Delhi District Court
State vs . Sunny Goel. & Ors.- Sc No. 30 Of 2011 1 on 26 November, 2012
ID No. 02406R232122011
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE04
SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 30/2011
ID No. 02406R232122011
FIR No. 147/2011
U/s. 304B, 498A IPC
PS : Badarpur
State
Versus
Sunny Goel,
S/o Sh. Rajesh Goel,
R/o B2, Gali No. 16A,
Molarbandh Extn., Badarpur,
New Delhi. ..........Accused No. 1
Rajesh Goel,
S/o Late Sh. Hem Chand Goel,
R/o B2, Gali No. 16A,
Molarbandh Extn., Badarpur,
New Delhi. ..........Accused No. 2
Dayawati,
W/o Sh. Rajesh Goel,
R/o B2, Gali No. 16A,
Molarbandh Extn., Badarpur,
New Delhi. ..........Accused No. 3
Instituted on : 13th September, 2011
Argued on : 19th November,2012
Decided on : 26th November,2012
JUDGMENT
Brief facts
1. Accused persons were sent up to face trial for commission of offence punishable u/s 498A & 304B r/w 34 IPC. In brief, facts of the case as unfolded during trial are that at about 07:25 pm, on 31.05.2011, daily diary as DD No. 27 A, vide daily diary (DD No. 2A) PS Badarpur, informant Sunny Goel gave an information to the effect that "his wife had committed suicide." On receipt of this State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 1 ID No. 02406R232122011 information, SubInspector Pappu Lal alongwith Constable Pawan reached at second floor of the house no. B2, Gali No. 16, Mollarbandh Extn., Badarpur, where one lady was found lying on the bed in the room and one rope was hanging with the ceiling fan. Sunny Goel, husband of the deceased alongwith other relatives met them at the spot. On inquiry, name of deceased was revealed as Preeti wife of Sunny Goel, age of 24 years. Accused Sunny Goel told him that his wife was hanging with the ceiling fan and he detached her from the rope and laid down her on the bed. SubInspector Pappu Lal furnished information to the SHO. IO/Inspector R. S. Naruka and SDM reached at the spot. Family members of Preeti (deceased) also reached at the spot. SDM inspected the spot. Dead body was sent to AIIMS Mortuary alongwith Constable Pawan. IO sealed the room and the kitchen on the direction of SDM. SDM recorded statement of Smt. Bimla Devimother of deceased and Sh. Mahavir Prasadfather of deceased.
2. In her statement, complainant alleged that Preeti, her deceased daughter was married to the accused Sunny Goel on 07.07.2007. After six months, their inlaws (accused persons) started harassing and beating deceased in order fulfill their demand of illegal dowry. It is alleged that in January 2008 , neighbours of inlaw of Preeti telelphonically informed them about the beating given to Preeti , regarding which a complaint was lodged to the police and thereafter, in laws of Preeti started harassing her for bringing money. It is alleged that in September, 2008, Rupees one lakhs was given to accused Sunny Goel , when Sunny bought a vehicle. Thereafter, demand of money increased after the birth of her naati (grand son). Preeti used to tell her to give money otherwise, she would be killed. It is State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 2 ID No. 02406R232122011 stated that complainant used to give Rs. 2025,000/ whenever Preeti used to come and that Sunny used to make telephonic call and used to say to take her away, otherwise, she would be killed. It is stated that lastly, she had a conversation with Preeti in the first week of May 2011, when she asked her that when she would be called by her mothercomplainant. It is alleged that when Preeti had gone to her in laws house on 06.01.2011, then she gave Rs. 50,000/ to her, although, they were demanding Rs. One lac. Complainant suspected that the accused persons had killed her by strangulating and hanging her. Statement of Mahavir Prasadfather of deceased and of accused persons was also recorded. On the basis of statement of Smt. Bimla Devi mother of deceased, a case u/s 498A and Section 304B IPC was found to have been committed, therefore, Inspector R. S. Naruka sent constable to the police station for registration of FIR. SubInspector Pappu Singh alongwith Inspector R. S. Naruka took crime team to the spot. They opened seal of the room and kitchen in the presence of Naresh Goel, relative of deceased. Photographs of the place of occurrence were taken. IO seized rope which was hanging with the ceiling fan and some jewellery articles from the Almirah in the room. IO prepared site plan and got the place of occurrence photographed from a private photographer and made inquiry from the tenants. IO arrested accused Sunny Goel.
3. Postmortem upon the body of deceased was conducted. Autopsy surgeon sealed the viscera and handed over the same to the IO in a sealed box alongwith sample seal. IO seized the same and deposited it in the Malkhana. On 14.06.2011, SI Pappu Singh took accused Sunny Goel to the spot. IO opened the door of the room and interrogated the accused. IO seized one dairy from the State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 3 ID No. 02406R232122011 dressing table, bearing the year 2001, one notebook bearing blue colour cover with white design. IO also seized one register from the room and prepared. On 01.06.2011, IO obtained photographs. IO obtained expert opinion from FSL, Rohini, about handwriting as well as Viscera. During investigation, IO seized the photographs taken by the Crime Team, handed over to him by Constable Randhir Singh. IO seized the marriage card from Smt. Bimla Devi and seized the receipt of mobile phone make MICROMAX deposited by Sunny Goel, for the purpose of repairing the same, from M/s. Prince Communications at 1666/1, Main Road, Govindpuri Extension, Kalkaji alongwith the photocopy of a cheque bearing no. 965463 bearing the name of Sunny Goyal brought by Manoj Kumar s/o Hem Chand Goyal. IO collected 'PCR Call form' from PHQ regarding call detail of PCR call, about the incident reported on 31.05.2011 at 19:15:07 hrs. He collected call detail record from AIRTEL office pertaining to phone number 9971943977 and 987193834, to show that conversation through these telephone numbers with phone number 9910006597. IO collected subsequent opinion given by Doctor Hari Prasad, Department of Forensic Medicine and Toxicology, AIIMS as regards the fact whether the ligature marks found on the neck of the deceased could be caused by the recovered ligature material. IO prepared arrest memo of Smt. Dayawati Goyal and collected FSL report regarding comparison of the handwriting of the deceased on the questioned document and admitted document. On completion of investigation, IO prepared charge sheet and filed the same before the court.
4. Case was committed to the court of Sessions by Learned Metropolitan Magistrate on 06.09.2011. Charges u/s 498A and section 304B IPC was framed State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 4 ID No. 02406R232122011 against accused Sunny Goel by this Court on 19.09.2011, to which he pleaded not guilty and claimed trial. During pendency of the case, a supplementary charge sheet was filed against accused Rajesh Goel and Dayawati Goel on 17.04.2012 . Charges u/s 498A and 304B r/w 34 IPC were framed against accused Rajesh Goel and Dayawati Goel by this Court on 30.04.2012, to which these accused persons pleaded not guilty and claimed trial.
5. Points which emerge for determination in this case are :
(i) Whether during the period between 07.07.2007 to 31.05.2011 in her matrimonial home at B2, Gali No.16A, Molarbandh Extn., PS Badarpur, Smt. Preeti (deceased) was subjected to cruelty by accused (her husband and parent in law)?
(ii) Whether on 31.05.2011 or before, accused persons in furtherance of their common intention committed cruelty upon Smt. Preeti (deceased) soon before her death?
Prosecution Evidence
6. To establish accusations against the accused, prosecution examined twenty eight witnesses in all. Gist of the testimony of the prosecution witnesses is as under:
6.1 Constable Anil Kumar (PW3), received a call regarding 'suicide by hanging of wife of caller' at B2, Molar Band Extension, Main market Geol Cloth Emporium near Transformer on 31.05.2011, at about 19:12:29 hours. PW3 recorded the said information and filled up the PCR form (Ex.PW3/A).
6.2 Head Constable Dharam Prakash (PW11), deposed that on 31.05.2011, on receipt of information regarding suicide committed by a lady, he reached at House No. B2, Gali No. 16A, MB Extention, Badarpur, where, SI Pappu State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 5 ID No. 02406R232122011 Lal met him alongwith the staff. He placed on record seizure memo (Ex.PW11/A) of one rope of light yellow colour (length of 26.5 feet and girth 16 mm) from the room at 2nd Floor, after opening the same from the ceiling fan and seizure memo (Ex.PW11/B) of Almirah kept in front of bed room, one golden colour chain, one lady ring, three bichua (chutki) brass like metal, one pair of ear tops of golden colour.
6.3 SubInspector Pappu Lal (PW15) placed on record arrest memo (Ex.PW15/A) and personal search memo (Ex.PW15/B) of accused Sunny Goel, seizure memo (Ex.PW15/C) of viscera, seizure memo (Ex.PW15/D) of one register and seizure memo (Ex.PW15/D) pertaining to photographs.
6.4 SubInspector Vijay Pal (PW14). On 01.06.2011, he, as incharge crime team reached at the place of occurrence alongwith photographer. PW14 inspected the spot. Photographs and the inspection report were handed over by him to the IO later on. He prepared inspection report (Ex.PW14/A).
6.5 Deepak (PW22) photographer, at M/s. Kalka Studio at Dharambir Market, Badarpur Border. On 31.05.2011, he took eleven photographs of the place of occurrence including that of 'ceiling fan' as well as of 'dead body' of a female. On the next day , he took nine photographs on the instructions of SDM at AIIMS Hospital. Photographs (Ex. PW22/A1 to A20). He placed on record CD (Ex.PW22/B).
6.6 Constable Pawan (PW9), on 31.05.2011, joined the investigation with IO/Inspector R. S. Naruka. He took the dead body of Preeti from the place of occurrence to AIIMS Mortuary for preserving. MLC of the deceased was prepared in State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 6 ID No. 02406R232122011 the hospital and thereafter, dead body was preserved in the mortuary of AIIMS.
6.7 Doctor Pushpender Sangwan (PW23) conducted examination of patient namely Preeti w/o Sunny , brought by IO in unconscious state with alleged history of "found unconscious at her home three four hours back" . On objective examination, patient was unconscious, her BP and pulse were not recordable and she was declared "brought dead". PW23 prepared MLC (Ex. PW23/A).
6.8 Dr. Hari Prasad (PW20) conducted postmortem upon the dead body of deceased Preeti Goel, 24 years female. Dead body was brought with the history of "found dead" over the bed at her residence with alleged history of hanging on 31.05.2011 at about 07:00 pm. She was taken to AIIMS Hospital where she was declared 'brought dead' at about 10:45 pm on 31.05.2011. According to the autopsy surgeon, on external examination of the body, rigor mortis was present all over the body. Postmortem lividity (staining) was present over back and dependent parts of body except pressure points. No sign of decomposition was present. Nails were blueish discolouration. Stain of saliva was present over the left side of mouth.
