Delhi District Court
State vs 1 Mahender S/O Sewa Ram, on 19 March, 2010
IN THE COURT OF MANOJ JAIN: ADDL. SESSIONS JUDGE/
SPECIAL JUDGE (NDPS): OUTER DISTRICT: ROHINI:
DELHI
SC No.01/2008
FIR No.272/08
PS Nangloi
U/s 498A/304B/34 IPC
State Versus 1 Mahender s/o Sewa Ram,
R/o B26, Ambika Enclave,
Nihal Vihar, Nangloi,
New Delhi.
2 Sewa Ram s/o Mani Ram,
R/o B26, Ambika Enclave,
Nihal Vihar, Nangloi,
New Delhi.
3 Parvati w/o Sewa Ram,
R/o B26, Ambika Enclave,
Nihal Vihar, Nangloi,
New Delhi.
Date of filing :06.08.2008
Date of conclusion of arguments :10.03.2010
Date of decision :19.03.2010
JUDGMENT
1 All the accused persons have been sent up to face trial for commission of offences u/s 498A/304B/34 IPC. 2 Investigation took off on the basis of one telephonic information whereby Police Post Nihal Vihar was informed by the caller on 16.04.2008 at 2.20 PM that his Bhabhi had hanged (FIR No. 272/08 PS Nangloi) 1 herself at B26, Ambika Enclave, Nihal Vihar. Police officials reached at the spot where they found Renu (wife of accused Mahender) hanging in room of her first floor house. It was found that she had hanged herself with the help of one chunni which was found wrapped around her neck and the other end was found tied with the hook of ceiling fan. Relatives of deceased and learned Executive Magistrate were informed about the incident. Crime Team also reached at the spot. Dead body was brought down and was sent to mortuary of SGM Hospital. Parents of deceased reached at the spot along with their son Kuldeep Singh. Their statements were recorded wherein they levelled allegations of cruelty and demand of dowry against accused Mahender as well as his parents. On 17.04.2008, accused Mahender was arrested. As per report of autopsy surgeon, cause of death was asphyxia as a result of ligature pressure on neck structures produced by hanging. Other two persons i.e. accused Sewa Ram and accused Parvati (parents of accused Mahender) could not be apprehended and coercive process was issued against them.
3 Chargesheet qua accused Mahender was filed in the Court on 11.07.2008 and it was mentioned therein that (FIR No. 272/08 PS Nangloi) 2 supplementary chargesheet against other two absconding accused persons would be filed later on.
4 Supplementary chargesheet qua other two accused persons was also filed before the concerned Magisterial Court on 13.08.2008.
5 Case was received on allocation by this Court. 6 All the accused persons were ordered to be charged u/s 498A/304B/34 IPC vide order dated 06.10.2008. They all pleaded not guilty and claimed trial.
7 Prosecution was directed to adduce evidence and has examined sixteen witnesses viz PW1 Sita Ram (father of deceased), PW2 Urmila (mother of deceased), PW3 HC Narender Kumar (MHCM), PW4 Kuldeep (brother of deceased), PW5 Sh. B.P. Mishra (Executive Magistrate, Punjabi Bagh), PW6 Ct. Rajesh Kumar, PW7 HC Jai Bhagwan (duty officer), PW8 WHC Sudesh (DD Writer), PW9 Dr. V.K. Jha (Autopsy Surgeon), PW10 Ct. Sanej, PW11 ASI Ramesh Chand (Photographer of Crime Team), PW12 SI Baljeet Singh (Incharge Crime Team), PW13 Om (FIR No. 272/08 PS Nangloi) 3 Prakash (brother of deceased), PW14 HC Krishan Kumar, PW15 Joginder Pal (first investigating officer) and PW16 Insp. Jarnail Singh (second investigating officer).
8 All the accused persons, in their respective statements u/s 313 Cr.P.C., pleaded innocence. Accused Mahender claimed that his wife i.e. deceased Renu wanted to live separately i.e. away from her inlaws. He also claimed that he never tortured his wife and never demanded any dowry. His parents also pleaded the same.
9 Accused, however, did not choose to lead any evidence in defence.
10 I have heard Ms. Purnima Gupta, learned Addl. P.P. for the State as well as Sh. R.K. Singh, learned counsel for complainant. Sh. Biswajeet Singh, learned defence counsel has defended all the three accused persons.
11 Sh. R.K. Singh, learned counsel for complainant has assisted learned Prosecutor and has contended that the case stands proved to the hilt. He has contended that all the requisite (FIR No. 272/08 PS Nangloi) 4 ingredients of Section 304B IPC are found to be existing and Renu had committed suicide as she was subjected to cruelty continuously as well as soon before her death. He has also argued that parents of deceased were illiterate and even if there are minor contradictions or insignificant improvements in their testimony, such fact by itself cannot make the prosecution story doubtful. He has argued minor contradictions are bound to appear in any criminal matter and, therefore, no serious attention should be given to such insignificant inconsistencies or contradictions. Learned Addl. P.P. has also contended that element of cruelty has been duly proved by the parents of deceased as well as by her brothers and it becomes very much apparent that all the accused persons had treated the deceased with cruelty and there was constant and consistent demand of dowry and Renu could not withstand such incessant demands made by the accused persons and, therefore, chose to finish her life.
