Delhi District Court
41 It Has Been Further Held In Durga ... vs State on 20 March, 2012
1
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS: NEW
DELHI
PRESIDED BY : SMT. MADHU JAIN.
IN THE MATTER OF
SESSIONS CASE NO.69/09
FIR NO. 59/07
PS Badarpur.
UNDER SECTION : 498A/304B/34 IPC
STATE
VERSUS
1) SUNIL KUMAR,
S/O SH. HARI LAL.
R/O HOUSE NO. 755 GAUTAM PURI, BADARPUR, NEW DELHI.
2) ROSHAN LAL,
S/O SH. HARI LAL.
R/O HOUSE NO. 755 GAUTAM PURI, BADARPUR, NEW DELHI.
DATE OF INSTITUTION : 21.04.2007.
DATE OF RESERVING ORDER : 20.03.2012.
DATE OF DECISION: 20.03.2012.
J U D G M E N T
Case of Prosecution:
1 On 20.01.2007, DD No. 9 A was received from Holy Family Hospital in 2 police station Badarpur regarding admission of a female Pushpa aged about 18 years in the hospital by her husband who was declared brought dead. During inquiry of the abovesaid DD, ASI Jai Chand informed the Executive Magistrate Sh. Trilok Sharma. The dead body was sent to Mortuary for postmortem.
Executive Magistrate Sh. Trilok Sharma recorded the statement of father of the deceased Sh. Sattan Lal Sharma in his office who has stated that his daughter Pushpa got married to accused Sunil Kumar Sharma on 23.05.2005 and further alleged that her daughter was harassed by her husband and her inlaws on account of dowry demand. On his statement, case under Section 498A/304B/34 IPC was registered and investigation was carried out by Inspector Virender Singh. During investigation, crime team was called at the spot. Photographs of the site were taken at the instance of Smt. Sumitra. The site plan was prepared by the Investigating Officer. Exhibits were sent to FSL Rohini. In the postmortem report, the cause of death was kept pending for want of result of viscera report. Both the accused were arrested who made their disclosure statements, the marriage card and photographs and video CD of the marriage of the deceased were taken into possession. Statements of witnesses were recorded and after completion of investigation, chargesheet against the accused persons was filed in the court.
2 Since the offence under Section 304 B IPC is exclusively triable by the court of Sessions so after supplying the documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge Against The Accused:
33 Prima facie case under Section 498A/304B/34 IPC was made out against the accused persons. Charges under Section 498A/304B/34 IPC were framed against the accused persons by my Ld. Predecessor vide order dated 17.09.2007 to which accused persons pleaded not guilty and claimed trial.
Witnesses Examined:
4 In support of its case, prosecution has examined twenty four (24) witnesses in all.
5 The brief summary of the deposition of the prosecution witnesses is as under:
Formal Witnesses
6 PW1 is HC Vedvir Singh who registered the FIR Ex.PW1/A. 7 PW7 is Sh. Jai Pal, teacher in Government Girls Senior Secondary School No. 1, Badarpur, who proved the date of birth of the Laxmi (Nanad) of deceased as 06.03.1991.
8 PW12 is Smt. Indu Ahuja, Vice Principal Governement Girls Senior Secondary School No.1, Badarpur, who also proved the date of birth of one of the accused Laxmi as 06.03.1991.
9 PW13 is Mr. Deepak Kumar who took the photographs of the spot at the instance of the Investigating Officer on 20.01.2007 and proved the same as 4 Ex.PW13/B1 to PW13/B8.
10 PW14 is Constable Girdhar Singh who alongwtih Incharge, Mobile Crime Team reached at the spot and took photographs of the site and proved the same as Ex.PW14/A1 to PW14/A6.
11 PW15 is Constable Harpal Singh who deposited the exhibits of the present case in the FSL.
12 PW16 is Sh. Pandit Chandrashekhar Jha who stated that marriage of Pushpa D/o Sh. Sattan Lal Sharma took place with Sunil Kumar on 03.05.2005 and he performed pooja on the occasion of their marriage on that day. 13 PW17 is Constable Sussi Ram who alongwith ASI Jai Chand reached at Holy family hospital and was present with the Investigating Officer during investigation of the case and proved all the documents etc. 14 PW18 is Inspector Vinod Pal who is the Incharge Mobile Crime Team. He inspected the scene of crime and submitted his detailed report Ex.PW18/A. 15 PW19 is Head Constable Brijmohan whose examination in chief was deferred for want of register no. 19. He is again examined as PW21. He was posted as MHC(M) at police station Badarpur and has proved all the entries regarding deposition of the case property by the Investigating Officer in the 5 present case.
16 PW22 is Sh. V.P.Sharma who identified the signature and handwriting of Dr. Ashok Kumar on the MLC Ex.PW11/B of the deceased.
