Delhi District Court
St. vs . Manoj Kumar Etc. on 31 August, 2017
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.02/2016
Unique ID No.02406R0391832015
FIR No. 568/2015
U/s: 498A/304B/306/34 IPC
Police Station : Fatehpur Beri
State
Vs.
1. Manoj Kumar S/o Sh. Chander Bhan Singh Accused no.1
2. Santosh w/o Sh. Chander Bhan Accused no.2
3. Suresh S/o Sh. Mangal Ram Accused no.3
4. Reeta w/o Sh. Suresh Accused no.4
All R/o H. No. 171, Chandan Complex wali Gali,
Asola, Fatehpur Beri, New Delhi
Date of Committal :08.01.2016
Arguments concluded :31.08.2017
Judgment pronounced on :31.08.2017
JUDGMENT
1. In the instant case, all accused persons faced trial for the offences punishable u/s 498A/304B/306/34 IPC.
Prosecution case as per chargesheet
2. As per charge sheet, the case of prosecution is that on 03.08.2015, upon receipt of DD no.11A, ASI Mukesh with Ct. Duli Chand reached at th spot i.e. H. No. 171, Asola, Fatehpur Beri, Chandan Complex wali gali, where they found the dead body of deceased Meena w/o Manoj on the floor of the room at the first floor FIR No.568/15 1/46 St. Vs. Manoj Kumar etc. of the house and on the neck of the dead body one black & red colour rope was tied, which some part of the rope was hooked with the sealing fan. Crime team was called, crime scene was inspected, family members of deceased and neighbours were interrogated. Since the deceased was got married for less than 7 years therefore, the SDM concerned was called at the place of crime. The exhibits from the spot were taken into police possession. In the meantime, deceased's father Bir Singh also reached the spot with his relatives. IO recorded the statement of two neighbours namely Surender Kumar and Sukhbir Singh as well as of the mother in law of the deceased namely Santosh. The dead body of the deceased was taken to AIIMS hospital wherein the deceased was declared brought dead vide MLC No. 10504/2015. As per the directions of SDM, postmortem was got conducted on the dead body of deceased and thereafter, the same was handed over to the father of the deceased in the presence of other legal heirs. The exhibits collected from the doctors were also taken into police possession. On 04.08.2015, Bir Singh, the father of deceased gave statement before SDM which was received at the police station vide letter no. SDM/Saket/2014/4809 dated 04.08.2015, wherein directions were given for detail investigation under the relevant provisions of law.
3. The contents of Bir Singh's statement dated 04.08.2015 recorded before the SDM, which culminated into present FIR are as under:-
On 07.02.2013, my daughter Meena was married to Manoj according to Hindu Rites and Customs and after marriage she went with her husband to her matrimonial home at H. No. 171, Asola, FIR No.568/15 2/46 St. Vs. Manoj Kumar etc. Fatehpur Beri, Chandan Complex wali gali. My daughter was living happily with her father in law, mother in law, brother in law (Jeth) and sister in law (jethani) and no demand of dowry was ever made by them from us. However, for the last two months, my daughter was quite upset. She was also restrained from meeting us. About one week before my daughter had talked to her mother on telephone. She was under tension and asked her mother not to send the customary gits at the occasion of Teej in the month of Saavan because her in laws did not use to allow her to eat anything coming from her parental home. On 03.08.2015 at 7:00 am, I received a phone call from in laws of my daughter whereby they informed me that my daughter was no more. Subsequently, I reached the matrimonial home of my daughter alongwith my relatives and found 2-3 police persons already there and dead body of my daughter was lying on the floor. After seeing the condition of dead body, I believed that something wrong had happened with my daughter as she could never commit suicide. Upon my inquiry, I was told that since my daughter was unable to bear any child therefore, she was subjected to mental harassment and cruelty. I request that appropriate investigation be made and action be taken against the guilty persons.
4. On the aforementioned statement of deceased's father and on the basis of the MLC, present FIR was got registered u/s 498A/304B/34 IPC on 07.08.2015 and thereafter, investigation was handed over to senior officer Inspector Hanumant Singh.
5. During investigation, IO Inspector Hanumant Singh with ASI Mukesh Kumar prepared the inquest documents and submitted FIR No.568/15 3/46 St. Vs. Manoj Kumar etc. the original inquest file with the AIIMS hospital. On the pointing out of ASI Mukesh Kumar, IO inspected the place of incident and prepared the unscaled site plan. IO also collected the statement of deceased's mother Smt. Manju recorded before the SDM and attached with the police file. Thereafter, IO also made inquiries from deceased's mother Smt. Manju who informed that for about last 6-7 months, her daughter i.e. deceased was harassed by her husband, mother in law Santosh and her husband's aunt (chachi) namely Reeta because they asked her to bring money from her parents for her treatment and at two occasions she had also given Rs.5000/- each to her daughter. In the month of April, the in laws of her daughter sent her to her parental home by asking her to bring Rs.50,000/- from her parents but since her daughter could not bring said money therefore, they killed her daughter. Deceased's mother further alleged that deceased was sent to her parental home only for money and she was never allowed to stay there and ultimately, she was killed by her in laws.
6. During investigation, IO also recorded statement of deceased brother u/s 161 Cr.P.C., collected Postmortem Report No. 903/2015 from AIIMS hospital, SDM's letter bearing no. SDM/Saket/2015/4879/20.08.2015. As per postmortem report, the cause of death was 'asphyxia due to antimortem hanging'. During investigation, accused Manoj was arrested on 22.08.2015 and the document of his arrest were prepared. After arrest, disclosure statement of accused Manoj was prepared wherein he stated that he was living with his family members namely grandmother Burfi devi, grandfather Mangat ram, mother Santosh, father Chander Bhan, elder brother Vinod, sister in law (Bhabhi) Sunita at H. No. 171, Asola, FIR No.568/15 4/46 St. Vs. Manoj Kumar etc. Fatehpur Beri, Chandan Complex wali gali. He used to do work of distribution of newspaper and during day time, he used to work as electrician at the shop of his brother. On 07.02.2013, his marriage was solemnized with deceased Meena at her parental home and in his marriage his uncle Suresh Kumar and aunt (chachi) Reeta Devi were mediator and in his marriage his in laws gave motorcycle and other articles. After marriage, due to some gynecological problem, his wife i.e. deceased was unable to bear child for which she was undergoing treatment and he (accused) used to purchase medicine for her from outside and had to incur lot of money on her treatment. On this account, his mother used to tell his wife Meena that her parents did not give any dowry in marriage and instead cheated them by hiding about her infertility and in similar manner, his chachi Reeta also used to taunt his wife. Since his income was not good therefore, he could not get his wife treated and therefore, his mother and his chachi Reeta used to taunt his wife by saying that her parents have burdened them with the responsibility of a sick person and they also used to ask his wife to bring money from her parents for her treatment. On 03.08.2015 at about 9:00 pm his chachi Reeta had some verbal altercation with his wife and asked Meena to get money from her parents. At 5:00 am on 03.08.2015, he went out for distributing newspaper and at about 6:40 am his brother Vinod telephoned him and told him that his wife Meena had committed suicide. When, he came back home, he saw that his wife had committed suicide by hanging. It appeared that due to the ill treatment meted out by his mother Santosh and chachi Reeta and also on account of his behaviour in asking her to bring money from her parents, his wife Meena committed suicide.
FIR No.568/15 5/46St. Vs. Manoj Kumar etc.
7. After recording aforementioned disclosure statement of accused Manoj, he was produced before the court. During investigation, IO also interrogated deceased's mother in law Smt. Santosh who informed that there used to be frequent quarrels between her son and his wife i.e. deceased as the deceased was unable to bear any child. During interrogation, Suresh and Reeta told that they were living separately with their family and they had no interference in the family of Chander Bhan (deceased's father in law) and only because they had mediated in the marriage of deceased and accused Manoj therefore, deceased's family had got them falsely implicated.
