Delhi District Court
State vs . 1. Vijay Kumar on 29 February, 2020
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 441064/2016
State Vs. 1. VIJAY KUMAR
S/o Sh. Ram Bilas
H. No. B-62, Sainik Nagar, Uttam
Nagar, New Delhi.
2. SHAKUNTLA
W/o Sh. Ram Bilas
H. No. B-62, Sainik Nagar, Uttam
Nagar, New Delhi
3. RAM PRASAD
S/o Sh. Hazari Lal,
H. No. B-76, Sainik Nagar, Uttam
Nagar, New Delhi
4. RAM BILAS
S/o Sh. Hazari Lal.
H. No. B-62, Sainik Nagar, Uttam
Nagar, New Delhi
5. ASHA
D/o Sh. Ram Bilas
H. No. B-62, Sainik Nagar, Uttam
Nagar, New Delhi
FIR No. : 150/2011
Police : BINDAPUR
Station
Under : 498A/304B/302/34 IPC
Sections
Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 1/74
Date of Institution of case : 03.09.2011
Date of Assignment to this court : 18.05.2017
at the stage of Prosecution Evidence
Date of Arguments : 26.02.2020
Date of Decision : 29.02.2020
JUDGMENT:
1. The case of the prosecution is that on 04.06.2011 an information was received at PS -Bindapur through PCR call that "A B-62, Sainik Nagar, Uttam Nagar - my wife has hanged herself" and this information was lodged vide DD No. 45A and was entrusted to ASI Lala Ram for enquiry. On reaching the spot ASI Lala Ram noticed that one room on the second floor was bolted from inside and when he peeped into the room from a small hole he noticed that a lady was hanging and thereafter ASI Lala Ram had broken the small portion of the wall and opened the bolt of the door. ASI Lala Ram with W/Ct. Seema and Ct. Praveen entered in the room and found that deceased was hanging Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 2/74 with the help of chunni. On enquiry, it was revealed that marriage of deceased was solemnized on 12.02.2005 with Vijay Kumar, S/o Sh. Ram Bilas, R/o B-62, Sainik Nagar, Uttam Nagar, New Delhi. The Area SDM was informed.
2. Sh. P. C. Sahu, Executive Magistrate, Patel Nagar, New Delhi inspected the spot and recorded the statement of family members of the deceased Babita namely Sh. Suresh chand and Sh. Indresh Kumar. The place of incident was also inspected by the Crime Team and dead body of the deceased was sent to DDU Hospital through Ct. Praveen. Thereafter, as per orders of Executive Magistrate, case FIR was registered U/Sec. 304B/498A/34 IPC on the statement of complainant Sh. Suresh Chand (father of the deceased) wherein he has alleged that deceased was being harassed and physically tortured for dowry and she had been killed by her husband Vijay Kumar and in laws namely Shakuntla (Mother-in-law), Ram Bilas (Father-in- law), Ram Prasad (Chachiya Sasur) and Asha (Nand). Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 3/74
3. During investigation, scene of crime was inspected and written statement running into four pages along with one paper of the hospital written with "Mera Pati Mera Khuni" were found on the spot and were seized. Thereafter, accused Vijay Kumar and Ram Bilas were arrested on 05.06.2011, accused Ram Prasad was arrested on 27.06.2011, accused Shakuntla was arrested on 30.08.2011. The Postmortem on the dead body of deceased was got conducted and the postmortem report was collected and as per autopsy surgeon, the cause of death of deceased Babita was "asphyxia caused by ante mortem ligature hanging. Manner of death is homicide".
4. During the course of investigation, statement of family members namely Sh. Suresh Chand (father of deceased) Sh. Indresh Kumar (brother), Sh. Naresh Chand (Uncle), Sh. Om Prakash Grand Father, Smt. Kusum Devi (mother of deceased) and Sh. Naresh Kumar (uncle) were also recorded U/Sec. 161 Cr. P. C. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 4/74
5. Accused Asha was absconding and process U/s 82 Cr. P. C. was obtained against her. Proceedings qua younger brother of accused Vijay Kumar who was found juvenile were conducted and filed in JJB. Name of younger brother of accused is withheld in order to maintain anonymity.
6. After completion of investigation, the charge sheet was filed against accused Vijay Kumar, Shakuntala, Ram Prasad and Ram Bilas for the offences under section 498A/304B/302/34 IPC.
7. After filing of charge sheet, the Court of Ld. Metropolitan Magistrate observed that trial of offences U/s 302/304-B IPC are exclusively triable by Court of Sessions, hence case was committed to Court of sessions in terms of Section 209 of Cr. P. C. vide its order dated 12.09.2011. Charge against the accused persons:
8. Vide order dated 06.02.2012, the charge for the Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 5/74 offences under Section 498A/304B/302/34 IPC was framed against accused Vijay Kumar, Shakuntla, Ram Prasad and Ram Bilas to which they pleaded not guilty and claimed trial.
9. During pendency of trial, accused Asha was arrested as PO and supplementary charge sheet was filed by IO against her on 10.07.2017.
10. Vide order dt. 04.08.2017, charge was framed against her U/s 498A/304B/302/34 IPC and U/s 174 A IPC. The witnesses already examined were recalled after framing of charge against accused Asha.
Witnesses examined:
11. Prosecution examined following witnesses in support of its case who are as follows:-
PW-1 Sh. Suresh Chand. He deposed that he is father of the deceased Babita and her daughter got married with accused Vijay on 12.02.2005 and after marriage his Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 6/74 daughter was residing with her husband accused Vijay at H. No. B-62, Sainik Nagar, Uttam Nagar, New Delhi. He further deposed that after marriage his daughter was harassed and tortured by her husband accused Vijay, father-in-law Ram Bilas, mother-in-law Shakuntla, sister-in- law Ms. Asha and brother-in-law Amit. He further deposed that at the time of marriage of his daughter Babita with accused Vijay, a TV, fridge, jewellery, motorcycle, clothes, utensils and other household articles and Rs.2,00,000/- were also given in cash before marriage to mediator of the marriage Naresh to be given to the accused Vijay and his father accused Ram Bilas as demanded by them as dowry. He further deposed that after marriage his daughter Babita was harassed and tortured by the aforesaid accused persons, her Dewar and Nand for more demand of dowry i.e. money. He further deposed that after two years of marriage demand of Rs.50,000/- was made by accused Vijay and his family members and he had paid Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 7/74 the said amount to accused Vijay in presence of his father accused Ram Bilas and despite that his daughter Babita was regularly harassed, tortured and beaten by her husband, her father-in-law, her mother-in-law, Nand Asha and Dewar Amit. He further deposed that 2-3 months before date of the incident, he had gone to meet his daughter Babita at her matrimonial home and at that time his daughter told him that she was being harassed and tortured by above named in-laws and husband for demand of a car. He further deposed that he tried to make understand accused Vijay and accused Ram Bilas not to harass his daughter as he can not fulfill their demand of car, however, they did not listen to him. He further deposed that his daughter also told him that she was also harassed by her Chachia Sasur Ram Prasad for demand of dowry. He further deposed that on 04.06.2011 accused Ram Bilas had telephonicaly informed him that his daughter Babita had hanged herself and upon this he Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 8/74 along with his other relatives rushed to the matrimonial home of his daughter and found that Babita was hanging in a room on third floor of the said house where she was residing along with her husband on the second floor of the said house. He further deposed that parents in-law of his daughter, Nand and Dewar were residing on the ground floor of the said house. He further deposed that the room was found vacant where his daughter was found hanging. He further deposed that the feet of his daughter were touching the blanket spread on the floor of the room while she was hanging on the angle on the roof. He further deposed that he also found the chooti (hairs) was wrapped in the cloth with which she was hanging and it was appearing that she was firstly killed and then hanged in her matrimonial home. He further deposed that on 05.06.2011 his statement was recorded by Tehsildar Sh.