Material Witnesses.
17 PW2 is Sumitra who is the mother of the deceased Pushpa. She stated that on 23.05.2005, marriage of her daughter Pushpa took place with accused Sunil. They have given various dowry articles to the deceased at the time of her marriage. She stated that deceased was not kept properly and her motherinlaw used to harass her and her motherinlaw did not want to keep her at the matrimonial home. One day prior to death of her daughter Pushpa, Sunil came to call her. She went with Sunil to his house and told accused Sunil and her mother Smt. Anita Devi to keep her daughter Pushpa properly and behave properly. Thereafter, someone informed police and police reached at the house of Sunil. From where police took Sunil, Pushpa, fatherinlaw Sh. Hari lal and four/five ladies to police station. She also accompanied them. Next morning she asked accused Sunil to drop her at her house. In the meantime, mother of Sunil locked herself in her room and told that she will die if deceased Pushpa will remain in her matrimonial house. Subsequently, Sunil broke open the door of the room of his mother. PW2 further stated that she tried to make Anita Devi understand, in the meantime her daughter went upstairs and locked the door of her room from inside. She alongwith Sunil went to see her daughter. The door of the room was opened by someone and her daughter was lying on the room who was unconscious. They took her daughter Pushpa to the hospital, after that 6 she does not remember as she was under shock.
18 PW3 is Sh. Sattan Lal Sharma, father of the deceased who has stated that her daughter was harassed by her husband and inlaws. He stated that accused started harassing his daughter for demand of more dowry. Second time, he gave dowry as per their demands and the accused persons took her daughter with them to their house. After about one month, accused persons again left his daughter at his house by saying that accused is incapable of keeping his daughter. He stated that they demanded one motorcycle from him. He told them that he is having five daughters and he cannot give motorcycle to them. On 20.01.2007, his soninlaw informed him on telephone to come to Holy Family Hospital where he came to know that his daughter Pushpa is declared 'brought dead'. SDM recorded his statement Ex.PW3/A. This witness further proved the marriage card, photographs of the marriage and other documents which he handed over to the Investigating Officer. 19 PW4 is Sh. Sanjeet Sharma, brotherinlaw of the deceased who stated that accused Sunil used to demand motorcycle and also told him to tell his fatherinlaw to arrange money for the same. He further stated that he was informed by his motherinlaw regarding quarrel in the house of Pushpa and he alongwith his younger brotherinlaw Sohinder Sharma went to the house of Pushpa and tried to make them understand.
20 PW5 is Smt. Sushma Devi who stated that husband and inlaws of her sister Pushpa did not want to keep Pushpa with them and used to harass her for 7 not brining sufficient dowry.
21 PW6 is Sh. Sohinder Sharma, brother of the deceased, PW8 is Smt. Seema who is sister of deceased, both of them have deposed on the lines of PW5.
22 PW9 is Master Luv Kumar, another brother of the deceased who has also deposed on lines of PW5, PW6 and PW8.
23 PW10 is Sh. Trilok Sharma, Executive Magistrate who conducted inquest proceedings and recorded the statement of the father of the deceased. 24 PW20 is ASI Jai Chand who is the initial Investigating Officer of the case and conducted the investigation of the case and has proved all the memos etc. 25 PW23 is Inspector Virender Singh, Investigating Officer of the case who arrested the accused persons and has duly proved all the memos etc. Medical Witnesses.
26 PW11 is Dr. Mala who identified the signatures and handwriting of Dr. Ashok Kumar on the MLC of deceased Pushpa who was brought to the casualty by her husband for her medical examination. She further deposed that the patient was brought dead in casualty vide MLC Ex.PW11/B. 8 27 PW24 is Dr. Sudipta Ranjan Singh who stated that postmortem on the dead body of the deceased was conducted by Dr. M.G. Jayan and further proved the postmortem report Ex.PW24/A. He further proved subsequent opinion report Ex.PW24/B given by Dr. Shiva Prasad Y. after the examination of viscera analysis report.
Statement of accused persons:
28 Statements of both the accused persons under Section 313 Cr.P.C were recorded wherein they denied the case of the prosecution and they further stated that they never harassed the deceased Pushpa. None of the accused persons chose to lead evidence in his defence.
29 I have heard Ld. Amicus Curiae for both the accused persons and Ld. Additional Public Prosecutor for the State and have carefully perused the record.
Arguments of Amicus Curiae for accused persons:
30 Ld. Amicus Curiae for both the accused persons argued that the testimony of the witnesses is quite shaky and none of the witnesses has deposed that accused committed any cruelty against the deceased. He further argued that neither any detail of any incident nor the particulars of any incident has been given by the prosecution witness and prosecution has miserably failed to prove its case against the accused persons.
