Delhi District Court
State vs . Jai Parkash & Anr. on 13 October, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No. 19/12
FIR No.225/11
P. S. Begumpur
U/S 304B/34 IP
State
Vs.
1. Om Prakash s/o Kalu Ram
R/o H.No. A2/42, Rajeev Nagar,
Near Village Begumpur, Delhi.
2. Jai Prakash s/o Om Prakash
R/o H.No. A2/42, Rajeev Nagar,
Near Village Begumpur, Delhi.
Date of institution of the case : 28.02.2014
Date when final arguments concluded : 23.09.2014
Date of pronouncement of judgment : 13.10.2014
Appearances: Mr. Ashok Kumar, APP for the State.
Mr. Rakesh Malhotra, counsel for accused.
JUDGMENT
1. Father and son accused have been forwarded by police to face trial u/s 498A/304B/34 IPC.
(FIR no.225/11 PS Begumpur) 1 of26
2. Facts are that on 12.09.11 at 11.25 pm, on receipt of information from SGM hospital that a lady namely Deepa had hanged herself and had been admitted dead by her husband Jai Prakash, SI Somvir and HC Dharamvir reached the hospital and came to know that only one year had elapsed from her marriage. Hence, SDM, Saraswati Vihar was intimated to record the statements of Premlal and Smt. Ramkali, parents of deceased Deepa. Premlal told SDM that his daughter was married with accused Jai Parkash on 19.11.10. Jai Parkash and his father Om Parkash had demanded Rs.1 lac from him to purchase an auto. His financial condition was not good but despite it he gave them Rs.30,000/. His wife would tell him that Deepa used to tell her on phone that accused were beating her. Further statement is that accused Jai Parkash had once rangup his elder daughter at Jhansi to complain that Deepa was not bringing money and that they would kill her. He expressed apprehension that his daughter had not hanged herself and rather accused Jai Parkash and his father accused Om Prakash had killed her.
Case FIR was registered on 13.09.11.
(FIR no.225/11 PS Begumpur) 2 of26 Complainant handed over a dying declaration and some other papers written by Deepa to police on 11.10.11.
3. Charge u/s 498A/304B/34 IPC was framed against both the accused on 16.03.12 to which they claimed trial. Alternative charge is u/s 302 IPC.
4. Prosecution examined 15 witnesses to prove dowrycummurder charge. Accused did not examine a single witness in defence.
5. PW9 SI Somvir Singh is the first IO. He deposed that on 12.09.11, he alongwith Ct. Dharamvir reached SGM hospital, Mangol Puri on receipt of DD No.95B Ex.PW9/A. He came to know in the hospital premises itself that Deepa had died within one year of marriage and so, he informed the SHO and SDM. Then he visited the spot, i.e., CN62, Dhiraj Vihar, Delhi. Crime Team incharge inspected the spot and photographer took snaps from different angles. Parents of deceased were also given intimation. He further deposed that he alongwith parents of deceased reached SGM hospital on 13.09.11 where they identified the body of their daughter. Then he took the parents to the SDM office where SDM Ramphal Singh recorded their statements.
(FIR no.225/11 PS Begumpur) 3 of26 Statements of Premlal and Ramkali alongwith endorsement by SDM were handed over to the SHO who issued directions for registration of the case. After postmortem, the dead body was handed over to the legal heirs of the deceased vide handing over memo Ex.PW1/C. The autopsy doctor handed him over a pullanda and wooden box sealed with the seal of SGMH mortuary and he gave those articles to SHO Lalit Kumar which were taken into possession vide memo Ex.PW9/A. He alongwith IO came to the spot where rough site plan was prepared and chunni (veil) was taken into possession vide memo Ex.PW9/B. Both accused were arrested in his presence on 15.09.11 from their house vide arrest and personal search memos Ex.PW5/A, Ex.PW5/B, Ex.PW5/C and Ex.PW5/D. He identified two pieces of veil as Ex.P1.
