Delhi District Court
State vs . (1) Anjay Kunwar @ Munna, on 27 April, 2018
IN THE COURT OF SH. AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 441095/2016
State Vs. (1) Anjay Kunwar @ Munna,
S/o Sh. Sita Ram Kunwar,
(2) Shiv Kumari Devi (PO),
W/o Sh. Sita Ram Kunwar,
Both Resident of
RZD-80, Flat No. 203, Second
Floor,
Gali No.4, Mahavir Enclave, New
Delhi.
(3) Rina Singh (PO),
W/o Sh. Pankaj Kumar Singh,
R/o 230/16A, Railway Colony,
Mandawali, Delhi-92.
FIR No. : 275/2012
Police : Palam Village
Station
Under : 498A/304B/34 IPC
Sections
Date of institution of case :31.12.2012
Date of committal to Sessions Court :24.01.2013
Date of assignment to this court :26.05.2017
At the stage of prosecution evidence
Date on which judgment was reserved :16.04.2018
Date on which judgment was pronounced :27.04.2018
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JUDGMENT:
1. The case of the prosecution is that on 01.10.2012, an information of suicide by a lady was received in PS Palam Village vide DD no. 44A and on the said information, ASI Shiv Lal alongwith Ct. Krishan reached at the spot i.e. H. No. D-80, Flat No. 203, Gali No.4, Mahavir Enclave, New Delhi, where they found that one lady, who had reported committed suicide by hanging herself from the ceiling fan of her room has been taken to DDU Hospital by her husband and brother in law (jeth) in PCR Van. On this, ASI Shiv Lal left the spot and reached to DDU Hospital, where he found Smt. Kavita, w/o Sh. Anjay admitted brought dead vide MLC No. 20356/12 at 07.15 p.m. In this connection, an information was also received vide DD No. 47A at 7.35 p.m. in PS, which was also communicated to him. Another call was also received in PS in this connection vide DD No. Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 2/46 53A at 08.50 p.m. and he (ASI Shiv Lal) was informed accordingly. ASI Shiv Lal came back at the spot and got inspected the same and photographed it by Crime Team. ASI Shiv Lal contacted Anjay, husband of the deceased, who told to him that "he was married to Ms. Kavita Kumari on 10.02.2012 and staying in Delhi with him at his elder brother Sh. Kamakhaya's house since June, 2012. He and his brother had gone to office in the morning and when he returned home in the evening, he found that door of his flat was locked from inside. He broke open the door with the help of his neighbours and found his wife Kavita was hanging from the ceiling fan with her chuni. He alongwith his elder brother who also came at the house and police staff took Kavita to DDU Hospital, where doctor declared her brought dead. He and his brother informed the family members of Kavita about the incident." ASI Shiv Lal informed Senior Officers and SDM Najafgarh, as the death had occurred within Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 3/46 seven years of marriage. The family members of the deceased reached Delhi in night on the same day and met ASI Shiv Lal, he handed over them valuables of deceased. On 02.10.2012, Sh. Chander Shekhar Singh, father of the deceased and Ms. Monika & Ms. Rekha Devi, sisters of the deceased were produced before SDM Najafgarh by ASI Shiv Lal and Sh. Krishna Mohan Uppu, SDM Najafgarh recorded their statements separately and Ms. Monika in her statement given to them stated that his sister Kavita @ Soni was married to Anjay @ Munna s/o Sh. Sita Ram Kunwar on Friday dated 10.02.2012. Her sister was harassed on petty issues. On 30.09.2012 her sister was pulled by her hair and thrown on bed by her brother in law. Her brother in law did all this on the instigation of his parents, his elder brother & his wife, elder sister & her husband, younger sister & her husband and Ms. Nidhi d/o of his elder sister. When her brother in law was throwing her sister on the bed, Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 4/46 his elder brother and younger sister alongwith her husband were present. Her sister Kavita told her all this on phone. On 01.10.2012, at about 11 a.m., her sister informed her on phone that her husband is asking her to transfer land at Patna in his name which is in the name of her father. Her brother in law has purchased a vehicle and he was asking for money for the same. On 01.10.2012 at about 5/5.30 p.m., he made many calls on the phone of her sister but she did not take her calls. At about 06.30 p.m., she received a phone call from Sh. Kamakhaya Narain Kunwar @ Sanjay, brother in law of her sister and informed her that they are taking her sister to hospital and when she called back, he did not take her call and after sometime, mobile phone was switched off. Thereafter, she told all this to her father and in night, they reached Del hi and reached PS Palam Village and from there, they came to know that her sister had committed suicide by hanging and she Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 5/46 suspected that her sister has been killed by her in law and then hanged her. She further stated that if her sister had committed suicide, she would have certainly given them message because she used to tell everything to him and they want the enquiry into it. She also stated that she had diary of her sister, in which her sister had written about her in laws. On the said statement, SDM Najafgarh, made his endorsement to register the FIR under relevant Sections of IPC and the same was further endorsed by SHO PS Palam Village and the abovesaid FIR was registered. Sufficient evidence has come during investigation to arrest the accused persons and accused Anjay Kunwar was arrested. Other accused Shiv Kumari and Reena Singh whose names were mentioned in the dying declaration of the deceased absconded and after, completion of investigation, charge-sheet under Sections 498A/304B IPC against accused was filed.