Eyes and mouth were closed. Antemortem external injuries noted by PW20 were "a brown colour hard and parchmentized 'ligature mark' present over the upper part of the neck running upward and backward, which merged with hairline posteriorly. It was situated anteriorly, 11 cm above the suprasternal notch, 4 cm below the chin, 2 cm and 6 cm from the tip of right and left mastoid process respectively. The width of the ligature mark was 2 cm and the circumference of the neck was 37 cm. On dissection of neck tissue corresponding to ligature mark was pale, dry and glistening. No subcutaneous hemorrhage was present. Muscles and State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 7 ID No. 02406R232122011 blood vessels of the neck were intact. Thyrohyoid complex was intact. Tracheal mucosa was congested and no other injury was present over the body." He opined that time since death was about '18 hours'. The cause of death in his opinion was "asphyxia due to antemortem hanging". Viscera was preserved and was sent for toxicological analysis to rule out any intoxication. PW20 prepared detailed postmortem report (Ex.PW20/A). He placed on record viscera report (Ex.PW20/B). As per viscera, no common poison was detected in the viscera. 6.9 Constable Rakesh (PW17), on 01.06.2011, he alongwith Inspector R. S. Narukka and SubInspector Pappu Lal reached at AIIMS hospital. PW17 deposed that the postmortem on the dead body of deceased Preeti was got conducted. After postmortem, Doctor handed over a sealed pullanda sealed with the seal of Hospital and one sample seal to the IO, who seized it vide seizure memo (Ex.PW15/C). PW17 deposed that he took sealed pullanda alongwith the sample seal and deposited the same in the Malkhana, Police Station Badarpur. 6.10 Sh. Nitin Panigrahi (PW18), Executive Magistrate, SubDivision Hauz Khas, received a call at about 08:00pm from SHO PS Badarpur about the death of Smt. Preeti Goel, (daughter of Sh. Mahaveer Prasad) and wife of Sunny Geol at H.No.B2, Gali No.16/A, Molarband Extension, Badarpur, New Delhi. He reached at the place of incident at around 09.30 pm and found Smt. Preeti Goel was lying down 'dead' on a bed in a room at second floor and a rope was hanging with the ceiling fan. Relatives of Smt. Preeti Goel including her father Sh. Mahaveer Prasad were present at the site of incident. Body of deceased Smt. Preeti Goel was inspected. She was found wearing "makeup and ornaments". He directed SHO PS State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 8 ID No. 02406R232122011 Badarpur, Sh. Sanjay Bhardwaj to call Crime Team. He sealed the said room and adjoining kitchen in the presence of the police personnel and relatives of the deceased. He visited police station Badarpur and recorded statements. He placed on record statement of Bimla Devi (Ex.PW2/A); statement of Sunny Goel (Ex.PW18/A); statement of Rajesh Goel (Ex.PW18/B); statement of Dayawati Goel (Ex.PW18/C) and statement of Mahaveer Prasad (Ex.PW12/A). PW18 deposed that dead body of deceased was sent to mortuary AIIMS hospital on 31.05.2011. He filled form 25.35 (1) B (Ex.PW18/A1). His request for conducting the postmortem is (Ex.PW18/A2).
6.11 Constable Jaiveer Singh (PW5), Photographer with the Mobile Crime Team, South District on 01.06.2001. He took eight photographs (Ex.PW5/A1 to Ex.PW5/A8).
6.12 Constable Rajender Kumar (PW16). On 08.07.2011, on the instructions of IO/Inspector Vijay Kumar, had gone to Police Station Badarpur alongwith the forwarding letter of the IO. He collected one sealed pullanda containing viscera sealed with the seal of Department of Forensic Medicine AIIMS and sample seal from Malkhana of Police Station Badarpur. PW16 deposited the pullanda and sample seal with the FSL Rohini vide relevant RC NO.47/21/11. 6.13 Head Constable Baldhari (PW1), Duty Officer recorded FIR (Ex.PW1/A) and made endorsement (Ex.PW1/B) on the rukka. 6.14 Inspector R. S. Naruka (PW26) investigating officer. He placed on record endorsement (Ex. PW26/A) made on the statement of Smt. Bimla Devi (Ex. PW2/A). PW26 prepared unsclaed site map (Ex. PW26/B). He arrested accused State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 9 ID No. 02406R232122011 Sunny Goel vide arrest memo (Ex. PW15/A) and his personal search was conducted vide memo (Ex. PW 26/C). PW26 placed on record pointing out memo of place of occurrence (Ex. PW26/D). These memos were witnessed by SI Pappu Lal. PW26 filed an application (Ex. PW26/E) for conducting postmortem on the dead body . SDM recorded statement of relatives, who identified dead body vide statements (Ex. PW26/F and Ex. PW26/G). He deposed that after conducting postmortem, dead body was handed over to its legal heirs vide receipt (Ex. PW26/H) . 6.15 Inspector Vijay Kumar (PW27) is the IInd IO. He conducted further investigation. He examined several witnesses and during investigation, he seized photographs which were handed over to him by Ct. Randhir Singh . He collected the PCR call form from PHQ regarding call detail of PCR call, about the incident reported on 31.05.2011 at 19:15:07 hrs. He collected call detail record (Ex. PW27/A running into nine pages from AIRTEL office regarding phone number 99711943977 and 9871943834 belonging to accused Sunny Goel , to show that a conversation took place through these telephone numbers with phone number 9910006597 belonging to Mahavir Prasad (father of deceased) on 30.05.2011. He collected copies roznamcha PartA dated 28.07.2008 at S. No. 19A and S.No. 35A, maintained at PS Badarpur were (Ex. PW27/B, which were DD entries regarding complaint made by deceased Preeti Goel against her inlaws and filing of the same after matter was pacified respectively . PW27 collected subsequent opinion (Ex. PW27/C) given by Dr. Hari Prasad, Department of Forensic Medicine and Toxicology, AIIMS regarding the question "whether the ligature marks found on the neck of the deceased could be caused by the recovered ligature material?" PW27 State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 10 ID No. 02406R232122011 placed on record arrest memo (Ex. PW27/D) of Smt. Dayawati Goel. FSL report regarding comparison of the hand writing of the deceased on the questioned document and admitted document (Ex. P2 and P3). He placed on record report (Ex. PW27/E) prepared by Dr. Virender Singh, Senior Scientific Officer, Documents, FSL Rohini. On completion of investigation, he prepared supplementary charge sheet pertaining to Smt. Dayawati (motherinlaw) and Rajesh Goel (fatherinlaw) of deceased Preeti Goel and filed the same before the Court. 6.16 Constable Randhir Singh (PW7), brought photographs from the office of Crime Team South District pertaining to the spot of this case on 04.08.2011 and delivered to IO/Inspector Vijay Kumar, who seized the same vide seizure memo (Ex.PW 7/A).
6.17 Azharuddin Ansari (PW8), employee at the shop of Rajesh Goel, father of Sunny Goel. PW8 deposed that on 31.05.2011, accused Sunny had opened the shop and PW8 had come on the shop at about 9/9.15 am. He deposed that at about 10/10.30 am, Sunny had gone to get his mobile phone repaired and after some time Sunny had returned to shop. At the noon time, Sunny told him that he was going to the office of Sahara in order to get the money. PW8 deposed that Sunny had returned to the Shop after sometime. Then, at about 5/5.30 pm, Sunny had gone along with his friend somewhere. PW8 deposed that at about 6.30/6.45 pm, Sunny had come to the shop and told him that his son Priyanshu was missing. Accused Sunny sent him to his residence at the first floor where his son was not found. He alongwith Sunny went to the second floor where Bhabhi i.e. wife of Sunny was lying on the bed. PW8 saw 'ligature marks' on the neck of Bhabhi. He State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 11 ID No. 02406R232122011 saw a rope hanging with the fan. PW8 deposed that Sunny asked him to see and search for some paper, but no paper was found in the room. Thereafter, Sunny made a call to the police.
6.18 Sh. Manoj (PW4), uncle of accused Sunny Goel. On 01.06.2011, he handed over copies of four complaints made against Smt. Preeti Goel after her marriage before the present incident, seized by the police vide seizure memo (Ex.PW4/A). On 31.05.2011, Sunny Goel had given his mobile phone to M/s. Prince Communication, 1666/1, Main Road Govind Puri, Extn. Kalakaji. PW4 handed over the receipt of the same to the police on 11.07.2011 alongwith the photocopy of a cheque of Rs. 9559/ issued by Sahara Finance Corporation Limited in the name of Sunny Goel. IO seized receipt and photocopy of the cheque vide seizure memo (Ex.PW4/B). He identified the receipt and copy of cheque as Ex.PA and Ex.PB respectively.
6.19 Head Constable Mange Ram (PW10), brought the CDRs (Call detail Records) and the documents of ownership of mobile phone number 9910006597, 9971943977, 9871943834 and 9910226979 from office of Special Staff, South East District, Old Police Station Ambedkar Nagar and handed over the same to the IO/Inspector Vijay Kumar. PW10 deposed that on 02.07.2011, he joined investigation of this case, when Smt. Bimla Devi produced one diary having writing of deceased daughter. He is witness to seizure memo (Ex.PW2/B). 6.20 Sh. Pawan Kumar (PW6). He was running Mircromax Mobile Authorized Service Centre at 1666, Amar Tower, main road, Govindpuri Extension, Kalkaji. PW6 stated that Job sheet (Ex. PA) was signed by their CCO (receptionist) State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 12 ID No. 02406R232122011 namely Prabha. As per job sheet (Ex. PA), one mobile set numberx 600/SPAMOB2288 (IMEI No.910528501271471 and 910528501271489) having dual SIM mobile, was deposited in their office by Sunny on 31.05.2011. Mobile phone was delivered after repair on 06.07.2011 as per the job sheet (Ex.PA). 6.21 Nitin Kumar @ Happy (PW19) , is friend and neighbour of Sunny . On 31.05.2011, at about 10:00 am, he went with accused Sunny to Kalkaji for repair of his Micromax Mobile phone. They went to Govind Puri, where Sunny deposited his mobile phone for repair and, thereafter, he returned to his house after leaving Sunny at his shop, situated in his house itself at the ground floor. 6.22 Tarun Khurana (PW21) Nodal Officer, placed on record documents in respect of telephone No. 991006597 belonging to Mahabir s/o Sh. Murari i.e. copy of Airtel Postpaid relationship form (Ex. PW21/A), copy of his ID Proof (Ex. PW21/B) and call detail records of phone numbers w.e.f. 30.05.2001 to 31.05.2011 are (Ex.PW21/C). PW21 placed on record documents in respect of telephone no. 9871943834 belonging to Sunny Goel s/o Sh. Rajesh Goel. Copy of Airtel Prepaid enrollment form is (Ex. PW21/D) and the copy of his Id proof is (Ex. PW21/D1) and call detail records of the above phone number form the period 30.05.2001 to 31.05.2011 are (Ex. PW21/E). He placed on record documents in respect of telephone no. 9971943977 belonging to Sunny Goel s/o Sh. Rajesh Goel, copy of Airtel Prepaid enrollment form is (Ex. PW21/F) and the copy of his ID Proof (Ex. PW21/F1) and call detail records of the above phone number from the period 30.05.2001 to 31.05.2011 (Ex. PW21/F2). He placed on record certificate u/s 65B of Indian Evidence Act (Ex.PW21/G).
