Delhi District Court
State vs 1. Samod Kumar on 9 June, 2017
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.62/2013
Unique Case ID No.393/2016
FIR No.34/2013
U/S: 498A/304B/201/34 IPC
P.S: Harsh Vihar
State Versus 1. Samod Kumar
S/o. Ram Naresh
R/o. D498, Gali No.29, Harsh
Vihar, Delhi.
2. Jagdish
S/o. Mahaveer Singh
R/o. D498, Gali No.29, Harsh
Vihar, Delhi.
3. Sheela
W/o. Jagdish
R/o. D498, Gali No.29, Harsh
Vihar, Delhi.
Date of Institution : 02.07.2013
Date of Arguments : 11.05.2017
Date of Judgment : 09.06.2017
FIR No.34/2013, PS.Harsh Vihar Page 1 of 25 State Vs. Samod Kumar etc.
J U D G M E N T
Case of Prosecution
1.Briefly the prosecution case is that on the intervening night of 12/13.03.2013, an information that a lady has set herself on fire was received at PS Harsh Vihar, which was recorded vide DD no. 3A. The said DD was received by SI Subodh, who alongwith Ct. Amit reached at the spot i.e D498, Gali No.29, Harsh Vihar, Delhi, where they came to know that lady had already been removed to GTB Hospital by PCR Van. After deputing Ct. Amit at the spot, SI Subodh went to GTB Hospital and collected the MLC of victim Sarita W/o. Samod, who was unfit for statement. Since it was learnt that marriage of the deceased was solemnized less than one year prior to occurrence, SDM concerned was informed. SDM came to hospital to record the statement of victim but she was not in a position to give the statement. Crime team was called at the spot. Site was also inspected by SDM. In the meantime information regarding death of victim was received. Exhibits were lifted, seized and deposited in the malkhana. On the instruction of SDM, Parents of victim were informed and were taken to the office of SDM, where their statements were recorded. After postmortem, the dead body of the deceased was handed over to her parents. The allegations were made that the deceased Sarita was married to accused Samod; that after marriage she was subjected to cruelty and harassment for unlawful demand of dowry, due to FIR No.34/2013, PS.Harsh Vihar Page 2 of 25 State Vs. Samod Kumar etc. which on 13.03.2013 she committed suicide. On the basis of statement of father of deceased, FIR was registered. IO prepared site plan and accused Samod and Jagdish were arrested and their disclosure statements were recorded. After completing other necessary formalities, charge sheet was filed against the accused persons i.e. accused Samod (husband of the deceased) & Jagdish (Chacha of accused Samod) u/s. 498A/304B/34 IPC. Accused Sheela (Chachi of accused Samod) was absconding. Proclamation u/s. 82/83 Cr.P.C was obtained against her. She, however, surrendered on 13.11.2013 before the court of Ms. Mayuri Singh, Ld. MM. With the permission of the court, accused Sheela was arrested, interrogated and her personal search was conducted. Disclosure statement of accused Sheela was also recorded and she was also sent to JC. Further investigation was carried out. After completion of investigation supplementary chargesheet against accused Sheela was filed before the Court.
Charge framed against the accused persons.
2. After compliance of section 207 Cr.P.C., the case was committed to Sessions Court. On 26.07.2013, charge u/s. 498A/304B/34 IPC was framed against accused Samod and Jagdish, to which they pleaded not guilty. An alternative charge u/s. 302 IPC was also framed against both the accused, to which also they pleaded not guilty and claimed trial. After filing of supplementary chargesheet against accused Sheela, a FIR No.34/2013, PS.Harsh Vihar Page 3 of 25 State Vs. Samod Kumar etc. separate charge u/s. 498A/304B/34 and in alternate charge u/s. 302 IPC was framed against accused Sheela on 06.01.2014, to which she pleaded not guilty and claimed trial.
