Delhi District Court
State vs . Kanta Devi on 18 October, 2014
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS (N-W): Rohini Courts : Delhi
In the matter of :
SC No. 53/13
State Vs. Kanta Devi
FIR no. 428/06
PS Ashok Vihar
U/s 498A/304B/34
& Sec. 174A of IPC
State
Versus
Kanta Devi
W/o Sh. Bhagwan Dass
R/o N-77/A-308,
Sawan Park Extn.
Ashok Vihar - III, Delhi.
Date of receipt : 22.07.2011
(Received in this court) : 29.11.2013
Date of arguments : 18.10.2014
Date of announcement : 18.10.2014
JUDGMENT
1. Accused Kanta Devi was sent for trial with the case of prosecution that the accused and other family members subjected the deceased Smt. Sonu to cruelty and harassment and also were responsible for causing unnatural death of Sonu by subjecting her to cruelty soon before her death in connection with demand of dowry. It would be pertinent to mention here that besides the present accused Kanta, who is mother-in-
SC no. 53/13 State Vs. Kanta Devi Pg... 1 of 15 2 law of the deceased, other accused earlier faced trial viz., the husband, namely Pankaj, brother-in-law, namely Devender, and the two sisters-in- law, namely Kranti and Munni Devi. At that time, the present accused Kanta was a proclaimed offender. She was declared proclaimed offender on 7.1.2007. In the earlier trial against other accused, the charge framed was U/s 498A/304B/34 IPC, but only the husband was ultimately found guilty and sentenced for offences U/s 498A & 306 of IPC. He was acquitted U/s 304B of IPC. The other three accused were acquitted of all the charges. Husband was convicted U/s 498A and 306 IPC by the court of Sh. S.K.Gautam, Ld. Addl. Sessions Judge vide judgment dated 04.08.2009. All accused were thus acquitted U/s 304B of IPC.
2. The facts of this case are that complainant Manoj lodged the present complaint stating that deceased Sonu was daughter of his sister-in-law (Sali). Sonu was residing with her nanaji before marriage as father and mother of Sonu had expired. She was married to Pankaj on 02.03.2006. It is alleged in the complaint of Manoj that about 22-25 days of marriage, Manoj, the complainant and his wife namely Laxmi went to the matrimonial home of Sonu as Sonu was informed to be ill. At her matrimonial home, the deceased told the complainant and his wife that the present accused Kanta and the other three accused all used to give beatings to her and all used to demand dowry. It is alleged that the present accused Kanta and the husband of deceased demanded Rs. 20,000/- from the complainant and thereafter, the complainant paid Rs. 20,000/- to the present accused Kanta, a week later. Thereafter, everything went alright for 15 days. One day when complainant went to the matrimonial house of Sonu, her husband again demanded Rs. 10,000/- from the complainant and the complainant paid that amount also SC no. 53/13 State Vs. Kanta Devi Pg... 2 of 15 3 after taking loan on interest. It is also alleged that thereafter after about 10-12 days, on being called by the deceased telephonically, the complainant went to her matrimonial home on 25.05.2006 when her husband demanded Rs. 50,000/- more, but the complainant expressed his inability to pay. The complainant again went to the matrimonial house of deceased on 28.05.2006 and requested her husband and the present accused not to beat the deceased and he also requested that the deceased be sent with him. Allegedly, the present accused refused to send the deceased with the complainant. Two days thereafter, on 30.05.2006, the deceased committed suicide. On this complaint, present case was registered and the matter was investigated. During investigation, Laxmi, wife of complainant Manoj, as well as Lalman (nanaji) of the deceased were also examined and on completion of investigation, chargesheet was filed.
3. It is an admitted case that the deceased died on 30.05.2006. Her death was unnatural is also not denied. She committed suicide by hanging herself. Her death took place within a period of seven years of her marriage.
4. Accused Kanta was thus charged for offences U/s 498A/304B r/w 34 IPC after she was apprehended. Since she was a proclaimed offender, an additional charge U/s 174 A of IPC was also framed against her by the Ld. Predecessor Court.
5. The accused pleaded not guilty to the charge and claimed trial.
6. In support of its case, prosecution examined total 18 witnesses. Out of the 18 witnesses examined by the prosecution, the complainant Manoj is examined as PW12 and Laxmi the wife of complainant is examined as PW6.
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7. Other witnesses of the case are more or less formal in nature.
