Delhi District Court
State vs . Mahesh Kumar Sharma Etc. on 9 June, 2011
SC No: 36/08
FIR No: 633/03
PS: Najafgarh
State Vs. Mahesh Kumar Sharma etc.
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 36/08
FIR No. 633/03
Police Station Najafgarh
U/Section 498A/304/34 IPC
Received on transfer 04.11.08
Reserved for orders on 27.05.2011
Judgment announced on 09.06.2011
State V/s 1. Mahesh Kumar Sharma
S/o Shri Banwari Lal Sharma
R/o Plot No. 5, Shanti Vihar
Deenpur, Najafgarh, Delhi.
2. Hardwari Lal ( discharged vide order
S/o Shri Jeet Ram order dated 22.01.09)
R/o H.No. 8/28, Maheram Nagar,
Delhi Cantt, Delhi.
3. Smt. Urmila ( discharged vide order
SC No. 36/08 1 of 22 09.06.2011
SC No: 36/08
FIR No: 633/03
PS: Najafgarh
State Vs. Mahesh Kumar Sharma etc.
W/o Shri Hardwari Lal dated 22.01.09)
R/o H. No. 8/28, Meheram Nagar,
Delhi Cantt. Delhi.
4. Raj Kumar Sharma
S/o Shri Banwari Lal Sharma
R/o Plot No. 5, Shanti Vihar
Deenpur, Najafgarh, Delhi.
5. Smt. Barfi Devi
W/o Shri Banwari Lal
R/o Plot No. 5, Shanti Vihar,
Deenpur, Najafgarh, Delhi.
6. Banwari Lal
S/o Shri Ram Swaroop
R/o Plot No. 5, Shanti Vihar,
Near Radha Swami Satsang Bhawan
Dinpur, Najafgarh.
J U D G M E N T
1. On 9.11.2003, one Payal (since deceased) was got admitted in Rao Tula Ram Memorial Hospital, Jaffar Pur by her husband Mahesh where after examination by the doctor, she was SC No. 36/08 2 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. declared ''brought dead''. DD no. 14 A was recorded in the PS Najafgarh in that regard. On receipt of said DD Inspector H. S. Meena reached the hospital. SDM was informed, who also arrived there. On the directions of SDM, dead body of Payal was sent to DDU Hospital for post mortem examination. Inderlal, father of deceased Payal was informed telephonically and on his statement, the present FIR was registered. On completion of investigation, chargesheet was filed against the accused persons, namely, Mahesh Kumar, Hardwari Lal, Urmila, Raj Kumar Sharma, Banwari Lal and Smt. Barfi Devi.
2. After supplying copies to accused persons as per law, the case was committed to Sessions where after due deliberation, charge under Sections 498A/304B/34 IPC was framed against accused persons namely Mahesh Kumar Sharma, Raj Kumar Sharma, Smt. Barfi Devi and Banwari Lal and served upon them to which they pleaded not guilty and claimed trial while accused Hardwari Lal and Smt. Urmila were discharged vide order dated 22.01.09.
SC No. 36/08 3 of 22 09.06.2011
SC No: 36/08
FIR No: 633/03
PS: Najafgarh
State Vs. Mahesh Kumar Sharma etc.
3. Prosecution was called upon to adduce evidence to prove the charges as per law. 18 witnesses in all were tendered by the prosecution in support of its case.
4. On conclusion of prosecution evidence, statement of accused persons was recorded u/s 313 CrPC wherein they controverted the entire evidence as false and pleaded innocence. They tendered one witness in their defence as DW1 Mukesh. He had attended the marriage of Payal with Mahesh in village at Fatehabad. He deposed that entire customs and ceremonies were held at Fatehabad in his presence and marriage was solemnized peacefully and no demand of dowry was raised by any of the accused persons. After DE was closed, final arguments were advanced.
5. I have heard Ld Addl. PP for the State and also Ld. counsel representing all the accused persons and given my anxious consideration to the controversy in hand.