State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 13
ID No. 02406R232122011 6.23 Prema Rajput (PW25). She was running a beauty Parlour. According to her deceased had done a course of beautician course at her parlour and she imparted training to Preeti Goel for three months. . She identified the handwriting of Preeti (deceased) relevant pages A1 to A41 of register (Ex. P3), as she had seen her signing and writing during the course of her training. In cross examination, PW25 admitted that the deceased had not written pages A1 to A41 in the register Ex.P3 in her presence. PW25 deposed that she knew Preeti Goel as well as her parents since about 15 years and was on visiting terms with the family of Preeti Goel. PW25 deposed that she did not maintain any account to show the details of the person to whom she imparted training or the period during which, such training was imparted or about the fees charged from them. 6.24 Smt. Bimla Devi (PW2), Mother of Preeti (deceased). She placed on record her statement (Ex. PW2/A) recorded by SDM. She is a witness to one diary and one marriage card seized by the police vide seizure memo (Ex. PW2/B and Ex. PW2/C) respectively. Sh.Mahavir Prasad (PW12), Father of Preeti (deceased). He placed on record his statement (Ex. PW12/A) recorded by SDM on 01.06.2011. Smt. Poonam Goel (PW13), Elder Sister of Preeti (deceased). Naresh Goel (PW24) maternal uncle of Preeti. Rajender Goel (PW28) maternal uncle of deceased.
Testimony of all these material witnesses who are relatives of the deceased, is discussed below in detail.
7. On conclusion of prosecution evidence, Statement of accused persons was recorded under section 313 Cr.PC. Accused persons stated that no complaint State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 14 ID No. 02406R232122011 was ever been made against the them by the deceased from the date of marriage till her death took place and no cruelty was committed to the deceased by them. No demand of dowry was made , as such question of proximity of cruelty for demand of dowry did not arise. They stated that at the time of occurrence, they were not present at place of occurrence. She was alone at home and was present in her room on the 2nd floor of their house. Rajesh Goel along with his wife Dayawanti were residing separately on the ground floor with separate kitchen and were not having any interference in the family life of their son and daughterinlaw, who were leading happily married life. They stated that admitted handwriting of deceased from her school was not got compared with handwriting alleged to be written by the deceased. I.O. had further recorded the statements of independent ten/twelve persons including neighbours and tenants i.e. Hem Chand counselor of Badarpur area, Anil Kumar counselor of the Khanpur area and of Bhawani Prasad, local resident but they were not cited there as prosecution witnesses. What PW24 and PW28 and maternal uncle of deceased deposed was hearsay on the demand of dowry and the statement of PW28 was recorded after about six months of occurrence. Statements of H.C. Onkar Mal and Anil Goel were recorded U/s.161 Cr.P.C. but they were dropped unexamined. He placed on record statements of H. C. Onkar Mal and Anil Goel (Ex.PW27/DA and Ex.PW27/DB) respectively. Accused persons stated that PW20 Dr. Hari Prasad deposed that there was no subcutaneous hemorrhage present. Muscles and blood vessels of the neck were intact and no other injury was present over the body. Rajesh Goel and his wife Dayawanti were not charged sheeted in main chargesheet, thereafter State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 15 ID No. 02406R232122011 supplementary chargesheet was filed against them and additional evidence against them was the statement only of Rajender Goel (PW28), whose statement was recorded after six months of occurrence. His evidence was hearsay on the demand of dowry.
8. Accused Sunny further stated that he was not present at the spot. Preeti was present at the second floor. His parents were at the ground floor . He came to his house at the ground floor at his shop between 02:0003:00pm. and gone at the second floor in his room at about 06:3007:00pm. He saw that his wife Preeti was hanging with a ceiling fan . He became nervous. He opened the nylone green colour rope with which she was hanging and it appeared that she was lifeless. He raised alarm and went downstairs. His mother was doing worship and his father was at the shop. His mother went upstairs. One of the employee of the shop rushed to the second floor where incident had occurred. Thereafter, his father also reached there and, other relatives came. He informed the police. His parents were residing separately at the ground floor, who were having separate kitchen . He and his wife (deceased) were having a separate kitchen at the second floor.
9. Rajesh Goel and Dayawati further stated that they were not present at the spot. Preeti was present at the second floor. Rajesh Goel was present at his shop. Dayawati was doing worship. One of the employee of the shop rushed to the second floor where incident had occurred. Thereafter, he also reached there and other relatives came. His son informed the police. They were residing separately at the ground floor and they were having separate kitchen. They were not charge sheeted in the main charge sheet and thereafter, a supplementary charge sheet was State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 16 ID No. 02406R232122011 prepared against him and his wife and the statement of PW28 was recorded after 46 months of the occurrence.
10. I have heard arguments advanced by Sh. Wasi Ur Rahman Learned Addl. PP for the State assisted by Sh. A. K Sehrawat Ld. counsel for complainant and Sh. Laxman Mehta Learned defence counsel and have considered material on record carefully.
11. Ld. Additional PP for the State submitted that prosecution has proved the guilt of the accused persons. It is submitted that statements of Bimla Devi (PW1) and Sh. Mahvir Prasad (PW12) were recorded by the SDM on the date of incident and PW12 specifically stated in his statement that he made a telephone call . Mahavir Prasad (PW12) asked Rajesh Goel for talking to Preeti on telephone. Preeti talked on telephone. She was weeping and told Mahavir Parsad (PW12) that "papa paise dai do inko nahi to ye mujhe maar denge" and on this, according to Mahavir Parsad (PW12), he assured his daughter Preeti that he will arrange money within twothree days and then, he disconnected the phone. After about five minutes from the said conversation Rajesh Goel again made a telephonic call and said "kal parso mai intejam nahi hua to phir dekhna kya parinaam hota hai" and then telephone was disconnected and on the next day i.e. 31.05.2011, at about 08:00 pm, Smt. Bimla Devi (PW2) and Sh. Mahavir Parsad (PW12) i.e. parents of the deceased were informed by the police about the death of their daughter. Ld. Addl. PP submitted that a 'diary' written by the deceased was sent to FSL for comparison with the admitted handwriting. Report of which is (Ex.PW27/E), Ld. Addl. PP submits that handwriting in the diary has not been rebutted in the State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 17 ID No. 02406R232122011 statement of accused under section 313 Cr.P.C., and handwriting of Preeti (deceased) was identified by Smt. Prema Rajput (PW25). Learned Addl. PP submits that the accused gave an evasive reply and expressed ignorance about this which amounts to admission of the fact. He submits that handwriting of the deceased was also identified by her mother Smt. Bimla Devi (PW2) and her teacher Prema Rajput (PW25). He argued that in the diary deceased made serious allegations against the accused persons regarding her harassment.
12. Learned Addl. PP argued that other instance of harassment on record is of July, 2008, when the accused persons had beaten the deceased, whereupon the deceased lodged a complaint at 100 number and both the parties reached at Police Station Badarpur, where matter was amicably settled keeping in mind the future matrimonial life of Preeti deceased and considering the fact the accused persons apologized. He submitted that testimony of Bimla Kumari (PW2), Mahavir Parsad, father (PW12) and Rajender Goel (PW28) are consistent qua demand of dowry and harassment on the part of accused persons. He submits that factum of harassment can be inferred from the testimony of Manoj Kumar (PW4) and investigation proceedings conducted by the IO/Inspector R. S. Naruka (PW26 and Inspector Vijay Singh (PW27), are corroborated by SI Pappu Lal (PW15) and other police witnesses. He submits that relevant documents i.e arrest memo, personal search memo and site plan and statements of Bimla Devi (PW2) and Mahavir Parsad (PW12), (Parents of the deceased) recorded by SDM (PW18) are proved. He argued that cause of death has been proved by Doctor Hari Parsad (PW20), who conducted the postmortem upon the body of deceased and opined that the State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 18 ID No. 02406R232122011 cause of death was due to 'asphyxia', caused by hanging. He submits that evidence in totality, clearly shows that the accused persons caused harassment to the deceased for want of more dowry to the extent that she was compelled to commit suicide, therefore, the case comes within the purview of Section 498A and 304B IPC because the deceased committed the suicide within seven years of marriage and presumption is to be raised against the accused, therefore, the case of the prosecution is proved beyond doubt and accused persons are liable to be held guilty of the alleged offences.
13. Learned Addl. PP submitted that specific allegations which emerge on record regarding demand of dowry and cruelty are that there was demand of Rs. 2 lacs for purchase of Car in September, 2008, Rs. 1 Lacs was paid by PW2 to accused Sunny Goel and demand of Rs. 2 lacs on 30.05.2011 by the accused Sunny and Rajesh from Smt. Bimla Devi (PW2).
14. Sh. Sehrawat Ld. Counsel for the complainant submitted that the matter was reported to the police at 07:25pm but the incident occurred between 05:00/06:00pm and there is no explanation of delay to report the matter to the police. He submits that accused Sunny Goel started harassing Preeti (deceased) for demand of dowry and it was raised on many occasions. He demanded Rs. One lac which was paid to him by Smt. Bimla Devi (PW2). Ld. Counsel submitted that Dayawati (mother in law of Preeti (deceased) used to taunt and beat her for not bringing sufficient dowry. He submits that a complaint was registered for demand of dowry but the matter was amicably settled. Time and again , family members of Preeti (deceased) asked for money and this factum was corroborated from the diary State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 19 ID No. 02406R232122011 of Preeti and statements of Smt. Bimla Devi (PW2), Mahavir Prasad (PW12) , Rajender Goel (PW24) and Naresh Goel (PW28) . He submits that Prema Rajput (PW25) deposed that Preeti could not commit suicide and she was confined into the house by not allowing her to have conversation with other persons. Ld. Counsel argued that there were incidents of snatching phone, disconnection of landline phone and breaking out the cell phone which pointed towards the bad relations between Preeti and Sunny as well as her parents in law.
