Delhi District Court
State vs . Jagdev Singh & Others, Fir No:40/1995 on 1 July, 2010
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IN THE COURT OF Ms. VEENA RANI METROPOLITAN MAGISTRATE,
PATIALA HOUSE COURTS: NEW DELHI.
IN RE :
State V. Jagdev Singh & others
F.I.R. NO.: 40/95
P.S.: R.K. Puram
U/S: S.498A / 406 I.P.C.
JUDGMENT:
1.Srl. No. of the case & Date of institution :208/8 ( 2131996)
2.Date of commission of offence :20011995
3.Name of the complainant :State through Ms. Kamlesh W/o Jagdev Singh
4.Name of the accused :(1) Jagdev Singh (2) Smt. Billo Devi (3) Kuldep
Singh (4) Rais Kumar).
5.Nature of offence complained of :U/s 498A/406 IPC
6.Plea of the accused person :Accused persons pleaded not guilty
7. Date reserved for order :1952010
8.Final Order :Accused Kuldeep Singh acquitted
9.Date of such order :01072010
State Vs. Jagdev Singh & others, FIR No:40/1995
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BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. The charge sheet was filed against following accused persons::
i. Jagdev Singh (A1 was the husband of the aggrievedwife) s/o Late Sh. Moti Ram r/o H. No. 155 Village Bhulaswa, Jahangir Puri, Delhi42;
ii. Smt. Billo Devi (A2 was the motherinlaw of the aggrievedwife) daughter of Late Sh.
Moti Ram r/o H. No. 155 Village Bhulaswa, Jahangir Puri, Delhi42;
iii. Kuldeep Singh (A3 is the brotherinlaw of the aggrievedwife) s/of Late Sh. Moti Ram r/o H. No. 155 Village Bhulaswa, Jahangir Puri, Delhi42;
iv. Rais Kumar (A4 is the brotherinlaw of the aggrievedwife) s/of Late Sh. Moti Ram r/ o H. No. 155 Village Bhulaswa, Jahangir Puri, Delhi42;
2. During the course of the trial two accused persons i.e. A1 and A2 died. The proceedings against the accused A1 Jagdev Singh was abated on 23.05.2003. The proceedings against the accused A2 i.e. Jallo Devi was abated on 06.03.1997 . The accused A4 was discharged.
3. The charge against the accused A3 was that he had subjected the aggrievedwoman to mental and physical torture demanding more dowry from her. The charge was accordingly framed under S.498 A IPC.
State Vs. Jagdev Singh & others, FIR No:40/1995 Page 3 of 15
4. The prosecution has relied upon a few witnesses. The police personals have been also been examined. The aggrievedwife was also examined in the court. The said accused A3 i.e. Kuldeep Singh has stated in his statement u/s 313 Cr.P.C. that he has been falsely implicated in the present case. He has also stated that he never had good relations with his brother Jagdev Singh from the time before the marriage. The said accused A3 opted to lead the D.E.
5. PW1 :: Head Constable Sh. Jagbir Singh Bhola Singh has been examined and the said PW1 has deposed that he was posted at the P.S. :R.K. Puram on 20.01.1995 and at about 10:00 P.M. he had received the rukka form ASI Randhir Singh . The sais witness PW1 had lodged the FIR No. 40 of 1995 and the same was exhibited as PW1/A. The original was seen and returned. The said witness PW1 was not crossexamined by the defense and nil opportunity was given.
6. PW2 :: Head Constable Ved Prakash has been examined as PW2 and the said PW2 has deposed that on 07.11.1995 he was posted as the Malkhana incharge P.S. : R.K. Puram. The said witness PW2 had received 'fard' from the S.I. Anand Rakhra on the basis which the entry of the list of the articles was made in the register No.19 at entry No. 1685 at serial No. 1 to 6. The said register bears the signature of the said witness and has been exhibited as Ex. Pw2/A. The said witness PW2 was not crossexamined by the defense and nil opportunity was given.
7. PW4 :: Constable Hanuman Prasad has been examined as PW4 and has deposed that on 07.10.1995 he posted at P.S. : R.K. Puram and that tehv accused A1 Jagdev Singh had produced certain dowry articles which were seized by the I.O. vide Siezure Memo Ex. PW4/A and the same bears his signature at point 'A'. On crossexamination the said witness had deposed that the complainant had not taken the dowry articles on supurddari in his presence. The dowry articles seized by the I.O. was deposited in the Malkhana. The said witness did not know whether the State Vs. Jagdev Singh & others, FIR No:40/1995 Page 4 of 15 complainant was called in the police station to collect her dowry articles.