Witnesses examined
3. To substantiate the charge, prosecution has examined 26 witnesses in all.
Formal Witnesses
4. PW5 is Dr. Neha Gupta, who on 14.03.2013 had conducted postmortem on the body of deceased. She proved her detailed postmortem report as Ex.PW5/A.
5. PW6 is Sh. Kamaldeep Gupta, SDM Seema Puri. He deposed that on the intervening night of 12/13.03.2013, he received a call from SHO PS Harsh Vihar. He deposed that he was told by the IO that a girl namely Sarita D/o. Om Prakash has been admitted in GTB Hospital with 100% burns. He further deposed that as per the report of doctor, victim was not fit for statement and in the morning, he was informed by IO that the girl had expired at 2.30 am in the night itself. He asked the IO to call the parents of deceased. He alongwith Addl. SHO had visited the spot and found blood marks on the ground floor of the house as well as on the FIR No.34/2013, PS.Harsh Vihar Page 4 of 25 State Vs. Samod Kumar etc. walls of the stairs leading to the first floor. On 13.03.2013 at about 2.15 pm, he had recorded the statement of father and mother of deceased, which are Ex.PW1/A and Ex.PW2/A and handed over the same to SHO PS. Harsh Vihar for taking further action as per law. On his direction, inquest papers were prepared and postmortem of the deceased was also got conducted vide application Ex.PW6/A.
6. PW7 is Ct. Amit Kumar, who on receiving of DD No. 3A by SI Subodh had gone to D498, Gali No.29, Harsh Vihar, Delhi alongwith him and saw a lady in burnt condition, who was taken to GTB Hospital by PCR Van. He deposed that leaving him at the spot to guard the same, SI Subodh had gone to GTB Hospital. He deposed that after some time, SI Subodh returned to the spot and seized the articles lying at the spot vide memo Ex.PW7/A to Ex.PW7/J.
7. PW8 Ct. Sanjay Kumar deposed that on the intervening night of 12/13.03.2013, he alongwith crime team had gone to spot and clicked 18 photographs Ex.PW8/A1 to Ex.PW8/A18. Negatives of the same have been proved as Ex.PW8/B1 to Ex.PW8/B18.
8. PW9 HC Om Prakash is the duty officer, who on the basis of rukka received from Inspector Rajesh, got registered the present case FIR Ex.PW9/A. He also proved his endorsement on the rukka as Ex.PW9/B. FIR No.34/2013, PS.Harsh Vihar Page 5 of 25 State Vs. Samod Kumar etc.
9. PW10 is Ct. Manish Kumar, who on 13.03.2013 was on duty at Police Control Room, PHQ. He deposed that at about 12.27 am, he received a call from mobile no. 9971131010 regarding information that at H.No.494, Gali No.29, D Block, Harsh Vihar, ek lady ne apne aap ko aag laga li hai". He filled the PCR form Ex.PW10/A and passed the information to Women Helpline and District Control Room.
10. PW11 is SI Subodh, who on receiving of DD No.3A alongwith Ct. Amit had gone to the spot, where he came to know that lady had already been rushed to GTB Hospital by PCR Van. He had collected the MLC of deceased. He informed the SDM and on the instruction of SDM called the parents of deceased. He had called the crime team at the spot and lifted the exhibits namely blood, burnt skin, hair, petrol can, sofa cover, broom, burn material, match sticks and match box, one Tshirt, one Capri, blood stained earth, plain earth control etc. from the spot and seized the same vide memo Ex.PW7/A to Ex.PW7/J. He took the parents of deceased to SDM office and got their statements recorded. He also deposed about registration of FIR, arrest of accused Samod and Jagdish, their personal search and disclosure statements. He deposed that IO prepared site plan at his instance. He deposed that on next day, he alongwith SDM and IO went to GTB Hospital mortuary, where postmortem of deceased was got conducted.
FIR No.34/2013, PS.Harsh Vihar Page 6 of 25 State Vs. Samod Kumar etc.
