Delhi District Court
(Judgment) State vs Gopal Chothvani on 29 March, 2016
(Judgment) State Vs Gopal Chothvani
FIR no. 128/13
PS: Maurya Enclave
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No.168/13
Unique Case ID: 02404R0229912013
State
Vs
1 Gopal Chothwani
S/o Late Chandu Mal,
R/o YP18B, Pitampura, Delhi.
2 Raj Kumar Chothwani
S/o Late Chandu Mal,
R/o H. no. 66, Village Sahipur, Shalimar Bagh,
Delhi.
3 Sakshi Chothwani
W/o Raj Kumar Chothwani
R/o H. no. 66, Village Sahipur, Shalimar Bagh,
Delhi.
4 Mamta Dasswani
W/o Sh. Kewal Ram Dasswani
R/o BB77B, West Shalimar Bagh, Delhi.
5 Kewal Ram Dasswani
S/o Sh. Ghandass Dasswani,
R/o BB77B, West Shalimar Bagh, Delhi.
6 Naresh Kungwani @ Nandu
S/o Ramchander Kungwani
R/o MU 58B, Pitampura, Delhi.
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(Judgment) State Vs Gopal Chothvani
FIR no. 128/13
PS: Maurya Enclave
FIR No. : 128/13
Police Station : Maurya Enclave
Under Section : 304B/498A/406/34 IPC
Date of committal to Sessions Court : 16.09.2013
Date on which judgment reserved : 29.03.2016
Date on which judgment pronounced : 29.03.2016
JUDGMENT
1. This is a case under section 304B/498A/406/34 of Indian Penal Code, 1860 (IPC).
2. Case of the prosecution is that on 21.02.2013, Palak Chothwani (the complainant/PC) made a complaint to the SHO, PS Maurya Enclave, Delhi stating that she married Gopal Chothvani (the accused no.1) on 24.02.2012 and resided together at VP Block18B, Pitampura, Delhi along with Raju Chothvani, her brother in law (Jeth) (the accused no.2) and Sakshi Chothvani, her sister in law (Jethani) (the accused no.3) and their two children. Mamta Dasvani, sister of the accused no.3 ( the accused no.4 ), Kewal Ram, husband of the accused no.4 (the accused no.5) and Naresh Kungvani @ Nandu, brother of the accused no.3 (the accused no.6) took the responsibility of PC and the accused no.1 was working at their place. After one month of marriage, the accused no.2 and 3 started demanding dowry from her and mentally and physically tortured her. Parents of PC resided at Gwalior and her two sister were residing in Delhi. The accused did not allow her to talk to them. Page no..... 2/ 35
(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave Thereafter, a Panchayat was held and it was decided that they would live together. That time, the accused no. 5 and 6 stated that they would also live with her and would look after her. However, within a week thereafter, the accused no. 2 and 3 left the house on 10.02.2012. Thereafter, the accused no.1 used to leave the house at 8.00 am and came back at late nigh 1.00 am and on being asked, he stated that he was at the place of the accused no. 2 and 3 and he had no concern with her and her daughter. On 17.02.2012 at midnight, the accused no.1 had beaten her and ran away stating that he would not live with her and would reside with the accused no. 2 and 3. The complaint was referred to CAW Cell. Since the disputes could not be resolved, hence, on the basis of the said complaint, the subject FIR was registered u/s 498A/406/34 IPC on 12.04.2013. On 06.05.2013, PC committed suicide at the residence of her sister Tanya Sachdeva after leaving the suicide note. Accordingly, section 304B IPC was added.
3. Charges under section 406/498A/506/304B/34 IPC and in the alternative, charges under section 306/34 IPC were settled against all the accused to which they plead not guilty and claimed trial. EVIDENCE:
4. In order to discharge the onus, the prosecution has examined 33 witnesses.
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(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave PUBLIC WITNESSES
5.PW11 Sardar Daljeet Singh deposed that on 24.2.2012, marriage of PC (the deceased) and the accused no.1 was performed in Gurdwara and proved the marriage certificate issued by Gurudwara Ex. PW11/A.
6.PW12 Harish Kumar Keshwani (father of the deceased) deposed that he had three daughters namely, Honny Lalwani (PW27), Taniya Sachdeva (PW17) & Palak Chothwani (the deceased) and one son Kapil Keshwani (PW15). On 24.02.2012, the deceased and the accused no.1 married and it was their second marriage. On 11.12.2012, the deceased gave birth to a female child. For 12 months after the marriage, the deceased was treated well by all the accused. Thereafter, they started demanding cash of Rs. 5 lacs from them through the deceased and used to beat her. Accused no.4 to 6 also used to beat her after visiting her matrimonial home. He told the accused persons many times that he had no financial capacity to fulfill their demands and requested them not to harass the deceased but of no use. On the birth of female child, the accused persons demanded more money and taunted the deceased saying "bachhi kyo padda kari hume larka chahiye tha". The deceased used to tell the said facts to him, his daughters and other family members as and when she visited them or telephoned them. Thereafter, the deceased made a written complaint to the concerned Police station. 1520 days prior to the incident, the deceased started living along with (PW17) as a matrimonial case was pending between her and the accused no.1 on her complaint. On 06.05.2013, the deceased committed Page no..... 4/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave suicide in the house of PW17. After hearing the said news, he along with his wife and son came to Delhi. On 07.05.2013, PW21 recorded his statement Ex. PW12/A. He identified the dead body of the deceased and made his statement Ex. PW12/B. He identified the handwriting of the deceased on the complaint Ex. PW12/C. He proved the suicide note Ex. PW12/D.