8. From amongst the formal witnesses, PW1 HC G.J.Bhagat was the duty officer who proved registration of FIR; PW2 SI Manohar Lal was the draftsman who prepared scaled siteplan after taking measurements of the place where the deceased committed suicide at her matrimonial home; HC PW3 Mahender was the photographer of the mobile crime team who took photographs of the crime scene; PW4 ASI Jagdish Chander was posted in PCR Van who reached the spot on receipt of information; PW5 Dinesh proved DD no. 30A recorded at 6.20 PM recorded on 30.05.2006 when the information of suicide by the deceased was received in police station Ashok Vihar. PW8 SI Pramod the further investigating officer, after 9.6.2011, who deposed about the arrest of the accused in this case after she was declared proclaimed offender; PW9 Ranvir who identified the dead body of deceased; PW10 ASI Satpal who simply deposed that the record of PCR was weeded out; PW11 SI Suraj Bhan the Incharge of Crime Team who inspected and submitted the crime team report, PW15 Ct. Amarpal Singh and PW16 ASI Ved Prakash who deposed about formal arrest of the present accused after her apprehension. PW7 Ct. Sadashiv and PW14 SI Balwan Singh both reached the place of occurance i.e. the matrimonial house of the deceased on receipt of DD no. 30A where they found the deceased hanging with a wire from iron pipe attached to the roof of the first floor room. The deceased was already dead when the police reached the spot. Thereafter, the senior officers and the SDM were summoned and further proceedings were conducted.
9. PW13 Dr. Upender Kishore proved the post mortem report of the deceased as Ex.PW13/C. He deposed that the cause of death of deceased was asphyxia as a result of ante mortem hanging and that there SC no. 53/13 State Vs. Kanta Devi Pg... 4 of 15 5 was ligatuare mark present around the neck of deceased which was obliquely placed above the thyroid cartilage deeply grooved in the midline 1 cm broad and placed 6 cm below the extended chin. The findings in the post mortem of the deceased are in lines to the case of prosecution that the deceased committed suicide and there is no other circumstance indicating that the death of deceased was homicidal in nature.
10. PW18 B.S.Thakur the Sub Divisional Magistrate proved that he reached the spot on receipt of information and conducted the inquest proceedings. He also deposed that he recorded statement of the complainant and other relatives of the deceased and also gave application for post mortem of the deceased.
11. PW17 Inspector S.K.Sharma was the investigating officer who deposed about the investigation of the present matter. I need not discuss the testimony of S.K.Sharma in detail being not required for decision of the present case.
12. On conclusion of prosecution evidence, all the incriminating evidence was put to the accused in the statement of accused in which the accused generally denied the evidence against her and claimed that she has been falsely implicated in the present matter. The accused though opted to lead evidence in her defence but the accused closed her defence evidence without leading any defence in her favour on 23.05.2014, vide a separate statement.
13. I have heard Ld. Counsel for the State as well as Ld. Prosecutor for the State.
14. As mentioned above in the present trial against this accused, Lalman could not be examined. He was the nanaji of the deceased who had married the deceased in absence of her parents. He died on 27.11.2007.
SC no. 53/13 State Vs. Kanta Devi Pg... 5 of 15 6 The present accused was declared a proclaimed offender on 6.1.2007. The accused was thereafter arrested lateron in June 2011 and against her supplementary chargesheet came later. It may be mentioned that in the earlier trial against the other accused Lalman was examined in chief on 17.05.2007 when his testimony was deferred for some reason but then thereafter this witness could never be examined in the earlier trial also and he expired. Therefore, it is nobody's case that there is any evidence U/s 299 of Cr.P.C against the present accused, particularly of witness Lalman.
15. Therefore, we are left with only two relatives of the deceased who are examined as PW6 Laxmi (who was earlier examined as PW8 in the earlier trial) and PW12 Manoj (who was earlier examined as PW6 in the earlier trial). Entire case of the prosecution qua Sec. 498A and Sec. 304B of IPC against the present accused was based on the testimony of these two public witnesses. The other witnesses were not witnesses to those incidents of cruelty or harassment.
16. A perusal of testimony of these two witnesses Manoj and Laxmi, and for the reasons to be discussed hereinafter would reveal that their testimony are not sufficient to base conviction against the present accused either for the offence U/s 498A or Sec. 304B or for that matter even under Sec. 306 IPC, for which the husband was held guilty.