12 Learned defence counsel Sh. Biswajeet Singh has, on the other hand, refuted all the aforesaid contentions. He has argued that there was never any demand of dowry and there is nothing to even remotely imply that deceased was subjected to (FIR No. 272/08 PS Nangloi) 5 cruelty soon before her death. He has argued that deceased Renu had committed suicide but her such act of suicide had nothing to do with the conduct of the accused persons. He has argued that only deceased could have given the reason as to why she had chosen to finish her life though as per her husband she wanted to live away from her inlaws and wanted to stay alone with her husband and accused Mahender was not able to fulfill her such desire as in that eventuality, there would not have been anyone to look after his aged parents. He has also argued that the testimony on record does not show element of cruelty and all the interested witnesses have come with improvements and material contradictions. He has also heavily relied upon one Talaknama and one compromise deed. These documents were placed on record by material prosecution witness and Sh. Biswajeet Singh has contended that even these documents categorically indicate that there were temperamental differences between the husband and the wife and, therefore, only Renu had, at one point of time, chosen to live away and both the sides had even divorced each other. He has argued that, thereafter, matter was patched up and they both started living together and even at that time it was agreed in writing that there would not be any interference in their matrimonial life from the side of her parents. He has (FIR No. 272/08 PS Nangloi) 6 argued that prosecution has failed to place on record any other material which may show that at any point of time, deceased Renu was ever subjected to cruelty. He has also contended that both the minor tiny tots of deceased continue to be with parent inlaw of Renu and if at all accused were guilty, the complainant party would not have wasted even a second in seeking their custody but no step was taken primarily due to the fact that accused were not responsible for the death of Renu. 13 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
14 I have considered the language used in sec 304 B IPC, Sec 498A IPC, Section 2 of the Dowry Prohibition Act, 1961 and Section 113B of the Indian Evidence Act. From cumulative analysis of said provisions, it becomes evident that in order to press charge for commission of offence under Section 304 B IPC the following ingredients are, in essence, required to be shown by the prosecution:
(i) The death of the woman must have been caused within seven years of her marriage;(FIR No. 272/08 PS Nangloi) 7
(ii) Such death should be due to burn injury or bodily injury or should occur otherwise than in normal circumstance;
(iii) Soon before her death, woman must have been subjected to cruelty by her husband or any relative of her husband;
(iv) Such cruelty or harassment must be for or in connection with the demand of dowry.
15 Let me deal with each ingredient one by one. 16 There is no major contention from any side with respect to investigational aspect. All the concerned police officials have entered in witness box and all the relevant documents have been duly proved.
17 There is no scope of debate with respect to first ingredient. Marriage in question had taken place on 08.11.2003 and such fact is not disputed by the defence. It is also not in dispute that deceased Renu had died on 16.04.2008 and thus the death of Renu is found to be within seven years of her marriage. It would he, however, worthwhile to mention that when the father of deceased entered into witness box, he had given the date of (FIR No. 272/08 PS Nangloi) 8 marriage as 08.11.2001. It seems to be a typographical error. Moreover, PW2 Urmila has given the date of marriage as 08.11.2003 and PW4 Kuldeep as well as PW13 Om Prakash have also very categorically claimed that marriage had taken place on 08.11.2003. Aforesaid clerical error is of no consequence more so when defence does not dispute the date of marriage as 08.11.2003. First ingredient, therefore, stands proved. 18 It is nobody's case that the death of Renu is natural or is under normal circumstances. As per case of prosecution, it is a case of suicide and defence also does not seem to be at odds. As per prosecution, it was only due to the cruelty and the harassment meted out to her that she was compelled to take such an extreme step and finished her life by committing suicide whereas according to defence, Renu had committed suicide due to her own unexplained and undisclosed reasons though she wanted to live away from her parentsinlaw. Postmortem was conducted by PW9 Dr. V.K. Jha. He has also entered into witness box and has proved his postmortem report as Ex. PW9/A and he deposed that on examination, there was obliquely placed ligature mark present on front and sides of neck going upwards and backwards towards posterior hairline. As per him, the cause of (FIR No. 272/08 PS Nangloi) 9 death was asphyxia as a result of ligature pressure over neck structures produced by hanging. Thus, it is a clear case of suicide. It would be, however, not out of place to mention here that after the postmortem, viscera was preserved and when it was sent to forensic laboratory for analysis, no poison was detected and on the basis of postmortem report and viscera report, final opinion was also given by Dr. V.K. Jha. However, when Dr. Jha entered into witness box, State failed to draw his attention towards such final opinion. Omission in this regard seems to be due to oversight or inadvertence but fact remains that since no common poison was detected, there was no change in the opinion of the doctor and, therefore, such lapse does not carry and weightage as cause of death remains unaltered. Testimony of Dr. Jha is also uncontroverted. Though complainant party always felt that Renu could not have committed suicide and she had been killed by accused yet in view of the medical report and also keeping in mind the photographs and the testimony of police officials as well as of crime team, it stands proved that death in question was suicidal one. It is also settled legal position that expression "otherwise than under normal circumstances" appearing in Section 304B IPC includes suicidal death. Thus, the second ingredient also stands proved.
(FIR No. 272/08 PS Nangloi) 10 19 Remaining two ingredients, together, are the crunch issues and I intend to take up these ingredients together. According to prosecution, there were constant demands of dowry and, therefore, only Renu had committed suicide whereas according to defence, there was never any such demand or cruelty. It would be appropriate if I refer to the relevant legal provisions.