15. Learned Counsel for complainant submitted that in January 2011, a demand of further Rs. one lac was again made and an amount of Rs. 50,000/ was given . When the demands of money were not fulfilled, then Preeti (deceased) was given beatings. He submits that it is pertinent to mention that on 30.05.2011, parents of Preeti (deceased) requested Sunny to allow them to visit but the request was turned down. He submits that Preeti (deceased) was in state of shock and completely detained in the house by her inlaws. Sh. Mahavir Prasad (PW12) was pressurized to arrange Rs. Two lacs for the welfare of Preeti (deceased). He argued that on visiting the room (place of occurrence), it was quite clear that rope was extra ordinary thick and not old but a new one and Sh. Nitin Panigrahi , SDM (PW18), who prepared inquest proceedings stated that face of Preeti (deceased) was in proper make up condition and her expressions were such that she was preparing to go somewhere. He argued that no person would commit suicide while preparing for make up and used thick rope without any help of any stool and no stool was recovered from the spot. He submits that Sunny Goel did not call any other person to take down Preeti and a normal built person could take down Preeti State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 20 ID No. 02406R232122011 single handedly without the help of stool. He submits that Sunny Goel did not call any person to take down Preeti. Ld. Counsel submitted that there are contradictions between the statement (Ex. PW18/A) of accused Sunny Goel recorded by the SDM and statement of his servant Azruddin (PW8). Accused Sunny stated that he had gone to 2nd floor and saw that her wife was hanging on the rope, whereas Azruddin (PW8) deposed in the Court that "Bhabhi was on the bed and 'ligature mark' were in the neck. Accused Sunny Goel had not stated in his statement that his son was missing, whereas , Azruddin (PW8) deposed that son of Sunny Goel was missing and he was sent to search him at the ground floor and the first floor and was not sent on 2nd floor to search his son . Ld. Counsel submits that timings of reaching the house are different in the statements of Azruddin (PW8) and accused Sunny Goel and Rajesh Goel. Accused Suny Goel stated that he reached in the home at 06:00/06:30pm whereas, Azruddin (PW8) stated that he was with accused Sunny Goel up to 06:30/07:00pm. He submits that all the witnesses had seen Preeti on the bed except accused Sunny Goel, and theory of rope and hanging was completely not believable. Ld. Counsel for complainant argued that evidence regarding demand of dowry was unrebutted and every prosecution witness deposed about demand of dowry. He submits that statements, contradiction and nonexplanation given by the accused persons with previous history of dowry demand, cruelty and harassment proved a clear case of dowry death.
16. On the other hand, Learned defence counsel drew attention of the Court towards the testimony of PW2 and PW12 to show contradictions and material improvements. He argued that they are not reliable and interested State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 21 ID No. 02406R232122011 witnesses. I would refer to these contradictions in the discussion. He submitted that the testimonies of Naresh (PW24) and Rajender (PW28), both of whom are the maternal uncle of the deceased are 'hearsay evidence' as both of them deposed that it was Sh. Mahavir Prasad (PW12), who used to tell them and they are not having any personal knowledge of the alleged demand. He submitted that on record there was a PCR call (Ex.PW19/A) dated 28.07.2008 made by the deceased to the Police. He stated that in this regard IO/Inspector Vijay Kumar (PW27) testified that Head Constable Omkar Mal had made inquiries in this regard. IO recorded statement of Head Constable Omkar Mal u/s 161 Cr.P.C., (Ex.PW27/DA) but he was not been examined. He appeared in the Court, but was dropped by the Learned Addl. PP for the State. Learned Defence Counsel further drew attention of the Court towards the statement of HC Omkar Mal (Ex.PW27/DA), wherein he stated that during inquiry, complaint, regarding demand of dowry was not found and the deceased had not made any such statement. On asking, she stated that the boy was not earning and she wanted to do something by residing separately and was not willing to remain confined. He argued that notings made in the diary are pertaining to January, 2008 and in this regard, Ld. Defence counsel stated that in cross examination, Smt. Bimla Devi (PW2), mother of the deceased deposed that the page A1 and A2 of the diary (Ex.P2) were written by her daughter Preeti (deceased). Ld. Defence counsel submitted that as per IO/Inspector Vijay Kumar (PW27), deceased had studied in a School, but he had not collected any admitted handwriting of the deceased from the school for his fair comparison by the Court or by the handwriting expert.
17. Learned Defence Counsel pointed out that as per the testimony of State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 22 ID No. 02406R232122011 Prema Rajput (PW25), the alleged notes made by the deceased in her register (Ex.P3) at Page No. A1 to A41,(which are alleged to be the admitted writing of the deceased) were not written by the deceased in her presence. He argued that the incident had taken place on 31.05.2011, whereas alleged diary (Ex.P2) was recovered by the IO on 14.06.2011 from the alleged place of occurrence/room of the accused. He submits that admittedly, the place of occurrence had been thoroughly inspected by the IO as well as by Crime Team from where other articles i.e jewelery etc. were recovered. There is no reason, why the diary (Ex.P2) could not have been recovered on earlier occasion and this shows that diary (Ex.P2) was planted. Furthermore, on 14.06.2011, at the time of alleged recovery of diary, no independent witness was joined. He submit that as per the case of prosecution, accused Sunny Goel had accompanied the IO to his house and got the diary recovered, but there is nothing on record to show that the accused had made any disclosure statement or pursuant to his disclosures, the said diary was recovered as this instance.
18. Learned Defence Counsel submits that accused Rajesh Goel and Dayawanti, were earlier not charge sheeted, when the main charge sheet was filed against accused Sunny Goel only and later on supplementary charge sheet was filed by the police against his parents under pressure of the complainant by adding the statement of maternal uncle, who admittedly had joined the investigation earlier.
19. Ld. counsel relied upon "Vinita & anr. Vs State of NCT of Delhi" 2012 (1) JCC 340 of High Court of Delhi . In this case, "husband and mother in law of deceased were convicted for offences punishable under section 304B IPC. There State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 23 ID No. 02406R232122011 was no complaint having every been made against the accused by the deceased from the date of marriage till her death took place and no cruelty having been committed to deceased by accused and demand of dowry was established. It was held that question of proximity of cruelty for demand of dowry did not arise and merely because the deceased died within seven years of her marriage accused could not be held guilty.
20. Learned Defence counsel in support of his submissions, referred "Preet Singh vs State of NCT of Delhi" 2011 (4) JCC 2629, in which case accused was acquitted by Hon'ble High Court of Delhi as there were material contradictions in the testimonies of the prosecution witnesses i.e. deceased's father (PW8) and her mother (PW11) and between the previous statements recorded u/s 161 Cr. P. C made by them during investigation and their deposition in the Court. IN a case reported as "State vs Jitender Garg & ors." 2008 (1) JCC 76, he submits that there were improvements in the deposition of the witnesses, who were close relatives of one of deceased, as compared to their earlier statements recorded during the course of investigation. It was observed that this facts casts suspicion on the veracity of the deposition of these witnesses and the authenticity of the statement of the complainant forming the basis of FIR and the statements of other relatives of the deceased was not free from suspicion.
21. Laslty, he relied upon "Rani vs state of NCT of Delhi" 2011 (1) JCC 668 wherein there were allegations of demand of Rs. 50,000/ and scooter, which were vague in nature and whether demand was made by husband, mother in law or father in law and answers to all these questions were absent. It was held that State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 24 ID No. 02406R232122011 ingredients of Section 304B IPC were totally absent. Unnatural death could be called 'dowry death' only if, after making a demand made by accused was got fulfilled by perpetuation of cruelty on the victim.
22. To appreciate the submissions made at bar and before discussion of testimony of material witnesses, relevant legal position may be noted.
23. In Raman Kumar Vs. State of Punjab 2009 Cri. L.J. 3034, our Supreme Court summarized the position of Law that in order to attract application of Section 304B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv)Such cruelty or harassment should be for or in connection with demand of dowry.
(v)Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
24. As per the definition of "dowry death" in Section 304B IPC and the wording of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment "soon before her death" and that too "for or in connection with the demand for dowry". The legal position is well settled that on a joint reading of Section 113B of the Evidence Act and Section 304B IPC it would reveal that there must be cogent material to show that soon before her death the victim was subjected to cruelty or harassment, and that too in connection with any demand for dowry. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 25 ID No. 02406R232122011 occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where presumption u/s 113B of the Evidence Act and Section 304B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption would operate. Evidence in this regard has to be led in by the prosecution and established beyond doubt. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would be the quantum to constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive section 304B IPC and section 113B of the Evidence Act is present with the idea of proximity test.
25. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 26 ID No. 02406R232122011 the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. Thus, it is well settled that before a presumption is raised under Section 113B Evidence Act, the foundation thereof must exist. Unless and until the preliminary facts are established beyond reasonable doubt by the Prosecution, it is not open to draw a presumption against the accused to invoke this Section.
26. " In Hazarilal v. State of M.P. 2007 (8) SCALE 555 it was observed :
"There being no other material to show as to how the deceased was being harassed or subjected to cruelty, the conclusion of the High Court that because the deceased committed suicide there must be some harassment and cruelty is insupportable and indefensible. There was no material to substantiate this conclusion. Merely on surmises and conjectures the conviction could not have recorded. There is a vast difference between "could have been", "must have been" and "has been".
27. The ingredients of Section 498A are as follows:
"498A: Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation For the purpose of this section 'cruelty' means
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 27 ID No. 02406R232122011 unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
28. 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, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence."
29. In K. Prema S. Rao vs. Yadla Srinivasa Rao, (2003) 1 SCC 217, Hon'ble Supreme Court considered the definition of "dowry" in the context of offence under Section 304B, I.P.C. alongwith Section 113B of the Evidence Act, and held that :
"one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment "in connection with the demand for dowry" shortly before her death. Para 16 of the judgment reads as under:
"The evidence which has been found acceptable by the Courts below State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 28 ID No. 02406R232122011 against accused 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death "otherwise than under normal circumstances". To attract the provisions of Section 304B, I.P.C. one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry". There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was "not in connection with any demand for dowry". One of the main ingredients of the offence of "demand of dowry" being absent in this case, the High Court cannot be said to have committed any error in acquitting accused for offence under Section 304B, I.P.C."
30. In Appasaheb and another vs. State of Maharashtra, 2007 (1) Crimes 110, their lordships of the Hon'ble Supreme Court observed that, "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. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, I.P.C. viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."
31. In a case reported as Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon'ble Supreme Court observed that :
"In case of an offence under section 304B Indian Penal Code an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 29 ID No. 02406R232122011 scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution."