7.In his crossexamination, PW12 deposed that he had not stated in his statement given to PW21 that the accused persons used to demand Rs. 45 Lacs. He deposed that the deceased never told him at any point of time that the accused no.1 was maintaining physical relation with the accused no.3. He admitted that the accused no.1 to 3 had left the house and the deceased and the accused no. 1 were living separately.
8.PW13 Rekha (mother of the deceased and wife of PW12) deposed that for 2 months after the marriage, the deceased was treated well in her matrimonial home. Thereafter, the accused started harassing her and raised a demand for a shop for the accused no.1. They used to taunt the deceased "tum apne maike se kya le kar aai ho ". Deceased used to tell the said facts to her and other family members whenever she visited them. She requested the accused not to harass her but of no use. The accused taunted the deceased for giving a birth to a female child and started harassing more thereafter. On 17.02.2013, the deceased telephoned her and told her that the accused no.1 had beaten her and had left the house alone. On 18.02.2013, she along with PW12 and her Page no..... 5/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave son (PW15) came to the house of the deceased and contacted the relative of accused no.1 but no one came and stated that they had no concern with the said issue. PW12 went back to Gwalior after two days while she along with PW15 stayed with the deceased for about one month and thereafter went back. Thereafter, the deceased started residing with her sister PW27 in Delhi. 1520 days prior to the death, the deceased started living with her another sister PW17 along with her child. On 06.05.2013, PW17 informed about the death of the deceased. On 07.05.2013, PW21 recorded her statement.
9.In her crossexamination, PW13 deposed that the accused no.1 left his residential house on 17.02.2013 and she remained with the deceased for one month but the accused did not return. He switched off his mobile phone and did not pick their calls. The deceased told her that the accused no.1 had physical relation with the accused no.3 and she had seen her in that situation also. PW17 told her that the deceased used to say that she was disturbed due to the illicit relationship between the accused no. 1 and the accused no.3.
10.PW15 Kapil Keshwani (son of PW12 & PW13/brother of the deceased) deposed that the accused demanded dowry and stated "apne maabaap ko bol ke Gwalior me kapde ki dukan Gopal ke liye khol kar de". The accused used to demand gold and cash amount. The said fact was told to him as and when the deceased met him at their house. They requested the accused not to harass her but of no use. A Sindhi Page no..... 6/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave Panchyat was held in Delhi and they along with the panchyat member told the accused not to raise such demands but of no use. On 17.02.2013, the deceased told them on telephone that the accused no.1 had left the home leaving them alone. On 18.02.2013, he along with his parents came to Delhi. PW12 left one or two days thereafter, while he and PW13 stayed with the deceased for about a month. On 25.03.2013, the accused no.1 to 3 came to Gwalior and met them in the market and threatened to take back the case. He informed the said fact to the deceased and thereafter, she lodged a report at PS Maurya Enclave vide DD no. 75B. Prior to death, the deceased firstly resided with PW27 and then with PW17. In a hearing fixed 34 days prior to date of death, the accused pressurized the deceased to withdraw the case. He identified the dead body of the deceased and the police recorded his statement Ex. PW15/A.
11.In crossexamination, PW15 deposed that the accused never came to the house of the deceased during their stay. Once they left the house, the deceased stayed with PW27 for about a month and thereafter for 20 days with PW17. None of the accused visited the house of PW27 or PW17. The deceased told him that the accused no.1 had illicit relationship with the accused no.3. He admitted that on 07.05.2013, he did not make a statement to the police though he met them. He met the police one month after incident and even during that period, he did not make any statement.
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(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave
12. PW17 Tanya Sachdeva (sister of the deceased) deposed the facts regarding the marriage of the deceased with the accused no.1 as deposed by PW12 and PW13. She deposed that after one month of the marriage, all the accused started demanding cash amount, one shop for the accused no.1 and gold from the deceased. The deceased told those facts to her whenever she met her. She and the deceased requested them not to raise the demand but of no use. The accused taunted her for giving birth to a female child . She also deposed the facts of leaving the house by the accused no.1 on 17.02.2013; visit of her parents and brother to her house and their stay for a month with the deceased; and stay of the deceased after one month at the house of PW27. She deposed that on 20.04.2013, the deceased came to her house and started residing with her. Deceased had filed a criminal case and was disturbed due to torture given by the accused persons. On 06.05.2013, she had gone to take her child from the school bus while the deceased had gone to washroom for washing clothes and bolted the door from inside. Once she did not come out for half an hour, she knocked the door and thereafter, she pushed the door of the washroom due to which latch of the washroom opened and she found the deceased was hanging with the shower with the help of chunni. She informed her parent. She also informed her sister PW27 who made a call at 100 number. Police official came and one suicide note of two pages was found lying on washbasin in the washroom. She identified the suicide noted Ex. PW12/D and mobile phone Ex. P3.