8. After completion of investigation, IO filed the charge sheet before Ld. Magistrate on 19.11.2015 against accused Manoj for the offences punishable u/s 498A/304B IPC and for the other three accused persons namely Santosh, Suresh and Reeta only for the offence punishable u/s 498A/34 IPC. Accused Santosh, Suresh and Reeta were charge sheeted without arrest. After compliance of Section 207 Cr.P.C., Ld. Magistrate vide order dated 04.01.2016, committed the case to the court of Sessions and same came to be assigned to this court on 08.01.2016.
Charge/prosecution witnesses
9. Vide order dated 17.02.2016, charges for the offences punishable u/s 498A/304B/34 IPC and in alternate for section 306/34 IPC were framed against all the four accused persons to which they pleaded not guilty and claimed trial. In order to prove the charges FIR No.568/15 6/46 St. Vs. Manoj Kumar etc. against the accused, the prosecution examined as many as 19 witnesses namely PW1 Smt. Manju, PW2 Sh. Mohit, PW3 Sh. Bir Singh, PW4 Sh. Shiv Shankar Jha, PW5 Sh. Udai Singh, PW7 Sh. Surender Kumar, PW8 Sh. Sukhbir, PW9 Sh. Virender, PW10 Ct. Dulichand, PW11 Ct. Mohit Rana, PW12 PSI Sandeep, PW13 ASI Chhiter Mal, PW14 Sh. Vikas Ahlawat, the SDM, PW15 Sh. Chander Shekhar, PW16 ASI Lokender, PW17 ASI Mukesh Kumar, PW18 SI Manish and PW19 Inspector Hanumant Singh, the IO of the case.
Prosecution evidence
10. PW1/Smt. Manju is the mother of deceased. As per her examination in chief, her daughter Meena @ Vinesh was married to accused Manoj as per Hindu Rites and Customs and after marriage her daughter was taken to a joint family where she remained happily for one and half year. However, thereafter, her mother in law Santosh and aunt Reeta, uncle Suresh and her husband Manoj started harassing her daughter for not bearing a child and further asked the deceased to bring money from her parents and on two occasions she (PW1) had given Rs.5000/- each to the deceased as per demands of accused persons. However, accused persons again demanded Rs.50,000/- on the pretext of providing treatment to her daughter but she could not arrange the same. Last year, after Diwali and before Sakrant the aforementioned demand of cash amount was made by accused persons but she told her daughter that she would talk to her father regarding said demand but before the demand could be fulfilled, the accused persons killed her daughter. As per PW1, the deceased last visited her parental home in January, 2015 at the time when she (PW1) had received head injury and thereafter, deceased FIR No.568/15 7/46 St. Vs. Manoj Kumar etc. was never allowed to visit her parental home by the accused persons. PW1 further stated that her daughter was never allowed to stay at their house and therefore, she had to return to her matrimonial house on the same day.
11. PW2/Sh. Mohit is the brother of the deceased. As per his version, the marriage between the deceased and Manoj was arranged through co-accused Suresh. He used to visit his sister at her matrimonial home . Even 3-4 months prior to the incident, he had visited his sister and at that time he found her under some stress. When he asked her about the reason of her tension, she did not disclose anything and said that she would disclose the reason only when she would come to visit them. However, she did not come to their house. On 28.07.2015, he had spoken to the deceased on her mobile number 8527170698 and she told that she would speak later as somebody was present. Even a week prior to 28.07.2015, he had spoken to his sister. He had asked his sister to start tailoring shop, but she told him that her in-laws were not ready to allow her to start tailoring shop. On 03.08.2015, the elder brother of PW1 namely Virender received a telephonic call from the elder brother of accused Manoj and he was informed that their sister Meena had committed suicide. Thereafter, he alongwith his family members went to the house of Manoj and at the first floor of the house, he found the dead body of his sister lying inside the room and her neck was lying tied with a rope. Thereafter, he got upset. He further deposed that his sister was not a person, who could commit suicide. He had stated to police that accused and her family members had killed his sister.
FIR No.568/15 8/46St. Vs. Manoj Kumar etc.
12. In his cross-examination, PW2 deposed further that her sister had visited their house lastly approximately one month before her death and during said visit she stayed their house for about 15 minutes only. As per his version, accused Manoj had never demanded any money or any other article from him. Further that, he had spoken to his sister on phone on 28.07.2015 for about one minute and few seconds.
13. Upon being asked leading questions by Ld. Addl. PP with the permission of court, PW2 admitted that when he (PW2) asked his sister about the reason of her tension, she did not disclose anything to him instead she told that she would disclose the matter to their mother when she would visit their home. He further admitted that he had stated to police that when he lastly spoke to his sister on 28.07.2015 from his mobile phone number 8527083959 on her mobile number 8527170698, she told him that she would visit their house on Wednesday and would disclose to their mother that Manoj was putting pressure on her to bring Rs.50,000/- from their house. He further admitted that he had stated to police in his statement that his sister's husband Manoj, her mother in law Santosh, uncle of Manoj namely Suresh and his wife Rita could have been involved in the death of his sister.
14. PW3/Mr. Bir Singh is the father of deceased. In his examination in chief, he deposed that he had three sons and one daughter namely Meena (since decesed). He got his daughter married with accused Manoj according to Hindu rites and customs on 07.02.2013. After marriage, his daughter left for her matrimonial FIR No.568/15 9/46 St. Vs. Manoj Kumar etc. home at House No.171, Chandan Complex wali Gali, Asola Fatehpur Beri, New Delhi and lived there peacefully for about 1½ years. But thereafter, his daughter stopped visiting her parental home and also used to call them on telephone rarely. He further deposed that once his daughter had taken Rs.5000/- from her mother for payment of her medicines. Thereafter, his daughter had asked his wife for Rs.50,000/- and his wife in turn told him about the same but he (PW3) could not afford to pay said amount. Thereafter, his son had spoken to his daughter on telephone and she told him that she would soon visit their house but before she could visit them, PW3 got the information on 03.08.2015 that his daughter had died in her matrimonial home. After said information, he alongwith his entire family members and neighbours went to matrimonial house of his daughter where in a room at the first floor of above house he found the dead body of his daughter lying on the floor of the room and her neck was tied with a rope. After sometime, police came and dead body was taken to hospital and postmortem was conducted. After postmortem dead body was handed over to them and last rites were done. He further deposed that thereafter, he was taken before the SDM at MB Road, Saket and his statement Ex.PW3/A was recorded. Upon being asked leading questions by Ld. Addl. PP, PW3 admitted to have stated to police in his statement that the in laws of his daughter had demanded Rs.50,000/- for her treatment as she was not bearing child but he refused to pay said amount as he could not afford to pay the same. He further testified that he could not say as to why his daughter had died. However, her husband and in laws might have compelled her to die.
FIR No.568/15 10/46St. Vs. Manoj Kumar etc.
15. PW4/Sh. Shiv Shankar Jha is the priest who performed marriage ceremony of deceased with accused Manoj. As per his version, he knew Shri Bir Singh i.e. deceased's father. On 07.02.2013, he performed the marriage of deceased with accused Manoj as per Hindu rites and ceremonies. On 03.08.2015, he came to know that deceased Meena had committed suicide. Police made inquiries from him and he narrated the aforesaid facts to the police.
