscera of deceased Laxmi, aged 20 years. The Ex 11877/1 is one sealed glass jar containing stomach and small intesttine with their contents. The Ex 11877/2 is one sealed glass jar containing pieces of liver, spleen and kidney. The Ex 11877/3 is one sealed small plastic jar containing blood. The exhibits were examined by PhysicoChemical test and chromatographic technique and based upon the observations, the result obtained is given below:
No common poison could be detected in the contents of the exhibits marked as above. This witness got exhibited his detailed report vide Ex PW15 / A which bears his signature at point A and the same has been duly forwarded by the Director, CFSL, Hyderabad. This witness has not been crossexamined.
25.PW16 W/ ASI Sumitra Devi is the formal witness. She testified that on 08.06.2006 was on night reserve duty in police station Shahdara and she was called in the police station Welcome. From there she went to the house no. C16/2, Kabir Nagar, Delhi where accused Sheela was arrested at the instance of Raj Kumar. She got exhibited arrest memo of accused Smt. Sheela vide already Ex.PW1/A and personal search memo vide Ex.PW16/A. She has correctly identified the accused Sheela. This witness has been crossexamined by defence counsel. I have perused the same. No contrary evidence has come on record.
26.After closing prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. Accused persons have denied all the allegations and deposed that they have been falsely implicated in this case. They deposed that they had never demanded any dowry. They also pleaded that they had never tortured the deceased. They are innocent and they have been falsely implicated in this case. They led defence evidence and produced two defence witnesses namely DW1 Krishan Kr. Srivastava, who happens to be the fatherinlaw of deceased and DW2 Vijay who happens to be the dever of deceased.
I have perused the testimonies of these defence witnesses. Both these witnesses have emphasized that deceased was under the pressure of her mother for separation from accused and for doing other marriage since personality of accused Ajay is not good. It has also been deposed that motorcycle was purchased by DW1 on finance basis vide copy of RC Ex.DW1/A.
27.Thereafter, case was fixed for final arguments. During the course of arguments ld. counsel for the accused persons argued and submitted that accused persons are innocent ; accused persons have been falsely implicated in this case; that accused persons had never tortured the deceased; and that accused persons had never made any dowry demand. Ld. counsel again argued and submitted that there are material contradictions in respect of dowry, role of accused persons and about cruelty and most important fact produced by all the material witnesses have been improved by them on prosecution version and the same have been confronted from their earlier statement recorded under section 161 / 164 Cr. P.c. Hence, their evidence lack the necessary assurance which is required in a criminal trial to bring home the guilt. Ld. counsel further argued and submitted that there are many contradictions in respect of cruelty in the testimonies of PW1 Raj Kumar, PW2 Urmila, Pw3 Shanti and PW4 Savitri. Ld. counsel drew the attention of the court to the fact that PW1 has deposed that his sister Laxmi was not living happily in her matrimonial home while PW2 says that after 3 months her sister came at her parental home. Ld. counsel further submitted that no specific date and time has been told by the witnesses with regard to alleged beating of deceased by accused persons. He further argued and submitted that PW3 and PW4 have improved their statements before the court. Ld. counsel further emphasized on the fact that deceased was living peacefully with accused persons and evidence of torturing, harassing or making any demand of dowry has not come on record. Ld. counsel for accused persons argued that a reasonable nexus had to be established between the cruelty and the suicide in order to make the offence of cruelty. In the present case the death took pace on 08.06.06 and the last demand as per prosecution version was made on the occasion of Holi i.e. 4th March 2006 hence, there is a gap of about 3 months in the demand and death of deceased. In this regard ld. counsel has relied upon the citation "Harjit Singh Vs State of Punjab - 2006 (1) RCR (Criminal) 133" and submitted that no incident of cruelty or harassment for a period of three months prior to death can be established for proving the offence u/s 304 B IPC precisely for the reasons that it is not soon before death. Ld. counsel further argued and submitted that if prosecution has failed to prove the harassment and cruelty on account of demand of dowry on record, the accused cannot be convicted u/s 306 IPC also. Ld. counsel for accused persons further relied upon the following judgments:
1) Tarun @ Gautam Mukherjee Vs State of West Bengal - 2000 (4) CRIMES 260 (SC);
2) Anil Kumar Vs State of Punjab 2000 (4) CRIMES 283 (SC);
3) Hans Raj Sharma & Ors. Vs State of Govt of NCT (Delhi) 2010 (2) JCC 972;
4) Shailender Vs State (Govt. of NCT of Delhi) 2010 (2) JCC 1150;
5) Surinder Kaur & Ors. Vs State of Haryana 2004 (2) CR. Court Cases 258 (SC);
6) Arvind Singh Vs State of Bihar AIR 2001 SC 2124;
7) Girdhar Shankar Tawade Vs State of Maharashtra - 2003 (2) CR. Court Cases (SC);
8) Hans Raj Vs State of Haryana 2004 (2) RCR (CR) 58 (SC);
9) Amalendu Pal @ Jhantu Vs State of West Bengal 2010 (1) JCC 133 (SC); and
10) Gangula Mohan Reddy Vs State of Andhra Pradesh 2010 (1) JCC 493.