Section 304B IPC "304B. Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. For the purpose of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
Section 2 of the Dowry Prohibition Act, 1961 (FIR No. 272/08 PS Nangloi) 11 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 mahr in the case of persons to whom the Muslim Personal Law (Shariat) applied."
Section 113B Evidence Act "113B. 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 304B of the Indian Penal Code (45 of 1860)"
Section 498A IPC "498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
(FIR No. 272/08 PS Nangloi) 12 Explanation. For the purposes of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
20 Expression cruelty is not defined under Section 304B IPC but it has certainly been defined under Section 498A IPC. Both the offences are virtually corelated and interwoven intrinsically. Therefore, there is no difficulty in borrowing the definition of cruelty as given under Section 498A IPC in order to assess whether the cruelty exists for the purpose of Section 304B IPC or not. However, such cruelty has to be in connection with demand of dowry and not otherwise.
21 There are four witnesses who can throw light on these vital issues. They are PW1 Sita Ram (father of deceased), PW2 Urmila (mother of deceased), PW4 Kuldeep (brother of deceased) and PW13 Om Prakash (brother of Kuldeep). (FIR No. 272/08 PS Nangloi) 13 22 PW1 Sita Ram is the father of deceased and he has deposed that he had performed the marriage of his daughter with pomp and show. He has deposed that he had given 15 tolas of gold, one Pulsar motorcycle besides other articles. He also deposed that his daughter used to be illtreated by all the three accused persons and they used to treat her with cruelty on account of demand of dowry. He also deposed that accused Parvati demanded half tola gold after about one month of the marriage and accused Mahender had also demanded a sum of Rs. 5,000/. He also deposed that in order to keep his daughter happy, he met some of their demands but all the accused used to ask Renu to bring cash and gold and they kept on torturing her for four years in the similar manner.
23 PW2 Urmila is mother of the deceased. She can be assumed to be the best person in whom Renu could have easily confided. She has also deposed that marriage was good and decent one and they had given 15 tolas of gold and one Pulsar motorcycle besides other household articles in the marriage. She also deposed that at the time of marriage, tops weighing half tola were given to accused Parvati but since Parvati claimed that she used to wear jhumki, one jhumki weighing 1½ tola was given to (FIR No. 272/08 PS Nangloi) 14 her. She has also claimed that accused Sewa Ram had also demanded ring of half tola of gold and that was also given to him. She also deposed that her daughter was not kept properly and she was tortured and at the time of marriage Renu was having good health and was having 60 kgs weight but her weight reduced to mere 30 kgs. She deposed that her daughter was kept as maid and she was made to work in extreme adverse conditions and all the accused persons were responsible for the death of her daughter and they all had killed her.
24 PW4 has also deposed that sufficient dowry was given but just after the marriage, all the accused started ill treating Renu and subjected her to cruelty and harassment by way of physical beatings as well as mental cruelty on account of insufficient dowry as well as by asking for more dowry. PW13 Om Prakash has also deposed that all the accused started torturing Renu after marriage on the point of dowry and they had given dowry as per their capacity which included one motorcycle, 15 tolas gold, gift items, electronic items like fridge, TV etc. but despite that all the accused used to demand more dowry. He has also deposed that his sister used to tell that she used to be beaten up by the accused and they used to mentally torture her with (FIR No. 272/08 PS Nangloi) 15 respect to dowry.
25 However, there is one material aspect of the case which I cannot resist commenting upon. Marriage had taken place on 08.11.2003 and when there were alleged immediate demands of dowry and when complainant side felt that accused were not going to mend their ways, they brought back Renu to their home. PW4 Kuldeep has deposed that when they learnt about the fact of cruelty, they had gone to the house of accused persons for reconciliation but when they learnt that accused persons were persistently asking for more dowry, they brought Renu back to home. PW13 Om Prakash has also deposed that when Renu informed them about such demand of dowry, they met accused but since accused did not relent, they brought Renu back. He also deposed that Renu was brought back within 23 months of her marriage. PW4 Kuldeep had made statement before the SDM and in his such statement also, he had claimed that they had brought back Renu. In his such statement Ex. PW4/A, he also claimed that thereafter Mahender, his father and other people of colony had come to their house and matter was patched up and they had taken back Renu and they had also taken back all the dowry articles and it was also reduced in writing that (FIR No. 272/08 PS Nangloi) 16 they would not make any further claim of dowry. But despite that they started torturing Renu again and started demanding dowry. According to him, thereafter, accused Parvati made demand of half tola of gold and accused Sewa Ram demanded 15 tolas of gold. PW2 Urmila had also stated before the SDM that Renu was brought back by them but family of accused Mahender and other colony people had come to their house and matter was patched up and she was taken back and it was also reduced in writing that they would not claim further dowry but despite that they did not stop atrocities and accused Parvati used to entice accused Mahender and used to demand half tola of gold. 26 Though witnesses had whispered about some patch up (samjhota) and also claimed that it was reduced in writing but no such document was collected by the investigating agency for judicial scrutiny.