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(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave
13. In her crossexamination, PW17 admitted one suggestion that none of the accused ever visited the house of PW27 when the deceased was present there or to the rented house where deceased was residing along with her mother and brother or her house when deceased was residing with her. She failed to produce the statement allegedly given to PW21 on 07.05.2013 and stated that thereafter, neither PW21 nor police met her nor she had made any statement to any one of them.
14. PW25 Vinod (brother in law of the deceased and husband of PW27) deposed that there was no give and take of special articles in marriage. Parents of the deceased had given 7.5 tolas gold including two karas, chain and rings in the marriage. After two months of marriage, the accused no.3 & 4 started harassing the deceased and raised the demand for dowry. Deceased told these facts to him on telephone and also told to his wife whenever she visited their house. A Panchyat was held in Sindhi Panchyat Mandir, Pitampura and the accused took the responsibility of the deceased and took her to the matrimonial home. But they again started demanding dowry. Thereafter, the accused no.2 and 3 started living separately at Shalimar Bagh. He also deposed the facts from 17.10.2013 when the accused no.1 left the matrimonial home till the deceased committed suicide as deposed by PW12, PW13 and PW17.
15. In crossexamination, PW25 admitted that incident of beating dated 17.02.2013 had not taken in his presence. The deceased told his wife that the accused no.1 had illicit relationship with the accused no.3. He Page no..... 9/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave admitted that the accused no.1 did not come to meet the deceased at his house when she stayed at his house.
16. PW27 Honey Lalwani (sister of the deceased) also deposed about the demand for dowry made by the accused after two months of the marriage. She stated that the deceased told the said facts to her on telephone and when she visited her house. She also deposed the facts on the similar lines as deposed by PW12, 13, 17 and 25. She made a PCR call.
17. In crossexamination, PW27 deposed that she was in a state of shock over the incident and could not tell the name of the accused to the police. The deceased used to tell her that the accused no.1 had illicit relationship with the accused no.3 and for the said reason, she committed suicide as told by PW17.
POLICE/OFFICIAL WITNESSES
18.PW9 Women Ct. Ruby proved the PCR form Ex. PW9/A.
19.PW7 HC Mukesh proved DD no. 21A Ex. PW7/A recording the information of suicide committed by the deceased.
20.PW18 Women Ct. Anita proved copy of DD no. 27A Ex. PW18/A, copy of FIR Ex. PW18/B and endorsement on rukka Ex. PW18/C. Page no..... 10/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave
21.PW16 SI Sandeep Singh deposed that on receipt of DD no. 21/A, he along with Ct. Hemant reached at the spot and met PW17 who opened the bathroom where one lady was found hanging with a chunni tied to a shower. In the meantime, SHO reached at the spot. PW17 informed them about the marriage of the deceased with the accused no.1 and that the deceased had made a complaint to CAW cell regarding dowry demand and harassment. On information, the crime team and PW21 reached there and inspected the spot. Suicide note lying on the washbasin and one mobile phone lying in the attached room stated to be belonging to the deceased were seized vide seizure memo Ex PW16/A, Ex. PW16/B and Ex. PW16/C. On 07.05.2013, statement of parents of deceased was recorded. After postmortem, body of the deceased was handed over to father of the deceased vide Ex. PW16/D. On 18.06.2013, he got prepared the scaled site plan of the spot Ex. PW8/A. He identified the suicide note Ex. PW12/D and two half portions of the chunni Ex. P1 & Ex. P2.
22.PW21 Sh. Pawan Kamara, Deputy Commissioner Food Safety Department Delhi deposed that on receipt of information, he reached at the spot on 06.05.2013 and found two page suicide note on the tap of the washbasin. On 07.05.2013 at 10.30 am, he recorded the statement of PW12 Ex. PW12/A and PW13 Ex. PW13/A. On 07.05.2013, he got conducted postmortem on the body of the deceased vide IO request Ex PW21/A. He relied upon the Ex. PW16/A, Ex. PW16/B & Ex.PW16/C. He also relied upon Ex PW12/A and Ex PW15/A. Page no..... 11/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave
23.PW22 SI Pankaj Kumar, Crime Team deposed that on 06.05.2013, on receipt of information, he reached at the spot. Ct. Vijay took photographs of scene of crime. He proved his report Ex PW22/A.
24.PW5 Ct. Vijay deposed that he took 15 photographs from different angles at the scene of crime and proved the same as Ex. PW5/A1 to Ex. PW5/A15 and negatives Ex. PW5/B (collectively). He also proved the report Ex. PW5/C.
25.PW3 Ct. Sovinder proved copy of relevant entry in register no. 21 Ex. PW3/A and Ex. PW3/C and copy of receipt of FSL Ex. PW3/B and Ex. PW3/D.
26. PW19 HC Angad relied upon the entries Ex. PW3/C, Ex. PW3/D & Ex. PW3/E.
27. PW6 HC Ajay proved the relevant entries in register no. 19 Ex. PW6/A and Ex. PW6/B. He also relied upon Ex. PW4/B.
28. PW4 Ct. Rakesh proved copy of relevant entry in register no.21 Ex. PW4/A and seizure memo of mobile phone and chunni Ex. PW4/B.