On these grounds ld. counsel for the accused persons argued and submitted that accused are innocent and they are entitled for acquittal.
28.Contrary to the submissions of ld. counsel for the accused persons, ld. APP argued and submitted that all the material witnesses have been won over by the accused persons hence they have not deposed against accused persons. Ld. APP argued that there is sufficient evidence on record to establish the fact of demand of dowry by accused persons and causing cruelty to deceased. Ld. APP on these grounds argued and submitted that accused persons be convicted.
29.Before reaching at any conclusion the Section 113 B of the Evidence Act is also relevant for the case in hand. Both Sections 304 B IPC and Section 113 B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B which reads as follows : "113 B : Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section `dowry death' shall have the same meaning as in Section 304 B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 B in the Evidence Act has been inserted. As per the definition of `dowry death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". Presumption under Section 113 B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1)The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B IPC ).
(2)The woman was subjected to cruelty or harassment by her husband or his relatives.
(3)Such cruelty or harassment was for, or in connection with any demand for dowry.
(4)Such cruelty or harassment was soon before her death.
27.A conjoint reading of Section 113 B of the Evidence Act and Section 304 B IPC shows that there must be material to show that soon before her death the victim was subjected cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113 B of the Evidence Act and Section 304 B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
30.The expression `soon before her death' used in the substantive Section 304B IPC and Section 113 B 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 livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
31.Careful perusal of the aforesaid proposition of law and observations one of the most ingredients of the offence is that cruelty and harassment must be on account of demand for dowry soon before her death to invoke Section 304B IPC. In the present case the following facts have been proved by prosecution:
i) The marriage of deceased Laxmi took place on 30.04.05 vide marriage card which was taken from the complainant vide seizure memo Ex.PW10/B;
ii) Deceased was subjected to cruelty by accused persons vide depositions of PW1, PW2, PW3 and PW4.
iii)She was found dead hanging on ceiling fan at her matrimonial home vide photographs Ex. PW12/1 to PW12/9 and negatives of each photograph vide Ext.
PW12/10 to PW12/18.
iv)Deceased expired within 13 months of her marriage;
v) No poisonous substance was found in medical examination in dead body of deceased vide detailed report vide Ex PW15/A.
vi)Deceased Laxmi expired on 08.06.06 while motorcycle was purchased on 12.01.06 vide RC Ex.DW1/A.
vii)Deceased Laxmi was having apprehension of fear of torture and harassment by accused persons.
32.The presumption u/s 113B of the Evidence Act for the purpose of section 304B can only be used when the death of deceased must have been "soon before her death subjected to cruelty or harassment" "for or in connection with the demand of dowry". Presumption u/s 113 B is a presumption of law. The Hon'ble Apex Court in 'Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, (SC)' reiterating and elaborating the similar principles defining section 498A IPC and 304B IPC observed that:
"12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred with seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh, 1991(3) RCR(Crl.) 97 (SC) :
AIR 1991 SC 1142). Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
"13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 2. Definition of `dowry' In this Act, `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 parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.
Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
"14. The word "dowry" in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) : 2002(1) SCC
633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."
33.While parting with the part of the judgment this court would like to make observations to discuss section 306 IPC which refers to abatement to commit suicide as the alternative charge u/s 306 IPC has also been framed against accused persons in this case. . In a case 'Wajir Chand State of Haryana AIR 1989 SC 378' it was observed that in order to convict any person for instigating any person to commit suicide, it is to be established that the victim committed suicide. It was further held in 'Ramesh Kumar Vs State of Chhatishgarh (2001) 9 SCC 618' that Section 498 A, 306 A IP Code are independent and constitute different offences, though, depending on the facts and circumstances of an individual case subjecting woman to cruelty may amount an offence u/s 498A and may also if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide amount to abatement to commit suicide, however, merely because an accused has been held liable to punish u/s 498A, IP Code it does not follow that on the same evidence he must also and necessarily be held guilty of having abated the commission of suicide by the woman concerned.