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2. Vide order dated 25.02.2013, the charge for the offences under Sections 498A/304B IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution examined 20 witnesses.
PW1 SI Shanti Prakash. He was the duty officer and proved the copy of DD No. 44A as Ex.PW1/A, copy of DD No. 47A as Ex.PW1/B, copy of DD No. 53A as Ex. PW1/C, his endorsement on rukka Ex.PW1/D, copy FIR as Ex. PW1/E. PW2 Ms. Monika. She is the sister of the deceased and her testimony shall be considered at later stage. PW3 Ct. Hardeep Singh. He has deposed that on 26.10.2012, he had taken measurements of the site/place of incident i.e. H. No. RZD-80, Flat No. 203, 2nd Floor, Gali No.4, Mahavir Enclave, Palam Colony, New Delhi on the instructions of IO Insp. Mahender Singh, had prepared rough site notes and on the basis of the same, prepared scaled site plan and Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 7/46 proved the same as Ex.PW3/A. PW4 Ms. Rekha Devi. She is the sister of the deceased and her testimony shall be considered at later stage.
PW5 Sh. Pawan Singh. He proved the summoned record of mobile phone No. 98917644725 and had deposed that as per record, the said connection was issued in the name of Sh. Neeraj Kumar, s/o Sh. Surender Pratap, R/o A-73, First Floor, Room No.4, near Baba Gang Nath Market, Munirka, New Delhi and the said customer had provided photocopy of his driving license in respect of his identity and proved Customer application form as Ex.PW5/A, photocopy of DL as Ex.PW5/B. He has further deposed that on the request of the IO, on 29.12.2012, he had given the computer generated CDR of the aforesaid mobile No. for the period of 30.09.2012 to 01.10.2012 to him and proved the same as Ex.PW5/C, proved certificate under Section 65B of the Indian Evidence Act as Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 8/46 Ex.PW5/D and Cell ID Chart as Ex.PW5/E. PW6 Sh. Sanjeev Kumar. He is the brother in law (jija) of the deceased and her testimony shall be considered at later stage.
PW7 Sh. Arvind Kumar. He is the brother in law (jija) of the deceased and her testimony shall considered at later stage.
PW8 Sh. Rakesh Ranjan @ Guddu. He has deposed that deceased Kavita was his 'bua' (paternal Aunt) in relation. He further deposed that Sh. Chander Shekhar Singh, father of Kavita had given him marriage card of Kavita with Anjay Kunwar from both sides alongwith 8 photographs and he handed over the same to the police on 22.10.2012. He and proved seizure memo Ex. PW8/A, eight photographs as Ex. PW8/A1 to Ex. PW8/A8 and marriage cards as Ex. PW8/A9 and Ex. PW8/A10.
PW9 Smt. Kinjal Pandya. He has deposed that on 01.10.2012, in the afternoon, her neighbour Smt. Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 9/46 Rekha had told her that in spite of knocking at the door of Flat no. 203, twice or thrice by her, the door was not opened and in evening at around 6 p.m., accused Anjay Kunwar came back from duty and also knocked but the door of his flat was not opened. She further deposed that thereafter, accused Anjay made enquiries from her about going of his wife Kavita and he asked her to provide table and screw driver. She provided the same to the accused and with the help of screw driver, accused opened the roshandaan of the door and unbolted the door and then entered into the house and saw that Kavita was hanging on the ceiling fan with the help of "chhuni". She had made a call at 100 number at about 06.15 p.m., police came at the spot, dead body was lowered down by accused Anjay with the help of police and the dead body was removed to hospital.