29. PW23 SI Parshuram Singh, Assistant Director (Physics) FSL, Rohini proved his report regarding chunni Ex. PW23/A and forwarding letter Ex.PW23/B. He identified two pieces of chunni Ex. P1 and P2. Page no..... 12/ 35
(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave
30. PW1 Lady Ct. Urmila proved arrest memo of the accused no.4 Ex. PW1/A and her personal search memo Ex. PW1/B.
31. PW2 Lady Ct. Mamta proved the arrest memo of accused no.3 Ex. PW2/A and her personal search memo Ex. PW2/B.
32. PW8 Inspector Mahesh Kumar deposed that he prepared the scaled site plan and proved the same as Ex. PW8/A.
33. PW20 ASI Saroj Bala deposed that in response to notice under section 91 CRPC, the deceased gave a reply Ex. PW20/A (running in 6 pages) on 18.04.2013 and she took the same into possession vide memo Ex. PW20/B. After obtaining the permission for arrest of the accused no. 1, she gave 5 days notice to him on 27.04.2013. On 30.04.2013, application for anticipatory bail of the accused no.1 was listed before the concerned Ld ASJ and both the parties were referred to mediation Cell. On 06.05.2013 she got the information about the suicide of the deceased.
34. PW14 SI Pushpa deposed that on 07.06.2013, she was called by SHO PS Maurya Enclave for interrogation and she produced the application/ note written by the deceased PW14/A. That day, SHO produced another note Ex. PW12/D and on being asked, she informed that the handwriting on that was of the deceased. She handed over her report Ex. PW14/B to him. In her crossexamination, she denied the Page no..... 13/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave suggestion that the application Ex. PW14/A was not in the handwriting of the deceased nor was written in the office.
35. PW28 HC Baljit deposed about the arrest of the accused no.4 and relied upon Ex.PW1/A and PW1/B. He also proved the arrest memo of accused no.5 Ex. PW28/A and his personal search memo Ex.PW28/B. He also proved the arrest memo of the accused no.6 Ex. PW28/C and his personal search memo Ex.PW28/D. He also proved the arrest memo of the accused no.1 Ex. PW28/E and his personal search memo Ex.PW28/F. He also proved the arrest memo of the accused no.2 Ex. PW28/G and his personal search memo Ex.PW28/H. He also proved the arrest memo of accused no.3 Ex. PW2/A and her personal search Ex. PW2/B. He also deposed that on 07.06.2013, he again joined the investigation and took two pages of suicide note and five admitted handwriting and deposited the same with FSL, Rohini. On 17.06.2013 he again joined the investigation and Ct. Rakesh handed over the crime team report to IO.
36. PW29 HC Jai Roop Ram deposed that he handed over two sealed parcels to PW28 for deposit with MAMC and proved the copy of relevant entry in register no.21 Ex.PW29/A.
37. PW30 HC Satyavir, proved the copy of FIR no. 347/03 PS Ashok Vihar Ex. PW30/A. Page no..... 14/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave
38.PW31 Inspector Sanjay Kumar deposed that on receipt of FSL report, he started investigation and on 19.10.2013, he submitted pieces of chunni at MAMC for opinion. On receipt of opinion, he collected information regarding previous FIR no. 347/03 PS Ashok Vihar registered against the accused no.1 and others. Accordingly, supplementary charge sheet was filed.
39.In his crossexamination, PW31 admitted that FIR no. 347/03 PS Ashok Vihar had been quashed by the Hon'ble Delhi High Court.
40.PW32 Inspector Praveen Kumar deposed the facts about the arrest of accused no. 4 to 6 and relied upon their arrest memo Ex. PW1/A, Ex.PW28/A and Ex.PW28/C and their personal search memo Ex. PW1/B, Ex.PW28/B and Ex.PW28/D. He also relied upon the arrest memos of the accused no.1 to 3 Ex. PW28/E, Ex.PW28/G and Ex.PW2/A and their personal search memo Ex. PW28/F, Ex.PW28/H and Ex.PW2/B. He deposed that on 10.06.2013, he got prepared the scaled site plan.
41.PW33 Umed Singh deposed that on the complaint of Anusha Chothwani FIR no. 347/03 was registered under section 498A/406/34IPC PS Ashok Vihar. He filed the charge sheet in the said case in April 2004. He proved copy of FIR Ex.PW33/A and copy of charge sheet Ex PW33/B. In his crossexamination, he admitted that the said FIR had been quashed.
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(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave MEDICAL EVIDENCE
42.PW10 Dr. Anju Rani SR, Department of Forensic Medicine Mulana Azad Medical College New Delhi deposed that on 07.05.2013 at 2:10 pm, she conducted postmortem on the body of deceased with alleged history of found hanged at home address on 06.05.2013 at about 3:35 PM. The ligature material was present in situ around the neck. On external examination of the dead body, she found the following injuries.
1. A ligature mark in the form of pressure abrasion, reddish brown, grooved of length 24cm present over front, sides of neck and part of back at and above the level of thyroid cartilage. The mark was oblique and situated 6.5cm below chin and 8.5 cm above suprasternal notch in mid line. On right side of the neck the mark was situated 4.5cm below right mastoid, 2.5cm below right angle of mandible. On left side of neck the mark was situated 4.5cm below left angle mandible and 7cm below left mastoid. The width of mark varies from 2.7cm (maximum) to 5cm(minimum). The total neck circumference was 29 cm.