16. PW5/Shri Udai Singh is paternal uncle of deceased. He deposed that deceased Meena was his niece and daughter of his elder brother Shri Bir Singh. On 07.02.2013, Meena was married to accused Manoj son of Shri Chander Bhan as per Hindu rites and customs and as per their capacity they had given gifts and istridhan to Meena. Initially, everything was going smooth and there was no complaints from Meena. About 4-5 months prior to the death of Meena, deceased's mother Smt. Manju told him that in laws of Meena were demanding Rs.50,000/- on the pretext of treatment of Meena by saying that she could not bear child and further told him that she had already given Rs.5000/- twice as demanded by her in laws. He further deposed that he had advised his bhabhi (deceased's mother) not to give Rs.50,000/- and told her to make a request to in laws of Meena that they should send Meena to her parental home and they would provide whatever treatment she would require. He further deposed that on 28.07.2015, he was told by his bhabhi that Meena would come on Wednesday but on 03.08.2015, they received an information about death of deceased. On receipt of said information, he alongwith his brother Bir Singh and other family members and relatives had gone to the matrimonial house of deceased Meena. On reaching there, they found Meena was lying dead in her room on the FIR No.568/15 11/46 St. Vs. Manoj Kumar etc. first floor. He also noticed a strip of cloth piece lying tied on the neck of dead body and it appeared that Meena had not committed suicide. Police made inquiries from him and he narrated the aforesaid facts to the police.
17. PW7/Shri Surender (wrongly mentioned as PW7 instead of PW6) is the neighbour of accused persons. As PW7 was wrongly recorded as PW7, the whole sequence of subsequent witnesses also went one number ahead. PW7 testified in his examination in chief that he had been residing in the neighbourhood of accused Manoj ever since his birth. He had also attended marriage of Manoj and Meena three and half years ago. Marriage was performed according to Hindu rites and customs. He did not remember the exact date, but on the date of incident, at about 7am, when he was going for morning walk, he heard noise of weeping from the house of Manoj. When he went inside the house of accused Manoj, he saw the mother of Manoj and his other family members were weeping and he was informed by mother of Manoj namely Santosh Devi that Manoj's wife had hanged herself from ceiling fan. Then he went to the room of Manoj and saw that the body of deceased Meena was lying on the floor and half of the rope was tieing on the neck of body and the other half was on the ceiling fan. Then he came down from the room of Manoj. Manoj was also there in the house. PW7 talked to father of Manoj on mobile phone and also informed police about the incident. After sometime, police officials came to the house of Manoj. As per PW7, younger brother of Manoj also got married just after 1-2 days of marriage of Manoj. Manoj and his brother and his other family members were residing in the same house. PW7 further stated that he had never FIR No.568/15 12/46 St. Vs. Manoj Kumar etc. heard about any quarrel between the family members of Manoj with the deceased nor he was aware of any harassment done by the family members of accused Manoj against Meena. As per PW7, during investigation, police had seized rope and scissor vide seizure memo Ex.PW7/A and also seized the mobile phone and other articles of the deceased vide seizure memo Ex.PW7/B and Ex.PW7/C. PW7 correctly identified the case property i.e. scissor and rope as Ex.P1 and Ex.P2.
18. PW8/Shri Sukhbir is also one of the neighbours of accused persons. As per his version, he had also attended the marriage of Manoj and Meena three and half years ago. Marriage was performed according to Hindu rites and customs. He did not remember the exact date, however on the date of incident, at about 7.30am, when he was coming back to his house after fetching milk, he saw some crowd at the house of accused Manoj. When he went inside the house, he saw mother of Manoj and other family members weeping, accused Santosh Devi informed him that wife of Manoj had hanged herself from the ceiling fan. Then he went to the room of Manoj where he saw the body of deceased lying on the floor and half of the rope was lying tied on the neck of body and half of it was on the ceiling fan. Then he came down from the room of Manoj. Manoj was also in the house. Uncle of Manoj namely Suresh informed the police about the incident. Witness further deposed that he had never heard about any quarrel between the family members of Manoj with the wife of Manoj nor he was aware of any harassment done to her by her in laws.
19. PW9/Mr. Virender, is the real brother of deceased. He deposed that on 07.02.2013, his sister Meena had got married to FIR No.568/15 13/46 St. Vs. Manoj Kumar etc. accused Manoj as per Hindu rites and customs. On 03.08.2015, upon receipt of information about suicide of his sister, he alongwith his parents and other relatives visited the house of accused. On the same day, he identified the dead body of his sister Meena in the mortuary. After the postmortem, they received the dead body vide memo Ex.PW9/A. He further deposed that police had made inquiries from him as to when did his sister get married and when did they come to know about her death and his statement in this regard was recorded. He did not tell anything else to the police.
20. PW10/Ct. Dulichand deposes that on 03.08.2015, he was posted on emergency duty from 8am to 8pm with ASI Mukesh at PS Fatehpur Beri. On receipt of DD No.11A assigned to ASI Mukesh, he alongwith ASI Mukesh reached at House no.171, Chandan Complex wali gali, Asola, Fatehpur Beri where they found dead body of a lady whose name was revealed as Meena w/o Manoj was lying in a room on the first floor. There was a rope made of cloth (red and black colour) tied around the neck of the body and some portion of the said rope was tied on the hook of ceiling fan. Crime team was called at the spot by ASI Mukesh. Smt. Santosh mother in law of deceased Meena and some neighbourers were also present there. On inquiry from the person present there, it was revealed that Meena was married to Manoj just 2-3 years back. As the death was within 7 years of marriage, SDM was accordingly informed. SDM came to the spot and inspected the place of incident. Exhibits from the spot were lifted and taken into police possession and kept in sealed parcels. The jewellery articles worn by the deceased were seized vide seizure memo Ex.PW7/B. One mobile phone was also taken into police FIR No.568/15 14/46 St. Vs. Manoj Kumar etc. possession vide seizure memo Ex.PW7/C. As per deposition of SDM, the dead body of deceased was taken to AIIMS mortuary where postmortem was conducted. The father of deceased was present in the hospital, who identified the dead body of the deceased. After the postmortem, the dead body of deceased was handed over to parental family of deceased. After the postmortem, the cloth made rope tied around the neck of the deceased was sealed in a parcel by the doctor with the seal of Department of Forensic Medicines. PW10 collected the same and handed over the same to ASI Mukesh Kumar and the same was also seized vide seizure memo Ex.PW10/A. DD No.11 A was however kept pending for further investigation. On 07.08.2015, his statement was recorded by Insp. Hanumant Singh.
21. PW11/Ct. Mohit Rana deposed that on 03.08.2015 he was posted at Police Control Room, Police Head Quarter. His duty hours were from 8:00 PM to 8:00 AM. At about 7:40 am, he received an information in respect of suicide committed by wife of brother of caller. The said call was recorded in Form No.1 Ex. PW11/A. Thereafter, he informed the concerned police station i.e. PS Fatehpur Beri and the PCR.
22. PW12/PSI Sandeep is a member of crime team, who visited the spot. He deposes that on 03.08.2015, he was posted as a Constable at Mobile Crime Team, South District and on that day, upon receipt of a call from Control Room he alongwith SI Manish, In-charge Crime Team and SI Anoop Singh (Finger Print Expert) reached at H. No. 171, Chandan Complex wali gali, Asola, Fatehpur Beri where ASI Mukesh alongwith other police team from PS Fatehpur Beri were already present and they also found a dead body of a lady namely FIR No.568/15 15/46 St. Vs. Manoj Kumar etc. Meena w/o Manoj. PW12 clicked 15 photographs out of which 14 were developed and same were collected by the IO from their office. PW12 proved on record said photographs as Ex. PW12/A-1 to Ex. PW12/A-14 and their negatives as Ex. PW12/B-1 to Ex. PW12/B-15.
23. PW13/ASI Chhiter Mal is a PCR personnel. He deposes that on the intervening night of 2-3.08.2015, he was posted at PCR, South Zone. On that day at about 7:47 am, on receipt of an information that a lady had committed suicide at H. No. 171, Chandan Complex wali gali, Asola, Fatehpur Beri, they immediately reached at the spot, where they found a dead body of a lady lying on the floor in the room at first floor. The lady had committed suicide by hanging from the ceiling fan. He sent the information to Control Room in this regard. On 21.09.2015, Inspector Hanumant Singh made inquiries from him and his statement was recorded.