PW10 Dr. Sajid Hasan. He has deposed that on 01.10.2012, he thoroughly examined patient Kavita Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 10/46 Tiwari w/o Anjay Kunwar, age 30 years female and found no sign of life, ECG was done, which showed straight line and result of which, she was declared dead and proved MLC Ex.PW10/A and death report Ex.PW10/B. PW11 Sh. Krishna Mohan Uppu. He was SDM, Najafgarh. He has deposed that on 01.10.2012, he was informed by the IO ASI Shiv Lal that Kavita Kumari @ Soni w/o Anjay Kanwar r/o RZD-80, Flat No. 203, Gali No.4, Mahavir Enclave, New Delhi had died. On 02.10.2012, he had gone to mortuary of DDU Hospital and carried out inquest proceedings, filled death report form No. 25.35(1)(b) and recorded statement of Ms. Monika and Rekha, both daughter of Sh. Chander shekhar Singh and sisters of deceased Kavita Kumari, Sh. Chander shekhar Singh, father of the deceased. He further deposed that after recording the said statements he directed the SHO/IO to lodge an FIR under relevant sections of IPC and Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 11/46 investigation the matter. He proved the statements of Ms. Monika, Ms. Rekha and Sh. Chander shekhar Singh as Ex. PW2/A, Ex. PW4/A and Ex. PW11/B respectively and proved his endorsement to the effect to register an FIR as Ex. PW11/C. He further deposed that he directed HOD/DFMD, DDU Hospital to perform autopsy on the body of Kavita Kumar @ Soni, w/o Anjay Kanwar and proved the said letter as Ex.PW11/D. PW12 Ct. Rakesh Deshwal. He has deposed that on 02.10.2012, he was working as Computer Operator and further deposed that on that day, duty officer handed over him a tehrir and on the basis of which he recorded FIR No. 275 u/s 498A/304B/34 IPC and handed over the original tehrir with copy of FIR to Duty Officer.
PW13 Ct. Ramesh Chand. He has deposed that on 21.11.2012, he collected the exhibits of this case from MHC(M) vide RC No. 154/21/12 and deposited Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 12/46 the same in CSL against receipt No. FSL/2012/C-8147 dated 21.11.2012.
PW14 ASI Nihar Singh. He has deposed that on 03.10.2012, he joined the investigation of the present case with Insp. Mahender Singh and ASI Shiv Lal and on that day, Ms. Monika, sister of deceased came to the PS and handed over 11 pages of diary of the year 2011, which were stated by her to be in the handwriting of deceased Kavita and the same were taken by the IO into possession and thereafter, he alongwith Insp. Mahender Singh and ASI Shiv Lal reached at the house of accused Anjay Kunwar, where he was found present, interrogated and arrested. He further deposed that on 22.10.2012, Rakesh Ranjan @ Guddu had produced two marriage cards from both sides regarding marriage of accused Anjay Kunwar with Kavita and 8 photographs of the marriage. He further deposed that the marriage card and 8 photographs were taken in to police Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 13/46 possession. He proved the seizure memo of diary pages as Ex. PW2/C and pages Ex. PW2/E (colly), arrest memo of accused Anjay as Ex. PW6/B, personal search memo as Ex. PW14/A, disclosure statement as Ex. PW14/B, seizure memo of marriage card and 8 photographs as Ex. PW8/A, marriage cards as Ex. PW8/A9 & Ex. PW8/A10 and the photographs as Ex. PW8/A1 to Ex. PW8/A8.