2. Lacerated wound 1cm x .2 cm x .2 cm present over outer end of right eye brow.
43.PW10 also deposed that on internal examination of neck white glistening band was present underneath the ligature mark. No extravasation of blood was present in the strap muscles of neck. No fracture of cartilages of neck and hyoid bone was present. Both the lungs were congested and petecheal hemorrhages were present in the inter lobal fissure. Heart was also congested and petecheal hemorrhages were Page no..... 16/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave present at the base of heart. All coronaries were patent. Stomach contains about 200ml of yellowish brown fluid and mucosa was unremarkable. All the other organs were congested and unremarkable. Uterus contain no product of conception.
44.PW10 also deposed that cause of death was asphyxia consequent upon ante mortem hanging. Time since death was about one day. She proved the postmortem report EX PW 10/A.
45.PW10 also deposed that she received the parcel no. 1 which contained a multicolored chunni made of synthetic material. She prepared the diagram of the same Ex. PW 10/B. She also received the parcel no. 2 containing another multicolored chunni of same material and pattern. She proved the diagram of the same. After examining the ligature material, she gave her subsequent opinion that the ligature mark which was present on the neck of the deceased and mentioned in PM report No. 424/13 was possible due to hanging with the specimen of chunni submitted. She proved her subsequent opinion Ex. PW 10/D. SCIENTIFIC EVIDENCE
46. PW24 Dr. JIJU PV Senior Scientific Document proved his report Ex. PW24/A and identified the admitted handwriting of the deceased Ex. PW20/A and questioned handwriting Ex. PW24/B1 and Ex. PW24/B2. Page no..... 17/ 35
(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave He deposed that as per report, common authorship of red inked writing /signatures marked Q3 and Q4 and A1 to A9 could not be ruled out.
47.PW26 Dr. Virender Singh, Assistant Director (documents), FSL, Rohini, Delhi deposed that on 25.06.2013, on opening the parcel, he found one Samsung mobile phone model No. GTE1205T bearing IMEI No. 354514/05/036207/0 and marked the same as MP1 and one SIM card of Vodafone bearing No. EH183033032447 and marked the same as SC1. After analyzing the SIM card marked SC1, the data which could be retrieved was enclosed with his report in four sheets marked as P1 to P4. The facility to examine the mobile phone (model No. GTE1205T)marked MP1 was not available in the laboratory, hence, the same was returned unexamined. He proved his report Ex.PW26/A and SIM card data Ex.PW26/B1 to Ex.PW26/B4.
STATEMENT OF ACCUSED
48.After completing the prosecution evidence, statement of all the accused was recorded under Section 313 Code of Criminal Procedure, 1973 in which the incriminating evidence/material was put to them to which they have denied. The accused stated that they are innocent and have been falsely implicated in this case.
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(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave DEFENCE EVIDENCE
49.The accused have not led evidence in their defence.
50. I have heard the Ld. Addl. PP and counsel for the accused and have perused the material available on record including the written submissions.
IDENTITY OF THE ACCUSED PERSONS
51. It is evident from the testimony of PW12, PW13, PW15, PW17, PW 25 and PW27 that the accused no.1 and the deceased married on 24.02.2012 and it was their second marriage. The accused no.2 and 3 were the brotherinlaw and sister in law of the deceased. The accused no.4 to 6 were related to the accused no.3. As such, all the accused related to the deceased and were known to her. Therefore, identity of all the accused stands established.
PRESENCE OF THE ACCUSED AT THE SCENE OF CRIME
52.It is evident from the record that the deceased committed suicide on 06.05.2013 at the residence of her elder sister PW17. As such, none of the accused was present at the scene of crime at the relevant time. MEDICAL EVIDENCE
53. According to the postmortem report of the deceased Ex.PW10/A, Page no..... 19/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave cause of death was asphyxia consequent upon ante mortem hanging. As per subsequent opinion Ex. PW 10/D, the ligature mark which was present on the neck of the deceased and mentioned in PM report No. 424/13 was possible due to hanging with the specimen of chunni submitted.
54.According to the prosecution, the injury which resulted in death of the deceased was attributable to the accused persons. Counsel for the accused though pleaded that the accused were not responsible for the said injury and death of the deceased but has not disputed the nature of the injury and cause of death of the deceased. He has also not disputed the subsequent opinion given by PW10. As such, the connection between the ligature material Ex. P1 & Ex. P2, nature of injury and cause of death of the deceased stands proved.
55.Ld. Addl. PP pleaded that the accused raised the demand for dowry upon the deceased from time to time and due to nonfulfillment of the same, they used to abuse and beat her from time to time. The accused also taunted the deceased for giving birth to a female child. The accused did not allow the deceased to talk to her parents, sisters and brother. Accused no.1 had an illicit relationship with the accused no.3 and the deceased used to remain upset because of that relationship. As such, the accused treated the deceased with cruelty soon before her death and also abated her to commit suicide. He also pleaded that death took place within 7 years of date of marriage and the prosecution has proved the Page no..... 20/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave said acts of cruelty of the accused, hence, presumption may be drawn against the accused under section 113 (A) & (B) of Indian Evidence Act and they may be held guilty.