9
Arguments of Ld. Additional Public Prosecutor for the State: 31 On the other hand, Ld. Additional Public prosecutor for the State argued that all the witnesses in unison have stated that deceased was meted out with cruelty and there was a demand of motorcycle and gold ring from the accused persons. He further argued that the prosecution has been fully able to prove its case against the accused persons beyond reasonable doubt.
CONCLUSION:
32 The basic ingredients to attract the provisions of Section 304B are as follows:
(1) The death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances;
(2) Such death should have occurred within seven years of her marriage;
(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry.
Alongside insertion of Section 304B in IPC, the legislature also introduced Section 113B of the Evidence Act. If Section 304B is read together with Section 113B of the Evidence Act, a comprehensive picture emerges that if a married 10 woman dies in unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives.
33 PW2 is the mother of the deceased. She was present at the matrimonial home of the deceased on the day of incident. As per her own version, she was present at the matrimonial home of the deceased when the deceased committed suicide in her matrimonial home. She has not stated that her daughter Pushpa was harassed by her husband and by her inlaws on account of dowry demand. She has stated that motherinlaw used to harass her daughter Pushpa but she has not stated anything as to why the motherinlaw of the deceased Pushpa did not want to keep Pushpa in her house. She further stated that motherinlaw bolted herself in her room saying that 'if Pushpa live in her house, then she will die'. Accused Sunil, thereafter broke open the door of the room of his mother and subsequently, her daughter went upstairs and consumed some poisonous substance. She stated that after that she does not remember as she was under
shock. She was cross examined at length by Ld. Additional Public Prosecutor for the State. In her cross she stated that she does not remember as to whether she stated in her statement given to the police that accused Laxmi (Nanad) also demanded dowry from her daughter Pushpa or accused Sunil used to ask her daughter to leave her house. She has further stated that she does not know as to 11 whether she stated to the police officials that accused persons also used to pressurize her daughter to bring motorcycle. Even, she does not remember regarding demand of the motorcycle made by the accused Sunil and his mother. Though she has stated that her daughter's husband used to harass her at the instance of her motherinlaw but regarding demand of dowry, this witness has not stated anything. Even, she has been cross examined at length by Ld. Additional Public Prosecutor for the State regarding demand of motorcycle made by accused Sunil and his family members but she has showed her ignorance to this effect.
In her cross she has admitted that sisterinlaw never gave beatings to her daughter in her presence. She has further admitted that her daughter Pushpa and soninlaw Sunil used to stay very happy whenever they visited her house.
34 PW3 is the father of the deceased. As compared to PW2, this witness has made improvements by saying that accused persons used to harass her daughter on account of demand of dowry but no particulars as to when her daughter was harassed i.e, neither any date, time, month or year has been mentioned nor any incident has been stated by him. PW3 has further stated that accused persons demanded motorcycle from him but this fact has not been stated by his wife. He further stated that his soninlaw came to his house and took his wife with him to bring their daughter back but no such fact has been deposed by PW2 in her entire testimony. Though, she stated that she went with accused Sunil but has not stated that she went to bring her daughter back.
PW3 in his cross stated that he came to know about the harassment meted out to the deceased Pushpa by the accused persons for the first time after 12 15 days of her marriage but PW2 who is the wife of PW3 has not deposed any such thing. PW3 has further stated that after marriage of her daughter she remained with him for 7/8 months as Gona was to be performed after sometime. On one hand, this witness has stated that accused persons started harassing his daughter after 15 days of marriage but on the other hand he has stated that her daughter remained with him for 7/8 months when she came to his house for the first time after her marriage. Thus, there are contradictions in the testimony of PW3 itself. PW3 has further admitted that after marriage of her daughter Seema, some quarrel usually took place between Seema and the deceased Pushpa. Suggestion has been given to PW3 that Pushpa has some relations with the husband of her sister Seema but this fact has been denied by PW3. Admission of PW3 regarding quarrel between his two daughters Seema and Pushpa fortifies the arguments of the counsel for the accused persons that deceased had some liking for her brotherinlaw.
35 PW4 is the brotherinlaw of the deceased. This witness has gone a step further than PW2 & PW3 and stated that accused not only demanded motorcycle but also returned the gold ring by saying that this is very light. He further stated that accused demanded motorcycle from him and returned the gold ring but no such fact has been deposed by PW2 and PW3 who are the parents of the deceased. PW4 in his cross examination, further admitted that no dowry was given in the marriage of deceased Pushpa and no other demand except motorcycle was made by the accused persons. So far as the demand of motorcycle is concerned, neither any date when such demand was made nor any other particulars has been given by PW4 also.
1336 PW5 is sister of the deceased. This witness has stated that deceased was harassed by accused and her family members for demand dowry but her testimony is very vague and she also has not given any date, time or incident when the deceased was being harassed.
