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Delhi District Court

(3) Jcc 1966 Titled As State vs Sohan Lal & Ors, Where It Has Been Held ... on 30 May, 2012

           IN THE COURT OF SH. VIRENDER KUMAR GOYAL
      ADDL SESSIONS JUDGE: FAST TRACK COURT 
                             ROHINI:DELHI
SC No. 25/1
Unique Identification No.02404R0124211999

State 

Versus

1.  Rakesh Bali. 
   S/o Sh. Yogesh Bali
   R/o  Z­58, West Patel Nagar, 
   Delhi. 
2.  Yogesh Bali
   S/o  Sh Bhagat Ram Bali
   R/o  Z­58, West Patel Nagar, 
   Delhi. 
3.  Smt Vinay Bali
   W/o  Sh  Yogesh Bali
   R/o  Z­58, West Patel Nagar, 
   Delhi. 
4. Sh. Vikesh Bali
   S/o  Sh  Yogesh Bali
   R/o  Z­58, West Patel Nagar, 
   Delhi.
5.  Smt Rinku Bali 
   W/o  Sh Vikesh Bali
   R/o  Z­58, West Patel Nagar, 
   Delhi. 
            FIR No. 401/99
            PS - Patel Nagar
            U/s. 498A/304B/34 of IPC



SC No.25/1                                     1
                Date of institution of the case:  18/09/1999.
               Arguments heard on: 10/05/2012
               Date of reservation of order: 10/05/2012
               Date of Decision: 26/05/2012

               JUDGMENT

This case started with DD no.12A recorded on 28/05/99, according to which, at about 2.05 pm, Dr. Indra from Ganga Ram hospital informed that one Aarti Bali was brought dead by hanging and got admitted by her husband in the hospital, so police officials be sent. This DD was given to ASI Maharaja Singh, who alongwith Ct Hakim reached there.

During investigation, rough site plan of the place of occurrence was prepared, statements of Balbir Kr Dutta, Shivani Dutta and Sanyogita Dutta were recorded by SDM and on the statement of Sanyogita Dutta, FIR of this case u/s 498A/304B/34 of IPC was recorded.

Death report and brief facts were prepared. Statements regarding the identification of dead body were recorded. MLC and postmortem report of Aarti Bali were collected. From the spot, certain articles from the bathroom were taken into possession. During investigation, documents from hotel City Palace were collected. Scaled site plan was got prepared. Accused Yogesh Bali, Vinkesh Bali, Vinay Bali, Rinku Bali, Rakesh Bali, Sangita and Raman Kumar were arrested in this case. Their personal searches were conducted. On completion of investigation, chargesheet was filed u/s 498A/304B/34 of IPC against accused Rakesh Bali, Yogesh Bali, Vinay Bali, Vikesh Bali, Rinku Bali, Raman Kumar and Sangita.

Case was committed to the Court of Sessions on 18/09/99 and was SC No.25/1 2 received on 24/09/99. Charge on 15/02/2005, against all the accused persons was framed u/s 498A/34 of IPC and u/s 304B/34 of IPC, to which they pleaded not guilty and claimed trial.

Vide order dated 18/12/2008, accused Raman Kumar and Sangita were discharged by Hon'ble High Court of Delhi. Again charge against remaining accused persons i.e. Rakesh Bali, Yogesh Bali, Vinay Bali, Vikesh Bali and Rinku Bali was framed u/s 498A of IPC and u/s 304B/34 of IPC, to which they all pleaded not guilty and claimed trial.

To prove its case, prosecution has examined PW1 to PW20 in all. The statements of accused persons were recorded, where in, all the accused have denied the case of prosecution and pleaded their innocence by giving detailed explanation.

In defence evidence, DW1 Dr. Dharampal, DW2 Dr. Rakesh Malhotra, DW3 Surinder Kumar and DW4 HC Karan Singh have been examined.

I have heard the arguments on behalf of Ld APP for State and on behalf of Ld defence counsels ie. Sh. S.C. Buttan, Sh Satinder Kumar and Sh. Sanjay Suri for the accused persons and have gone through the material placed on record and evidence adduced.

Findings qua offence u/s 498A of IPC .

In the statement given to SDM, on which this case was registered i.e. Sanyogita Dutta has stated that Aarti was married on 17/04/98 with Rakesh Bali, according to Hindu rites and ceremonies in hotel City Palace, Jammu. They had spent more than their capacity. Yogesh Kumar Bali and Vinay Bali, parents of Rakesh Bali had asked them more cash in the marriage and also had asked for SC No.25/1 3 good reception in a hotel, so accordingly, marriage ceremony was performed in hotel City Palace. Ring ceremony was performed in hotel Kranti. Total Rs. 1,75,000/­ and about Rs.60,000/­ cash and Rs.70,000/­ for jewellery and clothes of Rs. 70,000/­ were given in dowry. She has further told to the SDM that after marriage in June 1998, her daughter Aarti alongwith her husband came to their house and at that time, her daughter told her that "yeh log bade nakhre wale hai aur aap ki de hui koi cheez pasand nahi aayi, inhe achi achi cheez bheja karo.". At that time, husband of Aarti i.e. Rakesh Bali also told them that taste of Jammu people was very bad and instead of sending articles, cash should be given.

She further told to SDM that when her daughter and son in law left their house, then she gave lot of articles, according to their choice and cash. She has further stated to the SDM that on the occasion of Karva Chauth, she came to Delhi at her daughter's house and gave clothes to the mother in law and father in law alongwith Rs.4000­5000/­ and at that time, her daughter had told that she should be taken to Jammu and she will not come back because she was being harassed by her husband, mother in law, father in law, nanand, nandoi, jeth and jethani and her husband, mother in law, father in law, nanand, nandoi, jeth and jethani were threatening to kill her.

She has further told that in November, on the birth days of Aarti and Rakesh, she sent a wrist watch of Rs.3500/­, one nose pin of gold of 4 gm for her daughter, one silver pen, but they asked for the cash to be sent alongwith the articles. She has further stated to the SDM that thereafter in the month of January, on the occasion of festival of Lohri, cash of Rs.2000/­ and articles of Rs. 2­3 thousand were sent. She has further stated that at one time, when her daughter SC No.25/1 4 was pregnant, then her younger daughter had taken clothes for in laws of Aarti Bali and Rs.5000/­, but Rakesh has returned the clothes on the pretext that clothes were not according to their status. Nanand of Aarti told that clothes given were not of good quality and they should sent cash instead of sending clothes. Rakesh had also told to Shivani that she should take her sister and he will again remarry.

She has further stated to SDM that on 26th April, her daughter gave birth to a male child. After 3­4 days, she again reached at the house of her daughter and gave Rs.10,000/­ in cash and also gave articles of Rs.2000/­ and Rakesh told that he will again remarry and will send boy in a hostel and kill Aarti and Aarti had told her that she will go to jammu and will not come back and she should not be send back otherwise they would kill her and this fact was stated on 15/05/99.

She has further stated to the SDM that on 17/05/99, she had talked to her daughter on telephone and her daughter told that she was being harassed by all these persons and they were angry with her. She has further stated to SDM that on 28/05/99, at about 2.30 pm, a call was receive from the nanadoi of Aarti that Aarti was seriously ill and they should reach Delhi by air. Again she made call, which was picked up by mother in law of Aarti, who told that the Aarti had put duppata in her neck and disconnected the phone. After about one and a half hour, again telephone call was received from nanadoi that Aarti had died half an hour before but her brother was informed at Rajouri that Aarti had consumed the poison . She suspected that she was killed by her in laws for demand of dowry and necessary action should be taken against them.

SC No.25/1 5

Statement of Balbir Singh Dutta was recorded by SDM, wherein he had told to the SDM that Aarti was married on 17/04/98 with accused Rakesh Bali as per Hindu rites and customs in hotel City Palace, Jammu and he had spent more than his capacity in the marriage. Once his daughter had come to their house with her husband and his daughter told to him that her husband, mother in law, father in law and jeth used to harass her for demand of more cash and they were not liking any articles given in dowry and further she was not allowed to meet any relative in Delhi and also used to taunt her. He also suspected that his daughter was killed by her husband, mother in law, father in law and jeth.

Shivani Dutta had stated to the SDM that marriage of her sister Aarti was held on 17/04/98 in hotel City Palace with accused Rakesh Bali and engagement ceremony was held in Kranti Hotel. Her parents had spent more than their capacity in the marriage of her sister Aarti. On 11/03/99, she had come to Delhi and she brought some clothes and Rs.5000/­ in cash. Her sister told her that her husband, mother in law, father in law, jeth, nanad and nandoi used to taunt her and use to harass her. Shivani Dutta has also told to the SDM in her statement that in her presence Rakesh had pushed her sister, while she was pregnant and told that she should take her sister back as she was unable to carry the weight of Aarti and he will marry again. Nanand of Aarti told that instead of clothes they should bring cash . Her sister told that she was being harassed by these persons for dowry and they could kill her and she told that she should ask her mother that more cash should be given.

To prove these facts as told to SDM, complainant Sanyogita Dutta has been examined as PW3.

SC No.25/1 6

PW3 Sanyogita Dutta has deposed the same facts regarding the ring ceremony and marriage of Aarti and also about how much amount was spent in the marriage. Regarding the incident of June 1998, according to the statement of Ex.PW3/A, told by her daughter that "yeh log bade nakhre wale hai aur aap ki de hui koi cheez pasand nahi aayi, inhe achi achi cheez bheja karo." and that Rakesh has also told that the people of Jammu were not having good taste, so instead of articles, cash should be given, has not been stated as it is. Instead PW3 Sanyogita stated that her daughter told her that she was being harassed for dowry. Sangeeta, sister in law of her daughter also used to reside in her parents house. Sangeeta and mother in law Vinay Bali used to taunt her daughter for insufficient dowry and also taunted that jewellery was of lesser weight, which was given in dowry. As her daughter came for the first time, after the marriage, she gave some clothes according to their choice, some jewellery and Rs.10,000/­ in cash, but it is not appearing in her statement Ex.PW3/A, wherein she has told to the SDM that she had given certain articles and some cash but had not disclosed that Rs.10,000/­ has been given in cash and jewellery has not been mentioned in the statement at all.

Regarding the incident of Karva Chauth, she had stated to the SDM that she gave clothes to the mother in law and father in law alongwith Rs.4­5000/­ in cash but before the Court she has stated that customary articles of karva chauth alongwith cash Rs.5000/­were given and further made improvements that some small necklace and ear tops were also given to her daughter.

PW3 has stated to the SDM in her statement Ex.PW3/A that at the time of birthday of accused Rakesh Bali, she sent certain articles and her daughter SC No.25/1 7 told on telephone that her in laws were asking her as to why cash was not sent but no amount of cash has been mentioned by PW3 Sanyogita Dutta. PW3 has further stated to the SDM in her statement Ex.PW3/A that at the time of pregnancy of her daughter Aarti, her younger daughter Shivani had taken clothes of the family and Rs.5,000/­ in cash but the clothes were returned back because they were not according to their status and nanad of Aarti stated that cash should be given instead of clothes, whereas before the Court, PW3 Sanyogita has deposed the same facts but has stated that these were demanded by in laws of Aarti from her daughter Shivani, which was not stated to the SDM in her statement Ex.PW3/A. PW3 Sanyogita has further stated to the SDM in her statement Ex.PW3/A that on 15/05/99, her daughter Aarti had told that she will come to Jammu and will not go back and should not be sent back otherwise they will kill her, whereas before the Court PW3 has stated that her daughter stated that her in laws used to taunt her for dowry, which is appearing in her statement given to SDM Ex.PW3/A and on 17/05/99, when she had a talk on telephone then her daughter Aarti told that she was being harassed but before the Court, PW3 has stated that when she came back on 17/05/99, her daughter started weeping and told that she should also be taken to Jammu, otherwise she would be killed by her in laws. So the fact of having the conversation on 17/05/99 is entirely missing in the deposition of PW3, before the Court and she has given the statement before the Court in a manner as it was conversation face to face with the Aarti and instead of the fact as stated to the SDM that Aarti was being harassed, PW3 has deposed before the Court that Aarti stated that she should also be taken to SC No.25/1 8 Jammu otherwise she should be killed by her in laws.