34.On careful perusal of the aforesaid observations and preceding discussion and testimony of all the material witnesses i.e. PW1 Raj Kumar - brother of deceased, PW2 Urmila sister of deceased, PW3 Shanti - Mausi of deceased and PW4 Savitri - mother of deceased it is proved on record that :
(a)The marriage of deceased Laxmi took place on 30.04.05 vide marriage card which was taken from the complainant vide seizure memo Ex.PW10/B;
(b)Deceased was subjected to cruelty by accused persons vide depositions of PW1, PW2, PW3 and PW4.
(c)She was found dead hanging on ceiling fan at her matrimonial home vide photographs Ex. PW12/1 to PW12/9 and negatives of each photograph vide Ext.
PW12/10 to PW12/18.
(d)Deceased expired within 13 months of her marriage;
(e)No poisonous substance was found in medical examination in dead body of deceased vide detailed report vide Ex PW15/A.
(f)Deceased Laxmi expired on 08.06.06 while motorcycle was purchased on 12.01.06 vide RC Ex.DW1/A.
(g)Deceased Laxmi was having apprehension of fear of torture and harassment by accused persons.
35.The aforesaid findings of the case goes to indicate that deceased was subjected to harassment and cruelty vide depositions of PW1 Raj Kumar, PW2 Urmila, PW3 Shanti and PW4 Savitri as a result of which she could not tolerate further. The immediate demand for dowry is a decisive factor to prove on record which can indicate that cruelty or harassment was caused soon before her death to convict accused U/s.304(B)IPC. DW1 in his statement has proved on record that motor cycle was purchased by him vide Ex.DW1/A. However, DW1Krishan Kumar Srivastava who happens to be the most material witness in this case since the allegations of torture and demand of dowry soon before death is involved which may decide the probability regarding the reasonableness of the demand for dowry. The allegations for demand of dowry as per the deposition of PW2 Urmila are that the accused persons demanded in dowry a motor cycle and cash Rs.10,000/. However, in the case in hand the motorcycle was purchased prior to the incident vide RC Ex.DW1/A, which goes to suggest that it is difficult to arrive at the conclusion that alleged motorcycle in dowry could have been demanded by the accused persons soon before the death. So long as the question of demand for dowry of Rs.10,000/ is concerned, in this regard nothing has come on record which can give reasonable inference to draw that Rs.10,000/ was demanded for confirmation of dowry. But it is on record that deceased Laxmi was subjected to cruelty by accused persons as per the depositions of PW1 Raj Kumar, PW2 Urmila, PW3 Shanti and PW4 Savitri and the factum of committal of suicide by deceased within 13 months of her marriage directly reflects that she had been subjected to torture and harassment at the hands of the accused persons as a result of which having found no way for her dignity she was compelled to commit suicide.
36.This aspect of proof can be inferred from the testimony of PW2 as it has come on record in the testimony of PW2 that Guddu, Rinku and Neelu, her father in law and mother in law gave beatings after 2 3 days immediately after leaving her parental home for her matrimonial residence by the deceased and consequent upon this after 8 days of this incident she found having been committed suicide. This aspect of the deposition directly indicate to draw inference that on the day of Janamashtmi when husband and father in law of deceased Laxmi visited to her house and Laxmi did not accompany them on account of apprehension of fear and torture and harassment. However, consequently, she joined her matrimonial home and having met with similar treatment of harassment and cruelty she committed suicide. This fact of cruelty and and comittal of suicide has reasonable nexus between the death of deceased Laxmi and the harassment as within the period of 13 (Thirteen) months of marriage deceased Laxmi committed suicide.
37.In addition to, it has also come on record in the testimony of PW1 Raj Kumar who is the brother of the deceased Laxmi that on Lagan ceremony a demand of Rs. 75000/ was put by the family of principal accused Ajay @ Suraj. This demand was fulfilled prior to the celebration of marriage. It is interesting to note that Lagan ceremony to my view is celebrated before marriage as is clear from the order of Ld. Hon'ble High Court of Delhi order dated 10.11.2006 and vide deposition of PW1 Raj Kumar.
38.In this case the marriage of deceased Laxmi and accused Ajay @ Suraj took place on 20.5.2005 and the deceased committed suicide on 8.6.2006 at her matrimonial home i.e within the period of 7 years. It is also on record in the deposition of PW1 Raj Kumar that on Holi, the accused persons demanded a motorcycle but the same could not be fulfilled and they were asked to wait for sometime. It is further on record that on 7.6.2006, deceased Laxmi prior to two days of her death made a call to her parental home regarding apprehension of her killing.