PW1 Ct. Kamal was member of crime team headed by SI Anil Kumar. He deposed that he alongwith crime team incharge reached the spot, i.e., H.No. CH62, Dhiraj Vihar, Jain Nagar, Delhi on 12.9.11. He clicked photographs Ex.PW11/A1 to Ex.PW11/A9 of the spot from various angles. The State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 4 of26 negatives are Ex.PW11/B. PW8 Dr. Vinay Kumar deposed that a lady namely Deepa w/o Jai Parkash was brought in SGM hospital on 12.9.11 by her husband in dead condition with the history of hanging. He declared the patient dead, prepared MLC Ex.PW8/A and sent the dead body to mortuary for postmortem.
PW7 Dr. Manoj Dhingra alongwith Dr. Munish Wadhawan conducted postmortem on 14.09.11 and found a ligature mark over thyroid cartilage in the midline of neck merging obliquely upward and backward of both sides but absent at the nape of neck. Total length of the ligature was 26 cm and width was 1.9 cms. He opined the cause of death as asphyxia as a result of antemortem hanging. In order to rule out any other reason, he preserved the viscera, sealed it with the seal of SGMH and handed over the same to the IO alongwith postmortem report Ex.PW7/A.
6. PW6 Mr. Ramphal Singh was working as TehsildarcumExecutive Magistrate on 13.09.11. In the morning, on that day, he received information from SDM of the area that a girl had hanged herself and was State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 5 of26 admitted dead in SGM hospital. The SDM had directed him to rush to the hospital to conduct inquest. He deposed that IO produced the parents of the deceased before him on the same day at 3 pm. Father Premlal wrote his statement Ex.PW1/D in his own handwriting. Statement Ex.PW2/A of the mother of the deceased was recorded by his assistant on his dictation. He made endorsement on the statement Ex.PW1/D of Premlal to take necessary action as per law. He conducted inquest in hospital and prepared inquest report Ex.PW6/A on 14.09.11.
PW10 HC Parmod was posted as MHCM on 14.09.11 when second IO Inspr. Lalit Kumar handed him over 2 pullandas, one wooden box and one sample seal of SGM hospital Mangol Puri. He deposed that one of the pullanda was having seal of LK, the other had seals of SGMH and wooden box had seal of SGMH. He deposited the same in the malkhana vide entry no. 525 and 525A Ex.PW10/A and Ex.PW10/B respectively in register no.19. On 30.04.14, he handed over viscera box and sample seals to Ct. Kuldeep vide RC no.26/21/12 Ex.PW10/C for depositing in FSL and State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 6 of26 after deposit, Ct. Kuldeep handed him over receipt acknowledgment Ex.PW10/D. PW14 Kuldeep also asserted that he had deposited the wooden box containing viscera of the deceased in FSL on 30.04.13 and after deposit, he had handed over receipt acknowledgment to the MHCM. PW5 SI Manwar Patwal deposed that on 02.11.11, on the instructions of IO Lalit Kumar, he took questioned documents & admitted from the malkhana and deposited the same in FSL and after deposit, receipt acknowledgment was handed over to the IO. These three witnesses did not tamper with the case property until it was in their possession.
PW13 Dr. Virender Singh had compared the handwriting and signature on dying declaration and admitted documents. He deposed that he gave Mark Q1 to dying declaration Ex.PW1/L and gave mark A1 and A2 to signatures of deceased on affidavit Ex.PW1/K. He marked another admitted document Ex.PW1/G as Ex.A3. A notebook Ex.PW1/H containing 62 pages was given Mark A4 to A24. After examination of the documents, he came to the conclusion vide report Ex.PY that dying declaration Ex.PW1/L and admitted State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 7 of26 documents were written by one and the same person.