11. PW12 Dr. Dinesh Kumar deposed on behalf of Dr. Alok Chaudhary, who had prepared the MLC of deceased. He identified the handwriting and signatures of Dr. Alok Chaudhary and proved the MLC of deceased as Ex.PW12/A.
12. PW13 HC Ravinder Kumar was posted as Incharge PCR B 36 on 13.03.2013. He deposed that on receiving of information from District control room, he alongwith staff reached at the spot and took the lady Sarita, who was in burnt condition, to GTB Hospital. He deposed that husband, father inlaw and mother inlaw of deceased Sarita also accompanied Sarita to GTB Hospital.
13. PW14 Surender Kumar is the Nodal Officer of Bharti Airtel Ltd. He proved the customer application form of mobile no. 9971131010 as Ex.PW14/A. He deposed that said Sim was issued in the name of Ramvati W/o. Mahaveer Prasad Sharma, R/o. D498, Gali No.29, Harsh Vihar, Delhi. He also proved the copy of election Card and form 60 obtained at the time of filing of CAF, as Ex.PW14/B and C.
14. PW15 Ct. Dharamdev deposed about receiving of pullandas from MHC(M) on 17.04.2013 and depositing the same at FSL Rohini.
15. PW16 Ct. Krishan Lal deposed about dead body identification by father of deceased vide memo Ex.1/B and Ex.PW2/B. He deposed that after postmortem doctor handed over two sealed envelops FIR No.34/2013, PS.Harsh Vihar Page 7 of 25 State Vs. Samod Kumar etc. alongwith sample seal to him, which were seized by IO vide memo Ex.PW11/A.
16. PW17 Ct. Amit Kumar deposed about recording of statement of parents of deceased by SDM and registration of FIR. He also deposed about preparation of site plan, arrest, personal search and disclosure statements of accused Samod and Jagdish. He deposed that other accused i.e mother inlaw of deceased was also searched but was not present there.
17. PW18 is Retired SI Mahesh Kumar, who was working as duty officer on 13.03.2013 between 12 mid night to 8 am. He deposed about receiving of message from Control room and recording of DD No.3 A, which is Ex PW11/A.
18. PW19 SI Suman was on 13.03.2013 working as Incharge Mobile Crime Team. She deposed that on receiving a call from Control Room she alongwith ASI Surender finger print proficient and Ct. Sanjay Photographer had reached at the spot and examined the same. She prepared report Ex.PW19/A.
19. PW20 HC Tejvir Singh is the MHC(M), who deposed about depositing of parcels in the malkhana on different dates. He also deposed about sending of parcels to FSL Rohini through Ct. Dharamdev and also about receiving of FSL result on 17.06.13 and 08.08.13. This witness has FIR No.34/2013, PS.Harsh Vihar Page 8 of 25 State Vs. Samod Kumar etc. inadvertently again been examined as PW22 on 14.03.2016, wherein he deposed in similar terms as deposed on 10.12.2015.
20. PW21 is SI Prateek Saxena, who on the direction of IO, on 05.06.2013, alongwith Ct. Sandeep had gone to the village Karhal, Mainpuri, U.P and recorded the supplementary statement of complainant Om Prakash Mark PW21/A.
21. PW23 is W/Ct. Priyanka, who joined the investigation of this case on 13.11.2013. She deposed about surrender of accused Sheela, her arrest, personal search and disclosure statement.
22. PW24 is Inspector Rakesh Kumar to whom the present case file was marked on 17.05.2013 after transfer of IO/Inspector Rajesh Vijay. He deposed that during investigation, he had sent HC Avdesh to the village of complainant to collect documentary evidence regarding istridhan but the house was found locked. He on 05.06.2013, again sent SI Prateek to the native village of complainant but complainant did not produce the said documents. He had also moved application to collect the CAF of mobile no. 9971131010 and received the photocopy of CAF which is Ex.PW14/A. He had filed the chargesheet against accused Samod and Jagdish as accused Sheela was absconding. He, vide supplementary chargesheet filed the FSL result in the court. He deposed that during investigation FIR No.34/2013, PS.Harsh Vihar Page 9 of 25 State Vs. Samod Kumar etc. proceedings u/s. 82/83 Cr.P.C were also initiated against absconding accused Sheela.