39.PW2 Smt. Urmila, a younger sister of deceased Laxmi in her statement categorically testified that the accused persons demanded Rs. 10,000/ and a motorcycle after completion of 3 months of marriage. In this regard, it is observed that neither any date with regard to the demand for dowry has come on record nor it can be believed reasonably that for a petty sum of Rs. 10,000/ one can cause harassment of the nature which can compel to commit a suicide by a person in ordinary course of nature and understanding, particularly when there is no assumption of mental infirmity or other sort of disability has come on record with regard to the state of mind and physical body of deceased Laxmi. The charge U/s. 498A/304 B /34 IPC and alternatively a charge U/s. 306/34 IPC was framed vide the then Ld. Predecessor of the Court order dated 22.9.2006.
40.It is well settled proposition of law U/s. 304 B the onus to prove cruelty and demand for dowry soon before the death is on prosecution. After discharging this onus the dowry death is presumed to have been committed by accused within the meaning of section 304 (B)IPC and 113 (B) of Evidence Act. In the case in hand though there is a allegation of Rs. 10,000/ for demand of dowry but no discrete particulars has come on record in the evidence so this factor goes to indicate that some other more material is also required to believe that the act of the accused persons is within the boundary line of dowry death within the meaning of section 304 (B)/34 IPC.
41.So long as the demand for motorcycle is concerned in this regard also no specific date, time and place has been brought on record so both these allegations for demand of dowry are beyond reasonableness to believe that a demand for dowry was put by the accused persons soon before the death, particularly, in view of the fact that the accused has examined two defence witnesses namely DW1 Krishan who is the father of deceased husband and DW2, Vijay who is the brother of deceased husband. In the statement of DW1 Krishan it has come on record that he got financed motorcycle from a finance company after the marriage of Ajay in the name of younger son Vijay and in this regard he got exhibited photocopy of registration certificate of the said motorcycle vide photocopy Ex. DW1/A ((Original seen and returned). DW2 Vijay during the course of cross examination also deposed that his father purchased a motorcycle in his name by way of evidence from a private company vide photocopy already Ex. PW1/A. I have also perused their crossexamination. Nothing has come on record in the cross examination which goes to indicate that DW1 and DW2 were not of having such a capacity to purchase motorcycle.
42.In view of the above discussion I am of the view that an offence U/s. 304 (B)/34 IPC could not be proved beyond reasonable doubt as the evidence on record regarding demand of dowry Rs. 10,000/ and one motorcycle has not been moved beyond reasonable doubt by the prosecution precisely for the reasons that neither any specific date for demand of Rs. 10,000/ nor any specific date with regard to motorcycle has been brought on record.
43.The arguments of ld. Counsel for the accused that all the material witnesses are the kith and kin of deceased Laxmi and the conviction on the statement of these witnesses without any corroboration from other material source is bad in law. Ld. Counsel for the accused has also argued that no prudentman can commit suicide merely on account of non serious remarks. It can be concluded from the proposition of material witnesses PW1 Raj Kumar, PW2 Urmila, PW3 Shanti, and PW4 Savitri. as they have made substantial improvements in their depositions and have been got confronted with the statement recorded U/s. 161 CrPC. He has also argued that there are number of contradictions in the depositions of all the four witnesses. I have gone through these aspects of the arguments and I find that the improvements in the testimony of all these witnesses are directly attributable to the facts that at the time of incident or during the colling time it is very difficult by a person to express the events in each and every minute details in the ordinary course of nature. Therefore, I do not find any substance in the argument of Ld. Counsel for the accused as contradictions in the cross examination are also of minor in nature.
44.In view of these observations and discussions I am of the view that prosecution could not prove the fact of demand of dowry soon before the death beyond reasonable doubt on account of my discussion in the preceding paras. Therefore, I acquit the accused persons Ajay @ Suraj and Smt. Sheela for the offence U/s. 304 B IPC. However, the prosecution has proved the case beyond reasonable doubt for the offences U/s. 498A/306/34 IPC for the reasons discussed in the preceding paras.
Accordingly, accused persons
namely Ajay @ Suraj and Ms.
Sheela are convicted for the
offences U/s. 498A/306/34 IPC.
Both the accused are acquitted U/s.
304 B IPC.
ANNOUNCED IN THE OPEN
COURT ON THIS 18.09.2010
(RAJ KAPOOR)
ADDL. SESSIONS JUDGEI/NORTH EAST
KARKARDOOMA COURTS: DELHI.