6. PW1 is Inder Lal, complainant and father of the deceased. PW2 is Dr. Pushpender Sarao, the then CMO RTRM SC No. 36/08 4 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. Hospital, Jaffarpur Kalan. She had initially examined Payal vide MLC Ex.PW2/A. She had also prepared the casualty slip of patient Payal, her death report and provisional death certificate Ex.PW2/B, Ex.PW2/C and Ex.PW2/D respectively. PW3 is WHC Santosh, the then Duty Officer at PS Najafgarh who had recorded DD no. 14 A regarding admission of Payal in the hospital. PW4 is Gyarsi Devi, mother of the deceased Payal. PW5 is Shri Madhup Vyas, the then SDM, Najafgarh. He had conducted the inquest proceedings. PW6 is HC Amarjit, the Duty Officer. He had recorded FIR on the basis of rukka presented by SHO and had handed over rukka and copy of FIR to SI Naubat Singh after registration of case. PW7 is Shri Balbir Singh, brother of deceased Payal. PW8 is Shri Shoba Ram, brother and PW9 is Shri Murlidhar, friend of complainant Inderlal. PW10 is HC Shammi Kapoor. He had joined the investigation with IO. PW11 is HC Banwari Lal, MHC(M) with whom exhibits were deposited on different dates. PW12 is Raghunath, uncle of deceased Payal. PW13 is HC Sunil. He had joined the investigation with IO. PW14 SC No. 36/08 5 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. is Ct. Ajeet Singh. He had deposited the exhibits in FSL Malviya Nagar on the direction of IO. PW15 is Inspector H.S. Meena, the IO. PW16 is Retired SI Naubat Singh who was assigned DD no. 14A initially. PW17 is Amar Pal Singh, Sr. Scientific Officer (Chemistry) FSL, Rohini, Delhi. He proved his report as Ex.PW15/B. PW18 is Dr. Alexander Khakha, Sr. Specialist and Head of Department of Forensic Medicine, Safdarjung Hospital, New Delhi. He had conducted postmortem on the dead body of deceased Payal vide his report Ex.PW18/A and had opined the cause of death as acute aluminum poisoning.
7. All the accused persons as noted herein above are charged for the offences punishable U/s 304B/498A/34 IPC. In order to attract application of Section 304B IPC, the essential ingredients to be established are as follows :
i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
ii) The death should have occurred within 7 years of her marriage.
iii) she must have been subjected to cruelty or harassment by her SC No. 36/08 6 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. husband or any relative of her husband.
iv) such cruelty or harassment should be for or in connection with the demand of dowry.
v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
8. The second part of Section 304B, the governing provision in such cases, mandates that such death shall be termed a "dowry death" if it is shown that soon before her death the girl was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry. Section 113 (B) of Indian Evidence Act postulates that if it is shown that soon before her death such woman had been subjected to cruelty or harassment for or in connection with any demand for dowry by someone, the court shall presume that such person had caused dowry death.
9. In the instant case the fact that deceased Payal was wife of accused Mahesh is not disputed. It is also uncontroverted that Payal lost her life just after about one year of her marriage SC No. 36/08 7 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. and she died an unnatural death. The moot question which arises now for consideration, in such scenario, is whether there is enough evidence to establish that soon before her death she was subjected to cruelty or harassment by the accused persons in connection with demand of dowry.
10. Soon after death of Payal, her father Inderlal, mother Gyarsi Devi and her brother Balbir gave their statements to SDM which formed basis of the present case against the accused persons. It was alleged by the father of the deceased that after marriage, accused Mahesh used to beat Payal. He was a habitual drunkard due to which he was thrown out of his various jobs. Sometime before untimely demise of Payal, Mahesh along with his parents, brother and sister had demanded Rs. 2 lacs from Payal and her parents for starting a Chemist shop. All of them had threatened to kill Payal in case their demand was not met. Father of Payal had then assured to pay the sum as demanded, after marriage of his son Balbir. Mahesh along with Payal attended marriage of Balbir held on 04.11.2003 and 05.11.2003. He brought Payal back to SC No. 36/08 8 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. Delhi after marriage and thereafter again visited the parents house of Payal reiterating his threat to kill Payal if demand of Rs. 2 lacs was not fulfilled. In her statement to SDM, Smt. Gyarsi Devi, mother of the deceased, alleged that accused Mahesh used to torture Payal with demand of Rs. 2 lacs to open a Chemist shop and that they had promised to fulfill his demand after marriage of their son Balbir. Statement of Balbir, brother of Payal was exact reproduction of the averments made by his father. In concluding part of their statements, all of them expressed suspicion about involvement of one Hardwari Lal, husband of sister in law of the deceased as well, in the untimely demise of Payal.