7. PW12 Inspr. Lalit Kumar deposed that he was working as ATO PS Begumpur on 13.09.11. He was on patrolling in the area of Sector 24, Rohini when HC Sushil Kumar came to him at 5.30 pm and handed over original rukka and copy of FIR as further investigation was assigned to him. He alongwith SI Somvir PW9 reached SGMH and then to the house of accused but they were untraceable. He again visited the house of the accused on 14.09.11 and prepared rough site plan Ex.PW12/A. He took into possession veil of the deceased vide seizure memo Ex.PW9/B and sealed it with the seal of LK. SI Somvir and Ct. Pawan were with him on 15.09.10 at the time of arrest of both accused from their house at 5pm. He further deposed that complainant Panna Lal alongwith his son Chandan and daughter Pushpa came to PS on 11.10.11 and produced dying declaration Ex.PW1/L, affidavit Ex.PW1/K, other document Ex.PW1/J and a notebook Ex.PW1/H to him saying that all documents had been written by Deepa. He took the documents into possession vide memo Ex.PW1/A. Complainant again came to PS on 04.11.11 State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 8 of26 and produced two photographs Mark X1 and X2 and marriage card Mark X3 to him and he seized the same vide memo Ex.PW1/G. PW5 Ct. Parveen and PW9 SI Somvir also corroborated the testimony of PW12 regarding arrest of both accused from their house on 15.09.11.
8. PW4 Chandan is the younger brother of deceased.
He deposed that he alongwith his father and sister Pushpa had come to Delhi after receiving the information of death of Deepa. Next day, i.e., on 14.09.11, they went to Jhansi to drop Pushpa at her matrimonial home. They reached their house at Jaipur after 23 days and while taking out some articles from the suitcase, his mother came across a letter written by Deepa. That letter was handed over to his father. He accompanied his father to Delhi on 11.10.11 and handed over IO the dying declaration, affidavit, one written page of a notebook and a notebook, all written by her sister. Same were taken into possession vide memo Ex.PW1/E and Ex.PW1/F respectively.
PW3 Ms. Pushpa is the elder sister of Deepa. She deposed that after marriage in November'2010 with State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 9 of26 accused Jai Prakash, his sister started living in her matrimonial house in Delhi where her motherinlaw, fatherinlaw, two jeths and jethani and husband also used to reside. She further deposed that Deepa used to tell her on telephone that accused Jai Parkash was harassing and beating her for money. She further deposed that accused Jai Parkash had ranged her up about 1 & 11/2 months prior to the incident to complain that Deepa was not fulfilling their demands and that she was not bringing money from her father. Accused Jai Prakash had threatened her on phone that if Deepa would not fulfill the demands, she would be killed. She gave information of that threat to his mother after 23 days. She further deposed that even on the day of death, her mother had told her on phone that there was quarrel in the house of Deepa. She rang up Deepa and talked to accused Jai Parkash about the quarrel and at that time also accused Jai Parkash had threatened to kill Deepa if she did not bring money from her father's house.
PW2 Ramkali is the mother of deceased Deepa. She deposed that Deepa was married with accused Jai State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 10 of26 Parkash on 19.11.10. Accused Jai Parkash and his family members started harassing her daughter after two months of marriage. Accused Jai Parkash used to beat her for demand of money. She was severely beaten in February'11 and she came to know of it from her daughter on phone. On the asking of Deepa, she had sent her (PW2) husband to the matrimonial home of Deepa to bring her back. She further deposed that her husband went to Delhi, gave a cash of Rs.30,000/ to both accused persons and brought Deepa to her parental home. Deepa remained with them for 2½ months and thereafter, was back to her matrimonial home by accused Jai Parkash. On receipt of information of death, she alongwith her husband and children reached Delhi and her statement Ex.PW2/A was recorded in SDM office. She further deposed that after postmortem, dead body was handed over to the inlaws of her daughter on 14.09.11.
PW1 Prem Lal is the father of the deceased. He deposed that both accused used to harass his daughter for a demand of Rs.1 lac. He could arrange only Rs.30,000/ and gave to Om Prakash in the presence of State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 11 of26 his son accused Jai Parkash in February'11 and took Deepa back to his house at Jaipur. He deposed that accused Jai Parkash took back Deepa in April'11. Even thereafter, her daughter used to tell her mother on phone that both accused were harassing her for not fulfilling their demand of dowry. He was given information by police on 12.09.11 regarding death of Deepa. He alongwith his sons Chandan, Komal, daughter Kamini and wife came to Delhi where his statement Ex.PW1/D was recorded in SDM office on 13.09.11. He deposed that after postmortem, the dead body was handed over to the inlaws of his daughter as he was unable to take the dead body to Rajasthan.