27 When PW2 Urmila entered into witness box, she made request that compromise deed and Talaknama had been brought by her and these be taken on record. These were taken on record and were marked as Mark PW2/A and Mark PW2/B. I lay emphasis on this particular aspect of the case. These two (FIR No. 272/08 PS Nangloi) 17 documents were produced on record by the mother of the deceased. Thus, for all practical purposes, it can be safely assumed that prosecution intends to rely upon these two documents. Copies of these documents were supplied to defence as well. Defence also does not have any qualm qua these two documents. Of course, fact admitted need not be proved either and mere nomenclature of documents does not make it admissible or otherwise. In a given situation, even a Marked document can be read and in another situation, even exhibited document can be completely ignored.
28 I have seen both these documents. First document is titled as Aapsi Talaknama (mutual divorce deed) and is dated 15.02.2004. Undoubtedly, it is only a photocopy but the signatures of the parties are found to be original signatures. Moreover, defence also has not raised its eyebrow regarding this technical point and rather admits the document. In such mutual divorce deed, it has been categorically mentioned that both the sides had agreed to give divorce to each other and would live separately as they were not able to live together due to mismatch of thoughts ( Aapas main vichar na milney ke kaaran). Thus, unquestionably, they had agreed to live separately due to (FIR No. 272/08 PS Nangloi) 18 temperamental differences and incompatibility. It was also agreed that all the dowry articles, which had been given from the side of girl to the side of groom, would be returned same day. Such deed also contains list of the dowry articles and bears signatures of Sita Ram (father of Renu). There are signatures of six witnesses and four of such witnesses are found to be from the side of complainant party. According to the prosecution, cruelty started immediately after the marriage but no such fact is mentioned in such divorce deed. Reason given is found to be entirely different. Moreover, PW1 Sita Ram has not mentioned even a single word to the effect that he did not know contents of any such divorce deed or that he was made to sign such divorce deed or that someone had taken undue advantage of his illiteracy and had obtained his signatures on such deed. Similarly, PW2 Urmila has not stated that her husband was forced in this regard or that he had signed without knowing the contents of such deed. She rather deposed that she had told the police about the compromise deed and had even given copies of these two documents but police did not keep those documents. 29 Let me also see the second document i.e. compromise deed. It is again a photocopy but fact remains that it (FIR No. 272/08 PS Nangloi) 19 has been placed on record by none other than the mother of deceased and as per such compromise deed dated 24.07.2004, both the parties had entered into compromise and Renu was sent back to her matrimonial home without any further article and dowry and it was also agreed that first party i.e. Sita Ram and his wife Urmila would not interfere in the matrimonial life of their daughter Renu. It also bears signatures of Sita Ram as well as RTI of Urmila Devi.
30 PW4 Kuldeep has tried to raise a question mark with respect to manner of execution of these documents. He has deposed that Talaknama was got executed in the presence of respectable persons of the society but further claimed that his parents were illiterate and his mother had put her thumb impression and his father had put his signatures on those documents which had been got prepared by the accused persons. In his crossexamination, he claimed that Talaknama was got executed by force as they were unable to fulfill the demand of further dowry. He also claimed that he did not remember as to who were those person who had signed the Talaknama as the same was got executed in the presence of his parents and several other persons and he was not present at that time as he was not (FIR No. 272/08 PS Nangloi) 20 feeling well. PW13 Om Prakash has also deposed that with the intervention of mohalla people, matter was patched up and Renu was taken back. He also deposed that his parents were illiterate and they had signed some papers and at that time, he was away to work at that time. He also claimed that he did not read settlement paper even afterwards and he had not given those papers to the police. He deposed that such papers were rather taken away by the accused persons.
31 These two documents are very noteworthy as these indicate that there was temperamental disparity between Mahender and his wife Renu and, therefore, they had agreed to live separately. After five months or so, there was patch up between the two and Renu was taken back by accused persons without any dowry. It is important because as per the first document Mark PW2/A when the parties had agreed to give divorce to each other and had agreed to live separately, it was also simultaneously agreed that all the dowry articles would be returned back to the complainant side same day. All such articles were, in fact, returned and when Renu entered into compromise, such articles did not accompany her as per contents of compromise deed. Kuldeep, however, tried to claim contrary to (FIR No. 272/08 PS Nangloi) 21 the document attested by his parents as in his statement Ex. PW4/A, he had claimed that Mahender, his father and other people of colony had come to their house and matter was patched up and they had taken back Renu and they had also taken back all the dowry articles. This is not believable as when police had seized the dowry articles immediately i.e. on 18.04.2008, it could seize one sofa set, chairs and one sewing machine only. The list submitted by Sita Ram was very long one as is clear from Ex PW 16/ B but recovery of negligible articles only indicates that when Renu was taken back again, she returned alone and dowry articles were not returned back at all. More so, said stance of Kuldeep before SDM, at least, establishes that dowry articles were, in fact, returned back to complainant party as else there would not have been any occasion of returning those again to accused party.