8. PW:5 :: Inspector Anand Lakra has been examined as PW5 and has sttaed that he was posted as S.I. at P.S. : R.K. Puram on 20.01.1995. On that day he had received complaint from Smt. Kamlesh which exhibited as PW3/A. On the basis of the said complaint the FIR 40/1995 was registered which is ex. PW1/A. The investigation was handed over to him and he had recorded the statements of the witnesses and had collected the evidence during the said investigation. The said witness PW5 had recovered the dowry articles vide seizure memo Ex. PW4/A and the same bears his signature at point 'X'. Two photographs and one marriage were also seized by him and the same is exhibited as Ex.PW5/A. The said witness PW5 had formally arrested the accused persons:
Jagdev Singh; Smt. JaloDevi; Kuldeep Singh; and Rais Kumar. The said four accused were already on anticipatory bail. The accused Kuldeep Singh was identified who was present in the courtroom. The witness PW2 was not crossexamined by the defense and nil opportunity was given.
9. PW3 :: The aggrievedwife Smt. Kamlesh has been examined as PW3 and deposed in her testimony that she was married to the accused A1 (Jagdev Singh) . At the very onset it would be highly relevant to observe that the testimony of the witness PW3 is also against the other accused persons apart from the accused Kuldeep Singh. For the reason that the proceedings have been abated against the accused A1 and A2 and that the accused A4 has been discharged only the relevant portion relating to the accused Kuldeep Singh would be considered and discussed.
10. The witness PW3 has deposed that her life was peaceful for about two years of her marriage.
However, after that she was tortured by the accused A3. The witness PW3 was beaten up by the accused A3 while was washing clothes. The PW3 was pregnant at that time and was advised State Vs. Jagdev Singh & others, FIR No:40/1995 Page 5 of 15 medicine by her doctor on account of the physical assault. The demand of a motorcycle and Rs.25,000/ was made by the accused Kuldeep Singh. The PW3 did not remember when. On refusal of PW3 to meet such a demand the accused threatened her that he would kill her by pour kerosene oil. A letter was written by PW3 to her parents. The wife of the accused Kuldeep had tried strangulate PW3 at the behest of A3. As per the testimony of PW3 the dowry demand of Rs.25,000/ was fulfilled and the said amount was later handed over to the accused A3. Thereafter, an additional demand of Rs.15,000/ and articles like T.V. , Refrigerator was made by the accused persons including A3. The said demand was partly fulfilled and the refrigerator and the T.V. was handed over to the accused A1 (since deceased). Subsequently the PW3 was tortured to bring the remaining amount of Rs.15,000/. The remaining demand of Rs.15,000/ was later fulfilled and the said amount was handed over to the accused Kuldeep Singh (A3).
11. As per the testimony of PW3 in the year 1991 or 1992 she overheard the conversation of A3 with his wife while they were planning to kill her. Alarmed by the plot the witness PW3 left alongwith her children for her parents house in bare cloths. The accused A3 is stated to have killed the husband of PW3 and continued to threat the PW3. The accused A3 is also stated to have obtained the possession of the house belonging to PW3. The complaint which was received as DD No. 18 dated 15.09.1995 narrated the incidence dated 14.09.1995 when the accused A3 had thrashed PW3. Photocopy of the said DD is exhibited as Ex. PX2. Another complaint of threat by A3 was reported to the police on 11.10.2002.
12. In the crossexamination the witness PW3 while admitting that the accused A3 lived separately has stated the said accused A3 used to come frequently to her matrimonial house. She had also admitted that the accused A3 did not attend her marriage. A suggestion was put to PW3 that in State Vs. Jagdev Singh & others, FIR No:40/1995 Page 6 of 15 the garb of the present proceedings she wanted to grab the property bearing No. 155, Village Bhulaswa. The witness PW3 denied and added that the telephone bills and the electricity bills still come in her name.
13. The witness PW3 was further called for the chiefexamination and stated that she was hit in her abdomen by the accused A3 when she was pregnant and that the child died due to such assault. During the crossexamination the PW3 was confronted with the complaint Ex.PW3/A where she had not stated that she was hit in her abdomen. The witness also stated in her chief that she was turned out of the house by her husband and the accused Kuldeep Singh (A3) (brother of the husband) empty handed in December 1992.
14. During the further crossexamination the PW3 admitted that she had taken an amount of Rs.1,70,000/ (Rupees One Lac and Seventy Thousand) from the son of the accused Kuldeep Singh (A3). However, it was denied that the said amount was taken by her to close the present criminal case. It was also denied that the present case instituted in order to extract money from the accused persons. The PW2 also denied that she had continued with the present case against the accused Kuldeep Singh as she was not given any share of money out of the sale of the property bearing House No. 155, Village Bhalasva, Delhi.
15. The defense has got examined Sh. Subey Singh as DW1 who has testified that he knew accused Kuldeep Singh since birth. He also knew the complainant PW3. The accused A3 had not attended the marriage of PW3. The said witness DW1 also deposed that being a covillager he had never come across any incident of cruelty and harassment against the complainant PW3.