Sahoo vide Ex.PW-1/A. He further deposed that on 06.06.2011 he identified the dead body of his daughter in Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 9/74 the mortuary of DDU Hospital vide Ex.PW-1/B. He further deposed that after postmortem, the dead body of his daughter was handed over to him vide receipt Ex.PW-1/C. He proved the list of articles given to his daughter before her marriage and after her marriage vide Ex. PW1/D. He further proved the photographs of the spot and room where his daughter was found hanged as Ex. PW1/A1 to Ex. PW1/A6. He further proved the photographs of marriage of her daughter with accused Vijay as Ex. PW1/A7 to Ex. PW1/A12.
PW-2 Sh. P. C. Sahoo, Tehsildar. He deposed that on 05.06.2011, he was posted as Executive Magistrate and on receipt of an information from Sh. Parmod Kumar, SDM, Patel Nagar that one lady namely Babita w/o sh. Vijay Kumar R/o B-62, Sainik Nagar had died in her matrimonial home within her 7 years of marriage and that her dead body had been kept in the mortuary of DDU Hospital and he was directed by Sh. Parmod Kumar to go to the DDU Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 10/74 Hospital and record the statement of parents of the deceased Babita and to get her postmortem conducted. He further deposed that at the mortuary of DDU Hospital he recorded statement of father and brother of deceased namely Sh. Suresh Chand and Indresh vide Ex. PW1/A and Ex. PW-2/A respectively. He proved his endorsement as Ex. PW-1/A and Ex. PW1/B. He further deposed that on 06.06.2011 postmortem on the dead body of deceased Babita was conducted on his application Ex. PW-2/B and he filled the form No. 25.35 Ex. PW-2/C and prepared brief facts of the case Ex. PW-2/D. He further deposed that dead body of the deceased was identified by her father Sh. Suresh Chand and by Sh. Indresh Kumar vide Ex. PW1/B and Ex. PW-2/E. He proved the DD No. 7A and 45 A as Mark PW2/A1 and Mark PW-2/A2. He further deposed that after postmortem dead body of the deceased was handed over to her father Sh. Suresh Chand vide Ex. PW1/C. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 11/74 PW-3 Dr. Komal Singh. He deposed that on 06.06.2011, he conducted postmortem on the dead body of deceased Babita on receipt of the application Ex. PW-2/B along with inquest papers consisting of copy of FIR Ex. PW-3/A statement of Sh. Suresh Chand Ex.PW1/A, DD No. 7A and 45A Ex.PW3/B and Ex.PW3/C. He further deposed that cause of death is asphyxia caused by ante mortem ligature hanging and manner of death is homicide. He proved the detailed P. M. Report as Ex. PW-3/D. PW-4 Dr. Sunil Kakkar. He deposed about conducting the bone age of Amit Kumar S/o Sh. Ram Bilas by a board of doctors comprising of Dr. M.P. Chaurasia, physician, Dr. Ravi Shanker, SR Radiology, Dr. Sameer, SR Dental under his chairmanship. He further deposed about the findings of board with regard to age of Amit Kumar. He proved the report as Ex. PW-4/B and letter Ex. PW-4/C. PW-5 Indresh Kumar. He deposed that deceased Babita was his younger sister and she was got married with Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 12/74 accused Vijay on 12.02.2005. He further deposed that at the time of marriage of his sister Babita, they had given fridge, cooler, TV, Washing Machine, Sofa Set, motorcycle and other household articles. He further deposed that before marriage of deceased Babita, Rs.2 lakhs were given to accused Ram Bilas in cash as dowry on his demand. He further deposed that after marriage his sister Babita went to her matrimonial home at Sainik Nagar, Uttam Nagar. He further deposed that thereafter his sister Babita was being harassed and tortured by her husband accused Vijay, father-in-law Ram Bilas, sister-in-law Asha, mother- in-law Shakuntla, her dewar Amit (Juvenile) and her Chachiya Sasur accused Ram Prasad for demand of cash and dowry. He further deposed that after two years of marriage of his sister cash of Rs.50,000/- was given to accused Vijay on his demand but even thereafter, his sister was not kept well and all above accused persons used to harass and torture her for more dowry and cash. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 13/74 He further deposed that accused persons also used to beat his sister for demand of dowry. He further deposed that they had tried to pacify the accused persons not to harass, torture and beat Babita but they did not listen their request. He further deposed that his grandfather Sh. Om Prakash had even lodged a complaint against accused persons for maltreatment given to his sister. He further deposed that his sister was too much harassed and tortured by the accused persons sometimes for the demand of cash, sometimes for the demand of car. He further deposed that on 04.06.2011 they had received a call from the side of the accused informing them that Babita had hanged herself. He further deposed that they informed about this to all their family members and relatives and they went to the house of accused persons and they found that Babita was hanging and her feet were touching the floor. He further deposed that dead body of his sister was sent to the mortuary and his statement Ex. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 14/74 PW-2/A was recorded by the Magistrate on 05.06.2011. He further deposed that on 06.06.2011 postmortem on the dead body of his sister was got conducted and he identified the dead body of his sister vide Ex.PW2/E. PW-6 Ct. Rajesh Kumar. He deposed that on 05.06.2011 in the evening he was present in the area of his concerned Beat i.e. in the areas of Mansram Park, Sainik Nagar, Gulab Bagh and Kiran Garden and he received the information by a secret informer about the presence of accused Vijay Kumar and his father Ram Bilas at near metro pillar No. 741, Najafgarh Road and the said persons were previously known to him as both accused persons used to install their rehri near Diamond Plaza Restaurant, main Najafgarh Road. He further deposed that on receipt of the said information he had immediately informed the IO of this case Inspector Subhash. He further deposed that he had also joined the investigation of this case along with Inspector Subhash and Ct. Manoj. He Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 15/74 further deposed that during investigation, he along with IO Inspector Subhash and Ct. Manoj reached near metro pillar No. 741, main Najafgarh Raod, where accused Vijay and Ram Bilas were found standing and they were arrested and their personal search was conducted and their disclosure statements were recorded by the IO Insp. Subhash in his presence. He proved the arrest memo of accused Vijay as Ex. PW-6/A and arrest memo of accused Ram Bilas as Ex. PW6/B. PW-6 HC Rajesh Kumar. He deposed that on 05.06.2011 he joined the investigation in the present case with IO Inspector Subhash and during investigation accused Vijay Kumar and Ram Bilas were arrested vide memo Ex. PW-6/A and Ex. PW-6/B. PW-7 Sh. Naresh Chand. He deposed that he along with his borther Suresh Chand and their families were residing at H. No. I-1232-33, Jahangir Puri, New Delhi. He further deposed that his niece Babita was got married with Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 16/74 accused Vijay on 12.02.2005 and he participated in all the ceremonies of marriage of his deceased niece Babita. He further deposed that in the marriage of deceased niece Babita all dowry articles including a motorcycle were given to the accused Vijay and his family members. He further deposed that about one year of marriage his deceased niece Babita, whenever she used to come to her parental house at Jahangir Puri, she used to inform them that her father-in-law Ram Bilas, mother-in-law Shankuntla, sister- in-law Asha and brother-in-law Amit and her husband were harassing her for more dowry. He further deposed that Babita also informed them that her in-laws and her husband were demanding a four wheeler vehicle i.e. car. He further deposed that after 2 ½ years of marriage his niece Babita was blessed with a female baby at the residence of his brother Suresh Chand. He further deposed that about 1 ½ months of birth of female baby accused Vijay came at the residence of his brother Suresh Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 17/74 Chand and he had taken back his niece Babita along with female baby to the matrimonial house of deceased Babita. He further deposed that after about 8 months his brother Suresh Chand went to the matrimonial home of her deceased niece Babita and brought her along with her female baby to her parental home, where they were informed by her that her aforesaid in-laws were taunting her by saying "Pehle to bacha nahi hua, aur ab hui bhi to ladki". He further deposed that his niece Babita had expired on 04.06.2011 as she was killed and hanged by her husband Vijay and her in-laws i.e. Father-in-law Ram Bilas, mother-in-law Shakuntla, sister-in-law Asha and brother-in-law Amit.