9. Vide statement dtd. 06.11.13, Ld. defence counsel did not dispute the factum of registration of FIR and preparation of scaled site plan. In view of no dispute, FIR and scaled site plan were exhibited as Ex.D1 and D2 respectively.
10. Ld. APP argued that Deepa was married with accused Jai Parkash on 19.11.10 and she died on 12.09.11 due to antemortem hanging. He further submitted that it has been deposed by 4 public State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 12 of26 witnesses that Deepa was maltreated by accused in connection with dowry. He referred document Ex.PW1/L as the dying declaration and argued that dying declaration prove conclusively that Deepa was murdered by the accused persons.
On the other hand, Ld. defence counsel argued that no witness appeared in witness box to depose that they saw any of the accused forcibly hanging Deepa. Ld. Counsel further argued that only a solitary incident of February'11 has been deposed by the witnesses in which the accused persons demanded Rs.1 lac from the parents of the deceased and father gave Rs.30,000/ to accused Om Prakash. The counsel argued that death had taken place in September'11 and incident was of February'11, so, there was no live link between that incident and death. Last argument is that document Ex.PW1/L is not dying declaration as it was written in April'11 and death took place in September'11.
11. Charge u/s 302 IPC has been framed in alternate.
It has been deposed by PW8 Dr. Vinay Kumar that Deepa was brought in SGM hospital by her husband on 12.09.11 in dead condition. Postmortem was conducted State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 13 of26 by PW7 Dr. Manoj Dhingra alongwith Dr. Munish Wadhawan. As per testimony of PW7, the body was having a ligature mark of 26 cm and width was 1.9 cms. He opined the cause of death as asphyxia as a result of antemortem hanging. In crossexamination he deposed that no other injury mark was found on the body of the deceased. Viscera was preserved and was sent to FSL. Report Ex.PX is to the effect that it was not found containing any metallic, ethyl/methyl alcohol, synide, phosphate, alkaloids, barbiturates, tranquilities and pesticides. So, FSL report regarding examination of viscera is of no help to the prosecution. None of the witnesses deposed that accused forcibly hanged Deepa. So, prosecution has failed to substantiate the charge u/s 302 IPC.
12. It has been deposed by PW1, 2 and 3 that Deepa was married with accused Jai Parkash on 19.11.10. As per deposition of PW7 Dr. Manoj Dhingra and postmortem report Ex.PW7/A, Deepa died on 12.09.11 and cause of death is antemortem hanging. It has been admitted by both accused u/s 313 CrPC that accused Jai Parkash was married with Deepa on 19.11.10.
(FIR no.225/11 PS Begumpur) 14 of26 Relationship of accused Om Prakash with deceased as fatherinlaw has been admitted by both accused. It has also been admitted by them that Deepa died on 12.09.11 due to hanging. Hence, prosecution has successfully proved that Deepa died unnatural death within seven years of her marriage.
13. The moot question is whether she was subjected to cruelty by the accused in connection with dowry just before death.
In statement Ex.PW1/D, PW1 had told SDM that he was holding both accused responsible for the death of his daughter because both accused had demanded Rs.1 lac from him for purchasing auto and he had given them only Rs.30,000/. PW2 Ramkali had stated before SDM in statement Ex.PW2/A that Deepa had rang her up in February'11 to tell that accused Jai Parkash used to beat her daily for money as he wanted to purchase auto from the cash to be brought by her from her parental home. She further told SDM that they could not fulfill that demand. So, statements of parents of the deceased before SDM are contradictory to each other on the issue of payment of Rs.30,000/ to any of the State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 15 of26 accused. PW1 had stated before the SDM that he had given Rs.30,000/ whereas PW2 told SDM that demand of cash of Rs.1 lac could not be met by them.