32. Our Hon'ble High Court in Babita Vs. State 2009 (2) Crimes 772 observed :
"There is no thumb rule as to what is meant by the expression "soon before" death of a woman, under Section 304B yet despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. The Supreme Court has held in Kedya Perumal Vs. State of Tamil Nadu AIR 2003 SC 3828 and Yashoda Vs. State of M.P. 2004(3) SCC 98 that there should not be too much of a timelag between cruelty and harassment in connection with demand for dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence".
33. The expressions "harassment" and "cruelty" have been very dealt with and explained by our High Court in `Savitri Devi Vs. Ramesh Chand and Ors' 2003 CrLJ 2759 wherein it was observed:
"Offence of 'harassment' is peculiar to Indian conditions and society where evil of dowry and its perpetuation through customary gifts or demands is widely prevalent and is eating the very vitals of matrimony and tearing familial social fabric apart. To curb this evil, the acts of not only the husband but the entire household have been brought within the net of "harassment of a woman" if done to coerce her or her relatives to fulfill the unlawful demands for property or valuable security.
The word 'harassment' in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to 'coerce' any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to "harassment" as contemplated by Section 498A . Word 'Coercion' means pursuading or compelling a person to do something by using force or threats. Thus to constitute "harassment" following ingredients are essential: State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 30 ID No. 02406R232122011
(i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation;
(ii) Such act should be with a view to pursue or compel her to do something which she is legally or otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.
It appears that the legislature was mindful of the fact and situation that this provision may be exploited that it defined 'cruelty' and for that purpose "harassment" falling within the parameters of "intentional conduct' "of such a degree that may either drive the woman to commit suicide or cause danger to life, limb or health or cause 'grave' injury. Of course "health" means not only physical but mental also. But unfortunately, these provisions have been abused by the Investigating and Prosecuting Agencies and exploited by the women and their relatives to such an extent that these have proved to be most ineffective in curbing the evil of dowry as well as disciplining the husband and his relatives to treat the woman in human and humane manner and give the bride or wife proper respect and honour."
34. Hon'ble Supreme Court in Gangula Mohan Reddy Vs State of AP (Crl App No 1301/02)dated 05.01.2010 observed as under:
"In State of West Bengal v. Orilal Jaiswal & Another. (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. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference 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. '' State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 31 ID No. 02406R232122011
35. In Dr. S.L. Goswami Vs. State of MP 1972 SCC(Cri.) 258 it was observed "In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defense of the accused does not appear to be credible or is Palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests. upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probablises the plea he will be entitled to the benefit of reasonable doubt."
"....We have had occasion to observe earlier that the standard of proof which the accused may adduce in support of his plea in defence is not the same which the prosecution is required to adduce. Once the probability of the accused's plea is established, we must give him the 'benefit of doubt."
Discussion of Evidence
36. On the anvil of tests noticed above, now I will consider whether 'cruelty' as defined under section 498A IPC and 'cruelty soon before her death' in connection with demand of dowry, was metered out to deceased or not? There is no dispute that Preeti (deceased) was married with Sunny Goel (accused no. 1) on 07 th July, 2007 and she committed suicide by hanging with ceiling fan on 31st May, 2011 and thus had an unnatural death within seven years of her marriage. Case of prosecution is that the statement of Smt. Bimla Devi and Sh. Mahavir Prasad were recorded by SDM soon after the death of the deceased, and on the basis of the same FIR was registered vide DD No.27A. State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 32 ID No. 02406R232122011
37. Smt. Bimla Devi (PW2) mother of deceased, in her complaint (Ex. PW2/A) made before the SDM, stated that after six months, inlaws (accused persons) started harassing and beating Preeti (deceased) in order fulfill their demand of illegal dowry. In the complaint it was alleged that in January 2008 , neighbours of inlaw of Preeti telelphonically informed them about the beating given to Preeti , regarding which a complaint was lodged to the police and thereafter, in laws of Preeti started harassing her for bringing money and that in September, 2008, Rupees one lakhs was given to accused Sunny Goel , when Sunny had bought a vehicle. Thereafter, demand of money was increased after the birth of her naati (grand son) in October 2008. Preeti used to tell her to give money otherwise she would be killed and complainant used to give Rs. 2025,000/, whenever Preeti used to come . Sunny used to make telephonic call and used to say to take her away, otherwise, she would be killed. Lastly, she had a conversation with Preeti in the first week of May 2011, when she asked her that when she would be called by her mothercomplainant. It was alleged in the complaint that when Preeti had gone to her inlaws house on 06.01.2011, then she gave Rs. 50,000/ to her, although, they were demanding Rs. One lac. Complainant suspected that the accused persons had killed her by strangulating and hanging her.
38. Whereas, Sh. Mahavir Prasad (PW12) , father of deceased in his statement made before the SDM, stated that Smt. Dayawati (mother in law) of Preeti Goel was greedy, quarrelsome and bad character lady. Sunny used not to work, to drink liquor and mother in law of Sunny used to give money to him for his expenses and for drinking liquor. It is alleged in the statement made before SDM, State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 33 ID No. 02406R232122011 that about three years ago, Sunny Goel told him that he wanted to purchase a car and asked him to give half of amount and other half would be contributed by him. He stated that despite not having money, he gave him Rs. One lac. Then, PW2 stated that about one year ago, with the intervention of Sh. Anil and Sh. Hemchand Municipal counselors of the area, matter was compromised. It is alleged that it was decided that a 'phone' shall be given to the girl and she will not be harassed, but after one week, they started harassing her and did not provide the facility of telephone. He generally, vaguely stated that she was beaten several times. On 30.05.2011, at about 10:00pm, Mahavir Prasad made a call to Sunny aksing him to allow Preeti to meet them but Sunny refused. He asked Preeti, how she was and stated that that was 'as before'. Now, in his statement, there is not an iota of allegation of demand of money or of Rs. two lac by accused Sunny or by Rajesh Goel over telephone on 30.05.2011, as improved later on in the statement before the Court and although giving of Rs. One lac in September 2008, at the time of buying of car, is not proved in any case, it appeared to be a financial assistance pursuant to request of accused Sunny Goel to his fatherinlaw. Neither Mahavir Prasad (PW12) has uttered anything about the demand of dowry by any of accused nor Bimla Devi has spoken about any such specific demand or even about making of any telephonic call by accused persons for demanding any money on 30.05.2011 in their first statement to the SDM.
39. In her deposition, PW2 stated that she had not told to the SDM that "she gave 1520 tola gold to my daughter in the marriage". She in her deposition stated that she had told to the SDM that, "Sunny and Smt. Dayawati used to make State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 34 ID No. 02406R232122011 telephonic calls for asking Rs.2 lakhs in order to purchase a vehicle and when they pressurized them, she gave Rs.1 lakh to Sunny in September, 2008". She was confronted with statement (Ex. PW2/A) recorded by SDM , where it was not so recorded and what was recorded is that "in September 2008, when Sunny bought a vehicle, at that time also, we had given Rs.one lac to our soninlaw Sunny". According to PW2 , she visited the office of SDM for about one or two times, after giving her statement of the SDM on the day of occurrence but PW2 did not ask SDM to record her other statement as she wanted to state more facts of the case. According to PW2, she was accompanied by all her brothers (PW24 and PW28), when she visited SDM office and she had a discussion with SDM for about 1015 minutes on her subsequent visits to his office. PW2 admitted that she had stated to the SDM that she had a talk with Preeti last time, in the first week of May, 2011 at around 10.0010.30 p.m. PW2 deposed that had not made any complaint against the accused persons for beating and harassing her daughter for demanding money before her death. She added that on 28.07.2008, Preeti herself had made complaint against the accused persons and she had gone to the inlaws house alongwith her husband and her brothers on account of that complaint. PW2 deposed that no action was taken on that report as matter was 'amicably settled'. PW2 denied that Preeti was medically examined on the complaint dated 28.07.2008 because she was not having any injury. She was aware that Sunny had purchased a car but she did not know when or which car they had purchased. PW2 had not stated in her statement (Ex.PW2/A) recorded by SDM that the neighbours had informed them telephonically about the beatings with Preeti for which, a complaint was lodged State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 35 ID No. 02406R232122011 with the police. She was Confronted with the statement Ex.PW2/A, where it was so recorded. According to PW2, every time the money was paid to accused Sunny at her residence at all such time, only family members were present there. Smt. Bimla Devi (PW2) stated that she never reported the matter to the police on any occasion, regarding handing over the money to accused Sunny. PW2 tried to explain that they had not reported to the police in order o preserve the relationship between her daughter and her inlaws.
40. Similarly, statement of Sh.Mahavir Prasad (PW12) (father of deceased) was confronted with his previous statement (Ex. PW12/A) . He made material improvements over his statement (Ex. PW12/A), PW12 deposed that from the very second day of the marriage the latrine shit pot was got cleaned from her daughter and she was beaten. When his son visited her house, PW12 stated that either take her daughter or leave her in the house of her inlaws, the accused, his father and his mother insulted their son in filthy language. He asked the accused and his parents to arrange talks with her daughter, but they never allowed her to talk with us on telephone. Her daughter tried to talk from their landline telephone, but they got the telephone disconnected. The accused and his parents used to beat her daughter on the issue of telephone. She visited the matrimonial home of her daughter only once, when she had made a complaint to the PCR in July, 2008 and then the matter was sorted out with the intervention of the neighbours and the relatives. PW12 in his deposition stated that in September, 2008, Sh. Rajesh Goel, father of accused made a telephonic call to him and demanded money for the purchase of a Car, gave warning that it would not be State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 36 ID No. 02406R232122011 good. He sent Rs. 1 lac in cash through his son Pawan Kumar Aggarwal. He did not remember the date of telephonic call and of sending money.