17. When Manoj was examined as PW12 in the present trial, so far as relevant for our purpose, he deposed that after marriage of Sonu about 3- 4 days prior to Holi festival in the year 2006, Sonu along with her father- in-law and some children came to the house of nana of Sonu. It was at that time, Sonu told Laxmi that she was given beatings by her mother-in- law about a week ago and when Sonu was asked as to the reason of SC no. 53/13 State Vs. Kanta Devi Pg... 6 of 15 7 giving beatings, Sonu told that she was given beatings on account of demand of money. As against this version, when Manoj was cross examined in the earlier trial on 17.05.2007, he deposed that when he and his wife Laxmi went to the matrimonial house of Sonu, at that time Sonu told that she was given beatings by her husband Pankaj and brother-in- law Devender. There is no mention in the earlier deposition that the present accused Kanta used to give beatings to the deceased. In the present trial, Manoj also deposed that 3-4 days after Holi, he took Rs. 20,000/- from his father-in-law then went to the matrimonial house of Sonu and handed over Rs. 20,000/- to the present accused Kanta in presence of Pankaj her husband. As against this version, in the earlier trial against other accused he had deposed that Sonu had told that her mother-in-law used to harass her and her mother-in-law was asking to do one or the other thing and that she was allowed to sleep at 12 AM and she was made to wake up at 4.00 AM in the morning.
18. In the earlier deposition, the witness deposed that Sonu had told that it was accused Pankaj and his brother Devender who had demanded Rs. 20,000/- whereas in the present trial, the witness deposed that it was the present accused Kanta who demanded Rs. 20,000/- in presence of husband of deceased i.e. Pankaj. In the earlier trial, this witness had deposed that after demand of Rs. 20,000/- by the husband and Devar of deceased he went and gave Rs. 20,000/- within a week to the present accused. In the earlier trial, this witness deposed, but only in the answers to the leading questions put by the Ld. Prosecutor, that Sonu the deceased had told him that her mother-in-law i.e. the present accused Kanta and her husband were demanding Rs. 20,000/- and that the said demand was confirmed by accused Pankaj and the present accused. This SC no. 53/13 State Vs. Kanta Devi Pg... 7 of 15 8 answer was given by the witness only pursuant to the leading question put by the Ld. Prosecutor. Thus, if we ignore the answer given by this witness in the leading question asked to the witness by the Ld. Prosecutor, there is not even a word mentioned in the earlier testimony by this witness that the mother-in-law demanded any dowry.
19. The witness was duly confronted with his previous statements where he had not mentioned as to the deceased being harassed because of any house hold work or because of being allowed to sleep late or wake up early. The witness was even confronted to the effect that he did not state in his previous statement that deceased told him that husband and mother-in-law demanded Rs. 20,000/- from the deceased or the witness.
20. The witness also made material improvements in the present testimony against this accused wherein he deposed that it was the present accused as well as husband of deceased who demanded Rs. 10,000/- from him and then he gave Rs. 10,000/- to both of them. In his signed complaint, on which the present case was registered, the said demand of Rs. 10,000/- is attributed to the husband of the deceased only and not to the present accused. The witness also made improvement in his testimony that the demand of Rs. 20,000/- was by all the accused i.e. husband, mother-in-law, brother-in-law and the two sisters-in-law.
21. When the witness was subjected to cross examination, he admitted in his cross examination that the accused Kanta did not demand anything but he clarified his answer by volunteering that she demanded Rs. 50,000/-. Again this version of this witness that the present accused demanded Rs. 50,000/- is in absolute change of statement given by the witness to the police in which the demand of SC no. 53/13 State Vs. Kanta Devi Pg... 8 of 15 9 Rs. 50,000/- is attributed only and only to the husband of the deceased. In the cross examination, witness even admitted that he went to bring back the deceased for phera about 2-3 days of her marriage and that thereafter he never visited the matrimonial home of deceased. He also changed the version claiming that he had visited the matrimonial house of the deceased along with other family members when she was beaten and which incident had taken place 15-20 days of her marriage. This last mentioned claim does not find mention anywhere in the complaint of this witness. The witness again changed his statement claiming that he had visited matrimonial home of deceased 2-3 times subsequent to her marriage. He again changed the version claiming that he had gone to the house of deceased one day prior to her death to bring her back to his house. During cross examination, the witness even stated that he had himself not gone to the matrimonial house of Sonu on the occasion of Holi or around Holi and instead they (Sonu and her in-laws) came to the house of witness or her nana. This version is in absolute contradiction to the deposition of this witness given in the earlier trial. In the cross examination, the witness even admitted that Rs. 20,000/- was demanded from him by the husband of deceased.