In statement Ex.PW1/D, PW1 had not told the month when he gave Rs.30,000/ to the accused. When he appeared in the witness box, he specified the month of February'11. After handing over Rs.30,000/ to accused, he took Deepa to his own house where she stayed for 2 & ½ months. It has been deposed by PW2 that accused Jai Prakash took Deepa to her matrimonial home in April'11. She further deposed that even thereafter, her daughter used to tell her on phone that accused was harassing her for more dowry. She did not tell the phone numbers from and on which she was receiving call from Deepa. She did not specify the month or date when such calls were received. PW3 Pushpa deposed that in July'11, accused Jai Prakash and Deepa had gone to her father's house to invite them to attend the marriage of elder brother of accused Jai Parkash and at that time they stayed for 23 days. She further deposed that at that time her parents had not lodged any complaint against accused Jai Parkash or State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 16 of26 Om Prakash for demanding dowry. On the occasion of Rakshabandan in 2011, Deepa and accused Jai Parkash had visited her father's house in Jaipur. It is pertinent to mention that rakshabandan generally falls in the month of August. She further deposed that Deepa and accused Jai Parkash had attended the birthday ceremony of her daughter and they had stayed for 2 days. Even at that time, her parents had not lodged any complaint against accused persons. PW4 Chandan deposed that about one month prior to 13.09.11, he had gone to matrimonial home of his sister and he had stayed there for one day. Frequent visits between both the parties show that relations between them were not strained. Had the relations between them not been cordial, complaint might have been made against the accused by the parents of the accused. As per PW3, no such complaint was made.
Moreover, it has been admitted by PW1, PW2 and PW3 that marriage of Deepa with accused Jai Prakash was solemnized in Madhya Pradesh in samuhik vivah sammelan. It is pertinent to mention that such functions are organised to conduct marriages between poor State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 17 of26 couples. It has been admitted by PW1 and PW2 that their second daughter was also married in that type of function. If the accused were greedy, they would not have married with Deepa in samuhik vivah samaroh as marriages solemnized in such functions are dowryless. Organizers of the function give some dowry articles to the couples from their own coffers.
PW1 admitted in crossexamination that dead body of Deepa was handed over to accused party for cremation and explanation given by him is that he was unable to take dead body to Rajasthan. At that time PW1 was residing in Jaipur which is only 300 kms away from Delhi. That distance cannot be said to be burdensome for transporting a dead body. Had the accused treated Deepa with cruelty, PW1 would not have handed over dead body to them for cremation.
14. Prosecution is heavily relying upon document Ex.PW1/L as dying declaration. That document alongwith other documents were handed over to IO by PW1 on 11.10.11, i.e., after one month of the incident. Contents of Ex.PW1/L are as under:
"mein Deepa rai kwar aaj tareekh 10.04.11 ko apni State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 18 of26 sasural ja rahi hoon, magar mujhe mere pati or mere sasural waalon se jaan ka khatra hai; Vo aaye din mere saath maarpeet or gaali galoch karte hain, kehte hain mein mere mami papa se ek lakh rupay le ker aaon nahin lai to vo mujhe jaan se maar denge aur unhe kuch bhi nahin hoga. Lekin agar mujhey kabhi kuch bhi hota hai to uske jimmedar sirf or sirf mere pati or mere sasural wale honge.
15. Admitted documents relied upon by prosecution are Ex.PW1/K (affidavit), Ex.PW1/J (handwritten page of a diary) and Ex.PW1/H (notebook). PW1 deposed that he was working as security guard in Archies Gallery. He wanted employment for Deepa in the same company and the company was insisting for her affidavit. Affidavit Ex.PW1/K was got prepared and filed in Archies Gallery company. PW1 further deposed that Deepa left the job and company returned her the affidavit. About Ex.PW1/J and Ex.PW1/H, PW1 and PW2 deposed that they found those papers in the trunk of the deceased when they were taking out her clothes. PW1 further deposed that her daughter Deepa was taking classes for stitching clothes from a nearby lady.