11. Inderlal stepped into witness box as PW1. His wife Gyarsi Devi appeared as PW4 while their son Balbir Singh was examined as PW7 in the court. In his examination in chief PW1 affirmed that he had paid Rs. 3.5 lacs cash to the accused Mahesh in marriage but still accused along with his other family members used to beat Payal for more dowry with repeated demand of Rs. 2 lacs. On 05.11.2003 after reception of Balbir, SC No. 36/08 9 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. accused Mahesh had again assaulted Payal and had forcibly brought her to Delhi in the morning of 06.11.2003. She died three days thereafter. PW1 was cross examined by Ld. Addl. PP for the State on his failure to disclose the complete facts. PW1, however, maintained that he did not remember if he had told SDM in his statement that accused Mahesh had demanded Rs. 2 lacs cash from him specifically for starting a ''Chemist Shop''. He admitted that in his statement, he had expressed suspicion that Payal was killed by Mahesh, his parents, his sister Urmila and his brother in law Banwari Lal on failure of PW1 to pay Rs. 2 lacs to them. On being cross examined by Ld. Defence Counsel, PW1 accepted that he or his family had never lodged any complaint against accused Mahesh or other in laws of Payal for their alleged cruel behavior with Payal and repeated demands of dowry. He did not deny that Payal was unhappy on being brought to Delhi on 06.11.2003 as she wanted to stay back at her parents place to attend the marriage of her cousin to be held 10 days after marriage of Balbir. PW1 feigned ignorance when asked about opening of Chemist SC No. 36/08 10 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. shop of accused Mahesh, scheduled for 10.11.2003. He though admitted that Mahesh never came to their house after 06.11.2003 but claimed that Payal had informed him telephonically after 06.11.2003 that accused persons were torturing her on account of non payment of Rs. 2 lacs. This is a material improvement made by PW1 over his statement given to SDM as well as IO. Prior to his evidence in the court neither PW1 nor any of his family members whispered even once during investigation that Payal had talked to them telephonically after 06.11.2003 or had complained to them about alleged atrocities of accused persons. No reliance on said statement can thus be placed. The statement otherwise appears to be an after thought because admittedly PW1 did not take any action even after he was purportedly informed by Payal that the accused persons were not allowing her to even have food because of non payment of Rs. 2 lacs. It seems highly improbable that the parents despite having been apprised of extreme cruel conduct of inlaws, would have elected to be mere mute spectators. Accepted that they did not want to initiate any SC No. 36/08 11 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. criminal action, still they could have at least tried to reason out with the accused persons with request to treat Payal properly and to atleast give her food to eat which parents of deceased never did. It is worthwhile to note here that PW1 in his statement given before SDM had alleged that after marriage of Balbir, it is accused Mahesh who had again visited their home, reiterated his demand of Rs. 2 lacs and threatened to kill Payal in case demand was not met. No explanation was offered by PW1 for such a vital irreconcilable contradiction between his initial statement to SDM and his testimony in the court. Both the versions obviously cannot be true meaning thereby either of the two statements is not correct. This creates a grave doubt as to credibility of version of PW1.
12. Besides this, in his statement to SDM, PW1 had simply stated that accused Mahesh used to beat Payal without specifying any reason and that only recently i.e. before her death Mahesh supported by his family members had raised the demand of Rs. 2 lacs. In contrast, in his statement in the court, PW1 affirmed that SC No. 36/08 12 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. since beginning accused Mahesh used to torture Payal with demand for money stating that the dowry brought by her was insufficient. This is another important material improvement made by witness without any reasonable explanation casting a shadow over genuineness of his statement in evidence.