32 As already noticed above, Talaknama bears signatures of four witnesses who are found to be from the side of the complainant as is apparent from their addresses. If at all the complainant party felt that documents were not executed properly or that signatures were obtained in forcible or fraudulent manner then there was no one to prevent the (FIR No. 272/08 PS Nangloi) 22 complainant party from making request that these witnesses be also called. I am not inclined to believe that these documents were obtained under pressure by taking undue advantage of illiteracy. Moreover, parents of deceased have not even made a murmur in this regard and it seems to be figment of imagination of siblings of Renu only. Moreover, conduct of Kuldeep Singh and Om Prakash also does not seem to be commonsensical. They both are welleducated and were wellwishers of their sister. They would have certainly seen the contents of both the aforesaid documents before their parents had affirmed the contents by putting their signatures or thumb impression as the case may be. They both have come up with evasive answers as one says that he was unwell that day and the other that he was away to work. Their such story does not seem to be forceful and I am not inclined to accept as true that they did not know about the contents of the documents at all. Moreover, these documents were with the mother of the deceased and according to her she had even shown these documents to the police. If the documents were with complainant party then these were, naturally, very easily accessible to Kuldeep as well as Om Prakash and they could have immediately reported to the police that these documents were obtained under force or coercion. Nothing of (FIR No. 272/08 PS Nangloi) 23 that sort was done.
33 PW1 Sita Ram is a vegetable seller who sells vegetables at rehri. He has no shop. He does not know as to when exactly cash amount of Rs. 5000/ was demanded from him by accused Mahender. He deposed that he had made such demand on account of festival of Bhaidooj. Such payment made to accused Mahender on account of Bhaidooj cannot be said to be a demand fulfilled on account of dowry. PW1 Sita Ram does not have any running bank account. He also deposed that he did not remember the date, month or year when half tola of gold was demanded by accused Parvati. PW2 Urmila has additionally claimed in her testimony that Mahender used to drink a lot and that she used to advise him to keep Renu properly but he never relented. She also admitted that her husband used to sell vegetables on rehri and his daily earnings was Rs. 300500 per day. She also deposed that she had paid Rs. 5,000/ on one occasion and Rs. 10000/ on another occasion to accused Mahender to enable him to purchase a Pulsar motorcycle. She also admitted that she had not stated factum of second payment in her statement before the police. She also deposed that she had also told the police regarding demand of jhumki but when (FIR No. 272/08 PS Nangloi) 24 confronted with her previous statement Ex. PW2/DA, she admitted that such fact was not recorded in her previous statement. She also claimed that she had told the police regarding demand of gold ring made by accused Sewa Ram but admitted that such fact was not recorded in her previous statement Ex. PW2/DA. She also deposed that such demands of jhumki and ring were made after the settlement and demand of new motorcycle was made after the one year of the birth of daughter of Renu. She has claimed that she did not report the instances of demand to the police as she felt that in such scenario, her daughter would be harassed even more. She also admitted that there was no medical examination of her daughter and her daughter had never sent her any letter. PW4 Kuldeep has claimed in his crossexamination that he had completed his L.L.B in December, 2008 and he claimed that he had told the police that accused Mahender had been paid Rs. 5,000/ as well as Rs. 10,000/ for purchasing motorcycle but he claimed that it was for the IO to tell as to why he had not recorded factum regarding second payment of Rs. 10,000/. He also claimed that he did not remember whether such fact of payment of Rs. 10,000/ was stated by him to the SDM or not. He, however, admitted that his statement was recorded by SDM and was read (FIR No. 272/08 PS Nangloi) 25 over to him. He also deposed that he did not remember whether he had stated in his statement u/s 161 Cr.P.C. regarding the demand of jhumki of 1.5 tola gold made by accused Parvati. PW13 Om Prakash has also deposed that he could not tell the number of motorcycle which had been given in dowry. He rather claimed that cash amount was given at the time of sagai and with the help of such amount, motorcycle had been purchased. He also deposed that demands were made by the accused within twothree months of the marriage. He also deposed that there were further demands twothree months after the settlement but he failed to tell the exact, date or month. This witness is, however, not clear whether police had ever recorded his statement or not. In his crossexamination, he initially claimed that police had not taken his statement and police never called him for statement or investigation and police never recorded his statement. He was then shown his one purported statement dated 18.04.2008 and was asked whether it was his statement and if yes when he had made such statement and then he claimed that it was his statement which he had made on 16.04.2008 or 17.04.2008. He also claimed that since he was in disturbed state of mind at that time, he did not remember as to when his statement was recorded.
(FIR No. 272/08 PS Nangloi) 26 34 Learned Addl P.P. and counsel for the complainant have contended that from the testimony of all these four witnesses it becomes very much apparent that they were demands of dowry. They have argued that it really does not matter whether all the requisite details were initially disclosed by them before the police or before the SDM or not. It has been argued that at that point of time, they were in shocked state of mind and, therefore, it was not expected that they would give each and every tiny and minute detail. It has been argued that their deposition before the Court is very convincing and it cannot be said that they had come up with any improvement. It has also been argued that minor contradictions are bound to appear in each and every case and in such type of matters, witnesses cannot be expected to come up with complete precision. With respect to date of demand and with respect to type or amount of demand, it has been argued that overall tone of their testimony clearly indicates that there were demands of dowry and Renu was subjected to cruelty in connection with dowry. It would also be worthwhile to mention here that written submissions were also placed on record by Sh. R.K. Singh, learned counsel for the complainant and he has placed his reliance upon several judgments which are as under:
(FIR No. 272/08 PS Nangloi) 27
(i) Kans Raj v. State of Punjab AIR 2000 SC 2324.
(ii) Pawan Kumar & Ors. v. State of Haryana AIR 1998 SC 958.
(iii) State of Karnataka v. M.V. Manjunathegowda & Anr. AIR 2003 SC 809.