(FIR no.225/11 PS Begumpur) 19 of26 In order to learn stitching, she was maintaining a notebook Ex.PW1/H. Custody of affidavit Ex.PW1/K and notebook Ex.PW1/H is not proper because affidavit was handed over to the proprietor of Archies Gallery and it should have been taken into possession by police from the proprietor. Evidence of PW1 regarding coming into possession of affidavit is unreliable. No company hands over back any document submitted by any aspirant of job. Police did not examine the advocate in whose presence Deepa signed the affidavit. The affidavit has been attested by an advocate. To prove that Ex.PW1/H was having the handwriting of Deepa, the proper course for prosecution was to examine the class teacher where Deepa was learning stitching. Said class teacher was not joined in investigation. Authenticity of Ex.PW1/J is also doubtful because there are several overwritings and cuttings on it. Moreover, the year, "2003" is mentioned on the top of the page with pen signifying that page pertains to the diary of 2003. The reader has mentioned all his/her history in that one page. Incidents which happened past 2005 have also State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 20 of26 been mentioned. So, prosecution has failed to prove Ex.PW1/J, Ex.PW1/K and Ex.PW1/H as the admitted document, i.e., the documents containing the handwriting of deceased Deepa. Due to that reason it has failed to prove that Ex.PW1/L has been written by Deepa.
Even if it is presumed that Ex.PW1/L is written by Deepa, said document cannot be termed as dying declaration because the death took place on 12.09.11 and the document was written on 10.04.11.
16. In Hira Lal & others Vs. State (Govt. of NCR), Delhi, AIR 2003, SC 2865, it was held by the Apex court: "A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 21 of26 regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would 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 113 B 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. No definite period has been indicated and the expression 'soon before' is not defined. A reference to 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 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 the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 22 of26
no consequence."
In Sham Lal etc Vs. State of Haryana etc., 1997(1) Crimes 245 (SC), victim Neelam Rani was taken by her parents to their house about 1 & ½ years before her death, an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about ten to fifteen days prior to the occurrence. There was nothing on record to show that she was either treated with cruelty or harassed with demand of dowry during the period between her having been taken to the parental home and her tragic end. Apex court acquitted the accused.
In Kans Raj Vs. State of Punjab etc, AIR 2000 SC 2324 it is held that , "It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straight jacket State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 23 of26 formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."
(FIR no.225/11 PS Begumpur) 24 of26
17. In the case in hand, it has been deposed by PW1 and PW2 that both accused had raised demand of Rs.1 lac for purchasing an auto. PW1 handed over Rs.30,000/ to accused Om Prakash in February'2011 and took Deepa to his house where she remained for two or two and half months. She was taken back to his house by accused Jai Parkash in April'11. Thereafter, both parties visited each other several times. Accused Jai Parkash alongwith Deepa visited his inlaws house in July'11, August'11 and 2 more times. It has been admitted by PW3 that during his visit her parents did not complain him about harassment for dowry. It shows that after the incident of February'11, both parties were having cordial relations. The problem had been resolved. The complainant party had no complaint against the accused party. The above citations squarely cover the case of the accused. There was enough period between February'11 and September'11 for Deepa to forget her woes. Her death in September'11 cannot be connected with incident of February'11. So, prosecution has failed to establish live link between her death and the incident of February'11.
(FIR no.225/11 PS Begumpur) 25 of26
18. Taking into account all these facts, accused are acquitted of the charge levelled against them. Bail Bonds, if any, stands cancelled. Surety, if any, is discharged. Endorsement, if any, be cancelled. Accused in JC be released forthwith, if not required in any other case. Case property be confiscated to State after the period of appeal. File be consigned to Record Room.
Announced in the Open Court On day of 13th October'2014 (UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi State vs. Jai Parkash & anr.
(FIR no.225/11 PS Begumpur) 26 of26