Ld APP has contended that infact these allegations are of 15/05/99 and it seems that there was some confusion in the mind of PW3 while deposing as such before the Court, hence these cannot be treated as improvements and be read in reference of allegation of 15/05/99.

PW3 Sanyogita has further deposed that after about two days she called her daughter on telephone and again she started weeping and she told that she was very much upset as no one in the family was talking with her properly. Again she called her daughter on telephone and it was told that she was sleeping and her in laws did not allow them to talk with her daughter. They thought that after about 40 days of the birth of child, when her daughter will come, then everything will be alright and settled. This part of deposition of PW3 is entirely missing from the statement given before SDM Ex.PW3/A. Ld APP has contended that conduct of accused persons is suspicious as on 28/05/99, firstly Nandoi of Aarti informed the parents of Aarti that she was serious and when they made call at her in laws house, then the mother in law of Aarti had told that Aarti had consumed the poison and again they received call from nanadoi of Aarti that Aarti had expired, which shows that there was something, which accused persons were concealing and more so when the parents of the deceased reached at the house of accused persons, no one was present there as accused persons had fled away from their house.

PW3 Sanyogita has further deposed that as it was late, so on the next day, they cremated the dead body of their daughter. No one was present from the side of her in laws, at that time. PW3 Sanyogita was further cross examined SC No.25/1 9 by Ld APP on various aspects about the incident of 15/05/99 and also of 26/04/99.

Ld defence counsel has contended that this case has been registered against the accused persons as complainant party had demonstrated against the accused persons in front of PS, so under pressure, police officials register a false case against the accused persons.

Ld defence counsel has further contended that it was a simple marriage and not much amount was spent on marriage as deposed by witnesses. No demand was raised at any time either before the marriage or after the marriage.

Ld defence counsel has further contended that merely that the customary articles, which were given on various occasions to the in laws of Aarti were not according to the choice of in laws of Aarti does not constitute any demand of dowry.

Ld defence counsel has further contended that according to the cross examination, PW3 Sanyogita has admitted that they had made inquiries about accused Rakesh Bali and came to know that accused Rakesh Bali was earning well. She also came to know that accused persons having the same standard of life as they were having, so they had done the engagement ceremony.

Regarding the qualification of Rakesh Bali, PW3 Sanyogita has stated that they came to know that accused Rakesh Bali was not a graduate and she has further stated that father of accused Rakesh Bali came to their house and told that qualification was not a consideration as such. She has further admitted that no expenses were made at the engagement ceremony. They had taken the sweets there. The accused persons and the other persons were staying in a room and SC No.25/1 10 there ceremony was performed. So this also falsify the claim of the complainant that they had spent more than Rs. 1,75,000/­ on ring ceremony/marriage and dowry was given.

Ld defence counsel has further contended that no demand of dowry was raised in the engagement ceremony and even they had not paid the expenses of accused persons, while they had stayed in Aryabhat hotel at the time of marriage.

Ld defence counsel has further contended that infact complainant had got done the plastic surgery of Aarti for her burns from Mumbai hospital, but this fact was concealed before the marriage from accused persons and even then, when accused came to know after the marriage with Aarti that she was suffering from keloid, they did not make any complaint rather accused Rakesh Bali consummated the marriage and Aarti gave birth to a male child. Ld defence counsel has further contended that she was under depression as was suffering from keloid.

Ld defence counsel has further contended that even after the death of Aarti, no one had taken care of child of Aarti, who is under the custody of accused Rakesh Bali and is being maintained well and complainant party has not taken care of their grandson at any time after the death of Aarti, which falsify the claim of complainant about the conduct of accused persons.

Ld defence counsel has contended that in the cross examination , PW3 Sanyogita has been confronted with various facts with her previous statement Ex.PW3/A, where it is not recorded that her daughter told that she was being harassed for dowry and Sangeeta, her sister in law also used to reside with her SC No.25/1 11 parents house, that her mother in law used to taunt her daughter for insufficient dowry and also taunted that jewellery was of lesser weight, which was given on marriage, that her daughter started weeping and told that she was being harassed by her in laws and she made her daughter understood that after some time, situation will be settled, that they had sent clothes and customary articles and cash on account of Lohri to in laws of her daughter through one Happy, that she received telephone call from her daughter Shivani, who told that she had purchased some clothes according to choice of inlaws of Aarti as clothes which were sent were not upto their liking, that they gave clothes to the in laws of her daughter and other articles as were demanded by them, her daughter told that her in law used to taunt her for dowry, that her daughter wanted to go to Jammu, but her in laws told that they will sent her after 40 days of birth of child that again she called her daughter on telephone and it was told that she was sleeping and her in laws did not allow them to talk with her daughter.

Ld defence counsel has further contended that these confrontations with Ex.PW3/A, clearly shows that PW3 has made improvements on material aspects to show that in laws of her daughter were demanding dowry and they were harassing her daughter on account of the same.

Ld defence counsel has further contended that even recording of the statement of Ex.PW3/A seems to be doubtful as according to PW3 Sanyogita Dutta, there was another statement recorded in English, which was signed by her and the same was not placed on record, which shows that even such allegations as disclosed in Ex.PW3/A might have not been told to SDM at the time of recording of statement at initial stage.

SC No.25/1 12

Ld defence counsel has further contended that PW3 Sanyogita Dutta has admitted that customary articles were given on the occasions of Karva Chauth and they had asked from the in laws of her daughter about the articles prior to that, which shows that no demand of dowry was made rather the customary articles were given by the complainant at their own. Ld defence counsel has further contended that PW3 Sanyogita Dutta has tried to give the explanation to this confrontation and has deposed certain facts voluntarily to substantiate her deposition made before the Court, but in view of the improvements made by PW3 Sanyogita Dutta, she cannot relied upon regarding demand of dowry. PW3 never raised any question mark to the statement recorded by SDM Ex.PW3/A on any ground, particularly on the ground that she was upset at that time so she did not disclose the complete facts to the SDM.

Ld defence counsel has further contended that PW3 had admitted that there is custom not to send outside the newly born child for forty days, so if in laws of Aarti refused to send Aarti with newly born child before that then it was not objectionable and it cannot be assumed and treated as cruelty and harassment towards Aarti Bali for demand of dowry.

PW4 Shivani Dutta has deposed that some times, her sister called them on telephone and told that she was being harassed by her in laws for demand of dowry and whatever articles were given in the marriage were not according to their status and her in laws stated her that whatever is to be given should be given in cash.

PW4 Shivani Dutta has further deposed that for the first time her sister visited there house in June 1998 and told to her and to her mother that her SC No.25/1 13 in laws were demanding dowry and they were not liking the articles, which were given to them. Accused Rakesh Bali also told to her mother that liking of Jammu people was not according to their taste, so maximum cash should be given.

PW4 has also deposed the same facts regarding sending of customary articles and cash on various occasions as deposed by PW3 Sanyogita Dutta, her mother.

PW4 Shivani Dutta visited the house of her sister on 11/03/99 and at that time, her sister told that she was being harassed by her in laws for demand of dowry and told that whatever articles were sent to them were not upto the liking of her in laws and she was being taunted by her in law. So, Shivani had gone with her sister in market and she purchased articles according to their liking. Sangeeta, nanand of her sister also told that instead of sending these useless articles, they should send cash of Rs.10­20,000/­, so they could be able to purchase these articles from the market. Her sister told her that her in laws could not be satisfied even by sending Rs20­30 or 60,000/­.

PW4 Shivani Dutta has further deposed that once her sister was pushed by accused Rakesh Bali, while she was pregnant and he told that he was not able to carry the weight of her sister and further told that he will marry again. Mother in law of her sister also told her that they were sending and brining useless articles for them. Her sister had also stated to her mother that she should be taken to Jammu, otherwise she could be killed. Her statement was recorded by SDM Ex.PW4/A, in this respect.

Ld defence counsel has further contended that relation between the parties were cordial and there were no such incidents of demand of dowry or of SC No.25/1 14 cruelty and harassment towards deceased Aarti. Ld defence counsel has further contended that PW4 Shivani Dutta had sent greeting cards to accused Rakesh Bali and her sister on various occasions, which itself fortifies the fact that there were cordial relations and greeting cards have also been placed on record.

Ld defence counsel has further contended that statement Ex.PW4/A of Shivani Dutta was recorded correctly and she had no objection on the same at any time or thereafter.

Ld defence counsel has further contended that Shivani Dutta has also been confronted with the facts, which are not appearing in her statement Ex.PW4/A that some times her sister called them on telephone and told that she was being harassed by her in laws for demand of dowry and whatever articles were given in the marriage were not according to their status, that her sister also told her that her parents in law, nanand Sangeeta, nandoi Raman, jeth and jethani told to her parents that whatever is to be given, should be given in cash. Her sister told this fact to her on telephone and also told her when she visited her house, might be in May 1998, her sister also told on telephone and she further told this fact to her mother , that accused Rakesh Bali told her mother that liking of Jammu people was not according to their taste so maximum cash should be given to them, that at the time of Karva chauth, her mother had gone to her sister's house at Delhi with all the articles, which were to be given on the occasion of Karva Chauth alongwith some cash, that her mother had sent some articles i.e. one wrist watch, silver pen and gold nose pin (nathni), and accused persons told them on telephone that instead of such articles, cash should have been given, that articles on the occasion of Lohri alongwith some cash were SC No.25/1 15 given to the in laws of her sister, that on 11/03/99, she visited her sister's house in Delhi and her sister told that she was being harassed by her in laws for dowry and also told that whatever articles were sent by them were not upto their liking and on this, she was being tortured by her in laws and she had gone with Sangeeta, nanand of her sister in the market and she purchased articles according to their liking and further she told that they should sent cash of Rs.10­20,000/­ instead of sending these useless articles, so they could purchase the articles in the market, that her sister told her that her in laws could not be satisfied even by sending 20, 40 or 60 thousand , that mother in law of her sister told that they were sending useless articles for them, that in laws of her sister called her mother on telephone and asked her to reach at Delhi to look after her daughter, that her sister had also told to her mother that she should be taken to Jammu otherwise she would be killed.

Ld defence counsel has further contended that confronted portions have been deposed intentionally to rope the accused persons, in this case. Had it been so then these facts could have been told at the time of recording of statement by SDM and the statement recorded by SDM has not been objected by PW4 Shivani Dutta at any stage.

Ld defence counsel has further contended that only once Shivani Dutta had visited the house of her sister on 11/03/99 and rest of the facts as deposed by her are hearsay, so she cannot be relied upon. Ld defnce counsel has further contended that in routine manner by exaggerating the facts to rope all the family members, name of each and every member was given , though, out of these accused persons, accused Raman and Sangeeta had already been discharged SC No.25/1 16 by Hon'ble High Court of Delhi, which shows that on the basis of allegations, no case was made out against the accused persons.

Ld defence counsel has further contended that according to the deposition of witnesses, PW3 has also stated for 10­15 days, she stayed in the house of her daughter, at the time, when she gave birth to child and PW4 Shivani Dutta had also stayed in the house of her sister for some days and if the relations were not cordial then both mother and sister of Aarti Bali could not have stayed for such a long time in the house of accused persons and if the allegations were true then they could have taken Aarti Bali back to Jammu, if according to them situation was so grave that she could be killed by accused persons.