(iv) Kamesh Panjiyar @ Kamlesh Panjiyar v State of Bihar AIR 2005 SC 785.
(v) Balwant Singh v. Partap Singh & Ors. (2000) 9 SCC 352.
(vi) Anand Kumar v. State of Madhya Pradesh 1997 CRI. L.J. 1005 MP.
(vii) Surinder Kumar & Ors. v. State of Punjab 1996 CRI. L.J. 4240 P&H.
(viii) Gulab Chand Mehta & Ors. v. State of Bihar 2001 CRI. L.J. 3802 Patna.
(ix) Public Prosecutor, High Court of A.P. Hyderabad v.
Tota Basava Punnaiah & Ors. 1989 CRI. L.J. 2330 AP.
(x) State of Karnataka v. C. Prakash 1998 CRI.L.J. 1673 KAR.
(xi) Vemuri Venkateswara Rao & Anr. State of Andhra Pradesh 1992 CRI. L.J. 563 AP.
(xii) Nallam Veera Satyanandam & Ors. v. State of A.P. 1996 CRI. L.J. 4034 AP.
(xiii) Sukhdeep Singh Vs. State of Punjab & Ors 2004 Cr.L.J. 1308 P&H 35 On the strength of Kansraj (supra) and State of Karnataka v. M.V. Manjunathegowda (supra), it has been contended that minor contradictions can not be made basis of discrediting the witnesses. He has also contended that plea of defence taken is beyond human imagination as it is not possible that a lady having two minor children in her lap would commit suicide merely on the ground that she wanted to live with her husband away from her parentsinlaw. I have gone through the (FIR No. 272/08 PS Nangloi) 28 written submissions as well as the judgments relied upon by him. 36 Learned defence counsel has refuted aforesaid contentions. He has contended that any amount paid on the account of festival of bhaiduj or any amount given at the time of birth of child cannot be said to be in connection with dowry. He has also argued that there were temperamental differences and, therefore, they had agreed to live separately and even at the time of reconciliation, it was specifically mentioned that there would not be any claim of dowry from their side. He has argued that witnesses have come up with vast improvements as it was never the case of prosecution that after 15 tolas of gold allegedly initially given at the time of marriage, there was fresh demand of 15 tolas of gold. He has argued that PW4 Kuldeep has come up with huge improvement and, therefore, prosecution case is liable to be discarded in toto. He has contended that PW4 Kuldeep and PW13 are educated witnesses and initially also, Renu was brought back by them and if at all accused persons had not changed their ways and were still treating Renu with cruelty then they would not have permitted her to remain there and rather would have immediately brought her back again as even otherwise parents of Renu are residents of Delhi and Matrimonial (FIR No. 272/08 PS Nangloi) 29 Home is also in Delhi.
37 Learned defence counsel has also placed his reliance upon several judgments and I have considered all such judgments as well. Judgments relied upon by defence are as under:
(i) T. Aruntperunjothi v. State Through SHO, Pondicherry (2006) 9 SCC 467.
(ii) Sunil Bajaj v. State of M.P. AIR 2001 SC 3020.
(iii) Jagjit Singh v. State of Punjab AIR 2009SC2133
(iv) Kamesh Panjiyar Alias Kamlesh Panjiyar v State of Bihar (2005) 2 SCC 388.
(v) Hari Ram v Satbir Singh 2009(4) RCR Criminal
634.
(vi) Narayanamurthy v State of Karnataka & Anr.
AIR 2008 SC 2377.
(vii) Bhaskar Lal Sharma & Anr. v. Monica JT 2009(10)SC109.
(viii) Tarsem Singh v. State of Punjab 2009(1) RCR Criminal 573.
(ix) Satnam Singh v. State of Rajasthan AIR 2000SC
423. 38 I have considered the judgments cited by both the sides. There cannot be any scope of discussion with respect to settled legal position. However, in such type of cases, there cannot be any handy or straitjacket formula which may categorically demonstrate and prove cruelty. Each case has to be evaluated in the backdrop of its peculiar circumstances. Undoubtedly, in such type of cases, the Courts do not expect mathematical precision from the witnesses but fact remains (FIR No. 272/08 PS Nangloi) 30 whether the contradiction is major or insignificant has to be decided keeping in mind the factual background and there cannot be any predetermined formula which may denote that a particular contradiction has to be assumed as a major contradiction or minor contradiction.
39 As regards demand of dowry, PW1 Sita Ram has merely claimed that half tola of gold was demanded by accused Parvati after one month of marriage and accused Mahender had demanded Rs. 5000/. When he was crossexamined, he claimed that he could not even say as to when such half tola gold was demanded. He also claimed that he could not say as to when such amount of Rs. 5,000/ was demanded. He had made general and vague allegation that cash and gold was demanded and all the accused persons kept on torturing his daughter for four years in similar manner. His testimony, therefore, does not advance the case of prosecution for want of concrete and specific particulars. Undoubtedly, he is not welleducated man but such specific details can even be provided even by an illiterate. As far as accused Sewa Ram is concerned, PW1 Sita Ram has not said anything in specific except the fact that his daughter was ill treated by all the accused persons. Moreover, according to him, (FIR No. 272/08 PS Nangloi) 31 accused Parvati had demanded half tola gold after one month of the marriage. It has already come on record that thereafter Renu was brought back by her parents and there was a Talaknama and thereafter one compromise deed was also executed on 24.07.2004 and, therefore, alleged previous conduct of demand of half tola of gold after one month of marriage pales into insignificance.