24. PW14/Sh. Vikas Ahlawat, Deputy Registrar, Registrar of Co-operative Societies is the SDM, who conducted the inquiry u/s 174 Cr.P.C. As per his examination in chief, on 03.08.2015, he was posted as SDM, Saket. On receipt of information from PS Fatehpur Beri regarding death of Smt. Meena who had died within 7 years of her marriage, he reached at house no.171, Asola, Fatehpur Beri, Chandan Complex where he found the local police already present. The dead body of deceased was lying on the floor in a room on the first floor. He also noticed that a piece of cloth was tied on the ceiling fan and it was hanging. He made inquiries from the in laws of deceased who were present there. At that time, parents of deceased were not present there. Therefore, he instructed the local police to bring them before FIR No.568/15 16/46 St. Vs. Manoj Kumar etc. him for making inquiries from them. On 03.08.2015, PW14 authorized ASI Mukesh of PS Fatehpur Beri to get postmortem conducted on the body of deceased vide his Authority Letter Ex. PW14/B. He further deposed that on 04.08.2015, Sh. Bir Singh, father of deceased Meena had come to him and he (PW14) made inquiries from him and whatever facts were disclosed by Bir Singh, were recorded as his statement Ex. PW3/A and the same was signed by Bir Singh in his presence, he also attested said statement by putting his signatures and seal at points B. He further deposed that he had made enquiries from Smt. Manju, mother of deceased and also recorded her statement Ex. PW14/A and the same was also duly attested by him with his signatures & seal at point A. PW14 further deposed that statement of deceased's mother was recorded on 11.08.2015 as she did not come on 04.08.2015. Thereafter, on the same date i.e. on 11.08.2015, he directed the local police to conduct investigation under the relevant sections of law vide his letter Ex. PW14/C. The postmortem report was also sent to SHO PS Fatehpur Beri for the purpose of investigation vide his letter dated 20.08.2015 Ex. PW14/D.
25. PW15/Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Limited, 224, Okhla, Phase-III, New Delhi, had brought the summoned record of mobile phone bearing nos. 8527083959 & 8527170698. As per their record, the subscriber of mobile phone no. 8527083959 was Sh. Bir Singh. The attested copy of CAF is Ex. PW15/A while voter ID card as ID proof of subscriber is Ex. PW15/B. He also brought the CDRs of said number as Ex. PW15/C for the period of 01.07.2015 to 10.08.2015 running into 7 pages. He further deposed that as per record, the subscriber of mobile phone no. 8527170698 was Sh.
FIR No.568/15 17/46St. Vs. Manoj Kumar etc. Manoj Kumar and attested copy of CAF of said number is Ex. PW15/D, while DL of said subscriber as ID proof is Ex. PW15/E. The CDRs of said number for the period of 01.07.2015 to 10.08.2015 running into 2 pages is Ex. PW15/F. In support of above electric record, PW15 also filed his certificate u/s 65-B of Indian Evidence Act as Ex. PW15/H.
26. PW16/ASI Lokender is the duty officer who on 07.08.2015 was posted at PS Fatehpur Beri from 4:00 pm to 12:00 midnight and on that day, at about 8:55 pm, on receipt of rukka from ASI Mukesh Kumar, he got recorded FIR No.568/15 Ex. PW16/A through computer operator. He also made endorsement on the original rukka vide Ex. PW16/B. He also issued certificate u/s 65-B of Indian Evidence Act vide Ex. PW16/C. After registration of the case, investigation was assigned to Inspector Hanumant Singh.
27. PW17/ASI Mukesh Kumar is the first IO. As per his deposition, on 03.08.2015, he was posted as ASI at PS Fatehpur Beri and on that day, when he was on emergency duty from 8:00 am to 8:00 pm, one DD no. 11A Ex. P-3 was assigned to him upon which he alongwith Ct. Dhuli Chand reached at house no. 171, Chandan Complex wali Gali, Asola, Fatehpur Beri where they found a dead body of a lady whose name was revealed as Meena w/o Manoj lying in a room on the first floor. They also found a piece of rope made of red and black colour cloth tied around her neck and other portion of said rope was tied on the hook of a ceiling fan. Thereafter, he called crime team at the spot and also made inquiries from the family members of deceased and neighbourers. During inquiry, it was revealed that deceased died within seven years of marriage. Therefore, he informed FIR No.568/15 18/46 St. Vs. Manoj Kumar etc. SDM, Sh. Vikas Ahlawat, Saket, who came to the spot. Crime team also arrived and inspected the spot. He seized said piece of rope tied on the hook of ceiling fan and scissors vide seizure memo Ex. PW7/A. One pair of silver Pajeb and three silver Chutki worn by the deceased were seized vide seizure memo Ex. PW7/B. One mobile phone make micromax Q-3 was seized vide memo Ex. PW7/C. Thereafter, dead body of deceased was sent to AIIMS hospital through Ct. Dhuli Chand. He also recorded statements of two neighbourers namely Surender Kumar and Sukhbir and that of Smt. Santosh, the mother in law of deceased. Bir Singh, father of deceased Meena alongwith their other relatives also reached at the spot. The dead body of deceased was sent to hospital after their arrival. He further deposed that he had been authorized by SDM to get conducted the postmortem of dead body vide letter Ex. PW17/A. Thereafter, he moved an application Ex. PW17/B for the postmortem of body of deceased. He also filled up the form no. 25.35(1) (b) vide Ex. PW17/C. After postmortem, the dead body of deceased was handed over to family members of deceased vide memo Ex. PW9/A. The case property was deposited in the Malkhana. The parents of deceased did not give any statement on that date and instead told him that they would give their statements to SDM. Therefore, he (PW17) returned to police station and lodged his arrival entry to the police station vide DD no. 58B Ex. PW17/D. On the next day i.e. on 04.08.2015, he went to SDM office where parents of deceased were already present, statement of Bir Singh was recorded by the SDM, directions were given to PW17 to conduct investigation under relevant sections of law. After discussion with senior police officials, PW17 prepared rukka Ex. PW17/E on 07.08.2015 and got registered the FIR no. 568/15 Ex. PW16/A. After FIR No.568/15 19/46 St. Vs. Manoj Kumar etc. registration of FIR, further investigation was assigned to Inspector Hanumant Singh to whom PW17 handed over all the documents prepared by him. At his instance, Inspector Hanuman Singh also prepared the site plan of place of incident on 08.08.2015. On 22.08.2015, PW17 again joined the investigation of the present case alongwith Inspector Hanumant Singh for search of accused Manoj and apprehended him from area near Dena Bank, Chattarpur and arrested him vide arrest memo Ex. PW17/F. Accused was interrogated and his disclosure statement was recorded. He was produced before the court and sent to JC. Ld. Defence counsel did not dispute the identity of case property seized from the spot by this witness.
28. PW18/SI Manish deposes that on 03.08.2015, he was posted as Incharge, Mobile Crime Team, South District and on that day, upon receipt of an information, he alongwith Ct. Sandeep (Photographer) reached at house no. 171, First Floor, Chandan Complex wali Gali, Asola, Fatehpur Beri where ASI Mukesh of PS Fatehpur Beri alongwith other police staff were found present. One dead body of a lady namely Meena w/o Manoj who had allegedly committed suicide by hanging, was also found, however no chance prints could be found from there. They remained at the spot from 9:30 am to 10:00 am. The photographer had taken photographs of place of incident. He prepared a detailed report Ex. PW18/A and handed over the same to the IO.