56.On the contrary, counsel for the accused pleaded that the accused had never raised any demand for dowry on the deceased or her parents nor ever treated her with cruelty. He denied that there existed any illicit relationship between the accused no. 1 and 3. Further, the prosecution has failed to prove the essential ingredients of section 306 IPC. Therefore, it is prayed that the accused may be acquitted.
57. Now it is to be ascertained as to whether the prosecution has proved the essential ingredients of section 304 B IPC and section 498A IPC against the accused beyond reasonable doubt.
58. To succeed in the case, the prosecution has to prove the following essential ingredients of section 304 B IPC:
(i) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(ii) such cruelty or harassment must be for or in connection with demand for dowry; and
(iii) such cruelty or harassment is shown to have been meted out to the woman soon before her death. Page no..... 21/ 35
(Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave
59. Under section 304 B IPC, "cruelty" is not defined. "Cruelty" is defined under explanation attached to section 498A IPC.
60. It is evident from the record that the death of the deceased had taken place within 7 years of the marriage and was unnatural in nature.
61. The prosecution examined PW13, PW14, PW15, PW17, PW25 and PW27 to prove the acts of cruelty of the accused.
62.Regarding the demand for dowry, PW12 deposed that the accused demanded Rs. 5 lacs in cash. However, he admitted that he had not stated the said fact in his statement Ex. PW12/A made to PW21. He also deposed that on the birth of female child, the accused persons demanded more money. But the said allegation is vague in nature. To this effect, PW13 deposed that the accused raised a demand for a shop for the accused no.1. PW15 deposed that the accused used to demand gold and cash amount. PW17 deposed that the accused demanded cash amount, one shop for the accused no.1 and gold from the deceased. PW24 & PW25 deposed that in marriage, parent of the deceased had given 7.5 tolas gold including two karas, chain and rings. After two months of marriage, the accused no.3 and 4 and brother in law (devar) of the deceased started harassing the deceased on nonfulfillment of the said demands. Keeping in view the said testimonies, it can be held that
(i) the said witnesses made the improvements in their statements as to demand for dowry made by the accused; (ii) demands for dowry are Page no..... 22/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave vague in nature because date, month and year of the said demands are not mentioned; and (iii) there exists material contradictions as to the identity of the accused persons who actually raised the said demands upon the deceased. Further, except the complaint Ex. PW12/C filed by the deceased to the SHO, PS Maurya Enclave, none of the said witnesses has deposed that they ever complained to any authority against the said dowry demands made by the accused. In the complaint Ex. PW12/C, though the deceased mentioned that she was mentally and physically tortured on the demand for dowry but in the entire complaint, the nature of demand as mentioned by the said witnesses in their testimony is not mentioned. In the said complaint as well as in the said testimony of the witnesses, it is mentioned that a Sindhi Panchyat was held against the demands made by the accused persons but no evidence has been led by the prosecution to prove the said fact. In view of the following discussions, it can be held that the witnesses examined by the prosecution to prove that the accused raised the demand for dowry upon the deceased or her parents or her relatives are not reliable in nature and do not inspire confidence of this court. Hence, the prosecution has failed to prove that the accused raised the demand for dowry upon the deceased or her parents or her relatives.
63.In the complaint Ex. PW12/C, the deceased has not stated a single word that the accused ever taunted her for giving birth to a female child. As such, the deceased, the best person, to state the said fact remained completely silent to that effect even her suicide note Ex. PW12/D. Page no..... 23/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave Testimony of PW12, PW13, PW15, PW17, PW25 and PW27 to this effect is hearsay in nature. Therefore, the testimony of the prosecution witnesses to that effect is not reliable in nature and does not inspire confidence of this court.
64.PW12, PW13, PW15, PW17, PW25 and PW27 in their testimony specifically deposed that whenever the deceased called or visited their place, she separately informed each of them that she was treated with cruelty by the accused persons. It implies that the accused had not restricted her either from making a telephonic call or visiting her parents and relatives at any point of time. Therefore, the prosecution has failed to prove that the deceased was not allowed to make a call to her parents/relatives or to visit their places.
65. Ld. Addl. PP relied upon the suicide note left by the deceased Ex. PW24/B1 and PW24/B2 (Ex.PW12/D) and pleaded that the accused had pressurized the deceased to withdraw the cases filed against them; and there existed the illicit relationship between the accused no.1 & 3. To substantiate the same, he also relied upon copy of the FIR no.347/03 u/s 498A/406/34 IPC PS Ashok Vihar Ex. PW33/A and copy of the charge sheet filed in that case Ex. PW33/B.