40 As per PW2 Urmila, accused Mahender used to drink a lot and the motorcycle, which had been given to him, was sold by him and he had taken Rs. 15,000/ again for purchase of motorcycle which he did not utilize for purchasing the motorcycle. She also claimed that after marriage, one gold jhumki weighing 1½ tola gold was given to accused Parvati and accused Sewa Ram was also given ring of half tola gold. According to her, such demand of jhumki and ring was made after compromise dated 24.07.2004. However, her husband has not said so and rather he had claimed that half tola gold was demanded after one month of marriage. No specific dates have been given as to when such jhumki and ring were demanded. Nobody knows when such Motorcycle was allegedly sold by accused. There is only bald assertion. Compromise deed is dated (FIR No. 272/08 PS Nangloi) 32 24.07.2004 and date of incident is 16.04.2008 and thus there is big hiatus between these two dates. Couple was blessed with two children during that period also and court cannot be oblivious of such development either. There is no complaint in writing during said period of approximately four years. In such a situation, it would have been much better if PW2 had given the definite details. Moreover, according to her, she had paid a sum of Rs. 15,000/ to Mahender and when her statement was recorded during investigation, she did not tell such fact. Such fact is not found mentioned in her statement made during investigation. According to her, she had also stated to the police about the demand of gold ring and jhumki but these facts are also not mentioned in her previous statement and thus, it is found that she has come up with improvements. Her testimony also, therefore, does not serve the requisite purpose. 41 PW4 Kuldeep has deposed that when earlier they had brought back Renu to their house, Talaknama was executed and when Renu was at their house, they started receiving threatening calls from accused Mahender and Sewa Ram to send Renu back to their house with 15 tolas of gold. According to him, such threats were extended to him telephonically and personally (FIR No. 272/08 PS Nangloi) 33 but with the intervention of respectable persons from both the sides and matter was patched up and Renu was sent back. This story given by him does not seem to be believable at all. When the parties had earlier entered into a Talaknama and both the sides had separated peacefully and when even all the dowry articles were duly returned to the parents of Renu from the side of the accused persons, there was no occasion for any of the accused to have threatened the complainant party either telephonically or personally. Moreover, if at all they were being threatened in such a manner, it is not explained by the prosecution as to why despite such threats, complainant agreed for compromise. PW4 Kuldeep has further deposed that due to previous history, they used to visit matrimonial house of their sister at least once every month or two months and whenever they visited, demand of dowry in the form of cash and gold was made. This is also not believable because earlier also Renu had alleged returned to her parents primarily on account of allegation of cruelty and if thereafter she was again illtreated or maltreated and there were persistent demand of dowry in the form of cash and gold, there was no reason for them to have not taken Renu back again. Would someone tell as to why they allowed Renu to remain there for four years if there were repeated instances of (FIR No. 272/08 PS Nangloi) 34 cruelty? In view of previous separation, they would not have left her at the mercy of accused. Thus his testimony also does not inspire much confidence. PW 13 Om Prakash has also claimed in his cross examination that demands of dowry were made 23 months after settlement but he does not even know the date of settlement. He has also deposed that he could not give the exact date or month of such demands. Moreover, it is not explained as to why the investigating agency did not choose to examine the neighbours of that locality. No other family member from the side of Renu was examined either.
42 Dowry demand emanates from marriage but if money is demanded on account of customary occasion like celebration of Bhaidooj or on the occasion of birth of a child in the family, such demand or payment cannot fall within the ambit of demand of dowry. Reference in this regard be made to Satbir Singh Vs. State of Punjab 2001 Cr.L.J. 4625 SC. 43 Moreover, harassment or cruelty caused to woman should be "soon before her death". 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 (FIR No. 272/08 PS Nangloi) 35 circumstances of each case. Such term is elastic and there is no straitjacket formula which may prove to be handy to say with certainty either way. Suffice, however, to say that the expression "soon before" would normally imply that the interval should not be much between the cruelty and the death in question. There must be existence of a proximate and live link between the two. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasize the idea that her death should, in all probabilities, have been the aftermath and direct consequence of such cruelty or harassment. In other words, there should be a discernible nexus between her death and the dowry related harassment or cruelty inflicted on her. Hiatus elapsed between the infliction of such harassment or cruelty and her death should not be wide and court is to decide on the facts and circumstances of each case, whether the interval in that given case is sufficient to snuff its cord from the concept "soon before her death."