29. PW-19/Insp. Hanumant Singh deposed that on 07.08.2015, he was posted at PS Fatehpur Beri. On said date after registration of FIR, the investigation of present case was assigned to him. During FIR No.568/15 20/46 St. Vs. Manoj Kumar etc. investigation, he collected inquest paper and also examined ASI Mukesh, who had conducted inquest proceedings of deceased as well as Ct. Dhuli Chand who was also part of said proceedings. He also prepared a site plan Ex. PW19/A of place of incident at the instance of ASI Mukesh. He further deposed that he had also visited the house of complainant Bir Singh to make inquiry from them, but they deferred their statement as they were disturbed due to sudden demise of their daughter. On 11.08.2015, he again went to complainant's house for recording of their statements but he came to know that complainant Bir Singh and his wife had already gone to SDM Office for recording of statement of mother of deceased. Consequently, he also reached SDM office and collected statement of Smt. Manju, mother of deceased. He also recorded statement of Smt. Manju U/s 161 Cr.P.C. Thereafter, on 14.08.2015, complainant Bir Singh alongwith his son Mohit and one relative Sh. Uday Singh came to the police station and inquiries were made from them and their statements were also recorded. Complainant also handed over him photographs of marriage of his daughter Ms. Meena, self attested photocopy of list of articles given in the marriage and list of expenditure incurred on marriage. These documents were taken into police possession vide seizure memo Ex. PW3/B, C & D respectively. He also received the postmortem report of deceased from the office of SDM, wherein cause of death was opined to be asphyxia due to antemortem hanging. He further deposed that on 22.08.2015, accused Manoj was arrested vide arrest memo Ex. PW 17/F. He was interrogated and his disclosure statement was also recorded. During investigation, photographs from the office of Mobile Crime Team were collected and statements of In- charge crime team SI Manish and photographer Ct. Sandeep were FIR No.568/15 21/46 St. Vs. Manoj Kumar etc. also recorded. He also collected PCR form and logbook of Eagle 32 (PCR), recorded statement of Incharge PCR van, HC Chittarmal who had attended the call regarding the incident. During course of investigation, CDR and CAF of mobile phone of deceased and his brother Mohit were also collected. On perusal of the CDR of both the mobile numbers, the fact regarding conversation between Mohit and deceased as stated by Mohit in his statement was corroborated. PW19 also got prepared scaled site plan through Inspector Mahesh, the draftsman of crime branch and also recorded his statement. He further deposed that on 18.09.2015, three accused persons namely Smt. Rita w/o Sh. Suresh, Suresh s/o Sh. Mangal Ram and Smt. Santosh w/o Sh. Chander Bhan were bound down vide bond Ex. PW 19/E, Ex. PW 19/F and Ex. PW 19/G respectively. During investigation, statements of witnesses who had joined investigation were recorded and after completion of investigation, chargesheet was filed in the court through SHO.
30. Except, PW3, PW7, PW11 7 PW13, all other prosecution witnesses were duly cross-examined by Ld. defence counsel and relevant part of their cross-examination shall be discussed in later part of this judgment.
Documents admitted u/s 294 Cr.P.C.
31. During trial, postmortem report no.903/15, MLC No.10504/15 of deceased Meena, DD No.11A dated 03.08.2015, PS Fatehpur Beri and Scaled Site Plan prepared by Inspector Mahesh Kumar were admitted as Ex. P-1 to P-4 respectively by Ld. defence counsel Sh. V.K. Gupta.
FIR No.568/15 22/46St. Vs. Manoj Kumar etc. Statement of accused
32. After completion of investigation, statements u/s 313 Cr.P.C. of all accused persons were separately recorded wherein all the incriminating evidence which had come on record during trial was put to the accused persons but the same was denied by them as wrong as incorrect. The accused persons came up with the plea that they had never raised any demand of dowry or cash for treatment either from the deceased or from her parents nor they subjected her to any harassment or ill treatment. They further came out with the defence that the deceased was under mental tension/depression because of her ill treatment by her step mother and also because deceased was unable to bear any child even after 2½ years of her marriage. None of the accused preferred to lead any evidence in defence.
33. I have given my thoughtful consideration to the rival contentions raised from both the sides and also carefully perused the entire record.
Defence arguments
34. Ld. Defence Counsel Sh. Biswajeet Singh has vehemently argued that prosecution has miserably failed to prove the charges against any of the accused as the testimony of prosecution witnesses is not reliable on account of various discrepancies and contradictions. He further argued that even if the prosecution evidence is believed to be true and reliable, in that case also the same is far from establishing any of the essential ingredients of the alleged offences so FIR No.568/15 23/46 St. Vs. Manoj Kumar etc. as to base conviction on the same. Counsel further argued that as per the version of prosecution witnesses, the alleged demand of Rs.50,000/- was raised for the treatment of the deceased who was unable to bear any child even after a long time of her marriage. He further urged that by no stretch of imagination, said alleged demand of Rs.50,000/- for medical treatment of deceased can be treated as a 'demand of dowry' within the meaning of Section 304-B IPC. It is further argued that prosecution witnesses though have alleged that the deceased was subjected to harassment on account of said demand but none of them cited any specific instance when the deceased was subjected to alleged harassment nor they even specified in what manner she was subjected to such harassment or cruelty. It is further argued that even the alleged demand of Rs.50,000/- was made somewhere near festival of Sakrant falling in the month of January whereas, the deceased died on 03.08.2015 i.e. after considerable gap of alleged demand raised by the accused persons. It is further argued that prosecution has hopelessly failed to prove it on record that the deceased was subjected to any cruelty or harassment in connection with any demand for dowry soon before her death so as to raise the presumption of Section 113B of Indian Evidence Act. He further argued that the material on record is totally lacking to prove any of said material facts to seek conviction for the offence u/s 304-B IPC. In this regard, he has relied upon the judgment in Hira Lal vs. State (Govt. of NCT), Delhi, (2003) 8 SCC 80. He further urged that general allegation of harassment and cruelty without describing the exact conduct of accused will not be sufficient to attract the provisions of Section 498A or 304-B IPC. To buttress his arguments, Ld. Defence Counsel placed reliance on the judgment in FIR No.568/15 24/46 St. Vs. Manoj Kumar etc. Amar Singh vs. State of Rajasthan 2010 (4) Criminal Court Cases 234 (SC) wherein it was held that " a prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of accused which, according to him, amounted to harassment or torture may not be believed by the court in cases u/s 498A and 304-B IPC."
35. Counsel further argued that even the charges for the offence u/s 306 IPC which were framed alternatively, have not been proved on record as the testimony of prosecution witnesses nowhere reflects any instigation or aiding within the meaning of Section 107 IPC on the part of accused persons.
Arguments of Ld. Addl. Public Prosecutor
36. Per contra, Ld. Addl. PP Mr. Rakesh Mehta rebutted the arguments by submitting that admittedly, the deceased had died otherwise than normal circumstances within 7 years of her marriage with accused Manoj and by clinching evidence of parents, brothers and one uncle of the deceased, prosecution has sufficiently proved on record that soon before her death the deceased was subjected to cruelty on account of non fulfillment of demands for money raised by the accused persons therefore, the presumption of Section 113B of Indian Evidence Act for the offence of Section 304-B IPC and that of Section 113A of Indian Evidence Act for the offence of Section 306 IPC, charge for which was framed in alternate are clearly drawn in favour of the prosecution and the defence has miserably failed to rebut the said presumption through the cross-examination of prosecution witnesses nor they led any evidence in defence for said FIR No.568/15 25/46 St. Vs. Manoj Kumar etc. purpose. It is further urged that in such like cases of dowry death, it is rare to find any direct evidence because such crimes are committed within the four corners of matrimonial house of deceased, but in the instant case there is ample material in the form of deceased's conversation with her parents and other family members soon before her death and in view of the fact that said conversation is concering the cause of her death and the circumstances of transaction which resulted into her death, same is admissible as dying declaration u/s 32 (1) of Indian Evidence Act, which is an exception to hearsay evidence.