State Vs. Jagdev Singh & others, FIR No:40/1995 Page 7 of 15
16. The defense has also got examined Sh. Chander Mohan as DW2 who has testified that the accused A3 and the complainant PW3 were living separately from each other and that they had no relation with each other. The witness DW2 had not attended the marriage of PW3. The complainant had visited the village once or twice and is said have never visited again.
17. Now I come to the allegations under S.498A IPC which is worded thus :
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 wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such 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 demand.
18. The provision is embedded with essentially two ingredients under the head of 'cruelty'. The first aspect deals with the willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or State Vs. Jagdev Singh & others, FIR No:40/1995 Page 8 of 15 physical) of the woman. All these allegations are argued to have been covered under Exp. (a) to S.498A IPC. However, the said allegations appear more general than specific and it would be highly unsafe to convict an accused on the basis of unsubstantiated piece of evidence. Apart from that in the present case the whole evidence as adduced by the PWs does not point towards any such incidence which could be categorized under Expln. (a) of S.498A.
19. The second aspect is covered by the Exp. (b) to S.498A IPC. And deals with the 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 demand.
20. The present case needs to be tested on the question of the creditworthiness of the testimony of the prime witness i.e. PW3. The very first inconsistency in the testimony is revealed from the two versions given by PW3 on how she came to leave her matrimonial house. The first version appears from her testimony that in the year 1991 or 1992 she overheard the conversation of A3 with his wife that they were planning to kill her. Alarmed by the plot the witness PW3 left along with her children for her parents house in bare cloths. The second version is reflected in her further examinationinchief and her complaint PW3/A that she was turned out of the house by her husband and the accused Kuldeep Singh (A3) (brother of the husband) empty handed in December 1992. This inconsistency indicates that her own version is clouded.
21. There have been a catena of cases where the improved testimony has been looked into with skepticism and suspicion. The courts have always been cautioned against things:
State Vs. Jagdev Singh & others, FIR No:40/1995
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i. reliability of a witness ; and
ii. improved testimony of a witness.
22. As far as the reliability of a witness is concerned in Vadivelu Thevar v. The State of Madras (1957 SCR 981) the Hon'ble Supreme Court is Court had divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. The first two categories they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. It is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely :
i. Wholly reliable.
ii. Wholly unreliable.
iii. Neither wholly reliable nor wholly unreliable.
23. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of State Vs. Jagdev Singh & others, FIR No:40/1995 Page 10 of 15 witnesses.
24. Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). The Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 . But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
25. In the present case the quality of the testimony of PW3 is in question. I am less hesitant to put the said witness in first category which is that of unreliable witnesses. The trend of in shifting focus from A1 to A3 is also reflected in the crossexamination of the witness PW3. On 18.01.2007 the said witness had admitted that she had obtained the amount of Rs.1,70,000/ (Rupees One Lac and Seventy Thousand) from the son of the accused Kuldeep Singh (A3). No explanation of the said amount was ever rendered by the PW3. On 18.01.2007 an observation was made by this court that the witness PW3 was taking a lot of time to answer. This attitude on part of PW3 supports the inference that the said witness was unsure of her own testimony. The version of the prime witness PW3 has ever remained inconsistent and therefore less trustworthy. The other witnesses have stated on the procedural aspects and remained less supportive of the actual merits of the case. There is no other witness examined. The brother of the witness PW3 has also not been examined despite some State Vs. Jagdev Singh & others, FIR No:40/1995 Page 11 of 15 facts being related to him. There seems to be an element of improvement on part of the witness PW3 by each passing date from 08.05.1997 till 13.09.2005 when she was examined. The witness PW3 has mentioned of certain letters written to her parents and certain complaints lodged by her but never produced the same before the court and her examinationinchief and the cross examination had to deferred many a times.