23. PW25 Inspector Rajesh Vijay deposed about proceedings done by PW11 SI Subodh Kumar. He also deposed about site plan Ex.PW25/A prepared by him at the instance of SI Subodh Kumar. He had recorded the statement of tenants of accused namely Om Prakash and Mithlesh. He interrogated accused Samod and Jagdish, conducted their personal search and recorded their disclosure statements. He also deposed about identification of dead body by her parents, preparation of inquest papers and postmortem. He deposed about collecting PCR form, sending of exhibits to FSL & obtaining of NBWs and thereafter process u/s. 82/83 Cr.P.C against accused Sheela. He also recorded the statement of police officials of PCR, officials of crime team and photographer.
24. PW26 SI Umesh received the investigation of this case on 13.11.2013. He only deposed about surrender of accused Sheela in the court on 13.11.2013 and thereafter, about her arrest, personal search and disclosure statement. He deposed that after completion of investigation, supplementary chargesheet was filed.
Material Witnesses FIR No.34/2013, PS.Harsh Vihar Page 10 of 25 State Vs. Samod Kumar etc.
25. The material prosecution witnesses are PW1 Sh. Om Prakash (father of the deceased), PW2 Smt. Kanth Shree (mother of the deceased), PW3 Smt. Mithilesh & PW4 Sh. Om Prakash (both tenants of accused persons).
26. PW1 Sh. Om Prakash, who is the complainant deposed that his deceased daughter was married to accused Samod on 25.04.12 and after marriage started residing at H.No.498, Gali No.2, Harsh Vihar, Delhi, where uncle (Chacha) of accused Samod namely Jagdish was also residing. He deposed that on 13.03.2013 he was informed by his relatives that his daughter was in a very serious condition, whereafter, he alongwith 57 persons from his village came to Delhi and found his daughter admitted in GTB hospital. He specifically deposed that prior to that on being informed by her daughter on telephone that she is distressed, he had come to the matrimonial home of her daughter on 13.02.13 and counseled both deceased and accused, however, she did not tell him as to why she was perturbed. He deposed that she had told him that she wants to live with accused in her matrimonial home. He deposed that on 11.03.2013, his son came to take his daughter to the village for Holi but she was not allowed by accused. He categorically stated that on 13.03.2013, he made statement before the SDM at the behest of his friends and relatives and that his daughter was never harassed on account of dowry demand by the accused. In his crossexamination by Ld. Addl. PP, he denied the suggestion that after marriage, his daughter was subjected to harassment on FIR No.34/2013, PS.Harsh Vihar Page 11 of 25 State Vs. Samod Kumar etc. account of dowry demand or that she was made to do the household work. He further denied that on 13.02.2013, he went to the house of accused on coming to know that his deceased daughter was beaten up by accused Samod. Denying that on 09.03.2013, his deceased daughter informed him on telephone that she was beaten up by accused Samod or for that reason, he had sent his son Karunesh to bring his daughter home on 11.03.2013, he volunteered that his deceased daughter telephoned him but did not tell so and stated that she wants to live in her matrimonial home. Admitting that at the time of incident, his deceased daughter was two months pregnant, he volunteered that this fact was told to him by her mother inlaw when he came on 13.03.2013. He denied having compromised the matter with the accused persons.
In his crossexamination by Ld. Defence Counsel, witness admitted that when he visited the matrimonial home of deceased on 13.02.2013, he remained there for about 45 days. He further admitted that during the said period, the behaviour of accused was good and that they did not make any demand of dowry from him. He admitted that because of pain and agony due to the death of his daughter, he gave statement before the SDM as per the advice of his relatives and media persons. He further admitted that his son Karunesh, who is aged about 18 years, did not tell him that accused persons had made any demand of dowry from him on his visit to their house.