Ld defence counsel has further contended that PW4 Shivani Dutta has also admitted that her parents did not call any panchayat nor had gone to the house of inlaws of her sister regarding their behaviour towards her sister. Shivani Dutta has voluntarily stated that her parents did not call Mr. Pramod Taneja because at the time of reception, her sister's in laws told that if they will maintain relations with Mr. Pramod Taneja then they will not maintain relations with them, whereas Pramod Taneja has not supported the case of prosecution, in any manner and it is clear that he is not interested witness and has not favoured the accused persons, in any manner.

PW2 Sh. Balbir Dutta is father of Aarti. He has stated that after some time of marriage, family members of Aarti i.e. accused persons started harassing his daughter. They did not send her daughter after marriage. For the first time, after the marriage, his daughter and son in law i.e. accused Rakesh Bali came to their house at Jammu and his daughter told that the dowry articles, which were SC No.25/1 17 given in the marriage were not upto their expectations as they were having high standard and her daughter requested him that according to the standard of accused persons, in future, cash should be given instead of giving any item. His daughter further told that accused persons used to taunt her as dowry articles were not given as per their expectations.

PW2 has further deposed that whenever his daughter called them on telephone, she told that accused persons were harassing and taunting her for dowry and at times, whenever she talked with them, she was perplexed.

PW2 has further deposed that at the time of giving birth to child, his wife came to Delhi and some customary articles i.e. clothes and ring etc on the occasion of birth of the son were given to the in laws of his daughter, but the accused persons did not like these customary articles and demanded cash instead of the customary articles. However the gifts were kept by the accused persons.

PW2 Balbir Dutta has further deposed that in the evening at about 5­6 pm, police had recorded their statement. His statement was recorded by SDM Ex.PW2/A. Thereafter they went back to their friend house at Lajpat Nagar. One leading question was asked to this witness by Ld APP as to why accused persons were harassing his daughter to which PW2 had replied that the accused persons were harassing her for demand of dowry.

Ld defence counsel has further contended that this leading question was not as per law considering the deposition of witnesses, which has come on record rather this question was asked to fill the loopholes in the deposition of PW2, because he failed to deposed that his daughter was being harassed by accused persons for demand of dowry, so the testimony of PW2 cannot be looked SC No.25/1 18 into in this respect against the accused persons.

Ld defence counsel has further contended that in the cross examination, PW2 Balbir Dutta has admitted that all the expenses of engagement ceremony were given by the accused persons and his daughter and son in law had visited Patni Top prior to their marriage and they also visited Jammu. He has further admitted that no dowry was demanded by accused persons till the engagement ceremony. Ld defence counsel has further contended that PW2 has admitted that before marriage, he along with his wife came to the house of accused persons and stayed there for two days and according to PW2, they had checked the atmosphere of accused persons to some extent during their stay and also checked their living standard and at that time demand was raised by the accused persons.

Ld defence counsel has further contended that even if we presume that any demand was raised by accused persons then also PW2 Balbir Dutta has failed to disclose as to what type of demand was raised whether it was in kind or cash or till what time it was to be fulfilled. Ld defence counsel has further contended that till that time, marriage was not performed, so if any demand was raised then the complainant could have refused to perform the marriage or the complaint could be given against the accused persons, hence this fact is not helpful to prove offence u/s 498A of IPC against the accused persons because it relates to the demand of dowry before marriage.

Ld defence counsel has further contended that PW2 has admitted himself that he was not having money to spend in the marriage and at that time, his family status was low in comparison to the accused persons. Cash was SC No.25/1 19 demanded alongwith clothes of all the persons including relatives, furniture and they were asked to give reception in a good hotel and despite these demands, he did not refuse to perform marriage of his daughter with accused Rakesh Bali. Ld defence counsel has further contended that PW2 Balbir Dutta has not been able to explain as to why they did not refuse to perform the marriage of their daughter with accused Rakesh Bali, which shows that they were happy with the relation after considering standard of living of the accused persons and also that the Aarti was suffering from Keloid, which was not disclosed to the accused persons before marriage and further the financial position of complainant was low in comparison with accused persons.

Ld defence counsel has further contended that PW2 has stated that he was happy with the relation till the engagement ceremony but again he has not explained as to why he became unhappy with the relation after engagement and if he was not satisfied with the relation/engagement of his daughter with accused Rakesh Bali then he could have broken the engagement and no one could have forced him to perform the marriage of her daughter with accused Rakesh Bali.

Ld defence counsel has further contended that on the day of ring ceremony, there was taxi strike on 16/04/98, so complainant did not go to receive the accused persons at Jammu Railway station or at Aryabhatt Hotel or even he did not make any arrangement for transportation of accused persons from Aryabhatt hotel to kranti hotel, which shows the conduct of complainant party.

Ld defence counsel has further contended that reception was given by accused persons of this marriage on 20/04/98 and neither on 16/04/98 nor on 17/04/98 any demand was raised by accused persons. Even no demand of dowry SC No.25/1 20 was raised on the occasion of reception, which shows that the demand of dowry was not raised at any time rather PW2 felt hurted when they asked Rakesh Bali to call them on telephone and he told that they will not call them on telephone and rather they should call him on telephone thereafter.

Ld defence counsel has further contended that PW2 Balbir Dutta has also made improvement and he has been confronted with the statement Ex. PW2/A, where it is not recorded that in laws of Aarti, after some time of marriage had started harassing her, that in laws did not send his daughter after marriage, that he did not meet his daughter till June 1998 and till her death and they talked only on telephone that his daughter had told him in June 1998, when she visited Jammu that the dowry articles, which were given in the marriage were not upto the expectations of her in laws as they were having high standard, that his daughter requested him that according to the standard of accused persons in future cash should be given only instead of giving any item, that his daughter told that accused persons used to taunt her as dowry articles were not given as per their expectations, that his daughter and son in law after staying for one­two days went back to Delhi, that his daughter was not sent to Jammu to meet them but her father in law and mother in law used to visit Jammu every month and he and his wife used to go to meet them and used to inquire about their daughter, that he had told to SDM about the demand of dowry, that his wife came to Delhi to give some customary articles i.e. clothes and ring etc, but the accused persons did not like these customary articles and demanded cash instead of the customary articles, that he received a call from his daughter, wherein she requested that she may be called at Jammu otherwise she would be killed by accused persons, that SC No.25/1 21 he advices his daughter to stay there as she was to be called, after 40 days of the birth of her child, at Jammu.

Ld defence counsel has further contended that from these confrontations, it is clear that PW2 has made material improvement regarding the demand of dowry intentionally to make out a case against the accused persons.

Ld defence counsel has further contended that PW2 Balbir Dutta has admitted in the cross examination that his daughter Shivani visited Aarti at the time of her Godhbharai and she was entertained well by accused persons and same was his reply about visit of his wife. Ld defence counsel has further contended that this fact itself is contrary to the deposition of these witnesses regarding the demand of dowry made on behalf of accused persons.

Ld defence counsel has further contended that conduct of PW2 is also doubtful regarding recording of his statement by SDM as according to the cross examination of PW2, he has stated that 50­60 persons from their side were sitting outside the PS, when SDM reached there. The demonstration had already taken place. He has further stated in his cross examination that he does not know in whose room, SDM was sitting. He was sitting alone in the room. He does not remember whether his statement was recorded by the SDM himself or he dictated the statement to someone else. He did not read his statement. He had signed the same after reading the same. His statement was not recorded by the SDM himself.

Ld defence counsel has further contended that in such circumstances, SC No.25/1 22 all these statements seem to be recorded under pressure and were not according to the facts and further were made just to falsely implicate the accused persons holding responsible them for the death of their daughter Aarti.

SDM Sh. Sahab Singh Rana, has been examined as PW5. He has stated that on 29/05/99, he was working as SDM , Sub­Division, Patel Nagar. He received a telephonic call from PS Patel Nagar regarding death of a lady . He reached at the spot i.e. Z­58, West Patel Nagar, Delhi, where he recorded statement of mother of deceased i.e. PW3 Sanyogita Dutta Ex.PW3/A. He also recorded the statement of Shivani Dutta Ex.PW4/A and statement of father of deceased Ex.PW2/A. PW5 has further deposed that he made order regarding registration of the case Ex.PW5/A, same was sent to SHO Patel Nagar. He had also prepared the inquest papers for postmortem of the deceased, which are collectively Ex.PW5/B. Dead body was sent to mortuary, Subzi Mandi. After the postmortem of the dead body, it was handed over to its legal heirs.

Ld defence counsel has further contended that according to PW2, PW3 and PW4, their statements were recorded in PS Patel Nagar, whereas according to the statements of PW5 Sh Saheb Singh Rana, these were recorded at Z­58, West Patel Nagar, which shows that the investigation in this respect is doubtful and it is not proved beyond reasonable doubts that the statements were recorded by the SDM himself and further as to where the statements were recorded either at the place of occurrence or in PS Patel Nagar, so the contradiction in this respect is material and is rendering the witnesses unreliable.

SC No.25/1 23

Ld defence counsel has further contended that PW5 Sh Shaib Singh Rana, the then SDM has admitted in his cross examination that he had recorded himself in his handwriting statements Ex.PW2/A, ExPW3/A and Ex.PW4/A and he was assisted by his Reader, whereas on the other hand, PW2, PW3 and PW4 have contradicted with this fact and have stated that statements were recorded under the dictation of SDM.

Ld defence counsel has further contended that according to the cross of PW5, police official was present with SDM on that day, when he recorded the statement of witnesses and even when he recorded statement of Sanyogita Dutta, whereas according to cross of PW4 Shivani Dutta, one more person was present with her and SDM, who was recording the statement. The said person was from the police. While she was narrating the facts simultaneously, he was dictating the same to the said person, who was recording her statement.

Ld defence counsel has further contended that all these facts shows that statements were not recorded by SDM himself and they were produced before him and were prerecorded on which he made his endorsement for registration of the case. Ld defence counsel has further contended that this is fortifying with the further cross examination of PW5, Sh. Saheb Singh Rana, the then SDM, who has not clarified, when cross examined on the aspect that there was difference of ink in the contents of the statement Ex.PW2/A at his signature and point B and at point C and he gave the same reply in respect of Ex.PW3/A and Ex.PW4/A. Ld defence counsel has further contended that PW5 has further admitted in the cross examination that witnesses did not raise any objections on SC No.25/1 24 recording of their statement that their statement were not recorded correctly or the any part was left, which was told by them. Ld defence counsel has further contended that in such circumstances, the witnesses now cannot improve their statements on any pretext.

Ld defence counsel has further contended that even according to the statement of PW18 SI Maharaj Singh, SDM came to PS and recorded the statement of the witnesses in PS. Ld defence counsel has further contended that according to PW5 Sh. Saheb Singh Rana, the then SDM, he also prepared the inquest papers, whereas according to PW18 SI Maharaj Singh, the documents were prepared by CT Virender under the dictation and further stated that the some of the documents were prepared by him and some of the documents were prepared under his dictation i.e. under the dictation of PW18.

Ld defence counsel has further contended that PW18 SI Maharaj Singh has stated that he had mentioned in the DD no.35B dated 29/05/99 that SDM directed him to prepare the documents at his own and to sign the same, DD no.35A is Ex.PW18/DA.

Ld defence counsel has further contended that in the cross examination PW18 has admitted that SDM had directed to record the statement of identification of dead body and to sign the same, which shows that all the writing work was not done by SDM and was prepared by police officials on which SDM had signed, which shows that SDM had not conducted any inquiry at his own and the case was prepared by police officials against the accused persons, which was endorsed by the SDM, so the witnesses are not inspiring any confidence and SC No.25/1 25 cannot be relied upon.