Court's discussion
37. Before embarking upon the evidence adduced on record, I deem it appropriate to reproduce the relevant provisions of law for the sake of ready reference. As noted above, the accused were charged for the offences punishable u/s 498A/34 IPC, Section 304- B/34 IPC and in alternative u/s 306/34 IPC.
38. Section 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, '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 death (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 FIR No.568/15 26/46 St. Vs. Manoj Kumar etc. demand.
304B. Dowry death.-
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation. - For the purposes 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 punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
"Section 2 of Dowry Prohibition Act defines dowry as under:
Definition of "dowry". - In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage;or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II. - The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code."
113-B. Presumption as to dowry death.-
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the FIR No.568/15 27/46 St. Vs. Manoj Kumar etc. Court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section, "dowry death", shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).
Section 306. Abetment of suicide. -
If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
113-A. Presumption as to abetment of suicide by a married woman.-
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purposes of this section, "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860).] The abetment has been defined in Section 107 IPC and same also reads as under:-
107. Abetment of a thing.- A person abets the doing of a thing.
Who-
First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing;or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation1.-A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to FIR No.568/15 28/46 St. Vs. Manoj Kumar etc. disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
39. We may now examine the evidence adduced on record to first determine whether an offence u/s 498A IPC has been made out against the accused persons. In this regard, prosecution has examined witnesses namely Manju (step mother of deceased), Mohit (step brother of deceased), Bir Singh (father of deceased), Udai Singh (uncle of deceased), Virender (real brother of deceased) as PW1, PW2, PW3, PW4 & PW9 respectively.
40. Before separately discussing the testimony of said material witnesses, I may mention here that it is an admitted position of prosecution case that neither the alleged demand of money was ever raised by the accused persons from any of the family members of deceased nor deceased was ever subjected to any harassment, cruelty or ill treatment in their presence. As per prosecution case, about alleged demand of money, deceased had informed only her mother (PW1) and once on 28.07.2015, while talking to her brother Mohit (PW2), deceased told him that she would visit her parental home on Wednesday and then only she would tell her mother that accused Manoj is putting pressure on her.
41. As per version of PW1, her daughter remained happy in her matrimonial house for about one and half year but thereafter all the accused persons started harassing her for not bearing a child and FIR No.568/15 29/46 St. Vs. Manoj Kumar etc. she was also asked to bring money from her parents and on two of the occasions, PW1 had given her Rs.5000/- each as per the demand of accused persons. Thereafter, the accused namely Manoj, Santosh, Reeta and Suresh again demanded Rs.50,000/- on the pretext of providing treatment to the deceased and said demand was raised last year after Deewali but before Sakrant. She further deposed that before said demand could be fulfilled, the accused killed her daughter. Further, as per PW1 her daughter visited her parental home in January, 2015 and thereafter she was not allowed to visit their house. She further deposed that the deceased was never allowed to stay with her parents and therefore, whenever she used to visit them, she had to return back on the same day. In her cross examination, she further deposed that her daughter told her about accused's demand for Rs.50,000/- when she attended a marriage function at Neb Sarai as they had also gone to attend the same function. But she did not remember in connection of whose marriage said function was performed. She denied the suggestion that she never met her daughter in any marriage function or that her daughter was never asked by the accused persons to bring Rs.50,000/- or for that reason, she (PW1) did not inform her husband about said fact. She admitted the suggestion that the chacha and chachi of deceased's husband were living separately. She further stated that accused Suresh had acted as mediator in arranging the marriage of deceased with accused Manoj. She denied the suggestion that accused Suresh and Reeta had no interference in the matrimonial house or matrimonial life of deceased. She admitted the suggestion that in the matrimonial home of her daughter, her Jethani i.e. wife of elder brother of accused Manoj was also living and she was married one day prior to the FIR No.568/15 30/46 St. Vs. Manoj Kumar etc. marriage of the deceased. She also admitted the suggestion that even said Jethani of deceased had no children.
42. Although PW1 alleged in her examination that after 1½ years of marriage, accused had started harassing her daughter for not bearing a child but she did not come out as to how and in what manner, deceased was harassed. It is nowhere alleged by her that deceased was ever taunted, abused or assaulted on account of her not bearing any child either in her presence, or she was ever informed by deceased in this regard. There is no whisper of allegation in testimony of any of the family members of deceased that deceased ever complained to any of them regarding her alleged harassment at the hands of accused. None of the family members of deceased, examined in this case as PWs has come out with any specific instance of cruelty or harassment allegedly meted out to the deceased either in their own presence or their having been informed about it by the deceased. PW1, Smt. Manju in her cross-examination disclosed it for the first time that 4-5 days prior to the death, she had talked to her daughter on her son's mobile phone for about half an hour. But, here also she did not allege that deceased informed her about any cruelty or harassment meted out to her by accused either on account of alleged demand of money or on account of any other reasons. The mere allegation that the deceased was not allowed to stay at her parental home by the accused persons is not sufficient to fall in the category of 'cruelty' as defined in Explanation (a) or (b) of Section 498A IPC.
43. As regard the alleged demand of money, there are FIR No.568/15 31/46 St. Vs. Manoj Kumar etc. material discrepancies in the version of prosecution witnesses leaving it wholly unreliable. As already noted above, alleged demand of money was never directly raised from family members of deceased. As per prosecution case, it was deceased only who informed about said demand to her mother Smt. Manju. It is pertinent to note that as per PW2 Mohit, the son of PW1, on 28.07.2015, he had talked to the deceased on his mobile phone only for one minute and few seconds and it is only a week prior to 28.07.2015, he talked to the deceased on his mobile for about half an hour. But CDR details Ex. PW15/C of mobile phone on which, deceased used to talk to her brother and mother, nowhere reflects any such call exchanged between deceased and her brother of such long duration of 30 minutes i.e. 1800 seconds. The CDR record Ex. PW15/C of mobile no. no.8527083959 of the period w.e.f. 01.07.2015 to 10.08.2015 reflects only three phone calls exchanged between no. 8527083959 of subscriber Bir Singh, used by Mohit and 8527670698 of subscriber Manoj, allegedly used by deceased. Out of said three calls, two calls of 20.07.2015 at 7:32 pm and of 06.07.2015 at 9:48 am are of 0 second duration. Whereas, the third one is of 28.07.2015 of 113 seconds duration. Hence, the version of PW1 & PW2 regarding alleged conversation of half an hour with deceased few days prior to her death does not draw any corroboration from the electronic evidence in the form of CDR. Hence, version of PW1 & PW2 with regard to alleged conversation of more than ½ hour with deceased just few days prior to her death is an untrue and false.
44. Even PW2, though in his deposition talked about having spoken to her sister on 28.07.2015 and also a week prior to FIR No.568/15 32/46 St. Vs. Manoj Kumar etc. 28.07.2015 but, he also did not utter a word that her sister ever told him regarding any ill treatment or cruelty meted out to her in furtherance of alleged demand of Rs.50,000/- or for any other reason. As per his version, when he visited his sister Meena 3-4 months prior to the alleged incident he found her tense but she did not disclose any reason of her tension and said that she would tell the reason on her visit to her parental home. It is interesting to note that in his examination, PW2 upon being put leading question by Ld. Addl. PP, came out with the version that during his conversation on phone with her sister on 28.07.2015 she told him that she would visit them on Wednesday and then only she would disclose it to her mother that Manoj was putting pressure on her to bring Rs.50,000/-. But subsequently, during his cross examination by Ld. Defence Counsel, he disowned his earlier version by admitting the suggestion that deceased Meena did not tell him that Manoj was putting pressure on her for bringing Rs.50,000/- from her house on 28.07.2015 when deceased talked to PW2 Mohit on phone.