PW15 HC Shiv Charan. He has deposed that on 13.12.2012, on the instructions of the IO, he went to Govt. Women College, Gardanibagh, Patna, Bihar, where he served notice under Section 91 Cr. P.C. and in pursuance of the same, Office Assistant Sh. Ashwani Kumar Jha handed over him admit card and admission form of the deceased Kavita Kumari and he seized the same. On 17.12.2012, after returning to Delhi, he handed over the same to IO Insp. Mahender Singh. He proved the seizure memo of admit card and admission form of the deceased as Ex.PW15/A. Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 14/46 PW16 Retd. ASI Shiv Lal. He has deposed that on 01.10.2012, on receipt of DD No. 44, he alongwith Ct. Krishan reached at the spot i.e. D-80, Flat no.203, Gali No.4, Mahavir Enclave, New Delhi, where he came to know that one lady had hanged herself and the PCR van had taken her to DDU Hospital, he locked the aforesaid flat and thereafter, went to DDU Hospital and collected MLC No. 20365/12, vide which one lady namely Kavita Kumari was found declared brought dead by the doctor. He further deposed that thereafter, dead body was shifted to mortuary, DDU Hospital and he informed the parents of deceased Kavita, who told him that they would come to Delhi by night from Patna and also informed SDM and SHO. He further deposed that on 02.10.2012, Sh. Chander Shekhar, father of the deceased, Monika and Rekha (both sisters of the deceased) came to him in PS and on the directions of the SHO, he had taken them to the office of SDM, Najafgarh and there, SDM Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 15/46 Najafgarh recorded their statements and made his endorsement on the statement of Ms. Monika to lodge an FIR under relevant sections of IPC. He further deposed that on 03.10.2012, he got conducted the postmortem of the dead body of the deceased, recorded statements of Sh. Chander Shekhar and Sh. Arvind Kumar regarding the identifications of the dead body of deceased. He collected the viscera of deceased from DDU Hospital, ligature material given by doctor, seized the diary of Kavita of the year 2009, some pages of diary of the year 2011 having writings of Kavita. He prepared site plan and proved the same as Ex.16/A & Ex.PW6/A (dead body identification statement of Sh. Chander Shekhar and Sh. Arvind Kumar), seizure memo of viscera of deceased as Ex.PW16/B, seizure memo of ligature material given by the doctor as Ex.PW16/C, seizure memo of diary of the year 2009 of deceased Kavita as Ex.PW2/B, seizure memo of some pages of Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 16/46 diary of the year 2011 of deceased Kavita as Ex.PW2/C, site plan as Ex.PW16/D. PW17 Retd. Insp. Mahender Singh. He has deposed that on 02.10.2012, he received the case file from ASI Shiv Lal and conducted the further investigation and proved rough site plan as Ex. PW16/D, which was prepared by him at the instance of ASI Shiv Lal, seizure memo of diary of the year 2011 as Ex. PW2/C, seizure memo of diary of year 2009 as Ex. PW2/B(both were in the handwriting of deceased Kavita), handing over memo of dead body as Ex. PW6/A, seizure memo of ligature mark as Ex. PW16/C and seizure memo of Viscera as Ex. PW16/B, arrest memo of accused as Ex. PW6/D, disclosure statement of accused as Ex. PW14/B. He recorded statement of Sh. Sanjeev Kumar and ASI Shiv Lal was sent to DDU Hospital for got conducting the postmortem on the dead body of the deceased. He handed over the dead body to Sh. Chander Shekhar Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 17/46 Singh and proved handing memo of dead body as Ex. PW6/A, seizure memo of ligature material and viscera of deceased as Ex. PW16/C and Ex. PW16/B respectively, disclosure statement of accused as Ex. PW14/B. He further deposed that on 22.10.2012, Sh. Rakesh Ranjan handed over him 8 photographs and 2 wedding cards and proved their seizure memo as Ex. PW8/A, on 27.10.2012, he had taken the measurement of the spot and prepared rough notes. On 27.11.2012, he collected the scaled site plan from Ct. Hardeep Singh and placed it on record. On 21.11.2012, he sent the viscera alongwith sample seal to FSL Rohini through Ct. Ramesh. He further deposed that on 13.12.2012, HC Shiv Kumar handed over him some documents which he had brought from Mahilla Maha Vidhalya, Patna on his directions and placed the same on record. He also further deposed that on 19.12.2012, he sent the admitted handwriting to FSL Rohini through Ct. Rajesh and Ct. Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 18/46 Rajesh handed over him the acknowledgement of the case acceptance after returning from the FSL and collected the call details of the mobile phone of deceased Kavita.
PW18 Ct. Arun Kumar, photographer. He has deposed that on 01.10.2012, on the requisition of the local police, he alongwith Incharge Crime Team HC Jitender Kumar reached at the spot i.e. D-80, Mahavir Enclave, New Delhi at about 7/8 p.m. and had taken six photographs of the scene of the spot from different angles. He has further deposed that after developing the prints, he handed over the photographs to the IO. He has proved the photographs as Ex. PW18/A1 to Ex. PW18/A6 and negatives thereof as Ex. PW18/B1 to Ex. PW18/B6. PW19 HC Sanjay Kumar. He has deposed that on 01.10.2012, on receipt of an information regarding suicide by a lady, he reached at the spot i.e. H. No. 80, Gali No.4, Mahavir Enclave, New Delhi alongwith Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 19/46 gunman Ct. Ravinder and driver Anand Kumar, where he saw one lady aged about 30 years was hanging with a fan and her husband, brother in law (jeth) were present at the spot, asking to take the lady immediately to the hospital. The lady was taken to DDU hospital in PCR Van, where doctors declared her brought dead.
PW20 Ct. Rajesh. He has deposed that on 19.12.2012, on the instructions of the IO, he had taken the documents and FSL Form pertaining to this case to FSL Rohini vide RC No. 149/21/12 for depositing the same in FSL Rohini and after obtaining the receipt from FSL, he handed over the receipt to IO Insp. Mahender Singh.
