Delhi District Court
Fir No. 25/2014 Ps Mundka State vs . Shailender & Ors Page No. 1 Of 27 on 30 November, 2022
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE: 04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-001648-2017
SC No. 131/2017
FIR No. 25/2014
PS : Mundka
U/s : 498A/304B/201/34/174A IPC & 3 & 4 Dowry
Prohibition Act
State
Vs.
1. Shailender
S/o Late Sh. Gaya Parsad
R/o Koliyan Mohalla, Kasba Awagarh,
Distt. Etah, U.P.
2. Devender @ Deve
S/o Late Sh. Gaya Parsad
R/o Koliyan Mohalla, Kasba Awagarh,
Distt. Etah, U.P.
3. Jamuna Devi
W/o Late Sh. Gaya Parsad
R/o Koliyan Mohalla, Kasba Awagarh,
Distt. Etah, U.P. (P.O.)
FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 1 of 27
Date of Institution of case : 25.02.2017
Date of decision : 30.11.2022
Final order : Accused Shailender and
Devender @ Deve are
acquitted for offences
punishable u/s 3 & 4 of
Dowry Prohibition Act,
u/s 498A/304B/34/201
IPC.
Accused Shailender is
also acquitted for offence
punishable u/s 174A IPC.
JUDGMENT
1. Brief facts of the case are that on 04.09.2016 zero FIR for offences u/s 498A/304B IPC and 3/4 Dowry Prohibition Act was registered at PS Awagarh Distt. Etah, U.P. As per the contents of said Zero FIR, the place of occurrence falls within the jurisdiction of Delhi. Accordingly, the FIR alonwgith inquest papers and PM report were transferred vide letter no. 412/2013 to Delhi Police. On 20.01.2014 Inspector Prem Chander i.e. SHO PS Mundka had made endorsement on the statement of complainant Smt. Prema Devi and got FIR No. 25/2014 i.e. present case registered at PS Mundka. After the registration of FIR, the investigation was marked to SI Harender. During investigation, SI Harender had gone through the FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 2 of 27 documents received from Awagarh, District Etah, U.P. and he also recorded the statements of witnesses. During investigation, SI Harender had also visited the native village of accused persons but the accused persons were found absconding. During investigation, SI Harender had also recorded the statement u/s 161 Cr.P.C of Sh. Raj Kumar Sharma. Further investigation was marked to SI Deepak. SI Deepak also made efforts for the search of accused persons but in vain.
2. On 08.12.2014, further investigation was marked to Inspector Suresh Kumar. On 26.12.2014, Sh. Shyam Singh the relative of deceased had joined investigation and they went to the rented accommodation of accused persons at house No. 537/3/4, Mundka Extn. but the accused persons had already vacated the said rented accommodation. During investigation, Inspector Suresh Kumar prepared the site plan of the said premises and made efforts for the search of accused persons at their native place but in vain. On 05.10.2016, Inspector Suresh Kumar received an information that accused Shailender and Devender had moved an application for surrendering themselves before the concerned court. Accordingly, on 05.10.2016 Inspector Suresh Kumar moved an application for interrogation of accused Devender and Shailender and effected their arrest and also conducted their personal search and also recorded their disclosure statement. Inspector Suresh Kumar also obtained police custody remand and during PC, accused Shailender and Devender allegedly pointed out the place of commission of offence. On 06.10.2016, accused persons FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 3 of 27 led Inspector Suresh Kumar and other police officials to Mohalla Koliyan, Awagarh District, Etah, U.P where efforts were made for the search of rope used in the commission of offence but in vain and Inspector Suresh Kumar prepared relevant memos. Inspector Suresh Kumar also made efforts for the search of other accused persons and initially obtained the NBWs and thereafter, process u/s 82 Cr.PC against accused Jamuna Devi and got her declared P.O during the investigation, Inspector Suresh Kumar had also got prepared scaled site plan from draftsman ASI Om Prakash. During investigation, Inspector Suresh Kumar also seized the marriage card and marriage photographs and he also collected the postmortem report and other relevant documents and upon completion of investigation prepared chargesheet against accused persons namely Shailender and Devender @ Deve.