45. Ex. PW14/A is the statement of PW1 recorded by SDM on 11.08.2015 to the effect that in laws of her daughter had sent her to her parental home in the month of April, 2015 to bring Rs.50,000/- from her parents. Whereas, in her examination in chief, she made a different version, as she stated that her daughter lastly visited her parental home in January, 2015. It is interesting to note that on the other hand, PW2 in his cross examination has come out with a different version with regard to last visit of deceased to her parental house, as he had stated that his sister lastly visited their home, one month prior to her death i.e. somewhere in the month of July.
FIR No.568/15 33/46St. Vs. Manoj Kumar etc.
46. In this way, with regard last visit of deceased to her parental home, the version of PW1 & PW2 are not in conformity. The examination of PW1 is also not in consonance with her previous statement recorded before SDM on 11.08.2015, which is available on record as Ex. PW14/A, as the same was filed alongwith present chargesheet. Furthermore, as per PW3, her wife i.e. PW1 informed him about alleged demand of Rs.50,000/- raised by accused persons only 20 days prior to the alleged incident. There is apparently no reason as to why PW1 informed her husband about the alleged demand only 20 days prior to the death when she had been informed about said demand by the deceased more than 8 months prior to her death. As per examination in chief of PW1, it is only after the accused persons asked the deceased to bring the money from her parental house, she (PW1) gave the deceased Rs.5000/- each on two occasions. As per her cross-examination, Rs.5000/- was firstly given when her daughter visited her lastly in January, 2015 and on second occasion when she attended a marriage function in Neb Sarai. It is surprising that despite the alleged constant demand of accused persons for money, the deceased confided only with her step mother and never disclosed it to her father (PW3) or her own real brother (PW9). It also does not appeal to reason that a mother would keep waiting for such long period to inform the father regarding illegal demands of money raised by in laws of her daughter especially when her daughter was specifically sent to her parental home for said purpose and further when on account of said demand, her daughter was subjected to ill treatment in her matrimonial home.
47. As per PW2, even his mother did not tell him anything FIR No.568/15 34/46 St. Vs. Manoj Kumar etc. after she spoke for half an hour with his sister from his mobile phone one week prior to 28.07.2015, though he has stated that her mother was upset after talking to deceased. But again, there is nothing show what made PW1 upset after talking to deceased. Rather in his examination in chief, PW1 remained silent about her said alleged conversation of half an hour with the deceased which she allegedly had few days prior to deceased's death. It is only in her cross- examination, she came out that she had talked to her daughter for half an hour 4-5 days prior to death of her daughter on her son's mobile phone. But it is nowhere the version of either of said witnesses (PW1 orPW2), that deceased ever complained them of any kind of ill treatment or harassment at the hands of accused persons during aforementioned conversation of half an hour.
48. As noted above, the CDR record Ex. PW15/F, even otherwise does not corroborate their version with regard to alleged conversation of half an hour between mobile phones allegedly used by deceased and her brother Mohit prior to her death, in the month of August, 2015.
49. Here, it is also pertinent to note that even in Ex. PW3/A, the statement of Bir Singh, recorded by SDM on 04.08.2015, which formed basis of present FIR, he specifically stated that neither any dowry demand nor any other kind of demand was ever raised from them by the accused at any point of time. Though, deceased's father Bir Singh (PW3) has alleged that his daughter was not allowed to meet her parents or even to call them frequently but his said version is falsified by his own deposition in his cross-examination wherein he FIR No.568/15 35/46 St. Vs. Manoj Kumar etc. admitted the suggestion that he used to meet his daughter i.e. the deceased when he used to go for his duty. He also deposed that her daughter had visited him one month prior to her death to attend a marriage in his neighbourhood.
50. As per SDM, who is examined as PW14, he had recorded the statements of deceased's parents on 04.08.2015 as they were not present when he visited accused's house on 03.08.2015. Even as per PW7, SDM had already left the spot before arrival of parents of deceased. Despite the SDM having recorded the statement of Bir Singh on 04.08.2015 and having sent his letter SDM/Saket/2015/4809 dated 14.08.2015 giving directions for investigation, the FIR was lodged by the IO only on 07.08.2015 i.e. after a delay of four days from alleged incident. No explanation has been tendered for said delay in lodging of FIR. Even after lodging of FIR on 07.08.2015, IO did not show any promptness in recording statements of deceased's parents or other family members. As per record, statement of mother u/s 161 Cr.P.C. was recorded on 11.08.2015 and that of father Bir Singh, brother Mohit and uncle Udai Singh were recorded only on 14.08.2015. Statement of Virender, the real brother of deceased was recorded on 16.09.2015 i.e. after a gap of one and half month of deceased's death.
51. Even as per SDM's opinion as recorded in said letter dated 04.08.2015, the statement of deceased's father revealed only the apprehension regarding mental torture of deceased due to her infertility. In the testimony of prosecution witnesses recorded before the court, none of them came out with any cogent or clinching FIR No.568/15 36/46 St. Vs. Manoj Kumar etc. material to substantiate their suspicion that deceased was subjected to harassment, mental or physical on account of her infertility or any illegal demand of money.
52. One cannot lose sight of the fact that it is one of the fundamental principles of criminal jurispuradance that an accused is presumed to be innocent till he is proved guilty. It is equally well settled that suspicion however, strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be transversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be washed away. Reliance placed on Kailash Guar & Ors. State of Aasam (2012) 2 SCC
34. It is also surprising to note that PW9 Virender, who is the real brother of deceased, who was also living at the same address as that of deceased's parents did not raise any allegation against accused persons either regarding any illegal demand or regarding any ill treatment of deceased at their hands. As regard PW5, the uncle of deceased, his testimony regarding alleged demand is nothing but a hearsay evidence, as his bhabhi i.e. mother of deceased allegedly told him about it. And, even PW9 did not allege anything about ill treatment, harassment or cruelty against deceased at the hands of her in laws. It is also interesting to note that as per PW5, his bhabhi i.e. deceased's mother told him about said demand of Rs.50,000/- 4-5 months prior to deceased's death. Whereas, to her own husband i.e. PW3 Bir Singh, she (PW1) informed about it only 20 days prior to deceased's death.
FIR No.568/15 37/46St. Vs. Manoj Kumar etc.
53. As per postmortem report Ex. P-1, except a ligature mark on the neck, no other external antemortem injury was found present over the body of deceased and cause of death was asphyxia due to ante mortem hanging and time since death was about half a day prior to postmortem. As autopsy, as per PM report started at 4:10 pm on 03.08.2015, it suggests that death had occurred in early morning hours of 03.08.2015. There is nothing on record to show that viscera of deceased was seized by IO though as per postmortem report, the same was preserved by Autopsy surgeon. But, neither there is any seizure memo of said viscera, nor there is anything to show that it was ever sent for chemical analysis so as to rule out the possibility of concomitant intoxication or poisoning. IO seems to have acted in most callous manner as he did not even seek any opinion with respect to ligature material to ascertain whether the ligature marks found on the body of the deceased were possible by the ligature material which was found tied around neck of deceased.
54. Both the chemical analysis report of viscera as well as subsequent opinion on use of ligature material in commission of crime are two important aspects of investigation especially in cases of suicide and by not doing any investigation on said material aspects, IO seems to have failed to discharge his obligation which led to faulty investigation of case. The delay of four days in lodging of FIR and further delay in recording of statement of family members of deceased even after registration of FIR, is another major flaw in the investigation, which has given place for manipulations and gave rise to doubt on the genuineness and authenticity of prosecution case.
FIR No.568/15 38/46St. Vs. Manoj Kumar etc.
55. Cruelty is defined under two clauses of Explanation to Section 498A. Clause (a) talks about willful conduct of such nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. As per clause (b), it also includes harassment of woman in furtherance of any unlawful demand for any property or valuable security or on account of failure of such woman or any person related to her to meet such demand.