PW-8 Ct. Akhileshwar. He deposed that on 11.08.2011 on the instruction of the IO/Inspector Subhash, he received one sealed parcel containing blood and viscera of deceased Babita sealed with the seal of DFMT, DDU Hospital along with one sample seal of DFMT, DDU Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 18/74 Hospital from MHC(M) concerned and deposited in FSL Rohini, vide RC No. 81/21/11 Ex.PW-8/A. He proved the receipt of the FSL as Ex. PW-8/B. PW-9 Sh. Om Prakash. He deposed that marriage of his grand daughter Babita was solemnized with accused Vijay Kumar on 12.02.2005 and sufficient articles of stridhan and cash were given to the accused persons. He further deposed that accused Ram Bilas was the father-in-law and accused Shakuntala was the mother-in-law of his grand daughter Babita and accused Ram Prasad was the uncle of accused Vijay Kumar. He further deposed that accused persons started harassing his grand daughter for want of dowry and they used to taunt her for dowry as well as for child. He further deposed that his grand daughter Babita had told him that her sister-in-law, brother-in-law and parents-in-law and accused Vijay Kumar used to demand car in dowry and they used to beat her for that reason. He further deposed that as and when her grand daughter Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 19/74 used to come to his house, she used to tell him that accused persons would kill her. He further deposed that on many times, he visited the matrimonial house of his grand daughter and he tried to make accused persons understand but accused persons did not change their behaviour with his grand daughter. He further deposed that two days prior to the death of Babita he had gone to her matrimonial house and she told him that accused persons had beaten her for want of car. He further deposed that deceased Babita requested him to take her along with him but he did not bring her with him and he made her understand as well as accused persons in order to save the matrimonial life of Babita. He further deposed that on 04.06.2011, he came to know that Babita had committed suicide by hanging. He further deposed that he doubt that Babita had not committed suicide but the accused persons had killed her. He further deposed that police recorded his statement. He further deposed that on Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 20/74 18.07.2011 police came to his house and asked for papers containing handwriting of deceased Babita and he had given 8 pages from a register, which was maintained by Babita in respect of sewing and one Shashi had identified the handwriting of Babita and police had seized those papers, vide seizure memo Ex. PW-9/A. He proved the papers as Ex. PW-9/B1 to Ex. PW-9/B8.
PW-10: W/Const. Seema. She deposed that on 04.06.2011 on receipt of a call of hanging by ASI Lala Ram, she along with him, went to house No. B-62, Sainik Enclave, Uttam Nagar, where they found one lady hanging with the ceiling of a room at second floor. She further deposed that the dead body was removed from the ceiling and she had inspected the dead body and in the meantime SHO had also come to the spot.
PW-11 Ct. Praveen. He deposed that on intervening night of 4/5 June 2011 he was on emergency duty along with ASI Lala Ram. He further deposed that on Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 21/74 04.06.23011 at about 9 pm on receipt of DD No. 45A Ex. PW-3/C, he along with ASI Lala Ram reached at the place of incident at second floor of H. No. B-62, Sainik Nagar, Uttam Nagar, New Delhi where a lady was found hanging in a room, whose name was later on revealed as Babita wife of Vijay Kumar. He further deposed that lady Ct. Seem was called at the spot by ASI Lala Ram and thereafter, Crime Team and government photographer were called at the spot by ASI Lal Ram. He further deposed that the place of incident was inspected by the officials of Crime Team and some photographs were taken by the Govt. Photographer from different angles of the spot. He further deposed that body of the deceased Babita was inspected by the Lady Ct. Seema on the instructions of the ASI Lala Ram in his presence and thereafter he got preserved the dead body of deceased Babita in the mortuary of DDU Hospital for postmortem. He further deposed that his statement in this regard was recorded by the IO. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 22/74 PW-12 Smt. Shashi. She deposed that she was running a sewing training centre in the name of Rishu Sewing Coaching Center at her residence and deceased Babita used to come at her aforesaid centre for noting measurements. She further deposed that she is well conversant about the handwriting of said Babita as she used to maintain the said register in her presence. She further deposed that on 18.07.2011 one police official from PS Bindapur came to her along with mother of Babita and one other relative of Babita. She further deposed that said police official had taken about 8 written pages from the said register and same were seized by the police officials vide Ex. PW-9/A. PW-13 HC Surender Kumar. He deposed that on 27.06.2011 he had joined the investigation of the present case along with Inspector Subhash and he deposed about the arrest of accused Ram Prasad and his role in the investigation.
Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 23/74 PW-14 SI Ashok Kumar. He deposed that on 04.06.2011 he was Duty Officer and recorded DD No. 45A on the basis of information received from PCR call that 'At B-62 Sainik Nagar, Uttam Nagar - My wife has hanged herself' and after recording this information he informed ASI Lala Ram about the aforesaid information telephoncially. He further deposed that he brought these facts into the notice of SHO. He proved the DD entry as Ex. PW-3/C. PW-15 ASI Khajan Singh. He deposed that on 04.06.2011, he was In-charge of Mobile Crime Team and on receipt of information from Control Room regarding the incident, he alongwith HC Rajbir, Photographer, Const. Yudhvir, Finger Print Proficient and Driver HC Shyam Sunder reached at B-62, Sainik Nagar, Mansa Ram Park, Uttam Nagar, Delhi where ASI Lala Ram alongwith his staff met them. He further deposed that on reaching there, he came to know that a lady namely Babita W/o Vijay had committed suicide by hanging in a room on the second Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 24/74 floor of above mentioned house and before their reaching the gate of the room where the deceased had committed suicide had already been broken. He further deposed that he went to the second floor and found the body of the deceased in hanging condition with the help of chunni from an iron pipe. He further deposed that he inspected the place of incident and on inspection, HC Rajbir took some photographs of place of incident from different angles. He further deposed that he prepared the report Ex. PW-15/A. PW-17 Const. Manoj. He deposed that on 05.06.2011 he along with Inspector Subhash reached at the spot i.e. B-62, Sainik Nagar, Mansa Ram Park, Uttam Nagar, New Delhi where one Beat Officer, namely Const. Rajesh and accused persons namely Vijay Kumar and his father Ram Bilas met them. He further deposed that Inspector Subhash arrested both the accused persons vide arrest memos Ex. PW-6/A and Ex. PW-6/B and thereafter personal Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 25/74 search of the both the accused persons were conducted vide personal search memos Ex. PW-17/A and Ex. PW-17B. PW-18 Smt. Kusum Devi. She deposed that her daughter Babita since deceased was married with accused Vijay in the year 2005. She further deposed that in the marriage they had given one gold necklace, one gold ring, three pairs of gold ear rings, one pair of silver anklets to his daughter and one gold chain, one gold ring, one motorcycle make Pulsar, Rs. 2 lakhs case, one cooler, one washing machine, double bed, sofa set, clothes etc. to accused Vijay. She further deposed that after about 1 ½ year of the marriage of her daughter Babita accused Vijay made a demand for Rs.1 lakh from them. She further deposed that thereafter, her husband had given Rs.50,000/- to accused Vijay. She further deposed that after about one and half month of giving of Rs.50,000/- to accused Vijay, he again made demand of Rs.20,000/- which was paid by her to accused Vijay without knowledge Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 26/74 of her husband. She further deposed that accused Vijay, his father Ram Bilas, mother Shakuntla, brother Amit and sister Asha used to beat and harass her deceased daughter Babita for demand of four wheeler car but they could not fulfill the said demand. She further deposed that after 3 years of marriage her deceased Babita blessed with a daughter at Bara Hindu Rao, Hospital, Delhi and all the expenses were born by them. She further deposed that all the accused persons had taunted on her daughter Babita by saying that she should not have given birth to a female child. She further deposed that in the year 2011 her husband received a telephonic call from the accused persons and they stated that her daughter had expired and on this they reached at the house of the accused persons and found their daughter hanging with chunni from iron road. She further deposed that some police officials reached at the spot and the dead body of her deceased daughter was taken to a hospital. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 27/74 PW-19 Sh. Shripal. He deposed that accused Vijay is his distant nephew and on 04.06.2011 in the morning at about 09/10:00 am he came at the residence of Ram Bilas at B-62, Sainik Nagar, Uttam Nagar, where accused Ram Bilas along with accused Vijay, his bhabhi Shakuntala (wife of Ram Bilas), Asha (sister of Vijay)and Amit (brother of Vijay) and Babita (wife of Vijay) and everything was alright till that time as no quarrel was there between them and on the same day, in the evening at about 08.30 pm when he was present at his shop situated at A-Block, Sainik Nagar, Uttam Nagar, somebody had informed him that somebody had died in the locality of B-Block, Sainik Nagar, Uttam Nagar and thereafter he came at the place of incident i.e. B-62, Sainik Nagar, Uttam Nagar and the main gate of said house was found bolted from inside. He further deposed that thereafter, he returned at his shop. This witness did not support the case of the prosecution and he was cross examined by the Ld. Addl.PP and admitted Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 28/74 the fact that he had visited PS Bindapur when he was called by IO Inspector Subhash on 31.08.2011. He further admitted the fact that he was inquired about the incident in question but on that day his statement was not recorded by the IO. He denied the suggestion that on 31.08.2011 he was examined/inquired by Inspector Subhash about the incident in question and whatsoever he had stated to him, same was reduced into writing as per his narration. He further denied the suggestion that on 04.06.2011 he came to know that Babita wife of Vijay had committed suicide by hanging or that police came at the place of incident or that accused persons were present there.
PW-20 Retd. ASI Hukum Singh. He deposed that on 25.03.2010 he recorded DD No. 9-A Ex. PW-20/A at about 07.30 am. He further deposed that DD No. 33-A Ex.PW- 20/B was recorded by HC Yaad Ram, D.O. at 06.15 am. PW-21 ASI Lala Ram. He deposed that on 04.06.2011 Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 29/74 on receiving of DD No. 45-A he reached at spot i.e. D-62, Sainik Nagar, Uttam Nagar, New Delhi. He further deposed that on second floor, one room was found bolted from inside and he peeped into the room from a small hole in the wall and noticed that a lady was hanging. He further deposed he had broken the small portion of the wall of room and opened the bolt of the door. He further deposed that Ct. Praveen and lady Ct. Seema entered in the room with him and found a lady hanging with the help of chunni from an iron angle affixed to the roof. He further deposed that in the meantime, Crime Team also reached at the spot and photographer took the photographs of place of incident from different angles. He further deposed that In-charge Crime Team ASI Khajan Singh inspected the place of incident and handed over him the crime team report at the spot. He further deposed that thereafter they brought down the dead body of the deceased and Lady Ct. Seema took cursory search of Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 30/74 deceased Babita and dead body of the deceased was sent to mortuary of DDU Hospital through Ct. Praveen in a private ambulance. He further deposed that thereafter he took the search of the said room. He further deposed that during search he found a written statement running into 4 pages along with one paper of the hospital on which it was written 'Mera Pati mera Khooni' and said documents were taken into possession vide seizure memo Ex. PW-21/A. He further deposed that thereafter Inspector Surender Kumar SHO PS Bindapur reached at the spot and he informed the SDM concerned and relative of the deceased about the incident. He further deposed that on 05.06.2011 he met with the father and brother namely Sh. Suresh and Indresh at DDU Hospital. He further deposed that SDM P.C. Sahu also reached at the hospital and recorded the statements of father and brother of deceased. He further deposed that from the hospital he returned to the spot and Inspector Subhash to whom the investigation of the case Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 31/74 had been marked also reached there. He further deposed that Inspector Subhash prepared site plan at his instance. He further deposed that on 06.06.2011 Inspector Subhash interrogated accused Ram Bilas and Vijay in the police station. He further deposed that disclosure statements of accused Ram Bilas and Vijay were recorded vide Ex. PW- 21/B and Ex. PW-21/C. He further deposed that on the same day he alongwith Inspector Subhash went to DDU Hospital and SDM P. C. Sahu also reached there and on the request of SDM, the postmortem was got conducted on the dead body of deceased Babita. He further deposed that after postmortem the doctor handed over pulanda along with 3 sample seals to Inspector Subhash which were taken into possession vide seizure memo Ex. PW- 21/D. He proved the case property i.e. Chunni as Ex.P1. PW-22 ASI Hardeep Singh. He deposed that on 01.08.2011 he along with ASI Lala Ram and IO Inspector Subhash Chand went to the spot i.e. 2 nd Floor, House no. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 32/74 B-62, Sainik Nagar, Uttam Nagar, New Delhi and prepared his rought notes at the instance of the IO and prepared the scaled site plan Ex.PW-22/A on 04.08.2011 and handed over the same to IO.
PW-23 Ct. Ritu. She deposed that on 05.06.2011 on receiving of tehrir Ex. PW-1/A from D.O. She recorded FIR No. 150/11 Ex. PW-3/A on computer and handed over the same to the D.O. with original tehrir.