FIR No.34/2013, PS.Harsh Vihar Page 12 of 25 State Vs. Samod Kumar etc.
27. Similar is the deposition of PW2 Smt. Kanth Shree, who also stated that after marriage, her daughter Sarita started residing with accused at Harsh Vihar and that Chacha and Chachi of accused Samod i.e accused Jagdish and Sheela were also residing in the same house. She deposed that her deceased daughter never complained her about the accused persons and therefore, she does not know as to how was their behaviour with her deceased daughter. She deposed that she used to have talks with her deceased daughter but she did not tell her anything. She even stated that she does not know how her daughter died and that her statement might have been recorded by the SDM but she does not know. She stated that she does not remember what she stated in her statement before the SDM. She deposed that she does not know if her deceased daughter was facing any difficulty in her matrimonial home and volunteered that she never told her. She specifically deposed that no dowry demand/cash or any other article was made either by accused Samod or his family members. She was also subjected to crossexamination by Ld. Addl. PP, she however, denied the suggestion that accused Samod used to make demand of Rs.1.5 lacs cash and motorcycle after marriage with her deceased daughter. She was also confronted with her statement Mark PW2/A, however, she further denied that they had given goods worth Rs.1.5 lacs but could not give motorcycle or that due to this reason, her deceased daughter was being harassed and made to do the household work or was also given beatings. She deposed that one day prior to her death, her deceased daughter asked her on telephone to call her to her parental FIR No.34/2013, PS.Harsh Vihar Page 13 of 25 State Vs. Samod Kumar etc. home. Admitting that in the month of February, 2013, her husband went to the matrimonial house of her deceased daughter, she denied that he had gone there on the complaint of her daughter that she was beaten up in her matrimonial home. She denied that she had stated before SDM that due to harassment caused by accused Samod, his Chacha and Chachi, her daughter Sarita committed suicide by burning herself or that this is possible that she was burnt by accused Samod etc. She also denied that she has entered into compromise with accused persons and due to this reason have deposed falsely.
In her crossexamination by Ld. Defence Counsel, she admitted that her deceased daughter requested her to call her at her house on account of Holi Festival.
28. PW3 Smt. Mithlesh was living at the second floor of the house of accused Samod alongwith her husband PW4. She deposed that after marriage, deceased was living happily in her matrimonial home. Without telling the date or month, she deposed that she was sleeping in her rented house at second floor when at about 1111.30 pm, she got up for going to bathroom and noticed smoke in the stairs. She woke up her husband telling him that perhaps the meter has caught fire. Her husband brought out fire extinguisher from mobile tower installed in the house. They saw that someone was on fire in the staircase at the ground floor. She deposed that at that time, accused were sleeping. They raised alarm, FIR No.34/2013, PS.Harsh Vihar Page 14 of 25 State Vs. Samod Kumar etc. hearing which accused Samod got up and went down and extinguished the fire. She deposed that she did not know how deceased caught fire.
29. PW4 Sh. Om Prakash, who is husband of PW3 also deposed on the lines of PW3 and did not depose anything incriminating against accused persons.
Statement and Defence of accused persons
30. Statements of accused persons were recorded u/s. 313 Cr.P.C. wherein they denied the case of prosecution and claimed themselves innocent.
Arguments and conclusion
31. Arguments have been heard from Sh. Sanjay Kumar, Ld. Addl. PP for the State as also from Sh. Kapil Dhaka, Ld. Defence Counsel.
32. Ld. Addl. PP for the State has argued that deceased has died within one year of marriage and that deceased was harassed on account of bringing less dowry and demands of dowry made by accused were fulfilled also. He argued that the witnesses examined by the prosecution have FIR No.34/2013, PS.Harsh Vihar Page 15 of 25 State Vs. Samod Kumar etc. proved that deceased was subjected to cruelty on account of dowry demand.