13. PW4 Smt. Gyarsi Devi in her deposition on oath testified that not only Mahesh but his mother accused Barfi Devi also used to beat Payal after marriage. Except this single line allegation, PW4 did not utter even a word incriminating any of the accused persons. She did not affirm that the accused persons used to demand dowry from Payal or from them or that Payal used to be tortured by the accused persons for dowry. PW4 was also cross examined by Ld. Addl. PP for the State. She then admitted that all the accused persons had been demanding Rs. 2 lacs cash for starting medical shop for accused Mahesh and they all used to beat Payal for dowry. It may be noted here that in her statement to SDM, PW4 had levelled allegations of demanding dowry and beating Payal only against accused Mahesh whereas in SC No. 36/08 13 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. the court on being cross examined by Ld. Addl. PP for the State, she replied that all the accused persons used to beat Payal for dowry. Both the statements being contradictory do not inspire any confidence for want of reasonable justification for such a discrepancy. Further when PW4 was cross examined by Ld. Defence Counsel, she claimed that cash of Rs. 2 lacs was demanded by accused persons from Payal (and not from them) and that they were informed about the demand, by Payal only during her visits to their house. This reply demolishes the statement of PW1 Inder Lal and PW7 Balbir Singh who testified on oath that the accused persons had demanded Rs. 2 lacs from them directly and not through Payal. On being questioned, PW4 could not specify any date, month or time when the demand of Rs. 2 lacs was supposedly raised by the accused persons. PW4 then replied that all the accused persons had attended marriage of Mahesh and Payal whereas both PW1 and PW4 admitted that accused Barfi Devi and Banwari never attended the said marriage. These unaccounted contradictions raise a serious doubt as to SC No. 36/08 14 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. veracity and truthfulness of testimony of PW4 as well.
14. The next important witness is PW7 Balbir Singh. He came up with a totally different story that once during his visit to Payal at her matrimonial home, the accused persons had beaten her even in his presence. When he tried to intervene, he was also assaulted with demand of Rs. 2 lacs cash. Needless to mention that neither PW1 nor PW4 have uttered even a word about the said incident. Actually PW7 in his cross examination claimed that he did not inform anyone about the said occurrence as he wanted to preserve the matrimonial life of Payal. The explanation is utrerly unconvincing as one may avoid taking police action to save the matrimony of his sister but it is unacceptable that one would not even inform his parents about plight of his sister at her matrimonial home.
15. From the testimony of PW1, PW4 and PW7 the common thread running through their statements, appears to be the alleged demand of Rs. 2 lacs raised by all the accused persons for opening a Chemist shop for accused Mahesh. Both PW1 and SC No. 36/08 15 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. PW7 have further testified that they had promised the inlaws of Payal to fulfill said demand after solemnization of marriage of Balbir. If the said statement is taken as correct, apparently accused persons would have had every hope to get Rs. 2 lacs from parents of Payal after 05.11.03. It being so, there was no reason or occasion for them to have suddenly surmounted the cruelties on Payal resulting into her unnatural death on 09.11.03. PW1 himself admitted that after 06.11.03 accused Mahesh never visited his inlaws house to collect the said money. There is not even a whisper that he or or his family members had made any telephonic call to the parents of deceased asking them to pay Rs. 2 lacs immediately after marriage. If the accused persons had not insisted for immediate payment, post marriage of Balbir, obviously it cannot be said that their hopes for getting Rs. 2 lacs had been dashed particularly when neither PW1 nor PW4 nor PW7 has specifically affirmed that after marriage of Balbir, they had refused to pay any cash to the accused persons as demanded. If the accused persons had waited till marriage of Balbir for SC No. 36/08 16 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. fulfillment of their demand of Rs. 2 lacs, there is no plausible explanation as to why without renewing their demand, they suddenly caused death of Payal.
16. Another interesting aspect of the matter here is the admission of PW7 that opening function of Chemist shop of accused Mahesh Kumar was fixed for 10.11.03. It clearly implies that accused persons had already made arrangements for starting the said business and the shop was to be formally inaugurated on 10th of November without any financial help having been given by family of deceased. This clearly negates the contention of PW1, PW4 and PW7 that accused persons were pressuring them to cough up Rs. 2 lacs cash for opening the said Chemist shop. Besides this, the other allegations of demand of dowry and cruelty as levelled by all the witnesses are totally general, vague and omnibus. No particular date, month or place when any such demand was particularly raised by any of the accused persons is specified. It may also be born in mind at this juncture that the witnesses admitted that they did not pay even a single penny to SC No. 36/08 17 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. any of the accused persons in pursuance to their alleged demand after marriage of Payal and till her death. This again signifies the falsity of claim of parents and brother of the deceased that the accused persons were treating Payal with cruelty in order to coerce her to bring money from her parents. Had it been so, the family members of the deceased would have atleast made some payment to the accused persons so as to satisfy their alleged lust and to secure some peace for their daughter which is not the case here.
17. In addition to the family members of the deceased, prosecution has tendered two neighbours of the complainant as PW8 and PW9 and brother of the complainant as PW12. The testimony of PW12 is inconsequential and totally irrelevant as he did not affirm that in his presence any of the accused persons ever demanded any money or dowry from the complainant or the deceased nor did he claim that Payal ever informed him about the said demand. So far as PW8 Shoba Ram and PW9 Murlidhar are concerned, both of them are family friends of the complainant.