56. In the instant case, testimony of prosecution witnesses is totally lacking to reflect any such willful conduct of accused in the nature to drive the deceased to commit suicide. Mere allegation that deceased was pressurized to bring money for her fertility treatment from her parents is not sufficient unless it is proved that deceased was put to some harassment mental or physical on account of said reason. Even otherwise, as discussed in preceding paras, on account of various discrepancies in the statement of PW1 which is not in consonance with her statement dated 11.08.2015 made before the SDM, her testimony even otherwise, is not reliable. The testimony of PW2 Mohit regarding his conversation with deceased for half an hour one week prior to 28.07.2015 is also shrouded with doubts as the same does not get corroborated with CDR record Ex. PW15/C. The testimony of other witnesses namely Bir Singh and Udai Singh regarding the alleged demand of Rs.50,000/- is nothing but a hearsay evidence which even otherwise is not admissible under law. The deceased had never disclosed about the said alleged demand to these witnesses directly nor they have claimed so in their deposition before the court. As per all these witnesses, they were apprised about FIR No.568/15 39/46 St. Vs. Manoj Kumar etc. the alleged demand only by the mother of the deceased i.e. PW1 Smt. Manju.
57. As regard the deposition of Smt. Manju although there is no legal bar in relying upon her testimony relating to her alleged conversation with deceased soon before her death, especially when the same was concerning the circumstances of transactions which resulted into deceased's death. But, Hon'ble Apex Court has time and again emphasized the need of corroboration of such declaration particularly of this kind where oral statement was made by deceased to her mother, who is an interested witness and therefore, such declaration has to be considered with care and caution.
58. Section 304-B IPC embodies a deemed fiction in contradiction with the cardinal principle of presumption of innocence in favour of an accused. The legislature has applied the concept of deemed fiction in Section 304-B IPC where the husband or his relatives shall be deemed to have caused death of a woman once the prosecution proves its case with regard to basic ingredients of Section 304-B IPC. In other words, the offence shall be deemed to have been committed by fiction of law once the prosecution proves the other ingredients of Section 304-B IPC and in that event, the court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. But ofcourse, the deemed fiction would introduce a rebuttable presumption which can be rebutted by the husband and his relatives by leading their defence and proving that the ingredients of Section 304-B were not satisfied. While referencing to raising of presumption u/s 304-B of the Code, FIR No.568/15 40/46 St. Vs. Manoj Kumar etc. Hon'ble Apex Court in Kaliyaperumal vs. State of T.N. (2004) 9 SCC 157, stated the following ingredients which should be satisfied:
(1) The question before the court must be whether the accused has committed the dowry death of a woman, (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
59. In the light of the above essential ingredients, for constituting an offence under Section 304-B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the "dowry death" and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence. Reliance placed on the judgment of Hon'ble Apex Court in Ashok Kumar vs. State of Haryana, 2010 (12) SCC
350.
60. As is evident from record, the accused have been tried before this court for the offence of dowry death u/s 304-B/34 IPC alongwith other offences u/s 498A/34 and in alternate for the offence u/s 306/34 IPC. Hence, the first ingredient of the offence i.e. the trial of the accused before the court should be for the offence of section 304-B IPC is satisfied. Now, comes to the second question as to FIR No.568/15 41/46 St. Vs. Manoj Kumar etc. whether deceased was subjected to harassment or cruelty by the accused persons. However, said question has already been decided herein above while dealing with the charges of offence under Section 498A IPC wherein, it has been held that prosecution has miserably failed to prove that the deceased was subjected to any cruelty or harassment at the hands of accused persons. On account of numerous discrepancies and contradiction, the testimony of family members of deceased is found to be unreliable and untrustworthy.
61. Thirdly, as already noted above, the alleged demand of Rs.50,000/- though not proved on record, but even otherwise, it was not in connection with the marriage of deceased. As per prosecution own case, the same was raised on the pretext of providing fertility treatment to the deceased. As per PW1's own version, deceased's husband was a man of insufficient means as he was stated to be earning his livelihood by distributing newspapers. It is an admitted position that the couple was not blessed with any child even after 2 ½ years of their marriage. In said circumstances, even if it is believed that deceased was asked to bring money for the fertility treatment, same cannot be treated as demand of 'dowry' within the meaning of Section 304B IPC especially in the light of judgment in Appasaheb & Anr. vs. State of Maharashtra (supra) wherein it was held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses cannot be termed as a demand for dowry within a meaning of Section 304-B IPC.
62. Since the first two essential ingredients of Section 304-B IPC i.e. the cruelty and harassment in connection with demand of FIR No.568/15 42/46 St. Vs. Manoj Kumar etc. dowry, have not been established on record, the third question whether such cruelty was soon before death, need not to be considered.
In the backdrop of said circumstances, prosecution failed to establish even the charges of Section 304 B IPC against any of the accused persons.
63. Now, comes to the question of consideration of charges of Section 306 IPC. In the judgment of Hon'ble Supreme Court in case titled as Hans Raj v. State of Haryana (2004) 12 SCC 257, wherein Hon'ble Apex Court has examined the scope of Section 113A of the Evidence Act vis a vis sections 306, 107, 498A IPC and held that:-
"Unlike Section 113B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113A of the Evidence Act. This Court held that, under Section 113A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113A, therefore, gives discretion to the court to raise such presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word 'cruelty' in Section 498-A IPC."
64. In Pinakin Mahipatray Rawal vs. State of Gujarat (2013) 10 SCC 48, the Hon'ble Apex Court has again examined the scope of Section 113A of the Evidence Act and reiterated the legal position that the legislative mandate of Section 113A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her FIR No.568/15 43/46 St. Vs. Manoj Kumar etc. husband had subjected her to cruelty defined in Section 498A IPC, the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The Court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Seciton 498-A IPC is on the prosecution. The Court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide.
65. In the case of Randhir Singh vs. State of Punjab MANU/SC/0881/2004 : (2004) 13 SCC 129, wherein it was held by the Hon'ble Apex Court that :-
" 16. In order to bring a case within the purview of Section 306 of IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of intigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said office must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
66. Whereas, in the instant case neither the cruelty within the meaning of Section 498A IPC has been established on record by the prosecution so as to seek presumption of Section 113A of Indian Evidence Act, nor there is any other circumstances on record to indicate that accused had abetted the suicide. The alleged conduct of accused in harassing the deceased by raising demand of money for her fertility treatment, even otherwise is not sufficient to bring the case within ambit of Section 107 IPC, as the material on record is FIR No.568/15 44/46 St. Vs. Manoj Kumar etc. completely lacking to prove in what manner the deceased was put to alleged harassment by the accused persons.
67. In Ramesh Kumar vs. State of Chhatisgarh (2001) 9SCC 618 , Hon'ble Apex Court examined different shades of the meaning of "instigation" defined in sec. 107 IPC as under:-
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
68. In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon'ble Apex 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 victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
FIR No.568/15 45/46St. Vs. Manoj Kumar etc.
69. In the instant case, neither the prosecution has been able to prove the 'cruelty' within the meaning of Section 498A IPC on the part of accused persons so as to attract the prosecution of Section 113A of Indian Evidence Act nor the material on record is sufficient to even make out a case of abetment within the meaning of Section 107 IPC.
70. Having regard to above discussion, prosecution has miserably failed to bring home the guilt of any of the accused for any of the alleged offences. Accordingly, all accused persons are acquitted of all the offences punishable u/s 498A/304B/306/34 IPC. Bail bond in terms of Section 437-A Cr.P.C. already taken on record. File beconsigned to record room.
Announced in open Court on 31.08.2017 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi FIR No.568/15 46/46 St. Vs. Manoj Kumar etc.