33. Per contra Ld. Defence Counsel has argued that there is no cogent evidence that deceased was ever harassed for demand of dowry. Ld. Defence Counsel further argued that no specific dates of alleged demand of dowry and cruelty on that account committed upon deceased, have been mentioned in the statement of any of the witnesses. Ld. Defence Counsel further argued that prosecution witnesses have not only contradicted their own version other but have also contradicted prosecution case.
34. Section 304B IPC was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combating the increasing menace of dowry death. It provides that where the death of a woman is caused by any burns or bodily injury or 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. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a FIR No.34/2013, PS.Harsh Vihar Page 16 of 25 State Vs. Samod Kumar etc. natural death or accidental death so as to bring it within a purview of "death occurring otherwise than in normal circumstances." Prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case, prosecution operates. Evidence in that regard has to be laid by the prosecution. The legal position thus firmly establishes that 'suicidal death' of married woman within seven years of her marriage is covered by the expression "death of a woman is caused or occurs otherwise than under normal circumstances" as used in Section 304 B of IPC.
35. Before the statutory presumption u/s. 113B of Evidence Act can be raised against the accused, the essential ingredients of the offence of dowry death, which the prosecution is duty bound to prove, is that deceased was subjected to cruelty/harassment soon before her death.
36. None of the witnesses has alleged any demand of dowry made by accused prior to marriage or at the time of marriage. There is not even a whisper about the demand of dowry made by accused prior or at the time of marriage, by any of the prosecution witnesses.
37. So far as demand of dowry after marriage is concerned, both the material witnesses i.e PW1 Sh. Om Prakash, father of deceased and PW2 Smt. Kanth Shree, mother of deceased in their first deposition before FIR No.34/2013, PS.Harsh Vihar Page 17 of 25 State Vs. Samod Kumar etc. the court (the time till accused Susheela was not arrested) exonerated the accused persons of all the charges framed against them. They did not allege any demand of dowry made by any of the accused person or any harassment caused to deceased on that account. They even denied all the suggestions given by Ld. Addl PP regarding demand of dowry made by accused persons and harassment caused to deceased for that reason.
38. Both PW1 & PW2 i.e father and mother of deceased after exonerating all the accused persons from all the allegations levelled against them, surprisingly took a uturn when they again came to depose before the court after about 9 months i.e after filing of chargesheet against accused Sheela. In their subsequent testimony before the court, both PW1 and PW2 though levelled allegations regarding demand of dowry as well as of harassment against all the accused, however, did not specify any date or any specific incident. They only levelled allegations, which are vague and general in nature and have earlier been denied by them in their first deposition. PW1 stated that accused Sheela used to misbehave with his daughter and compel her to do all the household work like servants and that accused Samod used to give beatings to his deceased daughter on petty household matter and was supported by accused Sheela. He deposed that on 13.02.2013, he had gone to the matrimonial home of his deceased daughter and had requested them to send his daughter with him, however, accused Sheela refused to send her stating that she was pregnant and may face health problem during journey. This statement of PW1 is FIR No.34/2013, PS.Harsh Vihar Page 18 of 25 State Vs. Samod Kumar etc. contradicted by his earlier testimony given before the court, wherein he stated that the fact of her deceased daughter being two months pregnant was told to him by accused Sheela on 13.03.2013. He, on his own, did not allege any demand of dowry and stated so only when suggested by Ld. Addl. PP in crossexamination.
In his crossexamination by Ld. Defence Counsel, though he stated that he had deposited Rs.48,000/ twice in the account of accused Jagdish, he failed to furnish any account number and bank details of accused Jagdish. He stated that he cannot produce the bank details of accused in which money was deposited. As deposed by PW21 SI Prateek Saxena, complainant even did not give any list of dowry articles neither he produced any bill of expenditure incurred on the marriage. He admitted that he did not lodge any complaint with police or relatives regarding demand of dowry made by accused persons.