22. The witness was specifically questioned by the counsel for accused whether it was correct that there was no demand by the present accused and no money was given to her. The witness answered that question stating "It is correct that demand of Rs. 50,000/- or any money was not given to her". "It is correct that accused Kanta has not demand anything. Volunteered except Rs. 50,000/-."
23. Thus, from the testimony of Manoj, it is not clear that the present accused ever subjected the deceased to cruelty or harassed her on any account SC no. 53/13 State Vs. Kanta Devi Pg... 9 of 15 10 particularly, or that she ever demanded any amount or that any amount was given to her. From the testimony of this witness who has given contradictory statements, it cannot be safely inferred that the deceased was subjected to cruelty or harassment on account of demand of dowry, more particularly, soon before her death.
24. Turning to the testimony of Laxmi PW6, this witness was examined as PW8 in the earlier trial. This witness deposed that after marriage the deceased came to her parental home after about two months and when she was making tea at that time the deceased told her that she was given slap by her mother-in-law, when this witness asked the deceased as to whether she should talk to her mother-in-law, the deceased refrained her stating that she does not want to ruin her married life. It is also deposed by this witness that after sometime when they were informed that Sonu was not well, she along with her husband Manoj went to the matrimonial house where the present accused demanded Rs. 20,000/- from the witness and her husband. The witness stated that she does not know what happened thereafter and she had nothing else to say. Thereafter, this witness was subjected to cross examination by the Ld. Prosecutor in which she admitted suggestions of the Ld. Prosecutor. When the witness was subjected to cross examination by the accused in the present trial, she also changed her version and claimed that she went to the matrimonial house of deceased Sonu 10-12 days from her marriage when Sonu was feeling unwell. She volunteered that she did not speak to Sonu directly. She also deposed in her cross examination that it was the husband of deceased who demanded dowry and made the demands. She claimed that on the demand of husband of deceased, she handed over Rs. 20,000/- and Rs. 10,000/- on two SC no. 53/13 State Vs. Kanta Devi Pg... 10 of 15 11 different occasions to the husband of deceased. She however also admitted that this amount was not paid in her presence by her husband Manoj. She claimed that after marriage of deceased, she visited her matrimonial house only once and when the deceased had come to the house of this witness, she was making tea at that time and she was in the kitchen when she spoke to deceased. She even claimed that deceased Sonu replied that she was okay and well in her matrimonial life. The witness again changed the stand and stated that she visited the matrimonial house of Sonu when she was called and demand of Rs. 20,000/- was made by the present accused Kanta as well as accused Pankaj. In the next breath, she claimed that when demand was made, she was not present and she cannot tell who else was present at the time of demand. She specifically claimed that she was not present when demand of Rs. 20,000/- was made. The witness even admitted in her cross examination that the concerned investigating officer of the case had tutored her prior to recording of her evidence in the case but she clarified the statement claiming that even if she was not tutored, she was well conversant with the facts of the case.
25. As against the version in the present case of this witness, when this witness was examined in the earlier trial as PW8 she claimed that she had gone to matrimonial house of Sonu on 2-3 occasions and on one occasion the deceased was crying and the deceased told that she was given slaps by her husband and her devar. She also claimed that deceased Sonu had complained her about demand of money by the accused but this part of testimony was on the suggestion of Ld. Prosecutor during examination in chief as recorded in the deposition and SC no. 53/13 State Vs. Kanta Devi Pg... 11 of 15 12 also which accused made the demand was not clarified. The witness had deposed that on different occasions, money was demanded and her husband Manoj had paid Rs. 30,000/-. This witness was duly confronted with her previous statements given to the police during her testimony in the earlier trial also.