PW-24 W/HC Manee. She deposed that on 30.08.2011 she joined the investigation of this case with IO and came to Dwarka Courts where accused Shakuntla had surrendered before the concerned Ld. MM. She further deposed that IO arrested the accused with permission of the court vide arrest memo Ex. PW-24/A. She further deposed that personal search of the accused was carried out vide memo Ex. PW-24/B and during interrogation accused Shakuntla made disclosure statements Ex. PW- 24/C and Ex. PW-24/D. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 33/74 PW-25 HC Satyaveer Singh. He deposed that on 25.08.2011 he collected sealed pulanda from MHC(M) vide RC No. 94/21/11 and deposited the same in FSL, Rohini vide FSL No. 2011/B-4804. He further deposed that he did not temper the pulanda in any manner till the same remain in his possession.
PW-26 HC Rajbir Singh. He deposed that on 04.06.2011 he along with I/C Crime Team namely ASI Khajan Singh, Ct. Yudhveer (Fingerprint proficient) and driver HC Shyam Sunder reached at the spot i.e. House No. B-62 Sainik Nagar, Mansa Ram Park, Uttam Nagar. He further deposed that on the direction of I/C Crime Team he took 6 photographs of place of incident from different angles. He proved the photographs as Ex.PW1/A2 to Ex.PW1/A6 and negatives thereon as Ex.PW26/A2 to Ex. PW-26/A6. PW-27 Naresh Kumar. He deposed that his niece Babita was married with accused Vijay Kumar on 12.02.2005. He further deposed that in the marriage all dowry articles i.e. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 34/74 fridge, TV, motorcycle, furniture including almirah, jewellery including of gold and clothes were given to the bridegroom and his family by the family of his niece. He further deposed that cash amount of Rs.1.50 lacs was handed over on behalf of brides family by him to accused Ram Bilas on his demand prior to marriage. He further deposed that subsequently, after marriage he came to know a sum of Rs.50,000/- in cash was paid by the family of his niece to the family of accused. He further deposed that after two years of the marriage, he, his wife, his maternal cousin brother had visited the matrimonial home of Babita in Sainik Nagar, Uttam Nagar, Delhi on the asking of her father as the accused persons were torturing and beating Babita in connection with demand of dowry. He further deposed that they requested the accused persons not to harass Babita and on this they promised not to repeated the same in future. He further deposed that after their assurance the matter was compromised. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 35/74 PW-28 Inspector Surender Kumar. He deposed that on 04.06.2011 he was posted as SHO Bindapur and on that day he went to the spot i.e. B-62 Sainik Nagar, Uttam Nagar, New Delhi for inquiry of DD No. 45-A and when he reached at second floor of the house, he saw a woman namely Babita wife of accused Vijay Kumar hanging with chunni. He further deposed that ASI Leela Ram was carrying out the proceedings at the spot. He further deposed that Crime Team was called at the spot and he informed SDM Najafgarh from his official mobile number and instructed the IO to carry out the further proceedings. PW-29 HC Pappu Ram. He deposed that on 05.06.2011 he was Duty Officer and he proved the FIR as Ex.PW-29/A. PW-30 HC Jai Bhagwan. He deposed that on 17.08.2011 on the instructions of the IO/SHO, he collected 11 papers in an envelope from the MHCM and had taken the same to FSL Rohini vide RC No. 88/21/11. He further deposed that he deposited the papers in envelope in the FSL and Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 36/74 obtained the receipt No. 2011/D-4631 dt. 17.08.2011 which he brought to the Police Station and handed over to MHCM. He further deposed that till the papers in envelope remained in his custody the same was not tampered with. PW-31 Inspector Subhash Chand. He deposed that on 05.06.2011 by order of Ld. SDM the case was registered U/s 498-A/304-B/34 IPC at PS Bindapur and thereafter the investigation was handed over to him. He further deposed that he along with ASI Lala Ram and other police staff reached at spot i.e. B-62, Sainik Vihar, Uttam Nagar, New Delhi and inspected the spot. He further deposed that he prepared site plan Ex.PW-31/A. He further deposed that during inspection he noticed that there was a small hole in the wall near the door from where the door of the room could be bolted or unbolted from outside. He searched for the accused persons with Beat Staff and on the same day accused Vijay and Ram Bilas were arrested vide arrest memo Ex. PW-6/A and Ex. PW-6B. He further deposed that Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 37/74 personal search of both the accused persons were carried vide personal search memo Ex. PW-17/A and Ex. PW-17/B. He further deposed that during investigation he recorded disclosure statement of bot the accused persons vide Ex. PW-21/C and Ex. PW-21/B. He further deposed that on 06.06.2011 postmortem of deceased Babita was got conducted in DDU Hospital after the postmortem, dead body was handed over to Suresh Chand, father of deceased by the Executive Magistrate Sh. P. C. Sahoo. He further deposed that after the postmortem, the doctor handed over him three pullandas sealed with the seal of DFMT, DDU Hospital and three sample seals of DFMT, DDU Hospital and same were taken into police possession vide seizure memo Ex. PW-21/D and deposited the case property in sealed condition with MHC(M). He further deposed that during investigation, he searched for remaining accused persons namely Ram Prasad (Chachiya Sasur), Shakuntla (mother-in-law), Asha (Nand) and Amit Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 38/74 (Devar). He further deposed that Amit was declared juvenile during his bail proceedings, therefore separate proceedings were carried out against him and final report was filed before JJB-II, Delhi Gate Delhi. He further deposed that on 27.06.2011 accused Ram Prasad was arrested vide arrest memo Ex. PW-13/A and his personal search was conducted vide memo Ex. PW-13/B and his disclosure statement was recorded Ex. PW-13/C. He further deposed that during investigation on 18.07.2011 father of deceased handed over him 8 papers which were in the handwriting of Babita. He further deposed that during investigation on 30.08.2011, accused Shakuntla was arrested by him in this case from the court in whci she had surrendered vide arrest memo Ex. PW-24/A and personal search of the accused was conducted vide memo Ex. PW-24/B. He further deposed that accused Shakuntla was interrogated and her disclosure statement was recorded vide memo Ex. PW-24/C. He further deposed one Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 39/74 day PC remand of accused Shakuntla was taken and she was again interrogated in the police station and her another disclosure statement was recorded vide Ex. PW- 24/D. He further deposed that on 01.08.2011, he visited the spot 2nd floor of House No. B-62, Sainik Nagar, Uttam Nagar, New Delhi along with Draftsman Hardeep Singh and ASI Lala Ram where Sh. Hardeep Singh took measurements at the instance of ASI Lala Ram and prepared rough notes. He further deposed that he collected the scaled site plan Ex. PW-22/A from ASI Hardeep Singh which was prepared by him on the basis of aforesaid rough notes. He further deposed that on 18.07.2011, during investigation, Sh. Om Prakash handed over him eight handwritten papers of deceased Babita which were seized by him vide memo Ex. PW-9/A. He further deposed that during investigation he also obtained the subsequent opinion of the doctor vide his application Ex.PW-3/DX1. He further deposed that he collected the Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 40/74 photographs and crime team report from the crime team. He further deposed that he also made efforts to trace accused Asha, who was sister-in-law of the deceased but she avoided the arrest and absconded and finally, she was got declared proclaimed offender. He further deposed that he recorded the statement of witnesses and during investigation, the exhibits pertaining to this case and the handwritten papers were sent to FSL, Rohini. He further deposed that on completion of investigation charge-sheet was filed. He further deposed that FSL report were collected later on and were filed in the court. He proved application for filing the FSL report as Ex.PW-31/A and reports of FSL as Ex.PW-31/B and Ex.PW-31/C, Ex.PW-31/D and Ex.PW-31/E. He further proved the handwritten papers which were handed over to him by the witness as Ex.PW- 9/B1 to Ex.PW-9/B8.