39. PW2 Smt. Kanth Shree, mother of deceased also in her second deposition before the court, levelled allegations of beatings given to deceased by accused Samod and stated that he demanded a motorcycle. The demand of motorcycle made by accused has for the first time been brought to picture at a highly belated stage i.e in the second testimony of PW2, which was recorded after about 9 months of her first deposition in the court and is therefore, an improvement and not believable at all. Further, this version of PW2 does not find any corroboration from PW1. PW2 has deposed that her deceased daughter was not sent to her house by FIR No.34/2013, PS.Harsh Vihar Page 19 of 25 State Vs. Samod Kumar etc. accused persons and that at that time she was having three months pregnancy, which fact have also been mentioned by PW1 stating that accused Sheela refused to send deceased with him saying that she was pregnant and may face health problems during journey. Such statements of witnesses rather go to show that accused persons were in fact caring about the health of deceased and therefore, not allowing her to travel during pregnancy.
It was only in crossexamination by Ld. Addl. PP that PW2 admitted that accused Samod used to harass and maltreat her deceased daughter for demand of Rs.1.5 lacs cash and motorcycle and that they have given dowry articles worth Rs.1.5 lacs but could not give motorcycle and for this reason, accused Samod used to give beatings to her deceased daughter. This version of PW2 does not find any corroboration from any of the PWs including PW1 and is also contradicted by her own earlier statement, wherein she specifically denied the suggestion given by Ld. Addl. PP that accused Samod used to make demand of Rs.1.5 lacs cash and motorcycle after marriage with her deceased daughter and that they had given goods worth Rs.1.5 lacs but could not give motorcycle or that due to this reason, her deceased daughter was being harassed and made to do the household work or was also being given beatings.
PW2 in her crossexamination by Ld. Defence Counsel again confirmed that her deceased daughter never told her telephonically or otherwise that accused were demanding dowry from her. She further confirmed that accused persons had not made demand of dowry from her FIR No.34/2013, PS.Harsh Vihar Page 20 of 25 State Vs. Samod Kumar etc. husband during the period of 89 days when he stayed in the matrimonial home of her deceased daughter. She further confirmed that no demand of dowry was made from her son Karunesh, who visited matrimonial home of Sarita and remained there for 12 days, which fact has also been admitted by PW1.
40. Thus, the testimonies of PW1 & PW2 are unreliable as from the evidence adduced on record, it is clear that there are several unexplained contradictions, improvement and discrepancies in the different statements of the witnesses recorded on different dates. Reliance placed on the judgment of Hon'ble Supreme Court in Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein Hon'ble Supreme Court observed as under:
"Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
41. Further, no specific date and time of the alleged demand and beatings has been given by any of the witnesses. Though PW1 & PW2 afterwards claim that deceased was being harassed for demand of dowry however, they both have admitted that no complaint to any authority was ever made rather PW2 has admitted that no complaint regarding dowry FIR No.34/2013, PS.Harsh Vihar Page 21 of 25 State Vs. Samod Kumar etc. demand and harassment was ever made by her deceased daughter on any of the visits of her husband and son to her matrimonial home. The improvements made in the case and the contradictions coming out in the statements of witnesses are vital and have not been explained throughout. There are also documents (letters) Mark PW24/D1 to Mark PW24/D6 allegedly written by complainant to various authorities stating that accused persons are innocent. Same were put to PW24 Inspector Rakesh Kumar during his crossexamination, who said that he cannot admit or deny whether documents Mark PW24/D1 to Mark PW24/D6 were given by the complainant during investigation. PW1 even has deposed in his first statement given in the court that he gave the statement before SDM at the behest of his friends & relatives thereby making the entire story of prosecution doubtful. With such admission coming on record on part of a witness combined with the letters Mark PW24/D1 to Mark PW24/D6, his