3. The charge-sheet was filed before concerned Ld. M.M. on 02.01.2017. The Ld. M.M. took cognizance of the offence and after making compliance of provisions of Section 207 Cr.P.C. the Ld. M.M. ordered the matter to be put up before concerned Ld. District & Sessions Judge, West, Delhi for 25.02.2017 and on 25.02.2017 the present case was assigned to the Sessions Court for trial.
4. On 17.04.2017, order on charge was passed by Ld Predecessor of this Court and charge for offences punishable under Section 498A/304B/201/34 IPC & Sec. 3 & 4 of Dowry Prohibition Act was framed against both the accused persons namely Shailender and Devender @ FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 4 of 27 Deve. Separate charge for offence punishable under Section 174A IPC was also framed against accused Shailender. The charge was read over and explained to both the accused persons in vernacular and they were asked as to whether they want to plead guilty or claim trial. After understanding the charge, both the accused persons pleaded not guilty and claimed trial.
5. Thereafter, the prosecution has examined 12 witnesses in total i.e. PW1 SI Vinod Kumar, PW2 Sh. Bhado Singh, PW3 Sh. Shyam Singh, PW4 Smt. Prema Devi, PW5 Sh. Raj Kumar Sharma, PW6 Mrs. Kanta Devi, PW7 Sh. Mahabir, PW8 Sh. Sipahi Lal, PW9 Sh. Lalta Prashad, PW10 Sh. Room Singh, PW11 Dr. Ashwani Kumar and PW12 Inspector Suresh Kumar.
6. Vide order dated 07.09.2022, prosecution evidence was closed. On 27.10.2022, statements of accused persons namely Devender and Shailender were recorded u/s 313 Cr.P.C. In their respective statements u/s 313 Cr.P.C, both the accused persons have submitted that they are innocent and have been falsely implicated and that they have no connection with commission of offence of the present case. Both the accused persons opted not to lead evidence in their defence.
7. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
8. PW1 SI Vinod Kumar has deposed that on 02.09.2013, he was posted at PS Awagarh, Distt. Etah, U.P. as SI. On that day, one Sh. Bahadur came at PS and lodged a complaint regarding death of his sister Rekha, which was recorded FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 5 of 27 vide GD No. 17. He further deposed that on the basis of said information, he alongwith Ct. Dikshan Rana, HG Madan Gopal and informant Bahadur reached at Mohalla Kolian, Awagarh where dead body of deceased Rekha was kept on ice in front of house of Shailender in the street. He further deposed that Sh. Lalta Prasad Shau (Tehsildar, Jalesar) was already present for necessary proceedings on whose instructions, he prepared the inquest report Ex.PW1/A. The dead body was wrapped in cloth and sealed with the seal of 'VKC V.K. Chauhan UPP' and seal after use was handed over to Ct. Dikshan. He further deposed that on 04.09.2015, zero FIR Ex.PW1/B was registered on the complaint of Smt. Prema Devi.
9. During cross-examination, PW1 stated that no statement of any witness was recorded in his presence by the IO or SDM except his statement. He further stated that he remained at the spot from 11.30 am to 1.00 pm.