41. In her testimony, PW12 stated that Sunny Goel had come to their house only once or twice. Only his daughter used to visit and son Pawan Kumar used to bring her from and drop her to her matrimonial home. As far as he remembered, in January, 2011, the mother of Sunny Goel demanded Rs. 1 lac and told telephonically to his wife that Rs. 1 lac was required urgently and thereafter, Sunny Goel telephonically told him that Rs.1 lac was required urgently. He could not tell the date of this telephonic call. He was forced to give the amount in cash, which he borrowed from his brotherinlaw Rajender Prasad Goel on both the occasions. PW12 stated that in January, 2011, he gave a mobile phone to his daughter. He did not remember the phone number. He was informed by his daughter Preeti that the mobile phone was broken by accused Sunny Goel. Thereafter, many times, he expressed his wish to talk to Preeti, but he was not allowed to talk to her by her inlaws. PW12 deposed that in February, 2011 with the intervention of Anil Goel and Hem Chand Goel, Municipal Counselors of the area where accused resided, the matter was sorted out and thereafter, accused and his parents assured them that they would arrange the talk of Preeti with them, but despite that they did not allow Preeti to telephonically talk to them. On 30th, May, 2011, Sh. Rajesh Goel or Sunny Goel telephonically talked to his wife Smt. Bimla Devi asking her that they required money (2 peti) and that PW12 might be informed. His wife told him about this fact, when he reached home after closing his shop at about 10:30 pm. She told him that it appeared to her that Preeti was State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 37 ID No. 02406R232122011 being beaten and was pressurized. At about 10:30/10:45 pm, Rajesh Goel talked to him on his mobile phone number 9910006597 and told him that "either he sent Rs. 2 lac by the morning otherwise he would have dire consequences). He requested him that he could not arrange the amount and that had already given Rs. 50,000/. PW2 told him that he might be granted 57 days time to arrange the amount, but he insisted that the money was required by the morning. PW12 told him that he would bring his daughter back and that she was being harassed, but Rajesh Goel told him that he could take her back only if he gave Rs. 2 lacs, otherwise she would not be allowed to accompany them .
42. In cross examination, Sh. Mahavir Prasad (PW12) testified that that he had stated to SDM that since second day of the marriage the latrine sheet pot was got cleaned by his daughter and she was beaten but he was confronted with the statement Ex.PW12/A, where it was not so recorded. This fact deposed by him in his examination in chief. According to PW12, he stated to SDM that when he asked the accused and his parents to arrange talks with his daughter, but they never allowed her to talk with them on telephone. When his daughter tried to talk from their landline telephone, they got the telephone disconnected. The accused and his parents used to beat his daughter on the issue of telephone. PW12 was confronted with the statement Ex.PW12/A, where these facts were not so recorded. As per PW12, he had stated to the SDM this fact that in September, 2008, Rajesh Goel, father of accused made a telephonic call to him and demanded money for the purchase of a Car. He gave warning that it would not be good. PW12 sent Rs. 1 lac in cash through his son Pawan Kumar Aggarwal. He could not tell the date of State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 38 ID No. 02406R232122011 telephonic call and of sending money. Only his daughter used to visit and son Pawan Kumar used to bring her from and drop her to her matrimonial home. PW12 was confronted with the statement Ex.PW12/A, where these facts were not so recorded. He could not recollect, if he stated to the SDM that in January, 2011, the mother of Sunny Goel demanded Rs. 1 lac and she told telephonically to his wife that Rs. 1 lac was required urgently and thereafter, Sunny Goel telephonically told him that Rs.1 lac was required urgently. On finding these improvements, PW12 attempted to explain that SDM had recorded his statement only once in the police station and he was in disturbed state of mind. Now, he deposed that he did not remember what he stated or what he had not stated to the SDM. PW12 deposed that he stated to the SDM this fact that he was informed by Preeti that her mobile phone had been broken by accused Sunny Goel. He was confronted with the statement (Ex.PW12/A), where it was not so recorded. He stated to the SDM in his statement (Ex. PW12/A) that on 30.05.2011 , Rajesh Goel or Sunny Goel telephonically talked to his wife Smt. Bimla Devi informing her that they required money (2 peti) and he might be informed. His wife told him about this fact, when he reached home after closing his shop at about 10:30 pm. She further told him that it appeared to her that Preeti was being beaten and was being pressurized. At about 10:30/10:45 pm, Rajesh Goel talked to him on his mobile phone number 9910006597 and he told him that either he sent Rs. two lac by the morning otherwise it would have dire consequences. He was confronted with statement (Ex.PW12/A), where these facts were not so recorded . According to him , the parents of the accused were also involved alongwith the accused in causing the State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 39 ID No. 02406R232122011 incident. According to PW2, he stated to the SDM this fact that in September, 2008, Sh.Rajesh Goel, father of accused made a telephonic call to him and demanded money for the purchase a car. He gave warning that it would not be good. He stated that SDM recorded her statement only once in the police station and he was in disturbed state of mind. He did not remember what he had stated or what he had not stated to the SDM. He stated to the SDM that he was informed by Preeti that her mobile phone had been broken by accused Sunny Goel. He was confronted with the statement (Ex.PW12/A), where these facts were not so recorded.
43. According to Sh. Mahavir Prasad (PW12), he stated to the SDM in his statement (Ex. PW12/A) that on 30.05.2011, Rajesh Goel and Sunny Goel telephonically talked to her wife Smt.Bimla Devi informing her that they required money (2 peti) and he might be informed. her wife told her about this act, when he reached home after closing her shop at about 10.30 p.m. She further told him that it appeared to her that Preeti was being beaten and was being pressurized. At about 10.30/10.45 p.m., Rajesh Goel talked to him on his mobile phone number 9910006597 and he told him that either he send Rs.two lac by the morning or it would have dire consequences". PW12 was confronted with statement (Ex.PW12/A), where this fact was not so recorded. PW12 did not remember and stated that perhaps he told to the SDM in his statement (Ex.PW12/A) this fact that he requested him that he could not arrange the amount and that he already gave Rs.50,000/ and he told him that he might be granted 57 days time to arrange the amount, but he insisted that the money was required by the morning and he told State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 40 ID No. 02406R232122011 him that he would bring her daughter back and that she was being harassed, but Rajesh Goel told him that you can take her back only if he gave Rs.2 lacs otherwise she would not be allowed to accompany them. He was confronted with statement (Ex.PW12/A), where this fact was not recorded. He never met SDM to express his feelings and statement to him , which he could not narrate on the day of giving his statement to the SDM. According to PW12, he met DCP, P.S. Sarita Vihar who interrogated him only but his statement was not recorded. According to PW12, Sunny Goel purchased an Alto Car in the year 2008 but he did not know in whose name the car was purchased. PW12 deposed that because of the intervention of the counselors of their area and the area where Sunny Goel was residing, the matter was sorted out about six months prior to the alleged occurrence that took place in respect of the phone and beating to his daughter. Police recorded statement of counselors in her presence. He denied the suggestion that that accused persons had never harassed deceased daughter for demanding dowry.
44. Smt. Poonam Goel (PW13), sister of deceased, in her testimony deposed that Preeti was her younger sister, who was married with Sunny Goel on 07.07.2007. PW13 deposed that she used to live in her matrimonial home at Badarpur. She deposed that when her sister Preeti used to come in the house of her mother at Khanpur, then she also used to go there to meet her sister. PW13 deposed that after about one year from the marriage Preeti had come to house of mother at Khanpur, then she had also visited and met her sister Preeti. At that time Preeti had asked her mother to give Rs. 50,000/. PW13 was in the kitchen and they were sitting on the sofa near kitchen, she heard Preeti demanding Rs.50,000/ State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 41 ID No. 02406R232122011 from their mother. On asking, why Preeti demanded money from their mother, PW13 deposed that she asked her mother and she told her that Preeti used to demand money and her saassasur jab bhi wo yahan aati hai vo paise mangwate rahte hain. PW13 further deposed that whenever they visited the matrimonial home of her sister Preeti alongwith her brother or husband and every time her in laws (saassasur) used to insult her and her brother/ husband. She deposed that when she asked this fact from Preeti, she told her that as their demands were not fulfilled therefore they were insulted. PW13 deposed that Preeti was beaten by her husband and her saas, on 28.07.2008 and thereafter Sunny and his family members had apologized and matter was settled between them and this fact was told to her by Preeti telephonically fivesix days thereafter and Preeti (deceased) had made a call at 100 number in this regard. PW13 sister of deceased only deposed about an incident which took place one year after the marriage of deceased i.e. in July 2008. Regarding incident of 28.07.2008, parties had amicably settled. Evidence on record shows that demand of dowry was not an issue on that occasion. She has not uttered anything about making of telephonic call or demand on 30.05.2011.
45. Sh.Naresh Goel (PW24), maternal uncle of the deceased deposed beyond his statement u/s 161 Cr. P. C., PW24 deposed that he had not told this fact to the police that on 31st May, 2011, her sister Smt.Bimla (PW2) had informed him that she had made a telephonic call to Sunny Goel at about 10.00 pm on 30th May, 2011 and had requested her to send Preeti Goel to her parents' home or Sunny Goel had told her that he would not send Preeti Goel to her parents home. Her sister (PW2) told him that Sunny Goel had disconnected the phone and thereafter, State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 42 ID No. 02406R232122011 Rajesh Goel had made telephonic call twice and told her to send money and take away the girl. These facts are not mentioned in the statement of the witness U/s. 161 Cr.P.C. PW24 did not know as to what information was given to PCR by Preeti Goel. PW24 admitted that he had not lodge any complaint against any accused persons for harassment or demand of dowry from Preeti and her parents at any point of time. PW24 denied that the alleged information regarding beating or demand of dowry was not substantiated, that is why no action was taken by the PCR or by the local police and the same was filed without taking any action. PW24 denied that he was deposing falsely at the instance of her sister or that accused persons never harassed or demanded any dowry from the parents of Preeti. PW24 deposed that accused persons had never demanded money from him. His statement clearly is a hearsay.