66.It is evident from the record that initially, the accused no.1 to 3 and the deceased along with the female child used to reside at one place. On 10.02.2012, the accused no. 2 and 3 left that house and started living Page no..... 24/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave separately from the deceased and the accused no.1. On 17.02.2012, the accused no.1 also left the said house leaving behind the deceased and his daughter. It has also come in the evidence that for about a month from 18.02.2012, PW13 and PW15 resided with the deceased at her place. Thereafter, the deceased along with the child resided at the house of PW27 for about a month. On 20.04.2012, the deceased shifted to the residence of PW17 and resided there till 06.05.2013 when she committed the suicide at that place. From the testimony of PW12, PW15, PW17, PW25 and PW27, it is evident that from 18.02.2012 till 06.05.2012, neither the accused visited the place where the deceased was residing nor telephoned her nor picked up any call from her or her side. It implies that there was no contact between the deceased and the accused persons from 18.02.2012 till 06.05.2012.
67.Perusal of the record reveals that the deceased filed a complaint with SHO, PS Maurya Enclave Ex. PW12/C on 21.02.2013 which was referred to CAW Cell. On 12.04.2013, on the basis of the said complaint FIR Ex. PW18/B was registered against the accused. On 13.04.2013, PW20 gave a notice to the deceased for production of documents relating to marriage, dowry demand and harassment. On 18.04.2013, the deceased gave her reply Ex. PW20/A. On 22.04.2013, PW20 obtained the permission from the concerned ACP to arrest the accused no.1. On 30.04.2013, the parties were referred to mediation cell. On 06.05.2013, the deceased committed suicide leaving behind the suicide note Ex. PW24/B1 and Ex.PW24/B2 (Ex.PW12/D).
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68. PW24 proved that admitted handwriting of the deceased on reply Ex. PW20/A and questioned handwriting on document Ex. PW24/B1 and Ex. PW24/B2 were of the same person. The accused have failed to rebut the same. Hence, it stands proved that all the said three documents were in the handwriting of the deceased.
69. Regarding the threat given by the accused persons to withdraw the cases pending against them, PW25 deposed that on 25.03.2013, the accused no.1 to 3 came to Gwalior and met him in the market and threatened him to withdraw the case filed against them. He informed the said fact to the deceased, who in turn lodged a report with PS Maurya Enclave vide DD No.75B. The prosecution has failed to prove the said DD entry. Further, perusal of the record reveals that on 25.03.2013, the proceeding before CAW Cell was pending against the accused. There is nothing on record to suggest that either the deceased or PW25 or their family members at any point of time complained to that effect to any of the authority. Even in the FIR Ex. PW18/B, no such fact was mentioned. As per record, the deceased submitted the reply Ex. PW20/A with the police. Even in that reply, the deceased did not mention any such threat given to PW25. In suicide note Ex. PW12/D, nothing was mentioned about the threat given to PW25 on 25.03.2013. Hence, it can be held that the deceased had no grievance against the accused no. 1 to 3 against their alleged act dated 25.03.2013
70. Regarding the threat to withdraw cases, the deceased in the suicide Page no..... 26/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave note Ex.PW24/B1 stated that the accused no.2 to 6 were threatening her on daily basis to take back the cases, otherwise, they would destroy her family. As such, in the said suicide note, there is no mention of any threat by the accused no.1. In the suicide note Ex. PW24/B2, it is stated that the accused no.1 to 4 came to her at night and stated that if she would not take back the case, they would kill her and her daughter. As such, in that part of the suicide note, she introduced the accused no.1 and left accused no.5 & 6. As per postmortem report Ex.PW10/A, the deceased committed suicide on 06.05.2013 at about 3.30 pm. It implies that the accused no.1 to 4 came to her at the night of 05.05.2013 and threatened her to withdraw the case. It is evident from the record that that day, she was residing at the residence of her sister PW17. PW17 in her testimony remained completely silent about the said visit of the accused at her house. Rather, it is evident from the record that from 17.02.2013 till 06.05.2013, none of the accused visited the place, where the deceased was residing. As such, the said allegation of threat made in the suicide note is contradictory to the prosecution case. Secondly, it is highly improbable that the said accused would have visited the house of PW17 to threat her once criminal case was already pending against them. As such, the testimony of PW25 and statement made in the suicide note to that effect do not inspire confidence of this Court. Therefore, it can be held that the prosecution has failed to prove that the accused had threatened the deceased or PW25 to withdraw the cases pending against them.
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71. Now the question arises as to whether the accused no.1 had the illicit relationship with the accused no.3 and the same amounted to cruelty to the deceased.
72. To prove the allegation of illicit relationship between the accused no.1 and the accused no.3, the prosecution heavily relied upon the suicide note Ex. PW12/D, copy of the FIR Ex. PW33/A and charge sheet Ex. PW33/B.
73. Perusal FIR Ex. PW33/A reveals that it was lodged on the complaint of first wife of the accused no.1 namely Anutha Chothvani against the accused no.1 and other family members wherein she leveled the allegation of illicit relationship between the accused no.1 and the accused no.3 herein. On that basis, the charge sheet Ex. PW33/B was filed. PW33 admitted that the said FIR had been quashed. Therefore, the allegations made in that FIR and the charge sheet are not the substantive proof of the fact that there existed the illicit relationship between the accused no.1 and the accused no.3. Therefore, the said FIR and charge sheet are of no consequence to prove the said relationship.