12. Thereafter, Prosecution Evidence was closed vide order dated 17.02.2020 as all the cited witness had been Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 41/74 examined and matter was posted for recording of statement of the accused persons U/s 313 Cr. P. C.
13. Separate statements of the accused persons U/s 313 Cr. P. C. were recorded whereby all the incriminating evidence was put to them to which they denied all allegations and pleaded innocence and submitted that they have been falsely implicated in the present case. They wished not to lead DE and matter was adjourned for final arguments.
14. I have heard the Addl. PP for the State and Sh. Paramvir Singh and Ms. Anuradha Sharma, Amicus Curie for accused Ram Bilas, Ram Prasad, Shakuntla, Vijay and Sh. Subhash Dixit, LAC for accused Asha and Sh. Varun Gupta, Counsel for complainant. The material on record has also been perused. I have given thoughtful consideration to the arguments.
ARGUMENTS OF PROSECUTION:
Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 42/74
15. Ld. APP has argued that prosecution has successfully proved its case against all the accused persons by examining the prosecution witnesses. It is further argued that prosecution witnesses have deposed in witness box regarding instances of demand of dowry raised by accused persons and cruelties given at their end to deceased. It is further submitted that the family members and other relatives of deceased have categorically deposed that deceased Babita was subjected to cruelty and harassment by all the accused persons for demand of dowry. There is no defect in the investigation carried out by the investigating officer. It is further submitted that in the present case, some papers written by deceased were seized and same were sent to FSL Rohini for comparison with admitted handwriting of deceased. It is further submitted that in the said papers, the deceased had mentioned about the harassment and cruelty caused to her by accused persons and as per FSL Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 43/74 Rohini, the handwriting of questioned document and the admitted handwriting had matched. It is further argued that offence committed by the accused persons is serious in nature and all the accused persons are equally liable for the offence charged and they should be punished for the same.
ARGUMENTS OF DEFENCE:
16. On the other hand, the counsel for accused persons submitted that nothing incriminating has come on record. It is further argued that accused persons have been falsely implicated in this case. It is further argued that the prosecution has fallen remarkably short of the standard of proof required to prove the guilt of accused persons in a criminal proceedings. It is argued that the prosecution must prove its case beyond all reasonable doubts. The prosecution has failed to prove its case against all the accused persons beyond reasonable doubt and as such all Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 44/74 the accused persons deserve to be acquitted. It is further argued that prosecution witnesses specifically family members of deceased while appearing in witness box have not given the specific date and time of alleged harassment and cruelty and demand of dowry. It is further submitted that there was no demand on the part of any of the accused and the family members of deceased have deposed falsely. It is further submitted that no previous complaint was made prior to this case at any point of time by family members of deceased which shows that no such harassment was ever caused to deceased and there was no such demand.
JUDGMENT RELIED UPON BY LD. APP FOR STATE.
1) Bachni Devi Vs. State of Maharashtra, 2011 4 SCC 427;
2) Hon'ble Supreme Court of India titled as Sher Singh Vs. State of Haryana, having Criminal Appeal Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 45/74 No. 1592 of 2011 decided on 09.01.2015;
3) Pathan Hussain Basha Vs. State of Andhra Pradesh, AIR 2012 SC 3205;
4) Baljit Singh Vs. State of Haryana, AIR 2004 SC 1714;
5) Premwati Vs. State of Uttar Pradesh, 1991 Cr. L J 236;
6) Shanti Vs. State of Haryana, AIR 1991 SC 1226. JUDGMENT RELIED UPON BY LD. DEFENCE COUNSEL. I) Baijnath & Ors vs. State of Madhya Pradesh, 2016(4) RCR (Criminal) 896; decided by Hon'ble Supreme court;
ii) Satvir Singh Vs. State of Punjab, (2001) 8 SCC 633;
iii) Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (1) SCC 750;
iv) Rohtash Vs. State of Haryana (2012) 6 Supreme Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 46/74 Court Cases 589;
v) State Vs. Paramjeet Singh & Ors. Decided by Hon'ble High Court of Delhi.
FINDINGS:
17. In the present case, all the accused persons have been charged for the offences under section 498A/304B/34 IPC and in alternate charge for the offence U/s 302/34 IPC was also framed against all the accused persons. Charge for the offence U/s 174A IPC was also framed against accused Asha.
18. I will deal with sections 498A/304B/302/34 IPC and Section 174 A IPC on the basis of material available on record and considering the deposition of prosecution witnesses to establish the fact whether prosecution has been able to bring home the case qua the charges framed against them.
Sections 498A/304B/302/34 IPC and Section 174A Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 47/74 IPC read as under:
Section 498A IPC.
498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-- For the purpose of this section, "cru- elty" 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 harass-
ment 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.
Section 304B. Dowry death.--
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than un- der 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. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 48/74 Explanation. -- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be pun- ished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]
302. Punishment for murder- Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
34. Acts done by several persons in furtherance of common intention. - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
174 A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine] Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 49/74
19. In order to attract the provisions of section 498A/304B/302/34 IPC, the testimonies and depositions of relatives and family members of deceased are very material. Whole of the case of the prosecution qua offences under section 498A/304B/302/34 IPC hinges on the testimonies of them.
20. PW-1 Sh. Suresh Chand has testified that his daughter Babita was married on 12.02.2005 with accused Vijay and after her marriage, she went to her matrimonial home at B-62 Sainik Nagar, Uttam Nagar, New Delhi and at the time of marriage a TV, Fridge, Jewellery, Motorcycle, Clothes, Utensils and other household articles were given and before marriage Rs. 2 lakhs were also given as demanded by accused Vijay and his father accused Ram Bilas through mediator of marriage Sh. Naresh. He further testified that his daughter Babita was regularly harassed and tortured by the accused persons for demand of dowry and after two years of marriage accused Vijay had Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 50/74 demanded Rs.50,000/- and the same was fulfilled by him by giving the same to accused Vijay in presence of his father accused Ram Bilas. This witness has further testified that despite that, his daughter was regularly harassed, tortured and beaten by her husband, father-in- law and mother-in-law. He further testified that her daughter told her that she was being harassed and tortured by her in-laws and husband for demand of a car and he tried to make understand accused Vijay and Ram Bilas not to harass his daughter. He also testified about the harassment to her daughter by Chachiya Sasur accused Ram Prasad.
21. PW-5 Sh. Indresh Kumar, PW-7 Sh. Naresh Chand, PW-9 Sh. Om Prakash, PW-18 Smt. Kusum Devi, the brother, uncle, grand father and mother of the deceased respectively have also deposed in witness box in support of case of prosecution. PW-5 has testified that they had given fridge, cooler, TV, washing machine sofa set, Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 51/74 motorcycle and other household articles at the time of marriage of his sister Babita with accused Vijay and before marriage Rs.2 lakhs were given in cash to accused Ram Bilas and after marriage, her sister was harassed and tortured by the accused persons for demand of cash and dowry and they had given Rs.50,000/- to accused Vijay after two years of marriage on their demand.