4. It is pertinent to mention here that on 19.02.2018, the Ld. Defence counsel and accused Anjay submits that he and accused do not dispute the admissibility of postmortem report of the deceased Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 20/46 Kavita Kumari dated 30.10.2012, subsequent opinion of the doctor dated 14.03.2013, FSL report No. 2012/C-8147 dated 07.01.2013, another FSL report No. FSL2012/D-8773 dated 24.02.2014 and separate statement of accused to this effect has been recorded. In the said statement, Postmortem Report Ex. PX, Subsequent Opinion Ex.PX1, FSL report Ex.PX2 and another FSL report Ex.PX3.
5. Vide order dated 20.03.2018, on the submission of Ld. APP, prosecution evidence was closed.
6. On 27.03.2018, the statement of the accused under Section 313 Cr. P.C. was recorded wherein all the incriminating evidence was put to him, to which his stand was of general denial. Accused Anjay pleaded innocence and stated that he has been falsely implicated in this case, arrested wrongly and he did not make any disclosure statement. Accused Anjay stated that deceased Kavita was not having Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 21/46 any mobile and she was in habit of writing of dairy but did not write anything against him. Police had cleverly taken some papers from the diary and had not seized the remaining pages, which were in his favour. He further stated that deceased Kavita was living happily with him and he never subjected to her cruelty, never demanded anything from her and her family members.
7. I have heard Sh. Dushyant Siwatch, Ld. Addl.
PP for the State, Sh. R. S. Thakur, Ld. Counsel for the complainant and Sh. Shyamal Kumar, Ld. Counsel for the accused.
8. The material available on record has been perused and gone through.
9. Ld. Addl. PP argued that the deceased Kavita Kumar @ Soni was married with accused Anjay Kunwar on 10.02.2012 and she had died within 8 months of her marriage other than the normal circumstances. She was subjected to cruelty and Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 22/46 harassment by the accused and her family members, who are absconding (PO) for demand of dowry and transfer of a plot at Patna. It is further submitted by Ld. APP that prosecution has examined several witnesses to prove its case and they have categorically deposed about the demand and cruelty given to the deceased and prosecution has successfully proved the case beyond any reasonable doubt against the accused. It is further submitted that deceased took extreme step of taking her own life on being fed up by the dowry demands made by the accused persons. It is further submitted by Ld. APP that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of accused persons beyond reasonable doubt. It is argued that the contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution and the accused persons have Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 23/46 committed offence punishable U/s 498A/304B/34 IPC.
10. On the other hand, Ld. Counsel for the accused argued that to prove the demand of dowry, cruelty and harassment, prosecution examined PW2 Ms. Monika, PW4 Smt. Rekha Devi, PW6 Sh. Sanjeev Kumar, PW7 Sh. Arvind Kumar and PW9 Smt. Kinjal Pandya and from their testimonies nothing oral or documentary evidence came on record to show the deposition of any amount in the account of accused of his family members or in the alleged account of deceased and also there is no documentary evidence on record to show the description of any jewelery or handing over of the same to the accused or to the deceased and there is no recovery of any jewelery as alleged or any gift as alleged from the accused or at his instance. It is further submitted that evidence available on the record clearly shows that the allegations of demand of dowry is highly improbable and absurd in this case and has been made only to Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 24/46 falsely implicate the accused. It further argued that as per the case of the prosecution, Mb. No. 9891764725 belongs to the deceased and the prosecution to prove the same examined PW5 Sh. Pawan Singh, Nodal Officer, who brought the record and as per record, the said number was issued in the name of Sh. Neeraj Kumar s/o Sh. Surrender Pratap, r/o A-73, First Floor, House No.4, near Bada Gang Nath Market, Munitaka, New Delhi. So, the prosecution has failed to prove the alleged talk about the harassing, demanding and cruelty on phone by deceased Kavita to her sister and other family members at Patna.
11. It is further submitted that the pages of diary were sent to FSL for comparison with the admitted handwriting and the expert of FSL has opined that the writing in the dairy was of the deceased.
12. It is argued by him that the evidence of prosecution is full of omissions, improvements and Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 25/46 full of material contradictions. In view of improvements made by material witnesses and contradictions in their statements, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. It is also argued that accused persons have been falsely implicated by the parents and family members of deceased by leveling false and vague allegations of demand of dowry and harassment. The counsel for accused has argued that there are material contradictions in the testimony of the witnesses which goes to the root of the case and falsify the case of the prosecution. It is further argued that the prosecution has failed to prove beyond doubt that there was any demand of dowry or any amount was paid to the accused persons by the parents of deceased. It is also argued that prosecution has miserably failed to prove its case and even failed to prove the basic ingredients of offences U/s 498A/304B/34 IPC.
Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 26/46 FINDINGS:
13. Section 498A and 304B are being discussed together. The main clinching evidence in this case is one diary (torn papers running into 11 pages) which has been collected by Investigating Officer proved as Ex. PW-2/E. The counsel for accused has stated that this diary should not be taken into account because same has been produced by sister of deceased after incident and main diary from which these papers have been taken out has not been seized by Investigating Officer. On the other hand, the counsel for complainant has stated that this is a vital piece of evidence.
14. After going through the file, it transpires that this is a case where husband could not adjust between wife and his mother. The whole contents of diary shows that deceased was having full faith in Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 27/46 husband but she was mentally disturbed because her husband was not listening to her and was taking acts and deeds of his mother as such corrct. In 3-4 pages, she has discussed regarding behaviour and character of her family members of maternal side. In one of the page dated 24th January, it has been written that "Shaadi ke Baad Sasural Gayi. Wahan Acha Laga. Inka Saath Bhi Acha Laga. Fir Hum Sabhi Pariwar Delhi Gaye. Bahut Acha Laga". On next page, it has been written that "Sasural Mein Thoda Jab Akeli Hui To Samanjhasye Nahi Bana Payi. Main Nakaam Hui. Nahi Isse Nakaam Hona Nahi Keh Sakte. Sabhi Ladkiyon Ke Saath Aisa Hota Hai. Par Mere Pati Isse Nahi Samajhte. Unka Kehna Hai Ki Ek Mahine Delhi Mein Saath Rahi Tumhe Sab Samajh Jana Chahiye. Par Mere Pati Ne Mujhe Nahi Jana To Main Kaise Sab Kuch Jaan Loo. Mere Pati Mujhe Samajhne Jaan ne Ka Dava Karte Hai Pat Woh To Galat Hai. Yeh Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 28/46 Main Janti Hu."
15. Again reproduction of other paras are not required but crux is that she was harassed mentally on this account where her husband was not prepared to listen her. Under provisions of Section 498A, it is not only the dowry demand but cruelty by husband which is another significant factor under part - A. In the present case, it is clear cut made out that mental harassment and cruelty were caused to wife. It was duty of the husband to listen to her wife and support her but in the present case it seems that husband was not prepared to listen to her wife against her mother and sister and they are absconding. It shows that deceased has made allegations against mother in law Shiv Kumari Devi and sister in law Rina Singh. In whole of the diary, there is not even a single word written by deceased by which demand of dowry can be established. Now keeping in mind the evidence of witnesses demand of dowry is shown to be allegedly Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 29/46 made by accused either before marriage or just before her death. For the provisions of Section 304B and 498A II Part cruelty due to dowry of demand, it has to be seen that infact any demand has been raised or not. It has to be kept in mind that no complaint whatsoever of the dowry demand have been made to police against the husband till the time deceased was alive. If there was any demand of dowry or regarding transfer of plot as alleged then it should have been brought to the notice of the police and police action or court action should have been initiated by relative of deceased.
16. Secondly, except instance of last date on which date the alleged calls have been made by deceased to her relative, no other evidence of cruelty have been placed on record by prosecution which shows that there was any cruelty due to demand of dowry. It has also to be kept in mind that the law with regard to dowry of demand is that it should continue to the Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 30/46 date of death /suicide and should have proximity to the date of death. Further it has to be kept in mind that no charge U/s 302 has been framed against accused as there are no such allegations.
17. It has to be considered that accused has not run away from spot but in the presence of one neighbour Sh. Kinjal Pandya, the door was forcibly opened with the help of screw driver etc. and it was bolted from inside so it is not the case of murder but of suicide and it has to be seen that whether suicide was on account of dowry demand and cruelty. If it is due to dowry demand and cruelty was such that she was driven to take her life to that extent then only he will be liable to be punished U/s 304 B IPC so it has to be seen that cruelty was to such extent. It has to be kept in mind that diary of accused Ex. PW-2/D is also on record which shows that she was doing computer course and so she was educated girl and extent of mental cruelty should have been brought on record Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 31/46 by prosecution. The law with respect to proximity in case of death with respect to demand of dowry is well settled.
18. Section 113B of 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 for or in connection with any demand of dowry. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman are required to be established to bring home the application of section 498A IPC.