(FIR No. 272/08 PS Nangloi) 36 44 Death in question is of 16.04.2008. If I see the FIR which has been lodged on the basis of report of Sita Ram, Sita Ram has claimed that one month back also, accused had demanded Rs. 5000/ and such demand was also fulfilled. As per FIR, such demand was made by accused Mahender only and name of no other accused has been mentioned with respect to such last alleged demand of dowry. As already noticed, when Sita Ram was crossexamined in this regard, he failed to support the prosecution case. He could not tell the date or even the month when such cash amount of Rs. 5000/ was demanded. Thus a material fact mentioned in FIR has not been proved. Moreover, he claimed that he had made that payment on Bhaidooj festival which cannot fall within the ambit of dowry as customary gifts on important festivals are normally given. PW2 Urmila has also not said anything regarding harassment soon before death. In her examinationinchief, she merely claimed that there were again demands of dowry and her daughter used to be beaten up and on 16.04.2008 she received telephonic call from Mahender that her daughter was no more and that she had committed suicide by hanging. She has not uttered even a single word with respect to any demand or any instance of cruelty or harassment soon before death of Renu. Moreover, I wish to add (FIR No. 272/08 PS Nangloi) 37 that according to Urmila, accused Mahender used to indulge in unnatural sex. In her statement made to SDM, she was very clear in her mind and had claimed that her daughter must have died as that fateful day also she might have been compelled in this regard. Thus, she had given an altogether reason behind her death. Be that it may, fact remains that Urmila has also not revealed anything concrete which may suggest that Renu was subjected to cruelty on account of dowry soon before her death. 45 PW4 Kuldeep has claimed that accused Mahender had asked them to provide some cash as he was willing to purchase motorcycle and initially he was given Rs. 10,000/ in cash and he further deposed that just one month prior to death of his sister, Rs. 5000/ was also given. As already noticed above, Sita Ram has deposed that such amount was given on the festival of Bhaidooj only. PW13 Om Prakash has also claimed that accused Mahender was given a sum of Rs. 5,000/ so that a motorcycle could be purchased. However, he has come up with a new fact as before the Court he claimed that in March, 2008 accused Mahender had demanded Rs. 25,000/ to purchase a motorcycle and accused claimed that only a cycle could be bought for a sum of Rs. 5000/. He also claimed that he had told (FIR No. 272/08 PS Nangloi) 38 all these facts to his parents and his parents claimed that they would try their best to fulfill such demand so that Renu could live happily and was not troubled by the accused. This fact is very imperative. As per prosecution's own witness, Om Prakash had apprised his parents that accused Mahender had refused to accept Rs. 5000/ and wanted more amount. Neither Sita Ram nor Urmila has uttered even a single word in this regard and, therefore, it clearly means that Om Prakash has come up with vast improvement simply to boost the case of prosecution unjustifiably. Moreover, there is no reason as to why such fact was not told by him to the police during investigation. His statement u/s 161 Cr.P.C. is found to be a very brief one and there is no reference regarding any such demand of Rs. 25,000/ made by accused Mahender. Such demand was allegedly made by Mahender only a month back before the incident and there was no one to prevent Om Prakash to have told the police such material fact. Nothing of that sort is found mentioned in his statement or in the statement of any other witnesses. This witness does not stop here and he has further claimed that he was able to arrange further sum of Rs. 20,000/ and then rang up Mahender to inform him that such arrangement had been made. He deposed that such call was picked up by his sister and when (FIR No. 272/08 PS Nangloi) 39 he told her about such arrangement, she started weeping profusely. He has deposed that while weeping, Renu told him that she would not survive any more. Surprisingly, such call was allegedly made by Om Prakash only 23 days before the incident. If that was really so, he could have very easily revealed such vital fact before the investigating agency. Earlier also, Renu had been brought back by them and if at all Renu had said so and if at all her life was in danger, any prudent brother would have rushed to her. After all, according to him, Renu was weeping incessantly and apprehended danger to her life. He should have at least informed his parents about such utterances made by Renu. He, however, chose to sit back in a very relaxed manner and did not do anything at all which fact itself depicts the hollowness in his story. Such telephonic call thus seems imaginary. Om Prakash also deposed that parents of Mahender had demanded 15 tolas of more gold and call was received by him in this regard on his landline as well on 02.03.2008 at 9.30 pm. If that was really so, his parents and brother would have been knowing the same but they have not spoken a word in this regard. After all, this was not a small demand. Moreover, he should have said so in his statement before police but no such fact was revealed by him before the police. On the other hand, he initially kept on claiming (FIR No. 272/08 PS Nangloi) 40 in witness box that he did not make any statement before the police and it was only when he was shown the same by the defence that he admitted his making statement before the police. Thus the element of cruelty 'soon before death' does not stand substantiated to the hilt.
46 In Nasib Chand v. State of Punjab, 2009(3) R.C.R.(Criminal) 285, it has been observed that the principle of law, laid down, was to the effect that the improvements throw doubt on the prosecution story. Improvements made by interest ed witnesses make their testimony vulnerable and reliance cannot be placed on such witnesses. Reference be made to Badruddin Vs. State of Maharshtra 1981 CRI. L. J. 729 SC and Satish Ku mar Batra v. State of Haryana 2009 CRI. L. J. 2447SC. 47 Merely on inferences and assumptions, conviction cannot be recorded. There is a vast distance between "might be true" and "must be true" and prosecution is required to cover entire such distance. In the present case, it has not been able to cover the same.
(FIR No. 272/08 PS Nangloi) 41 48 In view of my aforesaid discussion, I am of the opinion that there is not sufficient material to conclusively hold the accused guilty.
49 All accused are accordingly given benefit of doubt and are acquitted of all the charges. Accused Mahender be released from jail forthwith, if not required in any other case. Bonds of other two accused are cancelled and their respective sureties are discharged.
50 File be consigned to Record Room.
Announced in the open court th on this 19 day of March, 2010.
(MANOJ JAIN) ASJ/ Special Judge (NDPS) Outer District:Rohini Courts:Delhi (FIR No. 272/08 PS Nangloi) 42