46. Sh.Rajender Goel (PW28), who was other maternal uncle of deceased, was confronted with his previous statement U/s.161 Cr.P.C. (Ex.PW28/D1). During cross examination, he admitted that he joined the investigation in respect of the incident dated 28.7.2008 and on 31.5.2011 and throughout the investigation, he was present alongwith other witnesses but his statement was not recorded nor he himself offered to make statement. In cross examination, PW28 admitted that his statement was not recorded by the police. PW28 did not know if the Preeti had lodged a complaint in July, 2008 as she had a verbal altercation in connection of the maidservant, who used to work at matrimonial home or in connection in the said complaint they had gone to the police station. PW28 could not tell if the police asked Preeti to undergo medical State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 43 ID No. 02406R232122011 examination in July, 2008. PW28 could not tell the date in the year 2008, when her sister Smt.Bimla told him about the demand of Rs.2 lakhs by Sunny Goel and his parents. According to PW28, he was an income tax assessee since last 10 to 12 years but he could not tell the date when he gave Rs.1 lakh to her sister as a loan. PW28 deposed that he had not shown loan of Rs.1 lakh allegedly given to her sister in the year 2008 in her I.T. Return. PW28 admitted that he was aware that any transaction above Rs.20,000/ was to be declared in the I.T. Return. On asking, whether he disclosed this fact to the police about giving a loan of Rs.1 lakh to his sister at any point of time, PW28 stated that he did not remember, if he had told police about this facts. He was Confronted with previous statement U/s.161 Cr.P.C. (PW28/D1) recorded by the police wherein these facts the witness had given a loan of Rs.1 lakh to his sister and that it was given in September, 2008 was not recorded. PW28 was confronted with previous statement U/s.161 Cr.P.C. (PW28/D1), recorded by the police, wherein this fact that when the witness had given Rs.1 lakh to Smt.Bimla Devi, he had seen that Sunny Goel was present in the house was not recorded. PW28 did not know, which car was purchased or of its model or when he had purchased the car. PW28 had not told to the police that the Sunny Goel had purchased the car out of the amount given by me to her sister. According to PW28, his statement might have been recorded by the police 4 to 6 months after the incident of 31.05.2011. In his statement U/s.161 Cr.P.C. (PW28/D1) recorded by the police on 13.09.2011, PW28 stated that after a few months of marriage her inlaws started harassing Preeti for dowry whereas in his deposition in the court on 15.09.2012, he stated that his sister Bimla Devi told him State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 44 ID No. 02406R232122011 that soon after the marriage, the accused persons started demanding of dowry and harassing her. PW28 was confronted with previous statement U/s.161 Cr.P.C. marked (PW28/D1) recorded by the police, wherein these facts that ''on 30.5.2011, he visited the house of her sister Smt.Bimla Devi, who told him that she requested on telephone to Sunny that she was willing to bring Preeti or Rajesh Goel, had told Smt.Bimla that they would have to give Rs.two lacs in cash if they wanted to bring Preeti safely'', were not recorded. On asking, witness stated that he could not recollect, if he had told to the police about these facts.
47. Inspector R.S.Naruka (PW26) had conducted initial investigation. According to him, room was having coolers, T.V., Bed, Almirahs, two plastic chairs and one ceiling fan. PW26 admitted that he had seen the body but had not observed any injury on the body of the decease. PW26 admitted that the deceased was wearing good clothes with full make up. 810 relatives of the deceased were present at the spot. Search of all the objects including Almirah and box of the bed was carried out. PW26 admitted that Sunny Goel had left the police station after recording his statement. PW26 arrested accused Sunny Goel at 2.00 a.m. from Gali No.17C, Molarband on the basis of FIR and on the basis of the statement of mother and father of deceased. PW26 admitted that the relatives of the deceased raised a hue and cry at the house of the accused i.e. the place of occurrence at the time of their first visit there. PW26 denied that he arrested Sunny Goel under pressure of the relatives of the deceased at 2.00 a.m. PW26 admitted that the further investigation was transferred to the DIU Cell on the basis of the complaint of the family of the deceased.
State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 45
ID No. 02406R232122011
48. Inspector Vijay Kumar (PW27) admitted statements of HC Onkar Mal and Amit Goel (Ex.PW27/DA and Ex.PW27/DB) recorded under section 161 Cr. P. C. PW27 admitted that he had no information on record that the diary in question could be recovered from the place of scene. IO made no efforts to join any neighbourers or any independent public persons at the time of seizure of the diary. The room from where the diaries were recovered was locked and the keys were in possession of S.I.Pappu Lal. He was called to unlock the room. IO admitted that no permission of any authority i.e. Illaqa MM or SDM was obtained before unlocking the room. PW27 stated that the room was locked during the investigation by S.I. Pappu Lal to safeguard the place of occurrence only.
49. Court has to consider the manner of giving evidence, surrounding circumstances, probabilities, motive for giving true or false evidence, intrinsic merit of the evidence, how it stands with other evidence adduced. Reliability of witnesses depends upon the accuracy of the witnesses, original observations of the evidence which he described; correctness and extent of what he remembers and his veracity. Court has to consider whether, in the circumstances of the case, it is possible to believe his presence at the scene and whether there is anything inherently improbable or unreliable in his evidence. His conduct during occurrence and subsequently also could be examined. Discrepancies which relate to material points, should not be lightly glossed over but must be assessed seriously. Trifling discrepancies must be ignored as natural discrepancies among honest witnesses. The broad facts of the case and not minor details have to be considered in weighing State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 46 ID No. 02406R232122011 the evidence. Sometimes contradictions, embellishments, discrepancies can lend assurance to the credibility of prosecution case. Court has to weigh the evidence carefully in measuring its worth or worthlessness.
50. Scrutiny of the statements of Smt. Bimla Devi and Sh. Mahavir Prasad made to SDM shows that no case under sections 498A or 304B IPC is made out. It appears that only after the unfortunate death of Preeti, family members and relatives of Preeti introduced story of demand of car or Rs. two lacs or payment of Rs. One lac belatedly to make it a case of dowry death. Statement (Ex. PW2/A) of Smt. Bimla Devi (PW2) and statement (Ex. PW12/A) of Sh. Mahavir Prasad (PW12) were recorded by the SDM, soon after the death of the deceased. These witnesses made material improvements and stated facts beyond their statements made earlier to the SDM. They were confronted with their previous statement made to SDM during trial. PW24 and PW28 are maternal uncles of the deceased and their statements are 'hearsay' as regards demand or giving of dowry. The factum of payment of Rs. Ne lac as alleged is not proved by Pawan Kumar, brother of deceased, who according to PW12 gave Rs. One lac is not produced and examined. PW13 sister of deceased has not at all uttered about any telephonic conversation between accused persons and the family of deceased sister. She has not supported the prosecution at all in this regard.
51. Accused Rajesh Goel and Dayawati were not chargesheeted in the main chargesheet, subsequently supplementary challan was filed against them on the basis of additional evidence of Rajender Goel (Maternal uncle) and Pawan Kumar, (the brother of the deceased). Statement of Rajender Goel (PW28) is State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 47 ID No. 02406R232122011 hearsay evidence as regards the demand of dowry. Admittedly, no complaint was ever made against the accused by the deceased or by any of her family members who appeared in the witness box as PW2, PW12, PW13,PW24 and PW28 , since the date of marriage till incident took place. No complaint made on 28.7.2008 in respect of demand of dowry as alleged is proved. In this respect, the statement of H/C Onkarmal u/s 161 Cr P. C (Ex.PW27/DA) filed by IO is on record. HC Onkarmal visited the spot and made inquiry on receipt of PCR call 19A. He stated in his statement u/s 161 Cr. P. C that he found no apparent injury or the incident of maarpeet. He asked caller Preeti to undergo medical checkup but she refused. During inquiry, neither any matter regarding demand of dowry was revealed nor complainant gave any such statement. During inquiry, complainant stated that the boy was not earning anything and she was kept in the house and she wanted to do something by residing separately being educated. Many people from both the sides had gathered and thereafter, the matter was pacified. PW27 had recorded the statement of HC Onkar Mal U/s.161 Cr.P.C., (Ex.PW27/DA). IO/PW27 admitted that during investigation he recorded the statement of Amit Goel (Ex.PW27/DB). Amit Goel has not been examined as a witness by the prosecution. Amit Goel , who is the brother in law of deceased , in his statement u/s 161 Cr. P. C (Ex.PW27/DB) , stated that his wife Poonam used to tell him that Preeti was not happy in her in laws house and she was not allowed to go outside and there used to be clash on petty matters and the demand of dowry was not within his knowledge.
52. In this context, testimony of Manoj Kumar (PW4) is noteworthy. PW4, who is the real uncle of accused Sunny Goel, was produced by the State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 48 ID No. 02406R232122011 prosecution as its witness, therefore, his testimony cannot be ignored. In cross examination, PW4 stated that he handed over the copy of cheque and mobile receipt to the IO on the advice of father of accused Sunny. He used to reside in the same area, where accused resided. PW4 stated that he was residing in the same locality at a distance of two galis from the matrimonial home of Preeti Goel and on 07.07.2008, his brother Rajesh Goel , who was the father of Sunny Goel, came to his house and informed him that Preeti Goel made a complaint to the police and requested him to accompany him. When he alongwith Rajesh Goel reached there. Four five neighbours including Pandit Bhawani Prasad Sharma, who was called as Pradhan also gathered there. PW4 stated that after sometime, parents and the maternal uncle of Preeti Goel also reached there. Police made inquiries from Preeti Goel, who informed the police that she was an educated lady and wanted to work, but she was confined in the home by her inlaws. On asking by the police, Preeti refused to undergo medical examination. With the intervention of neighbours, who gathered there, they made Preeti Goel understand that the atmosphere of this house of such that the ladies did not go out for work, the matter was sorted out . He categorically stated that police found that no case was made out and the complaint was filed. PW4 testified that Preeti Goel had not made any allegations of demand of dowry at any point of time till her demise. He was a prosecution witness and was admittedly not declared hostile by the prosecution. No suggestion was put to him by the prosecution that he was deposing falsely. PW4 placed on record several complaints i.e. Ex. PW4/1 to Ex. PW4/4 lodged by accused persons against Preeti Goel (deceased). Ex. PW4/1 is the complaint dated 28.07.2008 State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 49 ID No. 02406R232122011 lodged by accused Sunny Goel to SHO against his wife Preeti Goel. Ex. PW4/2 dated 29.07.2008 and Ex. PW4/3 dated 05.08.2008 were the complaints lodged by Rajesh Goel against Preeti Goel alleging that Preeti Goel was threatening to commit suicide. Ex. PW4/4 dated 05.08.2008 was the complaint lodged by accused Dayawati alleging that Preeti Goel had closed herself in the room and was threatening to die.
53. Significantly, IO/Inspector Vijay Kumar (PW27) admitted that he had made inquires from the neighbourers as well as the tenants of the first and second floor during her investigation and he recorded the statements of some of them. Since they did not corroborate the prosecution version, therefore, it appears that they had not cited as a prosecution witnesses but this fact as well as their names finds mention in the case diary. PW27 admitted that he had recorded the statements of Hem Chand and Anil Kumar, Municipal Counselors. Hem Chand was counselor of Badarpur area, where the accused persons are residing and Shri Anil Kumar was counselor of Khanpur, where the complainant was residing. PW27 admitted that on asking, these witnesses had told him that there was no dowry demand from the side of accused. He recorded the statement of Bhawani Prasad, local resident of Badarpur area. PW27admitted that Bhawani Prasad had stated that there was no dowry demand from the side of accused persons. During investigation, IO admitted that it had come to his knowledge that on 06.01.2008 deceased Preeti Goel had left her matrimonial house and had taken away with her 1314 Tolas gold ornaments without the knowledge of her inlaws and husband and she was recovered some where in Noida on the same day and was brought back to State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 50 ID No. 02406R232122011 matrimonial home by her inlaws. PW27 admitted that that this fact was substantiated by Anita, a tenant in the same house. On asking why the statement of Pawan Kumar, brother of the deceased and Rajender Goel, maternal uncle of the deceased had not been recorded earlier, before filing the main chargesheet, IO/PW27 deposed that earlier they did not give their statements. He deposed that they were not coming forward to make any statement although they used to join the investigation. IO admitted that on record or on the police file that there was no explanation offered by Pawan Kumar and Rajender Goel for not coming forward.