PW11 is Rita Franklin, immediate neighbour of accused persons. She has not supported the case of prosecution and has not deposed about the demand of dowry or that Aarti Bali was being harassed or was treated with cruelty by the accused persons.

Ld defence counsel has further contended that PW11 has admitted in the cross examination that she never heard from Aarti or from any other person that accused persons were harassing her and treating her with cruelty. She has visiting terms with the accused persons being their neighbour. She had met with brother, sister and mother of deceased, when they had visited the house of accused persons and mother of deceased was a frequent visitor, she also used to meet with the mother of deceased Aarti.

Ld defence counsel has further contended that PW11 Rita Franklin never heard from the mother of Aarti that she was being harassed by accused persons for demand of dowry. Ld defence counsel has further contended that if Aarti was being harassed for demand of dowry or was treated with cruelty by accused persons then certainly either Aarti or her mother when they met with PW11 Ritan Franklin could have uttered some words about the same. Ld defence counsel has further contended that neither Aarti nor her mother uttered any word about harassment and cruelty caused by the accused persons to Aarti at any time whenever she met them, this shows that there was no such incident of cruelty or harassment caused to Aarti at any time, otherwise it seems to be unnatural that a person being treated with cruelty or harassment would not speak to any one and that too, to her immediate neighbour. SC No.25/1 26

PW13 is Sh Purshottam Lal. In the examination in chief, he has not stated anything about the demand of dowry or cruelty or harassment caused to Aarti. He has not supported the case of prosecution and he has been cross examined by Ld APP. In the cross examination conducted by Ld defence counsel, he has stated that he had attended the marriage of accused Rakesh Bali . Only 15­16 persons had gone to Jammu to attend the marriage. In his presence, accused persons did not demand any dowry during the time of marriage from the family members of Aarti. PW13 has further deposed that after marriage, family members of Aarti used to visit her in laws house and it was a simple marriage. He has further stated that all the arrangement of staying at Jammu at the time of marriage were made by Mr. Sethi on behalf of Mr. Yogesh Bali and expenses of the same were paid by Mr. Yogesh Bali, in his presence. PW13 has further stated that his wife also used to visit the house of accused persons and mother of deceased Aarti never made any compliant regarding demand of dowry to his wife. So, neither PW11 Rita Franklin nor PW13 has supported the case of the for prosecution, in any manner.

Other witness is PW15 Pramod Kumar Taneja, who is friend of PW2 Balbir Dutta. He has stated that he had attended the marriage of accused Rakesh Bali with his family. It was a normal marriage. After marriage Aarti resided with her in laws peacefully and happily. After her marriage, PW15 used to visit matrimonial house of Aarti at West Patel Nagar. Aarti never complained him about any harassment or cruelty caused to her by her in laws. As PW15 has not supported the case of prosecution, hence he has been cross examined by Ld APP and has been confronted with statement Ex.PW15/B. SC No.25/1 27 Ld defence counsel has contended that PW15 has admitted in the cross examination that he was knowing prior to the marriage of deceased Aarti that she was suffering from burns on her chest prior to her marriage and he had advised PW2 Sh. B.K. Dutta to disclose this fact to the accused persons before her marriage but Sh. B,K. Dutta told him that he was not in opinion to disclose this fact to the accused persons, because the same could be resulted into the refusal of the marriage proposal. Ld defence counsel has further contended that this fact was concealed from the accused persons before marriage, but even then after knowing this fact after marriage, accused persons accepted Aarti as their daughter in law and never taunted her about the same rather from time to time, they get treated her from various places for the same.

PW15 Sh. Pramod Taneja has further stated in the cross examination that whenever B.K. Dutta, Sanyogita Dutta and Shivani Dutta used to visit her house, they used to say that Aarti was living happily.

Ld defence counsel has further contended that another reason to implicate the accused persons is that after the death of Aarti, the complainant proposed that their younger daughter Shivani i.e. sister of Aarti be married with Rakesh, but the accused persons did not agreed for the same and this was one of the reason to falsely implicate the accused persons, in this case by exaggerating the facts. Ld defence counsel has further contended that this fact has been admitted by PW15 wherein he has stated that after the death of Aarti, when parents of Aarti came to Delhi then in front of Biradari, they proposed that Shivani should be married to accused Rakesh Bali and when this proposal was refused, then mother of Aarti became very upset and Shivani was still SC No.25/1 28 unmarried till her deposition recorded in the Court.

PW10 Sh. Sanjay vohra has deposed that he is owner of one marriage Palace in the name of City Palace in Jammu. A marriage had taken place in their marriage palace in the year 1998 and it was booked by one Sh. B.K. Dutta. He had issued receipt in this respect certifying that he had received a sum of Rs. 18,000/­ from Sh. B.K. Dutta for conducting dinner function including flower decoration, lighting, generator etc for 17/04/98. The receipt is Ex. PW10/A. Later on he had handed over the documents to the Delhi Police in the year 1999 at Jammu.

Ld defence counsel has contended that this fact itself falsify the deposition of witnesses i..e PW2 Sh. B.K. Dutta, PW3 Sh. Sanyogita Dutta and PW4 Shivani Dutta that they had spent money in the marriage beyond their capacity. Ld defence counsel has further contended that according to PW3 Sanyogita Dutta, they had spent Rs.1,75,000/­, they had given Rs. 60,000/­ in cash, jewellery of Rs. 75,000/­ and Rs.75,000/­ for the clothes in the dowry but from the deposition of PW10 Sh Sanjay Vohra, it is clear that so much money was not spent in the marriage as claimed by the witnesses rather it was very normal marriage and infact that only Rs.18,000/­ were given by PW2 for conducting dinner function in the marriage which shows that the claim of the complainant that they spent so much money in marriage is false rather they highly exaggerated the facts and hence they cannot be relied upon. Ld defence counsel has further contended that it has also come in the deposition of witnesses that ring ceremony was also performed in a very simple manner, which was held in Kranti Hotel in Jammu and complainant had admitted that only sweet boxes SC No.25/1 29 were given and ring ceremony was performed.

The contention as raised by Ld defence counsel are forceful and PW2, PW3 and PW4 have made material improvements regarding the fact that there was demand of dowry on which account Aarti was harassed by the accused persons.

The contention of Ld defence counsel that the recording of statements of PW2, PW3 and PW4 by SDM is doubtful because same are not in the handwriting of SDM is not forceful as it has come in the evidence of the witnesses that SDM had got recorded their statements under dictation, so naturally the statements of these witnesses could not be in his handwriting. SDM had admitted in the Court that these statements are in his handwriting, but in my view, this is the minor contradiction and it cannot be stated that no such statements were recorded in presence of SDM and further were not got recorded by SDM as stated by the witnesses PW2, PW3 and PW4 under his dictation and they have admitted their statements before the Court, so merely that SDM has not recorded their statements in his handwriting is not a ground to disbelieve the testimonies of witnesses and to further held that statements were fabricated.

The contention of Ld Defence counsel are forceful that there was no demand of dowry as PW2, PW3 and PW4 have made improvements in this respect, which are material but from the deposition of witnesses, it has been proved that Aarti was treated with cruelty on account that cash should be given instead of customary articles by her in laws and further accused Rakesh Bali treated her with cruelty as he pushed her once at the time when she was pregnant, in presence of PW4 Shivnai Dutta and secondly at the time when she SC No.25/1 30 gave birth to male child, in presence of PW3 Shivani Dutta, accused Rakesh Bali told that he will remarry again and will send the child to hostel, which drove Aarti to commit suicide.

Findings qua offence u/s 304B of IPC.

According to PW1 ASI Meena on 29/05/99, he was posted at PS Patel Nagar and was performing his duties as Duty Officer and on that day at about 2.05 pm, he received a telephone call from Ganga Ram hospital that Aarti Bali aged about 25 years was admitted in hospital by her husband with the alleged history of hanging and she was declared brought dead. PW1 recorded DD no.12A in this respect, copy of which is Ex.PW1/A. He has also stated that original of the same was destroyed by order of DCP and copy of that order is Ex.PW1/B. PW1 has further deposed that on that day, SHO PS Patel Nagar had handed over to him one rukka for registration of the case, and on the basis of which, he registered this case, copy of which is Ex.PW1/C and he made endorsement on the rukka Ex.PW1/D, which he handed over to ASI Maharaj Singh. He has also produced the original FIR before the Court.

Ld defence counsel has contended that it has also come in the deposition of witnesses that recording of statements of witnesses as alleged by the prosecution by SDM is also doubtful and further the SDM concerned did not prepared rukka on the statement of PW3 Sanyogita Dutta itself rather he prepared rukka separately directing SHO for registration of the FIR u/s 498A/304B of IPC, which fortifies the fact that statement was not recorded by SDM of PW2 Sh. B.K. Dutta, PW3 Sanyogita Dutta and PW4 Shivani Dutta rather these were recorded by police or by some other person on which at the SC No.25/1 31 instance of police, SDM had signed and because of this reason, SDM prepared the order directing the SHO to get registered the case against the accused persons on a separate paper.

PW8 HC Vinod Kumar has stated that on 29/05/99, he was posted in PS Patel Nagar and on that day, he was on patrolling duty on motorcycle. When he reached in front of House no. Z­58, Patel Nagar, ASI Maharaj Singh met him. When they went to second floor, he found one chunni hanging in the ceiling fan. He had also seen one broken handle of the door. Chunni was removed from the ceiling fan. It was measured by ASI Maharaj Singh. It was found having length of 5 feet 10 inches. He had also seen one plastic bucket and it was sealed with the seal of 'MS', which was seized vide Ex.PW8/A . Thereafter , he left for the patrolling and before that his statement was recorded by IO. PW8 has also identified plastic bucket, chuuni, door handle as Ex.P1, Ex.P2 and Ex.P3.

Ld defence counsel has contended that PW18 ASI Maharaj Singh has nowhere stated that when he was conducting these proceedings, HC Vinod Kumar was also present there and he has not deposed that Ex.PW8/A was signed by HC Vinod Kumar as a witness. Ld defence counsel has further contended that no DD has been placed on record to prove the fact that PW8 HC Vinod Kumar was on patrolling duty at that time in the area. Ld defence counsel has further contended that according to the cross examination of PW8, HC Vinod Kumar, Ct Mahavir Singh were also present there. 3­4 more police officials were also present there but he does not remember the names of police officials, whereas PW18 SI Maharaj Singh has not stated that Ct Mahavir Singh was with him at that time, when these exhibits were taken into possession. SC No.25/1 32

Ld defence counsel has further contended that handwriting on the statements allegedly recorded by SDM of PW2, PW3 and PW4 is different from the handwriting on order Ex.PW5/A and from the bare perusal, it can easily be identified that handwriting on the statements and order are of different person, which further fortifies the contention that statements were not recorded by SDM himself rather were fabricated against the accused persons and only order for registration of FIR was obtained from SDM.

PW11 Rita Franklin has stated that in May 1999, she was present at her house . She heard noise of some persons and noise of the knocking of the door and he came outside her house and went to the first floor. She saw crowd. She heard the noise of breaking of the door. Daughter in law of Mr. Yogesh Bali was brought out of the house. She was wife of Rakesh Bali. Daughter in law of Mr. Yogesh Bali was alive at that time and some persons were asking to call the doctor and she was removed to hospital by her in laws. Aarti was removed from the house after breaking of the door. There was something in her neck. She had heard only that Aarti had done something.

PW11 further stated that she had seen something in the neck of Aarti, but she cannot say whethr it was rope or any other article. PW11 has further deposed that she went back to her house at second floor and police made inquiries from her. In earlier meetings with daughter in law of Mr. Yogesh Bali, she had observed that she was under depression and she told her that she was unable to feed the child and she was fed up of her life. As she has not supported the case of the prosecution, so she has been cross examined by Ld APP and has been confronted with her previous statement Ex.PW11/DA, but even then she has SC No.25/1 33 not supported the case of the prosecution, in any manner.