19. Now coming to statement of witnesses. It has to be seen that in the statement of PW-2, it has come that after about one month of marriage, accused has demanded money and piece of land but surprisingly enough, no complaint was made to police as observed above. Thereafter, she has talked about Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 32/46 instance of one day before regarding demand of car and there is no instance given by her that there was any demand of dowry. It has been admitted by PW-2 during cross-examination that no complaint whatsoever regarding dowry demand by accused was ever lodged.
20. Now coming to statement of PW-4. It has come on record that even before solemnization of marriage, Rs. 15 Lacs were demanded by accused. If it was so then it is not made out as to why they have married deceased with accused, if it has come in their knowledge that they are greedy people. Moreover, this payment has not been stated by PW-2 in her statement and this is important. The same also does not found mention in the statement Ex. PW-2/A or Ex. PW-11/B.
21. PW-4 has stated in the chief examination that thereafter everything was normal with my daughter Kavita for about one month but again demand was Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 33/46 raised and it was telephonically informed to her sister but no action was taken. Moreover, no date of demand was given by her and again evidence part shows that it is only on 01.10.2012 on the date of death when demand is shown to be made. It has been stated that on 30.09.2012, she was beaten by accused but MLC Ex. PW-10/A and other medical documents do not suggest so.
22. PW-5 Sh. Pawan Singh, Nodal Officer, Idea Cellular brought the record of mobile No. 9891764725 and he deposed that as per record the said mobile connection was issued in the name of Neeraj Kumar, S/o Sh. Surrender Pratap and documents were Ex. PW-5/A. So prosecution has failed to prove that above mobile belonged to deceased on which deceased allegedly used to talk to her sisters and other family embers at Patna.
23. PW-6 Sanjeev Kumar is Jija of deceased but nothing has come in his evidence regarding demand Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 34/46 from date of marriage till date of death except some bald general assertion.
24. PW-7 is again another Jija and his testimony is also on the same lines as per testimony of PW-6. He has not stated that deceased has told on previous occasion that she was tortured and harassed for transfer of land but again no complaint was made and general allegations have been leveled. He further stated that even matter was not raised before village Panchayat. No eye witness has been produced to show that relationship between deceased and accused was not good. Further PW-9 was not asked about their relationship which could have been done. In inquest report, it is mentioned that deceased was pulled by hair but same is not corroborated by MLC and post mortem report. There is no internal or external injury found on the body of deceased as evidence from the PM report available on file.
25. It is not made out as to why no complaint was Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 35/46 ever lodged by the family members of the deceased despite alleged demands and harassment prior or after the marriage.
26. It is important to note here that the prosecution has not produced the complete diary written by the deceased on the record and has placed only few selected pages for which there is no reasonable explanation in the report which makes the entire case of prosecution highly doubtful and suspicious.
27. The counsel for accused has drawn the attention of court towards one judgment titled as Rohtash Vs. State of Haryana (2012) 6 Supreme Court Cases 589 wherein it was held that "Dowry death - Ingredients - Dowry - meaning of - demand by appellant husband for establishment of his tailoring business - Even if such demand was there, it may not necessarily be a demand of dowry - Moreover, whether for that demand, ill- treatment given by appellant to his wife was so Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 36/46 grave that she had been driven to the extent that she had to commit suicide, not proved."
28. The counsel for accused has relied upon judgment passed by Hon'ble Supreme Court of India (from Punjab & Haryana) (D.B.) titled Rohtash Vs. State of Haryana 2012 (6) SCC 589. In said judgment, Hon'ble Supreme Court had discussed the judgment titled Appasaheb Vs. State of Maharashtra 2007 1 SCC 721 and discussed the definition of the word 'dowry' which are reproduced herein below:
"A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
29. The said judgment was reconsidered by this Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 37/46 court in case titled Bachni Devi Vs. State of Maharashtra 2011 4 SCC 427, wherein the Hon'ble Court held that the said judgment does not lay down a law of universal application. Each case has to be decided on its own facts and merits. If a demand for property or valuable security, directly or indirectly, has nexus with marriage, such demand would constitute demand for dowry. The cause of raising of such demand remains immaterial. The said judgment is fully applicable to the facts of the present case.
30. Reliance is placed upon judgment passed by Hon'ble High Court of Delhi titled as State Vs. Paramjeet Singh & Ors.. In the said judgment, the Hon'ble High Court reproduced the observation made by the Apex Court in case titled as Satvir Singh Vs. State of Punjab, (2001) 8 SCC 633, with respect to the phrase "soon before" and same is reproduced herein below:-
Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 38/46
"It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if section 304-B is to be invoked. But it should have happened "soon before her death."