SC No. 36/08 18 of 22 09.06.2011
SC No: 36/08
FIR No: 633/03
PS: Najafgarh
State Vs. Mahesh Kumar Sharma etc.
The testimony of both the said witnesses is completely identical and is exactly on the same lines. From their statements, they came across as tutored witnesses. It is a matter of record that their statements under Section 161 Cr.P.C. were recorded after a long gap and the probability of subsequent planting of both of them by the complainant as witnesses cannot be ruled out. Both PW8 and PW9 affirmed that lastly they had met Payal in the marriage of Balbir and at that time she told them that accused Mahesh and his family members were torturing her with demand of Rs. 2 lacs. It is an admitted fact that Payal had attended the said marriage with her husband i.e. accused Mahesh. It seems highly improbable that in presence of her husband i.e. accused Mahesh, Payal could have complained against him only that too both to PW8 Shoba Ram as well as PW9 Murlidhar. It further becomes doubtful when viewed in light of fact that Payal did not complain to her own family members in that regard, as none of three witnesses i.e. PW1, PW4 and PW7 have stated even once in their evidence in the court that at the time of marriage of Balbir also Payal had SC No. 36/08 19 of 22 09.06.2011 SC No: 36/08 FIR No: 633/03 PS: Najafgarh State Vs. Mahesh Kumar Sharma etc. complained to them about cruelty meted out to her by the accused persons for dowry. In cross examination, PW8 Shoba Ram could not even tell the exact date of marriage of Balbir. He admitted that he did not know about Payal's matrimonial address nor did he ever visit Payal at Delhi with her father. Both PW8 and PW9 claimed that they had signed their statements under Section 161 Cr.P.C. but on being confronted, they admitted that the statements filed on record pertaining to both these witnesses do not bear their signatures or thumb impression. PW9 claimed that his statement was recorded on 10.11.03 i.e. very next day of the incident whereas his statement bears the date of 20.11.03. If PW8 and PW9 were with the complainant even prior to registration of case, the fact that their statement was not recorded on the same day or immediately thereafter again creates a doubt about the genuineness of its contents. There is no other evidence adduced by the prosecution to establish as per law that accused persons used to subject Payal to cruelty for dowry or soon before her death she was subjected to cruelty on that count.
SC No. 36/08 20 of 22 09.06.2011
SC No: 36/08
FIR No: 633/03
PS: Najafgarh
State Vs. Mahesh Kumar Sharma etc.
18. In contrast the defence has been able to create a preponderance of probability that Payal took her life because she was unhappy on having been brought to Delhi on the very next day of marriage of her brother because she wanted to stay back at her parents place till solemnization of marriage of her cousin to be held after about 10 days. The fact that Payal was unhappy on being forced to return to Delhi on 06.11.03 is admitted by PW1 in cross. Accused persons have pleaded that accused Mahesh wanted Payal to be with him in the inaugural function of his shop slated for 10.11.03, and thus he took her to Delhi on 06.11.03 itself. The benefit of doubt in such circumstances has to go to the accused persons.
19. In view of forgoing discussion, all the accused persons are hereby acquitted of the offences charged with. Bail bonds and surety bonds of accused persons stand cancelled and their sureties are discharged. Original documents, if any, of sureties be returned and endorsement, if any, on the documents be cancelled.
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SC No: 36/08
FIR No: 633/03
PS: Najafgarh
State Vs. Mahesh Kumar Sharma etc.
20. The accused persons are directed to furnish fresh bail bonds in sum of Rs. 20,000/ each with one surety each in the like amount in terms of Section 437A Cr.P.C. undertaking to appear before Appellate Court as mandated therein. The accused persons requested that they are poor people and cannot afford fresh sureties. They requested that they may be released on personal bond as they undertake to appear before Appellate Court in terms of Section 437A Cr.P.C. as and when required. In circumstances keeping in view the status of accused persons, they are permitted to furnish personal bonds only. Personal bonds are filed and accepted for a period of six months as provided under Section 437A Cr.P.C.
21. File be consigned to record room.
Announced in the open
court on 09.06.2011 (MAMTA TAYAL)
ADDL.SESSIONS JUDGE
DWARKA:NEW DELHI
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