PW11 Rita Franklin has further deposed in the cross examination conducted by Ld APP that Rakesh Bali after breaking opened the door, removed the dead body of Aarti from the bathroom, which was hanging with the ceiling fan, after releasing the chunni and was placed on the double bed with the help of some persons and she has been confronted with the fact that when Aarti was removed, she was alive, which is not appearing in her statement Ex.PW11/DA.

Ld defence counsel has further contended that in the cross examination, PW11 has admitted that she had visited the house of Aarti when she gave birth to child to congratulated her and she found her under depression. She asked as to why she was under depression and Aarti told her that she was unable to feed the child and she consoled her and otherwise she was very happy, so, it is clear that Aarti committed suicide due to depression and it was not because of torture or harassment or cruelty as alleged on the ground of demand of dowry.

PW12 Sh. Vijay Panda has stated that in May end in the year 1999, construction was going in his house, so he was present in his house and at about

12./12.30 pm noon, he heard noise of some persons and also heard noise of knocking of door from the house of Mr. Yogesh Bali at Z­58, West Patel Nagar, which is at first floor. His house was at a distance of six houses from his house. He reached there and saw that wife of accused Rakesh Bali hanging in the bathroom with the ceiling fan with the help of chunni. She was being removed from the ceiling fan. Thereafter her family members took her to hospital. SC No.25/1 34 Thereafter, he left the spot and after about 2­3 hours, he came to know that Aarti had died.

As this witness has also not supported the case of prosecution, so he has been cross examined by Ld APP, wherein he has admitted that his statement was recorded by the police on 28/05/99 at about 1.00 pm. He was present in his house and heard the noise of 'Bachao Bachao'. He has further admitted that after making inquiries, he reached at Z­58 and saw crowd there and at that time, door was being opened by opening the bolts. He also came to know that wife of accused Rakesh Bali i.e. Aarti was inside the bathroom for quite some time and no voice was heard. Thereafter, the lock of the door was opened and door was pushed and opened. He has further admitted that he saw Aarti hanging with the ceiling fan with chunni and she was removed from there with the help of some persons.

PW13 Sh. Purshottam Lal has also deposed the same facts as of PW12 that on that day, at about 12.00 noon, he heard the noise of 'Bachao Bachao' and 'Nikalo Nikalo'. He went upstairs to the house of accused Rakesh Bali and came to know that Aarti, wife of Rakesh Bali, was inside the bathroom for quite some time and was not responding on the knocking of the door or on calling. Accused Rakesh Bali opened the nut bolts of the door and after breaking the lock of the door, the door was opened. He saw Aarti hanging with the ceiling fan in the bathoom with the help of chunni. She was removed from the ceiling fan and was put on the floor. She was alive at that time, she was removed to the hospital.

As this witness has also not supported the case of prosecution, hence he SC No.25/1 35 was also cross examined by Ld APP wherein he has stated that he does not remember whether he had also told to the police that brother of accused Rakesh Bali i.e. Vikesh Bali also called a lady doctor Regulative from market, who after seeing Aarti advised them to remove Aarti to hospital or nursing home. In the cross examination conducted by Ld defence counsel, PW13 has stated that he never heard from Aarti or from any other person that she was being harassed by the accused persons for want of dowry, even whenever he visited the house of accused persons, he found Aarti under depression, but he does not know what was the reason. PW13 has further deposed that even whenever he visited the house of accused persons, he found Aarti under depression. Aarti had visited her house several time with her mother.

Again in re examination conducted by Ld APP on certain facts, this witness had made improvements and has been confronted with his statement Ex.PW13/DA that all the arrangement of staying at Jammu at the time of Marriage were made by Mr. Sethi on behalf of Mr. Yogesh Bali and the expenses of the same were paid by Mr Yogesh Bali in his presence. This fact is not appearing in the statement Ex.PW13/DA.

PW18 SI Maharaj Singh has stated that on 28/05/99, he was posted at PS Patel Nagar and on that day on receipt of copy of DD no.12A, he alongwith constable Hakim sigh reached Ganga Ram hospital, where he collected MLC no.208 of Aarti Bali who was declared brought dead. As per MLC, Aarti was admitted in the hospital by her husband. He tried to interrogate the details of incident and he came to know that the marriage of Aarti had taken place one year prior to the incident, so he gave information to the SHO and concerned SDM. SC No.25/1 36 After some time, SHO PS Patel Nagar came to the hospital and SDM Saheb Singh had also come there, who directed him to inform the parents of Aarti and further to preserve the dead body in the mortuary, till the arrival of the parents of deceased. Accordingly, he deputed constable Hakim Singh for the safety of the dead body and he himself informed the parents of Aarti.

PW18 has further deposed that on 28/05/99, as per the directions of the SDM, he sealed the place of occurrence and got conducted the photographs of place of occurrence through PW6 Ct Aslam. On 29/05/99, he prepared rough site plan of the scene of occurrence, which is Ex. PW18/A. He sealed the place of occurrence by locking the room from outside, with the seal of MS and on 29/05/99, the parents of Aarti had come at the PS and SDM also came there, who recorded statement of Sanyogita Dutta mother of deceased, Balbir Dutta, father of deceased and Shivani Dutta sister of deceased. Thereafter, the SDM directed to register the case and accordingly, the case was registered u/s 498A/304B/34 of IPC.

PW18 has further deposed that after registration of the case, he reached at the spot and collected one plastic bucket, which was kept in the bathroom, one chunni measuring about 5 feet 10 inch, which was found hanging with the ceiling fan and one door handle was also lying in the bathroom. All the aforesaid articles were taken in possession by him and he sealed the same in pullanda with the seal of MS and took into possession vide seizure memo Ex.PW8/A. PW18 SI Maharaj Singh has further deposed that on 30/05/99, firstly he reached at Ganga Ram mortuary, where SDM Saheb Singh prepared inquest SC No.25/1 37 papers for the purpose of conducting postmortem on the body of deceased and after that, the dead body of deceased was removed to mortuary of Sabji Mandi and accordingly the postmortem on the dead body was conducted and after postmortem the dead body was handed over to the father of the deceased vide memo Ex.PW2/C. PW18 also got recorded DD no.16A on 28/05/99 regarding the proceedings conducted by him on that day.

PW18 has further deposed that on 31/05/99, accused Rakesh Bali was arrested by him and his personal search was conducted vide memo Ex.PW14/A. On 02/08/99, he alongwith Inspector Parvati and Inspector Devender Singh, draftsman reached at the spot, where he pointed out the place of occurrence, on the basis of which Inspector Devender Singh prepared rough notes and took measurements. On 03/06/99, as per the directions of the senior officials, investigation of this case was transferred to DIU. PW18 has also identified the plastic bucket as Ex.P1, chunni as Ex.P2 and door handle as Ex.P3.

PW6 HC Mohd Alam has corroborated with the facts as deposed by PW18 SI Maharaj Singh and has stated that on 28/05/99, he was called by IO at Z­58, West Patel Nagar. He reached there on second floor and took photographs at the instance of the IO. He has also produced the negatives of the photographs, which are Ex.PW6/1 to PW6/4 and positives are Ex.PW6/5 to Ex.PW6/8.

PW7 Inspector Devender Singh has stated that on 02/08/99, he was posted as draughtsman at crime branch, Delhi and on that day, he visited the place of occurrence i.e. first floor of house no.Z­58, west Patel Nagar, Delhi and took rough notes and measurements, on the pointing out of ASI Maharaj Singh and on the basis of the same, he prepared scaled site plan Ex.PW7/A. Nothing SC No.25/1 38 came out in the cross examination of PW6 and PW7 to disbelieve their testimony except that PW6 has deposed about the second floor of Z­58, which neither had been confronted by Ld APP nor has been cross examined by Ld Defence counsel, so it seems that he has deposed inadvertently about the second floor of place of occurrence of which photographs were taken.

Ld defence counsel has further contended that Dr Indira had examined Aarti Bali and she did not observe any injury on the body of Aarti and has further stated in the cross examination that whatever she has mentioned in the MLC was seen and observed by her and was told to her. So the facts as deposed by PW32 Sanyogita Dutta that when she reached at Ganga Ram hospital, they saw dead body of her daughter, she saw swelling in some portions of her head and she also saw some scratches of nails on her face as if someone had beaten her, appears as false and have been made intentionally as improvement to make out case against the accused persons as neither the police officials nor other witnesses have observed any beating marks on the body of Aarti, at any time.

PW19 Inspector Parwati has stated that she was posted as Inspector at District Crime Cell, Janak Puri and on that day she received the investigation of this case. She tried to find out other accused persons i.e. Yogesh Bali father in law, Vinay Bali mother in law, Vikesh Bali jeth, Rinku Bali jethani, Raman and Sangeeta (nanand and nanadoi). She obtained NBWs for effecting their arrest. Prcoess u/s 82/83 Cr.Pc was got issued. In the mean time all these accused obtained anticipatory bail and they were formally arrested by her vide arrest memo Ex.PW19/A of accused Vikesh Bali, Ex.PW19/B of accused Vinay Bali, Ex.W19/C of accused Yogesh Bali, Ex.PW19/D of accused Rinku Bali. She also SC No.25/1 39 prepared their personal searches vide memo Ex.PW19/E of accused Yogesh Bali, Ex.PW19/F of accused Vinay Bali, Ex.PW19/G of accused Vikesh Bali, Ex.PW19/H of accused Rinku Bali and Ex.PW19/J of accused of accused Raman kumar. Arrest memo of accused Raman Kumar was preapred vide memo Ex.PW19/K and of Sangeeta vide memo Ex.PW19/L and her personal search was taken vide memo Ex.PW19/M. PW16 ASI Shri Bhagwan has stated that he was posted as HC at District Crime Cell and on that day, he joined investigation of this case with PW19 Inspector Parvati Kazoor and he alongwith PW19 Inspector Parvati Kazoor and Ct Anil Kumar reached hotel City Palace in Jammu, Shakti Nagar, where they made inquiries from Manager of the hotel, who had produced photostate copy of register in connection with entry dated 17th April 1998 regarding booking of Sh. B.K. Dutta, house no.400, Rajpura, Shakti Nagar, Jammu. The hotel manager also produced one handwritten certificate on the hotel letter pad regarding receipt of Rs.18,000/­ for arrangement of dinner function dated 17/04/98,which was seized by IO vide memo Ex.PW16/A and handwritten certificate Ex.PW10/A and photocopy of register Ex.PW16/B. Ld defence counsel has contended that according to the cross examination of PW19 Inspector Parvati, she did not collect any list of dowry articles, which were given in the marriage and she deposed voluntarily that complainant had given their statement in this regard. She had demanded list of dowry articles given in the marriage from the complainant and witnesses in Delhi and also in Jammu , when she had gone there but they told that they were not having any list and they will prepare the same and will handover to her and till SC No.25/1 40 the preparation of chargesheet, the complainant and other witnesses did not hand over her any list of dowry articles to her.

Ld defence counsel has contended that this fact itself shows and prove that there was no demand of dowry and no dowry articles were given in marriage and it was a simple marriage and Rs,18,000/­ were spent by parents of deceased and further no demand was raised at the time of marriage or before marriage and moreso, no particular demand has been pointed out and deposed by the witnesses of cash or of any other article and if at all, we presume that the accused persons had stated that cash should be given instead of customary articles then the same could not be treated as demand of dowry because the customary articles were given by the complainant on various occasions/festivals and witnesses have made improvements in this respect that the customary articles were demanded by accused persons.