10.PW-2 Sh. Bahadur Singh has deposed that deceased Rekha was his sister and in the year 2010, on 06th prior to the festival of Holi, marriage of his sister Rekha was solemnized with accused Shailender. His mother and parental uncle had incurred all the expenses of marriage and had given dowry as per their status. He further deposed that after 1-2 months of marriage, accused Shailender, his mother Jamuna, his sisters, one unmarried sister namely Rachna @ Archna and another married sister and brother namely Deve @ Devender alongwith deceased Rekha came to Mundka and started residing there. He further deposed that after two years of marriage of his FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 6 of 27 sister, he also went to house of accused Shailender at Mundka and stayed there for about 5-6 months and thereafter, returned to his native village due to some mental problem. He further deposed that around 4-5 years back, they had received an information from his relative (Phoofa) that Rekha had expired. Thereafter, he alongwith his mother, uncle Shyam Singh and 3-4 people of locality went to the matrimonial house of his sister at Awagarh. He further deposed that they saw that accused Shailender and his family members were present there and dead body of his sister was lying in front of the main gate and one ambulance was also standing nearby, in which dead body of his sister was brought from Delhi. He further deposed that he did not know as to how his sister died as he was not in a fit state of mind due to mental problem. He further deposed that postmortem of the dead body of his sister was conducted in Etah, U.P. He further deposed that police officials asked him to give statement but he told them that he was suffering from mental problem and did not give any statement.
11.PW2 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW2 denied the suggestion that he stated to the IO that after some time of marriage, accused persons, their mother and sister Archna started harassing his sister for more dowry as the were not satisfied by the dowry given at the time of marriage. He further denied that due to harassment, his sister his sister used to call them FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 7 of 27 and told about the demand of accused persons for Rs.50,000/-, gold chain and gold ring or that his sister used to tell them that on non fulfillment of their demand, accused persons used to beat and harass her. He also denied that he talked to accused Shailender and his mother Jamuna many times on telephone regarding their inability to give more dowry and requested them not to harass and beat his sister. He even could not say whether it was 01.09.2013 when they received information of death of his sister. He also denied that when his mother asked accused persons about the cause of death of his sister, they did not respond and tried to hide the circumstances in which his sister died. He also denied that there were marks of injury and abrasion on right and left side of her neck and on the right side cheek of her face and there was swelling. He further denied the suggestion that he stated to the IO that accused persons had committed murder of his sister after harassing her for dowry and requested for appropriate legal action.
12.This witness was not cross examined on behalf of accused persons.
13.PW-3 Sh. Shyam Singh has deposed that Rekha (deceased) was his niece, whose marriage was solemnized 7-8 years ago with accused Shailender, according to Hindu rites and ceremonies. All the expenses were incurred by him and Prema Devi and had given dowry more than their capacity. He further deposed that after her marriage, Rekha (deceased) stayed at her matrimonial home at Awagarh for about 2-3 months and thereafter, she alongwith accused FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 8 of 27 Shailender, Deve @ Devender, Jaumna (mother-in-law), Rachna (sister-in-law) shifted to Mundka. He further deposed that around 5 years back, accused Shailender informed them about the serious condition of Rekha and requested them to reach Delhi. After some time, one of their relative as well as accused Shailender informed about the death of Rekha. Thereafter, he alongwith his sister-in- law namely Prema Devi, nephew Bahadur Singh and 3-4 persons of locality went to matrimonial house of Rekha a Awagarh. He further deposed that they saw that accused Shailender and his family members were present there and dead body of Rekha was lying in front of main gate of their house. He further deposed that one ambulance was also standing nearby, in which dead body of Rekha was brought from Delhi. He further deposed that their neighbours had provoked Prema Devi against accused persons and police officials from Awagarh police station reached there and obtained thumb impression of Prema Devi on some papers.
14.PW3 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW3 stated that his statement was not recorded by the police. He denied the suggestion that some days after marriage, in-laws of Rekha used to harass and beat her for more dowry and that he and his sister-in-law used to talk to the in-laws of Rekha and tried to make them understand. He also denied the suggestion that they used to pacify Rekha that everything would be right with the FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 9 of 27 passage of time or that he and his sister-in-law requested accused persons not to harass Rekha as they were not in a condition to give more dowry as Prema Devi was a widow and he was also having his family obligations. He further denied the suggestion that he had stated to IO that seemingly Rekha committed suicide due to harassment and beatings given by accused persons for demand of dowry or that he requested IO to take strict action against the accused persons.
15.This witness was not cross-examined on behalf of accused persons despite opportunity given.