54. Now, I will advert to the relevant notes which were allegedly made by Preeti (deceased) in the diary, towards which attention of the Court was drawn by Learned Addl. PP for the State as well as Ld. Counsel for the complainant to show that these notes show commission of cruelty. In the diary purported to be written by deceased at page mark A1 (Q1) , it was written that "meri saas gaaliyan bhi deti hain aur kehti hai ki tune itna bada kaand kar diya aur main gaaliyan bhi na dun. Kehte hain ki main apne doston ko ghar pe bulaaoonga to meri saas mana karti hai." In the diary purported to be written by deceased at pages mark A2 (Q2) at page 3, it was stated that "Kahti hai tere maa - baap ne diya kya hai, ladkiyaan intna truck bhar bhar ke laati hai, tu kya laai hai. Choodi ho gai, to kahti hai,tu to mere bete ka naash kar degi". In the diary purported to be written by deceased at pages mark A2 at page 3, it was stated that "aankh dikha kar kehti hai ki jaayegi, maine kaha haan, to kehti hai ek shart par jaayegi, Sunny lene nahin aayega, kabhi sochti ho. Baatbaat par kehti hai ki bahu mujhse behas karti hai. Gali main baith kar mere nikalne ki baat 56 aurton mein karti rahti hai. Kehti hai hamari bahu nikal State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 51 ID No. 02406R232122011 gai, hamari jaan ko kalesh kar diya. Har kirayedaar ko meri baat aate hi bata deti hai. Miscarriage ho gaya to tere maan baap ko phone kar doongi ki le jaayege, apni chori ko. Subah subah ek phone aata aur taiyaar hokar chale. Shaam ko 8 baje kabhi kehte hai shaadi main jaana hai kabhi kehte hai, sagai main jaan hai, roz jaate hai. Mark A4 (Q4) at page 5 reads "main aaj apne sasural jaa rahi hoon, mere saath koi bhi ghatna ya durghatna ya kisi prakar ki unhoni ho jaati hai to mere sasural wale uske pure jimedaar hai" . As far as the doubts raised by Learned Defence Counsel , as regards recovery of diary (Ex. P2) having notes of deceased and regarding handwriting of deceased thereon is concerned, this Court finds no force in the submissions made by Learned defence counsel. Smt. Bimla Devi (PW25) as well as Smt. Prema Rajput (PW25) have identified handwriting of deceased on the diary (Ex. P2) and register (Ex. P3) and there is nothing wrong in recovery of these handwritings later on , but on merits, this Court finds that these notes in the diary cannot form the 'basis' of conviction of accused.
55. According to IO, the aforesaid alleged notes in the diary (Ex. P2) at page mark A2 and A4, which were in the nature of taunting and admittedly, these notes were made in the diary pertaining to January 2008. It is the case of prosecution, that these notes were made in the year 2008 and exact date or month, these notes made by deceased were not proved. These notings are made in the diary pertaining to January, 2008. on asking Ld. Addl.PP submitted that these notings were made by the deceased in the year 2008, but it could not be ascertained in which month or during which year these notes were made by the deceased. These aforesaid notes in the diary allegedly made by the deceased by State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 52 ID No. 02406R232122011 any stretch do not prove the commission of cruelty by the accused against deceased and further more, the notes were admittedly made, more than three year five months prior to the unfortunate incident of the commission of suicide by the deceased and thereafter, admittedly on 28.07.2008, parties had amicably settled. Allegations of prosecution that demands were made persistently by the accused, after marriage and alleged acts of cruelty and harassment, which included beatings given to her or demand of Rs.2 lakh to purchase vehicle in September 2008, or the fact that on 30.5.2011 Smt.Bimla (PW2) made a call that she was sending her son to take her daughter Preeti or that she heard the noise of beating and weeping on the telephone or the allegation that the accused persons demanded Rs.2 lakh if they wanted to take the daughter back are not reliable and credible due to material contradictions and improvements found on record.
56. In Ashish Batham Vs. State of MP, 2002 SCC (Cri.) 1718, Hon'ble Supreme Court observed that the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 53 ID No. 02406R232122011 a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
57. In Raman Kumar (supra), as regards the improvements made in the depositions made in the court, over and above the statements made during investigation, following observations were made :
"In the statement in Court, PW7 stated that the deceased had told him that A1 and A2 caught hold of her and A1 poured oil over her body and set her on fire by throwing match stick. No such statement was made during investigation. Similarly, that is not also the version of PW6. In Court PW7 stated that all the accused persons i.e. the present appellant and the acquitted accused persons maltreated her. No. such allegation was made while the witness was examined under Section 161."
58. Improvements made in the court over the earlier statements in FIR/161/164 were commented with deprecation in the case of Haladhar Behera Vs. State of Orissa 2008 Cri LJ 3389 wherein it was observed:
"so far as charge under Section 304B, I. P. C. is concerned, it was contended by the learned counsel for the appellant that the evidence with regard to demand of dowry or torture for nonfulfillment of demand of dowry as stated by P.Ws. 1, 2, 4 and 5 cannot be accepted considering the fact that such statements made in Court were neither reflected in the F. I. R. nor in the statements recorded by the police during investigation under Section 161, Cr. P. C. As indicated earlier, none of these four witnesses during their examination in the course of investigation has stated before the police regarding such demand of dowry or torture at the hands of the appellant for non fulfillment of demand of dowry. Even in the FIR also an omnibus statement has been made but no specific allegation has been brought against the appellant so far as demand of dowry is State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 54 ID No. 02406R232122011 concerned".
59. In State of Haryana Vs. Gurdial Singh,1974 SCC (Cri.)530 while rejecting the inconsistent and contradictory version and improvements,Hon'ble Supreme Court observed :
''The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in Court, while the other version in contained in their statements made before the police..... In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained.'' Conclusion
60. To conclude, considering the evidence as a whole, this court finds that no presumption u/s 113B of Evidence Act can be raised against the accused in the facts and circumstances of the case. Allegation of demand of Rs. Two lacs for purchase of car and giving of Rs. One lac in September 2008 are not proved. Smt. Bimla (PW2) deposed that Sunny and Dayawati used to make telephone calls in this regard whereas Sh. Mahabir Prasad (PW12) deposed that Rajesh Goel made telephonic calls and demanded money to purchase car. Both of them did not know which car was purchased or when the car was purchased. PW12 deposed that he had sent Rs. One lac through his son Pawan . Pawan has not appeared in the witness box to prove this fact. According to PW12, amount of Rs. One lac was borrowed as loan from Sh. Rajender Goel (PW28). Sh. Rajender Goel (PW28) failed to prove that he gave the said sum to the parents of deceased. Call detail record of the mobile phone of accused. Smt. Bimla Devi (PW2) and Sh. Mahavir Prasad (PW12) would not conclusively show or prove the fact that there was any State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 55 ID No. 02406R232122011 demand of dowry by accused persons on 30.05.2011.
61. Information of the incident was furnished by accused Sunny to the police at 19:12 pm. It has come on record that first of all, he saw her wife hanging with ceiling fan at about 06:30/07:00pm . This Court finds no material discrepancies in timings, as argued. Sunny Goel became nervous and he opened the rope with which she was hanging . Thereafter, he raised alarm. Azharuddin Ansari(PW8) , his employee and other persons came there. This Court finds that in the facts and circumstances, when accused Sunny, who reached at the scene of crime first of all, saw his wife hanging he had to first of all see, if his wife was alive before informing police and only after opening rope, he found that she was lifeless and then he raised alarm, called other persons and informed the police. There appears to be no unreasonable delay in informing the police about the incident. As regards the arguments of counsel for complainant that there was no stool at the place of incident, PW26/IO has testified that interalia, other articles i.e. bed and plastic chairs in the room and he found no other injury. Cause of death is 'asphyxia due to hanging'. It is not the case of prosecution that it is a case of strangulation. There is nothing in the postmortem report or in medical evidence to throw any doubt regarding 'cause of death'. There is no merit in the contention of Ld. Counsel for complainant that a person who was prepared to go some where with make up, could not commit suicide. On appreciation of ocular and medical evidence on record, this Court finds no foul play on the part of the accused persons.
61. In the present case, the standard of "proof beyond doubt" as required by law has not been achieved by prosecution . There is no satisfactory and reliable State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 56 ID No. 02406R232122011 evidence of demand of dowry or subjecting Preeti to cruelty for or in connection with demand of dowry other than improved version of interested witnesses i.e. mother, father , sister and maternal uncles of deceased, not a single neighbour or any independent witness residing near the matrimonial home of the deceased has been produced or uttered anything about subjecting her to cruelty by the accused in relation to demand of dowry. Admittedly, statement of Sh. Bhawani Prasad neighbour was recorded by the IO but he has not been produced in the Court. Significantly statements of Sh. Hemchand and Sh. Anil Kumar Municipal counselors, who admittedly were involved between the parties earlier have categorically stated in their statement to the IO that there was no demand of dowry. Thus, independent witnesses have not been cited or produced deliberately by the prosecution and there are material contradictions and improvement in the testimony of material witnesses i.e. Smt. Bimla Devi (PW2) and Sh. Mahavir Prasad(PW12). The previous versions given by them before SDM soon after the death of deceased and depositions in the court as well as interse contradictions are too glaring and therefore, their testimony is not trustworthy. I do not think it safe to rely upon the evidence of prosecution witnesses , who have made substantial improvements in the Court over their earlier statements and these witnesses are very closely related to the deceased.
62. Considering the facts and circumstances noticed above as a whole, it cannot be concluded that the accused are guilty of the offence with which they are charged. Crucial and necessary ingredient that the Preeti (deceased) was subjected to cruelty or harassment by him 'soon before her death' or was subjected to cruelty in State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 57 ID No. 02406R232122011 connection with demand of dowry at any point of time has not been established beyond doubt by the prosecution. Prosecution having failed to discharge its burden, all the accused persons, namely Sunny Goel, Rajesh Goel and Dayawati are hereby acquitted from the charges under section 498A and Section 304B read with Section 34 IPC. Accused persons shall furnish requisite bonds under section 437A Cr. P. C. File be consigned to record room.
announced in the
open court o n (VINAY KUMAR KHANNA)
26th November 2012 Additional Sessions Judge04
(SouthEast) Saket/New Delhi
State Vs. Sunny Goel. & Ors.- SC No. 30 of 2011 58