second testimony does not inspire confidence since there is every possibility that same might have been made under legal advice or at the behest of someone and therefore, cannot be safely relied upon to form an opinion against the accused persons. Mother of deceased also in her first deposition stated that her statement might have been recorded by the SDM but she does not know. This fact, thus creates a serious doubt about truthfulness of the witnesses. Further, no overt act has been attributed to accused persons, which led to the deceased to commit suicide. Since it is admitted by PW2 mother of deceased that deceased did not make any complaint to his brother, who visited her matrimonial home on 11.03.2013 FIR No.34/2013, PS.Harsh Vihar Page 22 of 25 State Vs. Samod Kumar etc. and father of deceased have also not levelled any allegation that deceased was subjected to cruelty in respect of demand of dowry soon before her death, there is nothing on record to suggest that on account of demand of dowry deceased was harassed by accused persons soon before her death. Reliance placed upon the judgment of Hon'ble High Court in 2012 (3) C.C Cases (HC) 344 titled State of NCT of Delhi Vs. Rakesh & Ors. wherein it was held that " Deceased used to converse with her parents and other family members on phone - No call details were collected during investigation to establish to whom the calls were made on the day of the incident - Witnesses did not give specific dates when any specific dowry article was demanded by any particular accused - Allegations levelled by them are vague and general nature - There was no direct, clinching and legal evidence against them in respect of cruelty under Section 498A - Nothing has emerged from the evidence about what forced her to end her life that day in the absence of physical torture or beatings to her - Deceased's long conversation with the relatives on that day showed that she was not having any apprehension or danger to her life on account of non fulfillment of the dowry demands - Evidence led lacking in details about the cruel treatment meted out to the deceased by the accused in connection with the dowry demands - Nothing had emerged that there were persistent and unabated dowry demands and she was physically or mentally tortured on her failure to fulfill them.
FIR No.34/2013, PS.Harsh Vihar Page 23 of 25 State Vs. Samod Kumar etc.
42. Consequently, in the absence of the prosecution proving the ingredients of Section 304B of IPC, the initial burden cast on it has not been discharged. Therefore, the presumption under Section 113B of the Evidence Act cannot be attracted.
43. With regard to alternate charge framed against accused persons u/s. 302 IPC, both PW3 & PW4, who are stated to be the eye witnesses of the incident have also stated that deceased and accused were living happily and have not alleged anything incriminating against accused persons. They remained firm on their stand in their crossexaminations also. Nothing in respect of the allegations of murder, has been specifically mentioned or proved by other PWs including father and mother of deceased, also. The fact that call at 100 number was made by accused Jagdish is also proved on record by PW14 Surender Kumar by CAF Ex.PW14/A. Thus, prosecution has not been able to bring anything substantial against the accused persons on record. The case of prosecution also falls weak due to contradictions, vague allegations and unjustifiable improvements etc.
44. In view of the aforesaid discussion, I am of the considered opinion that there is not even an iota of evidence against the accused persons to connect them with the crime and thus, prosecution has failed to prove its case against the accused persons beyond reasonable doubt, FIR No.34/2013, PS.Harsh Vihar Page 24 of 25 State Vs. Samod Kumar etc. benefit of which must go in favour of accused persons. Accordingly, all the accused are acquitted of all the offences with which they were charged. However, accused persons are directed to furnish personal bonds u/s. 437 A Cr.P.C. for a period of six months in the sum of Rs.10,000/ each with one surety each in the like amount. After furnishing the bail bonds, file be consigned to record room.
Announced in the open court
On 09.06.2017 (Sanjeev Kumar Malhotra)
ASJ/FTC/ECOURT
Shahdara/KKD/Delhi
SANJEEV
KUMAR
MALHOTRA
Digitally signed by
SANJEEV KUMAR
MALHOTRA
Date: 2017.06.09
16:56:08 +0530
FIR No.34/2013, PS.Harsh Vihar Page 25 of 25 State Vs. Samod Kumar etc.