22. PW-7 Sh. Naresh Chand has also deposed about giving of the dowry articles including a motorcycle to accused Vijay and his family members and that Babita used to inform that her in-laws and her husband and Nand were harassing her for more dowry and her in-laws and husband were demanding a four wheeler vehicle i.e. a car.
23. PW-9 Sh. Om Prakash has testified that at the time of marriage sufficient articles of stridhan and cash were given to the accused persons and her grand daughter had told him that her sister-in-law, brother-in-law, parents-in- law and accused Vijay used to demand car in dowry and Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 52/74 they used to beat her for that reason. He further testified that two days prior to the death of Babita, he had gone to her matrimonial house and she told him that accused persons had beaten her for want of car.
24. PW-18 Smt. Kusum Devi has testified about the articles given in the marriage and about the demand of money by accused Vijay from them after one and half year of the marriage of her daughter. PW-27 Sh. Naresh Kumar has also deposed about the demand of money by the accused persons from the family of the deceased and that deceased was harassed and tortured for demand of dowry by the accused persons.
25. The factum of harassment with regard to the demand of dowry finds corroboration in the testimonies of the aforesaid witnesses and nothing could be brought by the defence in their cross examination to impeach their credibility. So from above evidence, it is clear that there were demand of dowry by accused persons and deceased Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 53/74 was subjected to cruelty by them.
26. The Ld. Defence counsel for all the accused persons has argued that the allegations against the accused persons are vague in nature and all the family members of the deceased have deposed falsely being the interested witnesses. It was argued that the FSL report is not supporting the case of the prosecution as the handwriting on the back side of the prescription slip did not match with the handwriting of the deceased. It was argued that accused Ram Prasad was residing separately and he has nothing to do with the family affairs of the other accused persons and there is nothing on record against him and that the allegations against accused Asha are not specific and are general in nature. It was argued that nothing has been brought on record by the prosecution that there was any demand of dowry and that deceased was subjected to cruelty by the accused persons. It was argued that in the cross examination of Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 54/74 the witnesses sufficient material has come on record to show that they are not trustworthy and reliable witnesses.
27. In case of a dowry death the prosecution is supposed to prove the following facts:
(I) That the deceased was subjected to cruelty for demand of dowry soon before her death by her husband and his relatives.
(ii) That the deceased has died in other than normal circumstances.
(iii) That the deceased has died within 7 years of her marriage.
28. Admittedly, the deceased Babita had married with accused Vijay on 12.02.2005 and the other accused persons are relatives of accused Vijay. From the aforesaid public witnesses, it is evident that there was demand of dowry in shape of cash and car by accused Vijay Kumar, husband of deceased and his other family members and the deceased was given beatings for the said demand. The Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 55/74 postmortem report clearly establishes that the death of deceased was due to asphyxia caused by antemortem ligature hanging and the manner of death was homicide. PW-3 Dr. Komal Singh, who had conducted postmortem on the dead body of the deceased and had given subsequent opinion has testified that there were head and chest injuries which could only be possible by forcible blunt impacts inflicted by the second party and that hanging could only be homicidal. She was at matrimonial home at the time of death.
29. In the testimonies of PW-1 Sh. Suresh Chand, PW- 5 Sh. Indresh Kumar, PW-7 Sh. Naresh Chand, PW-9 Sh. Om Prakash, PW-19 Smt. Kusum Devi and PW-27 Naresh Kumar, there are clear and specific allegations of demand of dowry and harassment against accused Vijay Kumar (husband) and his parents accused Shankuntla and Ram Bilas but the allegations against accused Ram Prasad (Uncle/Chachia Sasur) and Asha (sister-in-law/Nand) are Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 56/74 not so specific and the same are vague and general allegations which does not inspire the confidence of the court to sustain that accused Asha and Ram Prasad were also involved in the harassment and cruelty subjected to the deceased and were demanding any dowry. It is important to note here that accused Ram Prasad was living separately in different house from other accused persons.
30. From above discussion, it is crystal clear that the aforesaid witnesses have deposed regarding cruelties caused by accused Vijay, Shakuntla and Ram Bilas upon deceased.
31. In the present case in the testimony of PW- 9 Sh. Om Prakash (grand father of the deceased), it has come on record that he had visited the matrimonial house of the deceased two days prior to her death and she had told her that she was beaten by the accused persons for want of car and he made understand her as well as the accused persons in order to save the matrimonial life of the Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 57/74 deceased.
32. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait- jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
33. The expression soon before her death used in the substantive section 304 B IPC and section 113B of the Evidence Act is present with idea of proximity test. No definite period has been indicated and the expression soon before is not defined.
34. A reference to expression 'soon before' used in section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 58/74 the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the women concerned, it would be of no consequences.
35. In a judgment passed by Honble Supreme Court of India titled as Sher Singh Vs. State of Haryana, having Criminal Appeal No. 1592 of 2011 decided on 09.01.2015, the Hon'ble Supreme Court has Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 59/74 observed that "We are aware that the word 'soon' finds place in section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under section 304B or the suicide under section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt." This judgment is fully applicable to the facts and circumstances of the present case.
Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 60/74
36. Evidence with regard to term 'soon before' the death has been duly led by prosecution by producing PW-9 Sh. Om Prakash (grand father of deceased) who had specifically deposed in his examination that "Two days prior to the death of Babita, I had gone to her matrimonial house and she told me that accused persons had beaten her for want of car. She requested me to take her along with me, but I did not bring her with me and I made her understand as well as accused persons, in order to save the matrimonial life of Babita".
37. So the prosecution has also successfully proved that the deceased was subjected to cruelty soon before her death.
38. So far as deposition of police witnesses is concerned, they have also supported the case of prosecution and have deposed as per their role in the investigation of present case and relevant documents Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 61/74 pertaining with respect to investigation done by them.
39. In the papers written by deceased Ex. PW-21/R1 and Ex. PW-5/DX-2, there are clear allegations of harassment and beatings to the deceased by her husband accused Vijay and in laws. As per FSL Report, "the questioned writing (of deceased) mark Q1 to Q4 and admitted writing (of deceased) mark A1 to A8 were written by one and same person." So the allegations of harassment and beatings finds corroboration in the form of notes written by deceased during her life time.
40. From the testimonies of prosecution witnesses, it is clear that there were demands of money and car from the side of some of accused persons. It is crystal clear that deceased Babita was subjected to cruelties in connection with demand of dowry as told by deceased herself during her life time. It is further apparent that deceased Babita died due to continues mental torture and cruelty inflicted by accused Vijay, Shakuntla and Ram Bilas for demand of Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 62/74 dowry which forced her to commit suicide and as such, she died other than normal circumstances within 7 years of her marriage.
41. Though Ld. Defene counsel has argued that accused persons have been falsely implicated in this case and that the prosecution must prove its case beyond all reasonable doubts and further that there are contradictions in the deposition prosecution witnesses. However, this argument of Ld. Defence counsel has no force because contradictions in the deposition of prosecution witnesses are minor in nature and same do not affect the case of prosecution. It is further observed that allegations levelled by the family members of deceased are duly corroborated with their statements.