37 PW6 is Sohinder Sharma, brotherinlaw of the deceased. He has stated that he was informed by motherinlaw regarding quarrel going on in the house of deceased Pushpa but other particulars were not told to him and thereafter, he went to their house and persuaded all of them not to fight. This witness did not disclose anything else in his chief examination but subsequently, he has been cross examined at length by Ld. Additional Public Prosecutor for the State and he has admitted his statement given to the police. In his cross examination by accused, he has stated that Pushpa was not beaten by any of her in laws in his presence and no demand was made by the accused persons in his presence. He has further stated that prior to death of Pushpa there was no demand of motorcycle and demand was made one year prior to death of Pushpa and therefore, demand if any made by accused persons could not be connected with death of the deceased as same was not immediately prior to death. 38 PW8 is sister of the deceased who stated that her sister was harassed by her inlaws but except for saying in a parrot like manner that her sister was harassed, she too also has not given any instance of date or particulars when the accused harassed her sister.
39 PW9 is another brother of the deceased. This witness has not stated 14 anything regarding demand of dowry by the accused persons. The other witnesses examined by the prosecution are the police officials or the SDM who recorded the statement of the complainant and who were with the Investigating Officer during investigation of the case.
40 It has been held in Biswajit Halder Alias Babu Halder and Others Versus State of W.B., (2008) 1 Supreme Court Cases 202 that In this case there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. There is also no finding in that regard. This deficiency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in applicationof Section 304B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry. Since the prosecution failed to prove that aspect, the conviction as recorded cannot be maintained.
41 It has been further held in Durga Prasad and Another Versus State of Madhya Pradesh (2010) 9 Supreme Court Cases 73 that:
A) Penal Code, 1860Ss.304B and 306Dowry death due to suicide presumption of causingIngredients of evidence to sustain such to her death, held, not 15 sufficientIt must also be proved that she committed suicide on account of such cruelty and harassment These are also the ingredients of evidence required to be led for the presumption under S.113B, Evidence Act_ Moreover, it has also to be shown that such cruelty or harassment was for, or in connection with, any demand for dowryonly then can resultant death be called "dowry death"Hence, where no charges against accused persons were framed under Dowry Prohibition Act, 1961 and evidence led related to demand of a fan only, held, requirements of both S, 113B, Evidence Act, 1872 as well as S. 304 B IPC remained unproved Evidence Act, 1872S. 113 BDowry Prohibition Act, 1961S.4 B) Penal Code, 1860Ss.304B, 498A and 306 Conviction reversedBenefit of doubt givenExcept bald statements of victim's mother and brother alleging that victim had been subjected to cruelty and harassment prior to her death, no other evidence adduced to prove that she committed suicide on account of the same Hence, acquitted.
42 It has been further held in Appasaheb and Another Versus State of Maharashtra, (200) 9 Supreme Court Cases 721 that 16 Penal Code, 1860S.304B r/w S. 34Demand for dowryRequisites for Demand made by accused appellants from parents of deceased to meet domestic expenses and for purchasing manure Held, cannot be said to be a demand for dowryHence, since an essential ingredients of Section 304B IPC viz., demand for dowry is not established, the conviction of the appellants cannot be sustained Dowry Prohibition Act, 1961, S.2.
43 From a bare perusal of the testimony of relatives of deceased, the testimony of these witnesses do not inspires confidence and it seems that these witnesses have deposed in a parrot like manner that accused persons were demanding motorcycle or other dowry articles. If the deceased was meted out harassment immediately after 15 days of her marriage then till death of deceased why there is not a single complaint made by the family members of the deceased with any authority or senior police officials regarding harassment meted out to the deceased. Even one day prior to the registration of the case, there was no such complaint that deceased was harassed on account of dowry demand. The mother of the deceased who was present at the time of the quarrel with the deceased in the house of the deceased has not stated anything regarding the demand of dowry. From her testimony, it seems that it was only a routine quarrel between the motherinlaw and daughterinlaw which took an ugly turn, as a result of which the deceased consumed phenol but this consumption of phenol by the deceased could not be attributed to any demand of dowry by the accused persons or the harassment made by the accused 17 persons. Thus, prosecution has failed to prove its case against the accused persons beyond shadow of doubt. As such, both the accused persons are given benefit of doubt. They are, therefore, acquitted for offence under Section 498 A/304B/34 IPC. They are on bail.
44 In view of section 437 A of Cr.PC, bail bond already furnished by the accused persons is extended further for period of six month with the condition that they shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the State against the judgment.
Case property, if any be confiscated to the State after the expiry of period of revision/appeal, if any.
File be consigned to the Record Room.
(MADHU JAIN) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI ANNOUNCED IN THE OPEN COURT ON : 20.03.2012.