16.PW4 Smt. Prema Devi deposed that Rekha (since deceased) was her daughter whose marriage was solemnized about 8 years ago prior to the festival of Holi, with accused Shailender, according to Hindu rites and ceremonies. She further deposed that she and her brother- in-law Shyam Singh had incurred all the expenses of marriage and had given dowry more than their capacity. She further deposed that her daughter was living happily with her husband and in-laws. After 1-2 months of marriage, accused Shailender, his mother Jamuna, his sisters, one unmarried sister namely Rachna @ Archna and another married sister and brother namely Deve @ Devender alongwith deceased Rekha came to Mundka and started residing there. She further deposed that around 4-5 years back, one day, they had received information from her relative (Nandoi) that her daughter had expired. Accused Shailender had also informed about the death of her daughter. She further deposed that she alongwith her FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 10 of 27 son, brother-in-law namely Shyam Singh and 3-4 people of her locality went to matrimonial home of her daughter at Awagarh and saw that accused Shailender and her family members were present there and dead body of her daughter Rekha was lying in front of the main gate. She further deposed that one ambulance was also standing nearby, in which dead body of Rekha was brought from Delhi. She further deposed that she does not know as to how her daughter died. She further deposed that postmortem of the body of her daughter was conducted in Etah, U.P. She further deposed that her statement Ex.PW4/A was recorded by the SDM. She further deposed that she had not given any statement to the police.
17.PW4 was cross examined by Ld. Addl. PP for the state as she was allegedly resiling from her earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW4 denied the suggestion that she had stated to SDM that accused persons and their family member were not satisfied with the dowry articles given by them and they were beating and harassing her daughter for more dowry i.e. Rs.50,000/-, gold chain and gold ring or that her husband used to beat her for demand of dowry due to which she was under great mental pain and agony. She also denied the suggestion that she stated to SDM that her daughter had stated for taking any unwanted step against her life or that on 01.09.2013 her daughter got expired under suspicious circumstances in her rented accommodation at Mundka.
18.This witness was not cross examined on behalf of accused FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 11 of 27 persons despite opportunity.
19.PW-5 Sh. Raj Kumar Sharma deposed that he was a government servant and was having one plot bearing no. 537/3/4 (New Lal Dora), Mundka Mor, Delhi in which he had constructed many rooms and rented out the same to different tenants. He further deposed that out of the said rooms, he had rented out one room to one Gaya Prashad S/o Sh. Sukh Ram who was residing in that room alongwith his family since 2005. He further deposed that few years ago, Gaya Prashad expired and thereafter, his wife and children were residing in the aforesaid room as tenant. He further deposed that in September 2013 wife of Shailender died and they vacated the premises and never returned. He further deposed that he was not aware as to how wife of Shailender died but later on he came to know that case has been registered against accused Shailender.
20.This witness was also not cross examined on behalf of accused persons despite opportunity.
21. PW-6 Mrs. Kanti Devi deposed that earlier she was residing in the house of accused Shailender as tenant and stayed there for about four years and vacated the said premises after some time of death of his wife. She further deposed that accused Shailender used to reside in Delhi alongwith his family and used to visit at Awagarh, District Etah U.P occasionally but he did not visit after the death of his wife as police came at the said address in search of accused Shailender.
22.During cross-examination on behalf of accused persons, PW6 stated that she was not aware about the facts of FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 12 of 27 present case.
23.PW-7 Sh. Mahabir has deposed that in the year 2015, he was residing at H.No. 537/3/4, Village Mundka in the house of Raj Kumar Sharma as tenant and remained there for last 10 years preceding to 2015. He further deposed that accused Shailender was also residing as a tenant in the said house in a room with his wife, brother and sister Archana. He further deposed that mother of accused Shailender also used to stay with them occasionally as she was residing at her native village. He further deposed that he had not heard any quarrel between the accused and his wife nor he was aware whether any demand of dowry of Rs.50,000/- alongwith gold chain was made by accused from his wife.