The contention of Ld defence counsel as pointed out in the deposition of police witnesses regarding investigation are not forceful in any manner as these are minor contradictions. More so, PW11 Rita Franklin, PW12 Sh. Vijay Panda, PW13 Sh. Purshottam Lal, and PW15 Pramod Taneja instead of supporting the case of prosecution have supported the case of accused persons and it is also proved that Aarti Bali was also removed from the ceiling fan where she was hanging with the help of chunni by accused Rakesh Bali after breaking open the lock of door of bathroom and she was removed to Ganga Ram hospital by her husband, where she was declared dead. In such circumstances, if there are any shortcomings regarding the deposition of witnesses, then the same is not effecting the testimonies of witnesses because over SC No.25/1 41 all, the facts have not been disputed about the investigation as conducted. Cause of Death According to PW20 Dr Indira, who was working as CMO in the casualty of Sir Ganga Ram Hospital, on 18/05/99, she examined patient Aarti Bali brought dead by her husband Rakesh Bali and his elder brother. She prepared MLC Ex.PW20/A and also issued death certificate Ex.PW20/B. She also prepared death summary Ex.PW20/C. She has not been cross examined on behalf of accused persons, in any manner.

Postmortem on the dead body was conducted by PW9 Dr. K.Goel. He has deposed that on 30/05/99, he was posted at Mortuary Subji Mandi and on that day, he conducted postmortem on the dead body of Smt Aarti, with alleged e history of hanging. He conducted external and internal examination. He found ligature pressure abrasion mark running obliquely around the neck about 2 cm above the apple of adam. On the right side, it passed upwards ending just below the right ear. On the left side ligature mark passed downwards initially and then turn upwards reaching to back of neck ending into ears, just at midline back of neck. The primacy of ligature mark was variable at places. It was more prominent over right front, front and left lateral aspect. The width of ligature mark was ranging between 1.25 cm to 1.75 cm. No other external injury was seen.

PW9 opined the cause of death as ashphyxia with apoplexy consequent to hanging. Ligature mark was antemortem in nature and caused by some soft ligature material. Time since death was about two days. He has proved postmortem report as Ex.PW9/A. According to the cross examination, PW9 has SC No.25/1 42 stated that chunni was not received with the body because he has not mentioned this fact anywhere in his report Ex.PW9/A. From the depostion of PW20 Dr Indira and PW9 Dr. K.Goel, it is clear that when Aarti was brought to them for examination, at that time she was not sustaining any external injury as it was neither observed by PW20 nor PW9 Dr. K.Goel, at the time of postmortem, which falsify the deposition of PW3 Sanyogita Dutta that she had seen external injury on the body of Aarti, in Ganga Ram Hospital. It is also proved from the deposition of these witnesses that cause of death was hanging and not strangulation as contended by counsel for complainant that Aarti was strangulated and and she was hanged with the ceiling fan of the bathroom to show the same as suicide, if it was so, then how the bathroom could be found locked from inside.

In the statement of accused persons recorded u/s 313 Cr.PC, accused Rakesh Bali has stated that after marriage, he came to know that Aarti had undergone plastic surgery before marriage, due to burns on her left breast and left arm. The operation has taken place at Mumbai. After Marriage, she was suffering from acute pain and therefore, she was treated by different doctors. He has further explained that after marriage, a grand reception was given at Delhi by him and his family members. Thereafter, he alongwith Aarti proceeded for honeymoon to Himachal and Kashmir. On return from there, he got an account opened in the PNB bank at Delhi, in her name and deposited Rs.51,000/­ from his side.

Accused Rakesh Bali has further explained that due to injury, which she had sustained, she used to remain under constant pain and depression and was SC No.25/1 43 boosted by him and his family members. She thereafter, became pregnant and was looked after properly by him and his family members and was given nourishing diet. She was also being regularly taken to different doctors for her treatment as well as for pregnancy. During this period, the mother and sister of Aarti were on visiting terms with them.

He has further explained that after delivery, she was unable to feed the child properly due to disease (keloids) she was suffering from and because of this reason, she was under much depression. She also suffered from serious UTI complications and was taken to the hospital. The child, after the birth suffered jaundice and remained in the hospital. They both were looked after by him and his family members. All the expenses were borne by them. During this period, the mother of Aarti also remained in their house. Aarti was under much depression, but was being boosted regularly. He along with his family members took utmost care of Aarti, when she was suffering from above mentioned disease, but Aarti used to feel depressed, because of her ailments and her inability to feed the child. After the discharge from the hospital, she still remained under depression. On the day of incident, she had gone to take bath, but she did not come out for long time and therefore, he knocked at the door, but there was no response. He called for the help. Neighbours and his family members collected and they broke open the door and found her hanging. He immediately took her down and removed her to the hospital, in order to save her.

Accused Vikesh Bali has also given the same explanation and has further stated that on the day of incident, he had gone to his work in the morning, where he was intimated about the incident and immediately, he reached to Ganga SC No.25/1 44 Ram Hospital and came to know that Aarti had died because of hanging. Thereafter, the false case was made up against him. There was no demand of whatsoever of any kind, from him or any of them from the parents of Aarti or anyone at any stage. Neither he or any of his family members had ever maltreated her.

Accused Rinku Bali has also given the same explanation and further has stated that On the day of incident, she had gone to the market along with her mother in law Vinay Bali to purchase the daily use items. On receipt of information, they immediately rushed to Ganga Ram Hospita and came to know that Aarti had died because of hanging. Thereafter, the false case was made up against her. There was no demand of whatsoever of any kind, from her or any of them from the parents of Aarti or anyone at any stage. Neither she or any of her family members had ever maltreated her.

Accused Yogesh Bali has stated in his statement that on the day of incident, he had gone to his office, where he was intimated about the incident and and immediately, he reached at Ganga Ram Hospital and came to know that Aarti had died because of hanging. Thereafter, the false case was made up against him. There was no demand of whatsoever of any kind, from him or any of his family members from the parents of Aarti or anyone at any stage. Neither he or any of his family members had ever maltreated her.

Accused Vinay Bali has stated in her statement that on the day of incident, after her husband departed from his job and his elder son had also gone for his job, she had gone to the market alongwith her daughter in law Rinku Bali, to purchase the daily use items. On receipt of information, they immediately SC No.25/1 45 rushed to Ganga Ram Hospital and came to know that Aarti had died because of hanging. Thereafter, the false case was made up against her. There was no demand of whatsoever of any kind, from her or any of them from the parents of Aarti or anyone at any stage. Neither she or any of her family members had ever maltreated her.

In defence, DW1 Dr. Dharampal has been examined, who had treated Aarti on 02/04/98. She was suffering from Keloid i.e. a thick painful scar. Sometimes, it causes deformity in movement of arm and also can cause depression. According to DW1, keloid is not a curable disease and it can be controlled by only 5 to 10 percent. He gave the treatment as per his prescription slip, Ex.DW1/A. DW2 Dr. Rakesh Malhotra has deposed that he is specialist in internal medicines and on 28/06/98, he treated Aarti Bali, who came to him with the complaint of insomnia i.e. loss of sleep. She used to remain irritable and restless. She had loss of appetite and feeling anxious and used to have excessive perspiration and sweating, which were symptoms of depression. DW2 has proved his prescription as Ex.DW2/A in regard to his treatment. DW2 has further deposed that Aarti had come to him again on 12/05/99, post delivery and she had same features and at that time they were at more severe stage. She presented complaints of mark anxiety and tension, forgetfulness, suspicious and patient stopped treatment of depression during pregnancy. She had persistent organic ailments. She throughout her pregnancy suffered from keloid. The patient was having a complaint of breast feeding because from the left breast due to keloid, the arola and nipple was not functionable. DW2 has further deposed that he had SC No.25/1 46 examined the left shoulder and left upper part of the arola and has proved his prescription slip as Ex.DW2/B. DW3 is Surinder Kumar Sethi. He has proved the original record of hotel Arya Bhatt, Jammu regarding the reservations/booking made in the hotel. He has further deposed that he had made reservations from 15/04/98 to 18/04/98 for about 9 rooms. The booking was done on 15/04/98 and he has further deposed that accused Yogesh Bali had signed in the register in his presence at point A. He has proved the copy of same as Ex.DW3/A. DW3 has further deposed that he had made arrangement on the request of Yogesh Bali for the food of these persons by making arrangement of caterers as there was no restaurant in his hotel. Total billing in this respect might have been 45­50 thousand.

It is not disputed that the accused persons had stayed in hotel Arya Bhat at the time of marriage.

In the cross examination, DW3 has further deposed that due to strike of public vehicles, he himself had gone to receive Yogesh Bali and other persons at railway station. He had taken private taxi for that day only and he had given Rs. 300/­ per trip and total five trips were made, for which he was paid and had claimed the same in the final bill. This fact is also corroborating with the fact that at that time, when accused persons reached at Jammu Railway station, the parents of Aarti did not make any arrangement for their transportation from railway station to hotel due to strike of public transport.

DW4 HC Karam Singh had verified certain medical papers of deceased Aarti as per directions of SHO PS Patel Nagar as Ex.DW4/A. He reached in L.C. Manik Polyclinic and Nursing Home in Bombay, where he SC No.25/1 47 obtained one certificate from doctor regarding verification, which is Ex.DW4/B. He also visited Regarpura, Karol Bagh to verify the record and a certificate was given in this respect by the doctor, which is Ex.PW4/C. He also visited Maharaj Agra sen Hospital and obtained verification report, which is Ex.DW4/E. He also visited Dr. Lal's Laboratory and obtained verification report, which is Ex.DW4/F. He also visited the clinic of Dr. Dharampal at Nizamuddin and obtained the verification report, which is Ex.DW4/G. He also visited at Himgiri Diagnostic Centre at Patel Road, Opposite Vivek Cinema and obtained the verification report, which is Ex.DW4/H. He also prepared his verification on the notice Ex.DW4/I. In view of above, it is clear that PW2 Sh. Balbir Dutta, PW3 Smt Sanyogita Dutta and PW4 Ms Shivani Dutta have made important improvements regarding demands of dowry. They have also made improvements regarding the money spent on the marriage, which infact found to be contrary with the depositions of other witnesses.

PW2 Sh. Balbir Dutta has admitted that no dowry was demanded till the engagement and prior to marriage, PW2 Sh. Balbir Dutta and PW3 Smt Sanyogita Dutta have also stayed in the house of accused persons and has observed the atmosphere of house of accused persons and they have also observed the standard of living of the accused persons and found to be suitable. It has also come in the deposition of witnesses that in the ring ceremony, which was performed in Kranti Hotel, only sweet boxes were taken by parents of Aarti and in the marriage party in City Palace, only Rs. 18,000/­ were given by PW2 Sh Balbir Dutta as deposed by PW10 Sanjay Vohra for conducting dinner including SC No.25/1 48 flower decoration, lighting, generator etc for 17/04/98. DW3 Surinder Kumar has also deposed that the marriage party had stayed in Arya Bhatt hotel and he had provided food and nine rooms to the marriage party. Total expenditure, which might be 45­50 thousand and were paid by parents of bridegroom i.e. accused Rakesh Bali.

It has also come in evidence that at the time of marriage, when marriage party reached at Jammu, due to transportation strike no one from the side of bride reached at railway station to take marriage party to Arya Bhat hotel, DW3 had also made arrangement for providing taxi to carry the accused persons to Arya Bhat hotel. So all these facts shows that not much money was spent in the ring ceremony and in the marriage as exaggerated by the witnesses i.e. parents of deceased Aarti Bali.