FIR No. 306/06
State Vs Ajay @ Suraj & Ors
Police Station Welcome
Convicted Under 498A/ 306 IPC
Section
20.09.2010
Pre: Ld. APP for the state.
Convict persons in JC.
Ld. Counsel Sh. Dharmender for convict persons. Complainant Savitri (mother of deceased) in person. Vide separate order on the point of sentence, I sentence convict Ajay to undergo 7 years R.I. and to pay a fine of Rs.2000/- in default further three months R.I. for the offence punishable under section 306 / 34 IPC and further to undergo 3 years R.I. and to pay a fine of Rs.2000/- in default one month further R.I. for the offence u/s 498 A/ 34 IPC.
Again I sentence accused Smt. Shila to undergo 4 years R.I. and to pay a fine of Rs.1000/- in default further one month R.I. for the offence punishable under section 306 / 34 IPC and further to undergo 1 year R.I. and to pay a fine of Rs.1000/- in default 15 days further R.I. for the offence u/s 498 A/ 34 IPC. All the sentences shall run concurrently. Benefit of section 428 Cr. P.C. be given to them. Copy of the judgment and order on sentence be given to the convict persons forthwith. File be consigned to record room .
(RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/ POLC XII NORTH EAST KARKARDOOMA COURTS: DELHI IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE-1 (North-East): KARKARDOOMA COURTS:
DELHI FIR No. 306/06 State Vs Ajay @ Suraj & Ors Police Station Welcome Convicted Under 498A/ 306 IPC Section ORDER ON THE POINT OF SENTENCE 20.09.2010 Pre: Ld. APP for the state.
Convict persons in JC.
Ld. Counsel Sh. Dharmender for convict persons. Complainant Savitri (mother of deceased) in person. Arguments heard on the point of sentence. During the course of arguments on the point of Order on sentence, ld. counsel submits that convicts persons namely Ajay @ Suraj and Smt. Shila are very poor persons. Ld. counsel again submits that there is no previous criminal antecedents against any of convict persons. Ld. counsel further submits that convict Ajay @ Suraj is aged about 25 years old and he has already remained in custody for about 23 months. Ld. Counsel further submits that he has been re-marriage and now he has wife and young sister of marriageable age and old father to look after.
ld. counsel further submits that convict Smt. Shila is aged about 50 years old and she has young daughter of marriageable age along with other 3 children to look after. On these grounds ld. counsel for convict persons namely requests for taking lenient view.
Contrary to the submissions of ld. counsel for the convict persons, Ld. APP strongly opposes the submissions of defence counsel since offence is of very serious nature and convict persons have already been acquitted for the offence u/s 304 B IPC and have been convicted for the offence u/s 498A/ 306 IPC.
Keeping in view of the age, antecedents, individual and family circumstances of convict persons, the court is of the considered view that it will be in the interest of justice if convict Ajay is sentenced to undergo 7 years R.I. and to pay a fine of Rs.2000/- in default further three months R.I. for the offence punishable under section 306 / 34 IPC and further to undergo 3 years R.I. and to pay a fine of Rs.2000/- in default one month further R.I. for the offence u/s 498 A/ 34 IPC. Again ends of justice will be met if accused Smt. Shila is sentenced to undergo 4 years R.I. and to pay a fine of Rs.1000/- in default further one month R.I. for the offence punishable under section 306 / 34 IPC and further to undergo 1 year R.I. and to pay a fine of Rs.1000/- in default 15 days further R.I. for the offence u/s 498 A/ 34 IPC. All the sentences shall run concurrently. Benefit of section 428 Cr. P.C. be given to them.
Accordingly, I sentence convict Ajay to undergo 7 years R.I. and to pay a fine of Rs.2000/- in default further three months R.I. for the offence punishable under section 306 / 34 IPC and further to undergo 3 years R.I. and to pay a fine of Rs.2000/- in default one month further R.I. for the offence u/s 498 A/ 34 IPC.
Again I sentence accused Smt. Shila to undergo 4 years R.I. and to pay a fine of Rs.1000/- in default further one month R.I. for the offence punishable under section 306 / 34 IPC and further to undergo 1 year R.I. and to pay a fine of Rs.1000/- in default 15 days further R.I. for the offence u/s 498 A/ 34 IPC.
All the sentences shall run concurrently. Benefit of section 428 Cr.
P.C. be given to them.
ANNOUNCED IN THE OPEN COURT ON THIS 20.09.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/ POLC XII NORTH EAST KARKARDOOMA COURTS: DELHI