26. As far as the aspect of improved testimony of PW3 is concerned the same is reflected in the enhancement of her testimony. The inconsistency is sharp and apparent in the very first complaint the PW3 made to the police on 15.03.1994. The said compliant is Ex.PW3/A and narrates various facts and incidences which on the very face of it appear different than what was stated by PW3 during her examinationinchief. It is also noteworthy that the complaint Ex. PW3/A does not level specific allegations against the Accused A3. The accused other than the deceased husband (A1) were referred collectively. The said complaint also does not mention that any amount of cash/ money etc. was ever handed over to the accused A3. It is only in the in the heading of the complaint and at the closing end of it that name of Kuldeep Singh (A3 herein) finds a mention. There happens to be many facts that have found no mention in the chief testimony before this court. Specifically there is no mentioning of the allegation in the complaint that the accused A3 had demanded a motorcycle and a cash of Rs.25,000/. It seems that predominantly the complaint Ex. PW3/A was against her husband because he was then alive but the said grievance then turned against the accused A3 when the A1 was dead. The said inference does not appear without logic because the complaint is dated 15.03.1994 and the chiefexamination has taken place on different dates from 08.05.1997 till 13.09.2005. The last crossexamination has taken place on 18.01.2007. This is a very long the period where the witness PW3 has cleverly shifted her version from her husband (A1 since deceased) to her brotherinlaw (A3). It is worth scrutinizing the changing State Vs. Jagdev Singh & others, FIR No:40/1995 Page 12 of 15 shade from the first testimony of PW3 till her last testimony on 13.09.2005. The shade changed so sharply that when the accused A1 died during the pendency of the present proceedings the PW3 was quick to accuse the A3 for his murder. It is thenceforth that the focus began to shift to A3. The witness PW3 during her very first examination on 08.05.1997 had deposed predominantly against her husband (A1).On her further examinationinchief on 10.07.2001 the said witness PW3 continued deposing mainly against her husband. On 07.05.2005 the focus began to shift on A3 and by 13.09.2005 the witness PW3 had given detailed testimony focusing on A3.
27. In State of Haryana v. Jai Parkash, (SC) 2000 A.I.R. (SC) 3569 : 2000 Cri.L.J. 4995 : 2002(9) S.C.C. 663 there were so many improvements in the testimonies of the witnesses from stage to stage that it was held difficult to place reliance on their testimonies and the accused were acquitted.
28. In Banwari Lal v. State of Rajasthan, (Rajasthan)(Jaipur Bench) 2008 Cri.L.J. 3256 the accused were acquitted because the prosecution witnesses had made contradictions and improvements in their testimony and only on the basis of statements of these witnesses, the accused appellants could not have been convicted and sentenced.
29. Eventually I need to deliberate on one glaring 'fact' in the present case which has been repeatedly stated by her during the course of her long examinationinchief recorded on various dates - PW3 was beaten up by the accused A3 while was washing clothes. The PW3 was pregnant at that time and was advised medicine by her doctor on account of the physical assault. The said incidence related to the fact that PW3 was hit by A3 on her abdomen which caused the death of the born child. The said fact is hit by inconsistency as the main complaint Ex. PW3/A does not find a mention of such an incidence. Apart from that I still deem it necessary to elaborate a bit more on State Vs. Jagdev Singh & others, FIR No:40/1995 Page 13 of 15 that.
30. In order to analyze the given piece of evidence it is necessary to advert to S.3 of the Indian Evidence Act, 1872 which defines fact as :
i. Anything, state of things, or relation of things, capable of being perceived by the senses;
ii. Any mental condition of which any person is conscious.
31. The facts are therefore of two kinds: physical; and psychological. The given segment of fact relating to the thrashing of PW3 by A3 is a physical fact and needed a particular level of legal proof in order to be established by the prosecution. S.3 of the Indian Evidence Act, 1872 further defines "Fact in issue" as :
"The expression "facts in issue" means and includesany fact from which, either by itself or in connection with other fact, the existence, nonexistence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows."
32. S.101 of Indian Evidence Act, 1872 places general burden of proof postulating that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. S.102 of the said act says that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
33. The factinissue is the incidence when PW3 was hit by A3 and the same is connected with other facts. The other facts are so intimately connected with the factsinissue that they ought have been State Vs. Jagdev Singh & others, FIR No:40/1995 Page 14 of 15 proved first. The other facts which would have rendered the factinissue of PW3 being hit on her abdomen by A3 are :
i. That PW3 had been pregnant;
ii. That PW3 had been hit in her abdomen;
iii. That PW3 had suffered an injury;
iv. That PW3 had visited a doctor due to the injury;
v. That PW3 had been advised a certain prescription & medication; vi. That the alleged injury was fatal for the new born.
34. Each of the abovementioned 'fact' required distinct 'proof. The prosecution had examined the witness PW3 on the above few facts very loosely but never established the same. No medical documents have been produced by the prosecution. The doctor has also not been examined. Facts and circumstances in order to drive home the conviction were not established by the prosecution. It is unsafe to convict an accused in such circumstances.
35. The improvement of the testimony by PW3 were not minor and insignificant in the present case.
There had been inconsistencies as well. The prosecution could not prove its case beyond doubt.
36. In the light of the facts and circumstances of the case the accused A3 i.e. Kuldeep Singh s/of Late State Vs. Jagdev Singh & others, FIR No:40/1995 Page 15 of 15 Sh. Moti Ram r/o H. No. 155 Village Bhulaswa, Jahangir Puri, Delhi42 is hereby acquitted.
37. The file be Consigned to the record room.
Announced in the open court on 1st July, 2010.
(VEENA RANI) METROPOLITAN MAGISTRATE: MAHILA COURT SOUTH DELHI.
State Vs. Jagdev Singh & others, FIR No:40/1995