It has also come in the evidence that Aarti was suffering from keloid, which according to the complainant witnesses, was disclosed before the marriage, but according to PW15 Sh. Pramod Kr Taneja, who is friend of PW2 Sh. Balbir Dutta, when he asked Balbir Dutta to disclose about the keloid with which Aarti was suffering, to the accused persons, then Balbir Dutta stated that he was not in the opinion to disclose the said fact to the accused persons because the same might be result in refusal of marriage proposal. PW15 Sh. Pramod Kr Taneja is friend of PW2, but has deposed independently and has not supported the case of prosecution regarding the demand of dowry etc and has further stated in the cross examination that Aarti was upset as she was unable to feed the child due to Keloid on her breast.

PW­19 Inspector Parvati has also deposed in the cross examination SC No.25/1 49 that she had demanded list of dowry articles given in the marriage from the complainant witnesses in Delhi and also in Jammu, when she had gone there but they told that there was no list and they will prepare the same and will handover to her but till the completion of chargesheet, the complainant had not given any list of dowry articles, to her, so this also raises doubt on the deposition of witnesses, who had stated that the accused persons had raised any demand on the pretext that sufficient dowry articles were not given in the marriage and were not of good quality. In absence of any list of dowry articles for which IO had made efforts, it cannot be said that the dowry articles were given in the marriage, so the witnesses cannot be relied upon that there was any demand of dowry and Aarti was harassed on account of same.

In support of his contention, Ld defence counsel has relied upon 2011 (3) JCC 1966 titled as State Vs Sohan Lal & ors, where it has been held that to attract section 498A of IPC, it must established that cruelty or harassment to wife was to force her to cause grave bodily injury or danger to life, limb or health, whether mental or physical and harassment of women should be with a view to coerce her relations to meet any unlawful demand of dowry for any property or valuable security."

Ld defence counsel has contended that the depositions of PW2 Sh. Balbir Dutta, PW3 Smt Sanyogita Dutta and PW4 Shivani Dutta, who have made material improvement regarding the demand of dowry, cannot be relied upon to the extent that Aarti was harassed by the accused persons on the pretext of demand of dowry. It has come in the deposition of PW2 Sh. Balbir Dutta, PW3 Smt Sanyogita Dutta and PW4 Shivani Dutta that customary articles were given SC No.25/1 50 at the time of various occasions/festivals, which were not upto liking of accused persons, so they demanded cash instead of such customary articles."

In support of his contention Ld defence counsel has relied upon, 2001 AIR SC 2828 titled as Satvir Singh Vs State of Punjab, wherein it has been held that "all amounts paid by the in­laws of the husband of a woman cannot become dowry. Dowry mentioned in section 304B should be any property or valuable security given or agreed to be given in connection with the marriage or some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies, such payments are not enveloped within the ambit of "dowry".

If there was any demand of dowry at any time, then neither mediator nor Pramod Kr Taneja, who were known to both the parties were either informed. No panchayat was called or no complaint was made to any relatives or any family members.

Shivani, sister of deceased stayed in the house of her sister for some days and at the time of giving birth to child. PW3 Sanyogita, also stayed in the house of Aarti for about 10­12 days, but no such complaint was made before any relative/family members or mediator or before any common friend that Aarti was being harassed for demand of dowry.

The choice differs from person to person and also from area to area, so it was not unnatural that the accused persons did not like clothes etc brought by the complainant for them but they were not required to demand the cash instead of such customary articles/clothes etc. Whether the articles were according to the status of in laws of Aarti SC No.25/1 51 or were not is a matter of personal perception and the same can not be presumed as demand of dowry but the in laws of Aarti were not having any right to ask for cash instead of such customary articles as given by the complainant on various occasions.

Aarti was taunted and cash was demanded several times in place of customary articles and more so, the conduct of husband of Aarti as once he had told that he will marry himself again and will send the child in hostel itself amounts to cruelty against the deceased Aarti and Aarti had stated again and again that she be taken to Jammu and she will not come back otherwise she would be killed by her in laws, which shows that she was being treated with cruelty and was apprehending her life.

From the deposition of PW3 Sanyogita Dutta and PW4 Shivani Dutta, it is clear that the only fact, which has emerged from the deposition of both these witnesses is that whatever customary articles were taken or send to the in laws of Aarti the same were not liked by the in laws of Aarti, hence they demanded cash instead of such articles, which were not useful for them, but accused persons never demanded any dowry in the form of cash or kind at any time Brother of Aarti Bali also visited Delhi with the mother of Aarti, which shows that the relations were cordial between the parties. Even it has also come in the cross examination of PW4 Shivani Dutta that customary articles were given on Lohri and Karva Chauth and birth of child etc, but at the same time Shivani Dutta has deposed that these customary articles were given as per desire of accused persons to exaggerate the facts which has not been told by PW3 Sanyogitta Dutta.

SC No.25/1 52

So in such circumstances, it cannot be said that Aarti was harassed by the accused persons for the demand of dowry.

Section 498A of IPC deals with cruelty to a woman reads as under:­ Section 498A. "Whosoever, 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."

Explanation­ For the purpose of this section, "cruelty" means­

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or 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.

In the explanation of cruelty of section 498A of IPC, cruelty has been defined in two parts. First is part (a), which deals with willful conduct as is likely to drive the woman to commit suicide and part (b) deals with causing of harassment to a woman with a view to coerce her or any person related to her to meet unlawful demand for any property or valuable security or is on account of failure by her or any person to meet such demand.

From reading of both these parts of cruelty as defined, it is clear that both are independent. Word 'or' has been used by Legislature at the end of part

(a) i.e. explanation to the cruelty. So, it can be either willful conduct which is SC No.25/1 53 likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) or it can be harassment to a woman with a view to coerce her to meet any unlawful demand for any property or valuable security.

It is the case of the prosecution that Aarti had committed suicide and it has come in the deposition of witnesses that cash was demanded every time in place of customary articles whenever these were given by the complainant to the accused persons i.e. in laws of deceased Aarti on various occasions and festivals. The witnesses have also deposed about the conduct of accused Rakesh Bali, husband of Aarti as once he had told that he will marry himself again and will send the child to hostel, which itself amounts to cruelty to Aarti. This fact was told to PW3 Smt Sanyogita Dutta and PW4 Shivani Dutta , who had stayed for few days in the house of in laws of Aarti. PW3 visited the house of inlaws of her daughter on the occasion when Aarti gave birth to child and PW4 Shivani Dutta, sister of Aarti visited in laws' house of Aarti on 11/03/99 and she has further told that once her sister was pushed by accused Rakesh Bali, while she was pregnant and accused Rakesh Bali told that he is not able to carry the weight of her sister and further told that he would marry again.

All these witnesses have also deposed that Aarti had told them that she should be taken to Jammu and she will not come back to Delhi, otherwise she would be killed by her in laws. So, Aarti was being treated with cruelty and for that reason, she was asking her mother and sister to take her back to Jammu and further that she will not come back to Delhi.

The fact that accused persons were demanding cash instead of SC No.25/1 54 customary articles itself caused cruelty towards Aarti because they were not having any right to ask for cash instead of customary articles and whatever the customary articles were and whether the same were upto the liking of accused persons or not, could not be questioned. Such demands had caused cruelty to Aarti because on each occasion, it was said that the cash should be given instead of said customary articles. So from the depositions of PW2, PW3 and PW4, prosecution has been able to prove beyond reasonable doubts that accused persons willful conducted in such a manner and it was of such a nature that it drove Aarti to commit suicide. Accordingly, even if there was no demand of dowry, even then, according to explanation of part 'a' of section 498A of IPC, prosecution has been able to prove section 498A, beyond reasonable doubts.

Section 304B of IPC deals with dowry death which runs as under:­ 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.

This section is applicable in proof of following circumstances:­

1. that death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances.

2. That the death of a woman occurred within seven years of her marriage,

3. that it is shown that soon before her death she was subjected to cruelty or SC No.25/1 55 harassment by her husband or any relative of her husband

4. that the such cruelty or harassment was for or in connection with any demand of dowry.

According to the facts as deposed by the witnesses who have supported the case of prosecution and also who have not supported the case of prosecution, Aarti was removed, while she was found hanging in bathroom, door of which was opened by breaking the same and Aarti was removed to Ganga Ram hospital where she was declared brought dead. It is also admitted fact that Aarti was removed to Ganga Ram hospital by her husband Rakesh Bali.

Postmortem on the dead body of Aarti was conducted by PW9 Dr. K. Goyal, according to his opinion, the cause of death was ashphyxia with apoplexy consequent to hanging. Ligature mark was antemortem in nature and caused by some soft ligature material. Time since death was about two days.

It is also deposed by the witnesses that when Aarti was removed from the ceiling fan of bathroom, she was found hanging with the help of chunni, which was also sealed in this case, which corroborated that the ligature mark was caused with some soft ligature material.

It is also not disputed that the marriage of Aarti was held on 17/04/98 and she died on 28/05/99, so it was within the seven years of marriage. At the time of giving findings about section 498A of IPC, it has been held that accused persons had treated Aarti with cruelty as per explanation 'a' of section 498A of IPC, which drove Aarti to commit suicide but it has to be seen whether such cruelty was caused for or in connection with any demand of dowry.

Ld defence counsel has contended that from the deposition of the SC No.25/1 56 witnesses, prosecution has not been able to prove offence u/s 304B of IPC and in support of his contention, he has relied upon AIR 2009 (SC) 2913 titled as Nepal Singh Vs state of Haryana, where it has been held that " something must have happened otherwise deceased would not have committed suicide is clearly indefensible. That certainly could not have been a reason to set aside the trial Court's judgment of acquittal."

Ld defence counsel has further relied upon 2008 CRI LJ 1574 titled as State Vs Jitender Garg and Ors, where it has been held that suspicion by itself however strong it may by itself is not sufficient to take the place of proof and warrant a finding of guilt of the accused."

Ld defence counsel has further relied upon 2010 (2) LRC 80 (Del) (DB) titled as Girajo Devi & ors Vs State, where it has been held that " a possibility cannot be ruled out that since deceased has died unnatural death in her matrimonial home, parents of deceased , appellants responsible for her death and, therefore, they went to the extent of accusing them of demand of dowry and subjecting deceased to harassment and cruelty, so in such circumstances, benefit of doubt should be extended to appellants."

Ld defence counsel has further relied upon 2010(3) LRC 349 (Del) titled as Narender Singh Arora Vs State", wherein it has been held that " every suicide committed by a married woman in her in laws' house or at her parents house not to be presumed as a dowry death­Suicides are committed by living human beings for various reasons."

Ld defence counsel has further contended that from the deposition of DW1 and DW2, it is clear that Aarti was suffering from depression and she was SC No.25/1 57 also suffering from keloid, which was not curable and was painful.

Ld defence counsel has further contended that according to DW2, Aarti was also having complaint of insomnia She used to remain irritable and restless. She had loss of appetite and feeling anxious and used to have excessive perspiration and sweating, which were symptoms of depression.

Ld defence counsel has further contended that even in the cross examination DW2 has stated that he referred Aarti to physio therappy and behaviour therapy. He had also seen plastic surgery, which had already been done to the keloid of Aarti Bali. He further referred her to plastic surgeon as her previous plastic surgery was not ok. Ld defence counsel has further contended that Aarti was also having urinary track infection and PID i.e. pelvic inflammatory disease. So under depression, she committed suicide on that day by locking herself in the bathroom. When she did not come out for a long time then accused Rakesh Bali broke open the door of the bathroom and removed her from ceiling fan with which she was hanging with the help of chunni and immediately she was removed to Ganga Ram hospital, where she was declared dead. So this also counter the arguments of counsel for complainant that Aarti had not committed suicide but infact she was murdered.

In support of his contention and defence evidence, Ld defence counsel has relied upon 2012 (2) LRC 287 (Del) titled as Ashok Narang Vs State, wherein it has been held that " evidence tendered by defence witness cannot always be termed to be tainted one. Defence witness is entitled to equal term and equal respect as that of prosecution. Issue of credibility and trustworthiness will also be attributed to defence witness at par with that of prosecution.". SC No.25/1 58

I have considered the submissions of Ld defence counsel and have gone through the judgments relied upon. Settled proposition of law is not in dispute. I have also gone through the depositions of DW1 and DW2.