74. Further, the deceased in her complaint Ex. PW12/C remained completely silent about illicit relationship between the accused no.1 and the accused no.3. The deceased in her reply Ex. PW20/A, though mentioned that the accused no.1 used to spend the time with the accused no.3 and the accused no.3 used to torture her, but she had not Page no..... 28/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave stated anything that there existed any illicit relationship between the accused no.1 and the accused no.3. It is for the first time in the suicide note Ex. PW12/D, the deceased stated that the accused no.3 had the physical relationship with the accused no.1. She also stated that after the marriage, she came to know about that relationship and that the accused no.3 had aborted twice, once, she became pregnant through the accused no.1. However, as per record, despite that the deceased remained silent and continued with matrimonial relationship. Hence, the allegation of illicit relationship between the accused no. 1 and 3 does not inspire confidence of this court. Further, if it is presumed to be correct for the sake of arguments only, then it implies that the deceased had condoned the said act of the accused no. 1 and 3. Therefore, the said act of the accused no. 1 and 3 does not amount to cruelty to the deceased.
75. To this effect, PW12 specifically deposed that the deceased never told him about the said illicit relationship at any point of time. In cross examination, PW13 deposed that the deceased told her about the said relationship and that she had seen them in that situation. PW15, PW17, PW25 and PW27 also deposed to that effect in their crossexamination. The said statement is not only hearsay but also vague in nature. Therefore, the said statement is not reliable in nature.
76. In view of the foregoing discussions, it can be held that the prosecution has miserably failed to prove that the accused ever treated the deceased with cruelty within the meaning of section 498 A IPC. Page no..... 29/ 35
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77. In the judgment titled as "Kanwar Pal vs. Shakuntala and ors." reported in 2015 IV AD (Delhi) 450, it was held:
"to establish the offence under section 304B IPC of dowry death, the presumption under section 113B of Evidence act cannot be raised against an accused until independently the offence under section 498A IPC is proved by leading evidence to the specific allegation with regard to time and date of such demand and cruelty and furthermore establishing the proximity live link between the effect of cruelty based on dowry demand (offence under section 498A IPC) and the death of the victim."
78. In view of the abovementioned judgment and foregoing discussions, it can be held that since the prosecution has failed to prove that the accused treated the deceased with cruelty within the meaning of section 498A IPC, the presumption u/s 113B of Indian Evidence Act of dowry death cannot be raised against the accused. Therefore, it can be held that the prosecution has failed to prove that the accused committed an offence u/s 304B IPC.
79.In view of the foregoing discussions, it can also be held that the prosecution has failed to prove that the accused committed the offence u/s 406/506/34 IPC.
80. Now even if it is presumed for the sake of arguments only that there existed illicit relationship between the accused no. 1 and 3, then the Page no..... 30/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave question arises whether the accused abated the deceased to commit suicide.
81. In the judgment titled as "Amalendu Pal @ Jhantu vs. State of West Bengal", reported in (2010) 1 SCC 707, the Hon'ble Supreme Court held:
" 10. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh v. State of Punjab (2004) 13 SCC 129 as follows in paras 12 and 13:
"12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
13. In State of W.B. v. Orilal Jaiswal this Court has observed that the courts 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 Page no..... 31/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
11. Further in the case of Kishori Lal v. State of M.P. (2007) 10 SCC 797, this Court gave a clear exposition of Section 107 IPC when it observed as follows in para 6:
"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate"
literally means to provoke, incite, urge on or bring about by Page no..... 32/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
[See also Kishangiri Mangalgiri Swami v. State of Gujarat (2009) 4 SCC 52]
12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate Page no..... 33/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
82. In the present case, the deceased in her suicide note Ex. PW12/D stated that after the marriage, she came to know about that relationship and that the accused no.3 had aborted twice, once, she became pregnant through the accused no.1. According to PW13, the deceased had informed her that she had actually seen the accused no. 1 and 3 indulged into the illicit relationship. However, despite that she remained silent and continued with matrimonial relationship. If the deceased had been so perturbed by the act of the accused no. 1 and 3 that she felt impelled to commit suicide then she could have done so on the very day when she came to know the said facts or had seen them indulged in such an act as naturally at that point of time her annoyance or dismay Page no..... 34/ 35 (Judgment) State Vs Gopal Chothvani FIR no. 128/13 PS: Maurya Enclave with life would have been at its pinnacle. On the contrary, the deceased stayed with the accused no. 1 to 3 till 10.02.2013 and then with the accused no.1 till 17.02.2013 in the same house. In view of the foregoing discussions, it can be inferred that it was not the act of the accused no. 1 and 3 which instigated or provoked the deceased to commit suicide. Therefore, it can be held that the deceased committed suicide, in which the accused had no role to play. Hence, the prosecution has failed to prove that the accused have committed an offence u/s 306 IPC.
83.Accordingly, all the accused are acquitted for the offences under section 406/498A/506/304B/34 IPC and in alternative under section 306/34 IPC. Bail bond furnished by the accused in the sum of Rs. 15,000/ (each) with one surety (each) of the like amount is accepted and shall remain in force for a further period of 06 months in terms of section 437(A) Cr. PC. Accused Gopal Chothvani and Sakshi Chothvani are in judicial custody. They be released immediately if not required in any other case. File be consigned to Record Room.
Announced in the open court
th
on this 29 day of March, 2016
.
(Pankaj Gupta)
ASJII, NORTHWEST
ROHINI: DELHI
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