26. Thus, a perusal of the testimony of these two witnesses who were the only witnesses of the so called harassment and cruelty would show that these two witnesses have changed their versions materially in their two depositions given in the same case at two different points of time. In the earlier trial, they tried to name the accused who were facing trial then, without naming the present accused specifically, whereas in the present trial, they tried to change their versions by naming this accused and not the earlier ones. Such material improvements in the testimonies of these two witnesses entitles giving of benefit of doubt to the accused. It would not be safe to base conviction on such shaky testimony of these two witnesses. It may be mentioned that in a criminal trial, conviction can be based only and only when the prosecution proves its case beyond reasonable doubt. Onus is on the prosecution which is quite heavy. Though Sec. 113B of Indian Evidence Act allows a presumption against the husband and his relatives but that presumption can be invoked only and only when it is proved by the prosecution that a lady who dies unnaturally within seven years of her marriage was subjected to cruelty soon before her death in connection with demand of dowry. Unless that first condition is satisfied, presumption cannot be invoked. Thus, the present accused has to be acquitted U/s 498A as well 304B of IPC.
27. There is no evidence U/s 306 of IPC also against the present accused, for SC no. 53/13 State Vs. Kanta Devi Pg... 12 of 15 13 which the husband was convicted by the Ld. Court earlier.
28. Turning to the charge U/s 174A of IPC, it is argued on behalf of the accused that the said charge is not sustainable for the reason that the offences for which the accused is charged is not mentioned in Sec. 82(4) of Cr.P.C., and therefore there could not have been any trial against this accused for offence U/s 174A of IPC. In this regard, reliance has been placed on the case of Sanjay Sarin Vs. State (Union Territory Chandigarh) 2013 Criminal Law Journal 408, wherein Hon'ble Punjab & Haryana High Court, held as follows -
"11. A simultaneous reading of section 82 Cr.P.C and 174 A IPC would clearly point to the situation where the persons against against whom proclamation is issued under section 82(1) Cr.P.C. would be divided into two categories. The first category would be of the persons who are accused of an offence other than the one mentioned in section 82(4) Cr.P.C and the second category of the persons accused of an offence mentioned in section 82(4) Cr.P.C. For these two categories of persons, punishment is differently provided by section 174A IPC."
29. Charge U/s 174A of IPC against the present accused appears to be unsustainable in the present trial to this court also but for different reasons. Sec. 174A of IPC is triable by a court of Magistrate. It is a separate and distinct offence altogether. U/s 218 of Cr.P.C, there has to be separate charges for distinct offences and every such charge has to be tried separately. Though, Sec. 219 Cr.P.C provides that three offences of the same kind committed within a year may be charged together but even that section requires that the offences should be of the same kind.
30. In the present matter, when the accused evaded her arrest and became a proclaimed offender, the act of becoming proclaimed offender is a SC no. 53/13 State Vs. Kanta Devi Pg... 13 of 15 14 separate and distinct offence absolutely unconnected with the charge U/s 304B/498A of IPC. The accused, thus, could not have been charged together for those two different offences. This accused was declared proclaimed offender during trial of this case pending before the Ld. Predecessor Court, and therefore this court could not have framed charge against the accused U/s 174 A of IPC. Sec. 174 A of IPC is a cognizable offence triable by a court of Class-1 Magistrate. The accused cannot be deprived of his first right of appeal by clubbing a charge of 174 A of IPC in the already pending trial in the Sessions Case. When Legislature in its wisdom has made an offence U/s 174 A of IPC as cognizable and triable by Class-1 Magistrate, it was that court which ought to have been allowed trial of the said offence.
31. Hon'ble Delhi High Court in the case of Mohd. Jamal @ Ranjha Vs. State in Crl. A. 391/2013 decided on 23.05.2013 held that the trial was illegal where the accused proclaimed offender was tried by a Sessions Court for the main offence U/s 307 of IPC as also for offence U/s 174 A of IPC without their being a report U/s 173 Cr.P.C. Accused of that case was arrested U/s 41(1)(c) of Cr.P.C as he was declared a proclaimed offender and thereafter the Kalandra was filed. It was held that a Kalandra was not a report U/s 173 Cr.P.C prepared by the Officer Incharge of the police station. It was held that on the basis of said Kalandra, the accused could not have been tried for the offence U/s 174 A of IPC. It was also held that a court of Metropolitan Magistrate was entitled to take cognizance and to try the offence U/s 174 A of IPC and thus the procedure adopted by the ASJ was totally illegal in trying the accused for the offence U/s 174 A of IPC with the main offence. The trial was held to be illegal and was set aside.
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32. The sum & substance of the above discussion is that the accused is acquitted of all the charges.
Announced in the open court on
18th day of October, 2014. Dig Vinay Singh
ASJ/Special Judge : NDPS
(N-W)/Rohini Courts/Delhi
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