In his cross examination, DW1 has stated that he cannot say whether Aarti Bali had taken treatment or not as Aarti did not visit to him again at any time. In such circumstances, as there was no follow up of the treatment as deposed by DW1, he cannot say that cause of depression was keloid only or there could be some other cause of depression. In his cross examination, DW2 has also stated that he had seen the plastic surgery, which had already been done to the keloid of Aarti and he had further referred to plastic surgeon as his previous plastic surgery was not ok and again no follow up has not been proved on record that any plastic surgery was got done to the keloid of Aarti hence it cannot be said that the Keloid was the sole reason for depression. It is also not proved as to whether Aarti had visited any physiotherapist or any plastic surgeon or behaviour therapy for any treatment. Both DWs cannot be relied upon to the extent that Aarti was under depression due to keloid. Merely from the prescription and examination by these doctors it cannot be said that from the symptoms as observed by both the doctors of Aarti Bali, she was continuously suffering from these symptoms as both these doctors had examined her once or twice and thereafter Aarti did not visit these doctors for follow up. So mere observation regarding symptoms and suggested treatment cannot be relied upon, in any manner as even it is also not known whether treatment as suggested by DW1 and DW2 was taken by Aarti Bali or not, so merely that medical record has been verified by the police is not sufficient to presume and prove that Aarti SC No.25/1 59 was under depression due to Keloid or due to some other disease.

The major contention of Ld defence counsel that Aarti was under

depression due to the fact that she was not able to feed her child because of keloid on her breast is also not forceful in any manner as she had problem in one breast only and she could have fed the child from other breast and it seems that Aarti was under depression due to cruelty as proved by prosecution witnesses and the contention of accused persons that they boosted the moral of Aarti does not seem to fortify from the facts and circumstances brought on record.

From the statement of PW2 Sh. Balbir Dutta, PW3 Smt Sanyogita Dutta and PW4 Shivani Dutta, it has proved beyond reasonable doubts that Aarti was continuously treated with cruelty by accused persons as they had demanded cash instead of customary articles and accused Rakesh Bali told in presence of PW3 Shivani Dutta, when she had gone to her sister's house at the time of birth of child that he will remarry again and will drop the child in hostel and will kill Aarti. Repeatedly Aarti had told to her family members that she wanted to go to Jammu and she should not be sent back otherwise she would be killed by her in laws. Testimonies of PW3 Sanyogita Dutta is unrebutted and unshaken in respect of this fact and she inspires confidence.

According to PW4 Shivani Dutta,when she had visited the house of her sister and when her sister was pregnant, at that time, accused Rakesh Bali once pushed her and told to Shivani that she should take her sister away as he was unable to bear her weight and he will marry again. Testimony of PW4 Shivani Dutta is unshaken in this respect and this fact was told by accused Rakesh Bali in her presence, when Aarti was pregnant. SC No.25/1 60

In such circumstances, since the day of marriage Aarti was treated with cruelty continuously on one or other ground as already discussed above, although there was no demand of dowry on the part of accused persons and one of the essential ingredients to prove offence u/s 304 B of IPC is that if the woman was subjected to cruelty then such cruelty should be for and in connection with any demand of dowry. In section 304B of IPC, cruelty relates to demand of dowry and not relates to bodily injury as explained in definition of section of 498A of IPC part (a).

In view of the above, the prosecution has been able to prove beyond reasonable doubts that due to such mental and physical cruel treatment, Aarti Bali committed suicide but as there was not demand of dowry, so prosecution has not been able to prove offence u/s 304B of IPC, beyond reasonable doubts.

PW2 Sh. Balbir Dutta had told before SDM in statement Ex. PW2/A that Aarti was being treated with cruelty and was being harassed by her husband, mother in law, father in law and jeth. PW4 Shivani Dutta also told to SDM in her statement Ex.PW4/A that her sister was being harassed and taunted by her husband, father in law, mother in law jeth, nanad and nanadoi. PW3 Sanyogita Dutta has stated in her statement Ex.PW3/A to the SDM that the accused Rakesh Bali , father in law, mother in law, nanad, nandoi, jeth and jethani were harassing Aarti. Accused Rakesh Bali, mother in law, father in law, nanad and nanadoi threatened to kill Aarti.

In the supplementary statement, PW3 Sanyogita Dutta had disclosed to the IO name of all the accused persons including Jethani Rinku Bali and PW2 Sh Balbir Dutta also added the name of Rinku Bali in his supplementary SC No.25/1 61 statement. Similarly, PW4 Sanyogita Dutta had also added name of Rinku Bali as one of the person, who had taunted and harassed Aarti and treated her with cruelty. It has come in the evidence that statements recorded by SDM were not objected by all these three witnesses i.e. PW2, PW3 and PW4 and these statements were recorded on 29/05/99, whereas supplementary statement of Sanyogita Dutta was recorded on 11/06/99 and of Balbir Dutta and Shivani Dutta on 06/07/99, so the facts mentioned therein are improvements, so in such circumstances as initially name of Rinku Bali was not disclosed as one of the person, who treated Aarti with cruelty and caused harassment to Aarti, in any manner or particularly for the demand of dowry by PW2 and PW4 before SDM, so it seems to be doubtful that the accused Rinku Bali had caused cruelty or harassment to Aarti on any account as deposed by these witnesses, accordingly accused Rinku Bali is acquitted for the offence u/s 498A and section 304B of IPC and accused Rakesh Bali, Yogesh Bali, Vinay Bali and Vinkesh Bali are convicted for offence 498A/34 of IPC and are acquitted for offence u/s 304B/34 of IPC.

Announced in Open Court on dated 26th of May, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No.25/1 62 IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 25/1 Unique Identification No.02404R0124211999 State Versus

6. Rakesh Bali.

S/o Sh. Yogesh Bali R/o Z­58, West Patel Nagar, Delhi.

7. Yogesh Bali S/o Sh Bhagat Ram Bali R/o Z­58, West Patel Nagar, Delhi.

8. Smt Vinay Bali W/o Sh Yogesh Bali R/o Z­58, West Patel Nagar, Delhi.

9. Sh. Vikesh Bali S/o Sh Yogesh Bali R/o Z­58, West Patel Nagar, Delhi.

FIR No. 401/99

PS - Patel Nagar U/s. 498A/34 of IPC Date of Decision: 26/05/2012 Date of order on sentence: 30/05/2012 SC No.25/1 63 ORDER ON SENTENCE 30/05/2012 Present. Ld. APP for the State.

Convict Rakesh Bali in person with counsel Sh. S.C. Buttan. Convict Yogesh Bali and Vinay Bali in person with counsel Sh. Sanjay Suri.

Accused Vikesh Bali in person with proxy counsel Sh. S.C. Buttan and Sh. Sanjay Suri for counsel Sh. Satender Kumar.

Heard on the point of sentence.

Learned defence counsel submits that convict Rakesh Bali is aged about 42 years. Learned defence counsel has fuirther contended that at the time of incident, the child was of two months, who has been looked after and is brought up by the convict and at present, the child is aged about 14 years. Learned defence counsel has further contended that convict remained unmarried after the incident to look after the child and his dedication towards the deceased. He also remained unmarried as he was not wanting any step motherly treatment to his child. He is also looking after his parents and his mother is cancer patient. He is neither previous convict nor habitual offender. No other criminal case is pending against him. It is further contended that he remained in custody from 31/05/99 to 06/08/99 and from 23/01/2001 to 01/12/2001. It is further contended that considering the facts and circumstances, convict Rakesh Bali be released for the already undergone period or in alternative, he be released on probation. It is further contended that convict has faced trial of this case since 1999 and has appeared regularly.

SC No.25/1 64

Learned defence counsel further submits that convict Yogesh Bali is aged about 69 years. It is further contended that he has undergone prostate surgery, in which, he sustained full body infection. He is also suffering from urinal problem. He had also undergone heart surgery in 2008 and is having pacemaker. It is further contended that he had also undergone custody during trial from 07/08/99 to 19/09/99 and from 12/02/2001 to 23/04/2001. He is neither previous convict nor habitual offender. No other criminal case is pending against him. He is also looking after his wife, who is suffering from cancer. It is further contended that considering the facts and circumstances, convict Yogesh Bali be released for the already undergone period or in alternative, he be released on probation. It is further contended that convict has faced trial of this case since 1999 and has appeared regularly.

Learned defence counsel further submits that convict Smt. Vinay Bali is aged about 65 years and she is suffering from cancer and is undergoing treatment. She is neither previous convict nor habitual offender. No other criminal case is pending against her. She remained in custody during trial from 07/08/99 to 20/09/99 and from 12/02/2001 to 20/04/2001. It is further contended that considering the facts and circumstances, convict Smt. Vinay Bali be released for the already undergone period or in alternative, she be released on probation. It is further contended that convict has faced trial of this case since 1999 and has appeared regularly.

Learned defence counsel further submits that convict Vikesh Bali is aged about 46 years. He is married and having one son. It is further contended that during the custody period, another son Pranay, who was eight months old, was SC No.25/1 65 also taken to the jail alongwith his parents, where he died due to dehydration. He is the only bread earner of his family. He is working as Cameraman. He is neither previous convict nor habitual offender. No other criminal case is pending against him. He remained in custody during trial from 07/08/99 to 19/09/99 and from 31/01/2001 to 20/04/2001. It is further contended that considering the facts and circumstances, convict Rakesh Bali be released for the already undergone period or in alternative, he be released on probation. It is further contended that convict has faced trial of this case since 1999 and has appeared regularly.

In support of the above contentions, learned defence counsels have relied upon 2000 (4) Crimes 420 titled as Bijender V. State, where in a case U/s. 498A of IPC and U/s. 306 of IPC, benefit of probation was given to the convicts on no objection of State.

On the other hand, learned APP assisted by counsel for the complainant Sh. Surender Anand has contended that although the accused persons have been convicted for offence U/s. 498A of IPC, but death has taken place in this case, so, the convicts are not deserving any leniency and benefit of probation should not be extended to them nor they should be released on already undergone custody during the trial It is further contended that strict punishment be awarded to the convicts to meet the ends of justice.

I have considered the submissions of learned defence counsels and ld. APP assisted by Ld. Counsel for complainant. It is not a case of simple cruelty, but wife of convict Rakesh Bali committed suicide. So, considering the facts and circumstances and also age, antecedents and character of the convicts, I am not of the opinion to extend the benefit of probation of good conduct to the convicts nor SC No.25/1 66 the judgment relied upon is applicable to the facts and circumstances of the present case as State has not given any no objection for releasing the convicts on probation.

The custody period already undergone by the convicts is insufficient to meet the ends of justice, hence, I am also not of the opinion that convicts should be released by awarding imprisonment for the already undergone custody period by them during the trial.

Offence U/s. 498A of IPC is punishable with imprisonment, which may extend to three years and shall also be liable to fine.

Accordingly, sentence of three years SI is imposed upon each convict U/s. 498A of IPC read with Section 34 of IPC with fine of Rs. one lac each. In default of payment of fine, each convict shall further undergo simple imprisonment for a period of nine months.

Benefit of Section 428 of Cr.PC be given to each convict according to his/her custody period as mentioned above.

Fine not deposited.

If fine is deposited, then out of total fine, Rs. 4 lacs be given to the parents of deceased Aarti as compensation after the expiry of period of filing of appeal, if appeal is preferred.

All the four convicts are remanded to JC to serve the sentence. Announced in Open Court on dated 30th of May, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court SC No.25/1 67 Rohini : Delhi SC No.25/1 68