31. The court has to make out as to whether demand made by accused are due to establishment of business or something else which can be termed as demand of dowry. The present case is on better footing as the demands are not clear and same are not proved. The demands have not been proved and they are not soon before the death coupled with other circumstantial evidence which has gone rather against prosecution.
32. Counsel for accused has further relied upon judgments titled as Umed Singh & Ors. Vs. The State, NCT of Delhi and titled as Naveen Vs. The State, NCT of Delhi decided by Hon'ble Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 39/46 High Court of Delhi. In said judgment, the Hon'ble High Court has discussed the observation of Hon'ble Supreme Court in case titled as Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (1) SCC 750 which are given below:
33. "In State of West Bengal V. Orilal Jaiswal and Anr. (1994) 1 SCC 73, this court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide....."
34. Reliance has been placed upon by the counsel for the accused persons on the judgment passed by Hon'ble Supreme Court titled as Baijnath & Ors vs State of Madhay Pradesh, the relevant para 35 is reproduced herein below wherein it has been Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 40/46 mentioned that "This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another vs State of Punjab- (2011) 11 SCC 517 and echoed in Rajeev Kumar vs State of Haryana-
(2013)16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 41/46 offence of dowry death under Section 113B of the Act."
35. Thus, statutory presumption under Section 113B under Indian Evidence Act has not been proved beyond reasonable doubt and accused is required to be given benefit of doubt.
36. Reliance is placed upon judgment titled Dr. Jhamman Lal Vs. State (Delhi Administration) 2011 [4] JCC 2932 wherein it was held that ".....It is settled law that if a witness makes even two inconsistent statements- Evidence of such a witness cannot be relied upon-No conviction can also be based on such evidence....". It was also held that "......A person cannot be held guilty on mere probabilities-Evidence of witnesses or circumstances surrounding the incident should in a definite tendency and unerringly point towards the guilt of accused......." Reliance is Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 42/46 also placed upon judgment titled Suraj mal Vs. State (Delhi Administration) 1979 AIR (SC) 1408 wherein it was held that "A witness whose testimony in respect of same transaction has been rejected in one part cannot be relied for conviction of other accused".
37. The counsel for accused has also relied upon judgment titled State of Gujrat Vs. Jayrabhai Punjabhai Varu having Criminal Appeal No. 1236/10 decided by Hon'ble Supreme Court of India wherein in para No. 13 it was held as under:-
38. 13)..... The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of accused and the Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 43/46 other towards his innocence, the view which is favourable to the accused should be adopted......
39. So circumstantial evidence is also missing and it will not be safe to convict the accused on the uncorroborated broken chain.
40. It is important to note here that though it is pitiable that valuable life of deceased Kavita has been lost and responsibility of causing death would not be fixed on anybody but similarly, accused cannot be saddled with same for want of connecting evidence.
41. From the perusal of contradictions pointed by counsel for accused, story of prosecution put forward does not hold water and is not trustworthy as there are material points extracted from the testimonies of Pws which disprove the version of prosecution and give benefit of doubt to accused. There are material Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 44/46 contradictions in the deposition of star witnesses and as per their deposition, chain and sequence of events are not made out which looses the chain of circumstantial to convict the accused. Since there are several latches in the testimony of Pws on some material points, hence the prosecution case has miserably failed to stand on its own footing and to prove its allegations against the accused beyond reasonable doubt. Thus on all counts, guilt of accused has not been proved. In the absence of any cogent and reliable evidence, benefit of doubt has to be given to accused. So on all counts, the accused Anjay Kunwar is acquitted for the offence U/s 304B/34 IPC.
42. Though from above discussion of evidence and documents, ingredients of Section 498 Part-II and 304B IPC cannot be made out but ingredients of Section 306 IPC are clearly made out which says "If any person commits suicide, whoever abets the Sessions Case No. 441095/2016 State Vs. Anjay Kunwar @ Munna Page No. 45/46 commission of such suicide, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine."
Though demand of dowry as per above discussed evidence is not made out but there are sufficient material available on record which shows that deceased was subjected to cruelty which forced her to commit suicide. Thus cruelty caused by accused to deceased U/s 498A Part-I IPC is also made out. Accordingly, accused Anjay Kunwar is convicted for the offence U/s 498A/306 IPC as observed above.
43. Be put up for order on sentence on 03.05.2018. Pronounced in the open court. (AJAY GOEL) Dated: 27.04.2018 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
Digitally
signed by
AJAY AJAY GOEL
Date:
GOEL 2018.05.04
14:21:33
+0530
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