42. The counsel for accused has drawn the attention of court towards one judgment titled as Rohtash Vs. State of Haryana (2012) 6 Supreme Court Cases 589 wherein it was held that "Dowry death - Ingredients - Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 63/74 Dowry - meaning of - demand by appellant husband for establishment of his tailoring business - Even if such demand was there, it may not necessarily be a demand of dowry - Moreover, whether for that demand, ill-treatment given by appellant to his wife was so grave that she had been driven to the extent that she had to commit suicide, not proved."
43. However, in the present case, the facts are totally different and demands in the present case were not raised to set up some business or to meet out some financial exigency.
44. Though the counsel for accused has relied upon judgment passed by Hon'ble Supreme Court of India (from Punjab & Haryana) (D.B.) titled Rohtash Vs. State of Haryana 2012 (6) SCC 589 but in said judgment, Hon'ble Supreme Court had discussed the judgment titled Appasaheb Vs. State of Maharashtra 2007 1 SCC 721 and discussed the definition of the word Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 64/74 'dowry' which are reproduced herein below:
"A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
45. The said judgment was reconsidered in case titled Bachni Devi Vs. State of Maharashtra 2011 4 SCC 427, wherein the Hon'ble Supreme Court held that the said judgment does not lay down a law of universal application. Each case has to be decided on its own facts and merits. If a demand for property or valuable security, directly or indirectly, has nexus with marriage, such demand would constitute demand for dowry. The cause of raising of such demand remains immaterial. The said judgment is fully applicable to the facts of the present case. Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 65/74
46. Reliance is placed by counsel for accused persons upon judgment passed by Hon'ble High Court of Delhi titled as State Vs. Paramjeet Singh & Ors.. In the said judgment, the Hon'ble High Court reproduced the observation made by the Apex Court in case titled as Satvir Singh Vs. State of Punjab, (2001) 8 SCC 633, with respect to the phrase "soon before" and same is reproduced herein below:-
"It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if section 304-B is to be invoked. But it should have happened "soon before her death."
47. In the present case, dowry demand have direct nexus with the death and same have been made soon before the death. Reliance has been placed by accused upon judgment passed by Hon'ble Supreme Court titled as Baijnath & Ors Vs State of Madhay Pradesh(Supra), Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 66/74 the relevant para 35 wherein it has mentioned that "This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another vs State of Punjab- (2011) 11 SCC 517 and echoed in Rajeev Kumar vs State of Haryana-(2013)16 SCC
640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 67/74 under Section 113B of the Act." but this judgment can be invoked for the benefit of prosecution as the ingredients have been proved.
48. Reliance can also be placed upon judgment titled as Umed Singh & Ors. Vs. The State, NCT of Delhi and titled as Naveen Vs. The State, NCT of Delhi decided by Hon'ble High Court of Delhi. In said judgment, the Hon'ble High Court has discussed the observation of Hon'ble Supreme Court in case titled as Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (1) SCC 750 which are given below:
"In State of West Bengal V. Orilal Jaiswal and Anr. (1994) 1 SCC 73, this court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 68/74 victim had in fact induced her to end the life by committing suicide....."
49. A conjoint reading of Section 113B of the evidence Act and Section 304 B shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. The expression 'soon before' is very relevant where section 113B of the Evidence Act and Section 304 B IPC are pressed into service. The prosecution was obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates and in this case prosecution has been able to establish same.
50. The Ld. APP for the state and complainant have relied upon judgments titled as Pathan Hussain Basha Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 69/74 Vs. State of Andhra Pradesh, AIR 2012 SC 3205; Baljit Singh Vs. State of Haryana, AIR 2004 SC 1714; Premwati Vs. State of Uttar Pradesh, 1991 Cr. L J 236 and Shanti Vs. State of Haryana, AIR 1991 SC 1226 and argued that law settled in above judgments are fully applicable to the facts and circumstances of the present.
51. Further it is crystal clear that nothing has been brought on record by defence to show that they were falsely implicated. It is further clear that level of cruelties was so high that it forced deceased Babita to commit suicide. From the testimony of the aforesaid witnesses, it is evident that deceased Babita was treated with cruelty by the accused Vijay, Shakuntla and Ram Bilas for demand of dowry. It stands established on record that the objective of harassment was to coerce her or any person related to her with a view to meet their unlawful demands of dowry.
52. However, the evidence brought on record through Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 70/74 the testimonies of abovesaid witnesses is sufficient to conclude that deceased Babita was dealt with harassment and cruelty by the accused Vijay, Shakuntla and Ram Bilas in order to force her and any other person related to her to meet their unlawful dowry demands. The ingredients of offence U/s 498A IPC have been amply brought over the record against accused Vijay, Shakuntla and Ram Bilas. There is no escape from the fact that in the present case, all the ingredients have been shown to exist.
53. It is observed that this is a case of dowry death as the death in this case was otherwise than under normal circumstances and within 7 years of marriage. It is apparent that deceased was subjected to cruelty and harassment by accused persons soon before her death. Thus the major ingredients of Section 498A/304B/34 IPC are duly fulfilled against accused Vijay, Shakuntla and Ram Bilas only but not against Ram Prasad and Asha.
54. As far as the alternate charge U/s 302/34 IPC is Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 71/74 concerned against the accused persons, there is no direct or any circumstantial evidence on record to establish that the deceased was murdered by the accused persons. Though some injuries have been mentioned in post mortem report but same are not sufficient to prove the offence of murder. PW-21 ASI Lala Ram who had reached the spot on receipt of DD No. 45A deposed that on second floor of the house, one room was found bolted from inside and he peeped into the room from a small hole in the wall and noticed that a lady was hanging. In his testimony, it has further come on record that he has broken the small portion of wall of room and opened the bolt of room and thereafter, they had entered into the room. The burden of proving the case is on the prosecution to prove its case beyond any reasonable doubt. In view of the aforesaid discussion and the evidence which have come on record the prosecution has not been successful to prove that the deceased was murdered by the accused persons. So, all Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 72/74 the accused persons are acquitted for the offence U/s 302/34 IPC.
55. As far as the charge U/s 174 A IPC is concerned, the prosecution has been successful in proving that the accused Asha did not appear before the court despite issuance of proclamation U/s 82 Cr.P.C. and she was declared proclaimed offender. Accused Asha is convicted for the offence U/s 174 A IPC.
56. Accordingly, in view of the above observations, accused Vijay, Shakuntla and Ram Bilas are held guilty and convicted for the offences punishable under section 498A/ 304B/34 IPC. Accused Asha is convicted for the offence U/s 174 A IPC. Accused Asha and Ram Prasad are acquitted for the offences U/s 498A/304B/34 IPC. All the accused persons are acquitted for the offences U/s 302/34 IPC.
57. Bail bonds under Section 437A Cr. P. C. in sum of Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 73/74 Rs. 25,000/- each be furnished on behalf of the accused Ram Prasad and Asha. The same shall remain in force for a period of six months from today. Case property, if any, be confiscated to the State after expiry of the prescribed period of limitation to file the appeal. Copy of this judgment be given to accused.
58. Be put up for arguments on the point of sentence on 04.03.2020.
Pronounced in the open court. (AJAY GOEL) Dated: 29.02.2020 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
Sessions Case No.441064/2016 State Vs. Vijay Kumar & Ors. Page No. 74/74