24.PW7 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW7 deposed to be correct that his statement was recorded by the police in connection of present case. He denied the suggestion that he had stated to the police in his statement Mark PW7/A that accused Shailender used to beat or torture his deceased wife Rekha. He further denied the suggestion that deceased had told him several times that accused had demanded dowry of Rs.50,000/- alongwith gold chain from her. He further denied the suggestion that failing to fulfill the demand of dowry by deceased, accused used to beat her or that PW7 tried to understand the accused but accused warned him not to interfere in their family matters. He further denied FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 13 of 27 the suggestion that on 01.09.2013 when he came back to his room from his work place, he came to know that wife of accused Rekha had died in suspicious circumstances and accused on the pretext to take her to hospital in ambulance from the tenanted room had taken the dead body of deceased to his native place Awagarh.
25.During cross-examination on behalf of accused persons, PW7 admitted that he was residing at the first floor of tenanted premises while the accused was residing at the ground floor.
26. PW-8 Sh. Sipahi Lal deposed that he was residing at H.No. 537/3/4, Mundka for more than ten years. In the year 2013, accused Shailender alongwith his wife Rekha, brother Devender and sister Archana were also residing in the said building as tenant. He further deposed that father of accused Shailender had already expired and his mother used to visit him. He further deposed that on 01.09.2013 when he returned from his work, he came to know from his children that Rekha who was suffering from disease had expired.
27.PW8 was cross examined by Ld. Addl. PP for the State as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW8 stated that his statement was not recorded by the IO. He denied the suggestion that he had stated to the IO that accused Shailender used to beat his wife Rekha or used to harass her or that Rekha told him that accused Shailender had demanded Rs.50,000/-, gold chain etc. as dowry and on non fulfillment of his demand, FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 14 of 27 accused used to beat her. He further denied the suggestion that he had talked to accused Shailender many times in that regard and tried to make him understand but he used to say that don't interfere in his family affairs or that on 01.09.2013 when he came back from his work, he came to know that accused Shailender had taken his wife to hospital in an ambulance on the pretext that she was suffering from disease.
28.This witness was not cross-examined on behalf of accused persons despite opportunity given.
29.PW-9 Sh. Lalta Prashad Sahu deposed that on 02.09.2013, he was posted at District Etah, Tehsil Dalshar as Tehsildar and on that day, concerned SDM received a information regarding postmortem of dead body of one lady namely Rekha. He further deposed that he was deputed by SDM to prepare Panchnama by visiting the spot. He consequently reached at Kolyan Mohalla, PS Awagarh, inspected the dead body and prepared Panchnama Ex.PW1/A and obtained the signatures of other persons on it. He further deposed that according to the opinion of panches to know the cause of death, postmortem of dead body was required. PW9 inspected the dead body and mentioned the injuries in panchnama, which dead body was found sustaining and also written one letter Ex.PW9/A addressed to SP office. He further deposed that he also got prepared sketch Ex.PW9/B of dead body showing injuries from Daroga Vinod Kumar and also got written one letter Ex.PW9/C addressed to CMO, District Etah for postmortem. He further deposed that he sent the dead body for postmortem FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 15 of 27 through one Constable to CMO, District Etah and later on, he was contacted by UP police who collected the above referred documents from him.
30.This witness was not cross examined on behalf of accused persons despite opportunity given.
31.PW10 Sh. Room Singh deposed that he was a fruit seller by profession and on 02.09.2013 while he was present in Delhi, he received an information regarding the death of his Niece Rekha. On receipt of said information, he went to Awagarh, Distt. Etah, U.P. and found other relatives of Rekha present there. He further deposed that the body of Rekha was lying outside her matrimonial house over ice- silli and he also noticed injury marks over her neck and face. The concerned Tehsildar was also found present over there who prepared panchnama in his presence. He further deposed that the body of Rekha was sealed and sent to concerned hospital for postmortem. PW10 further deposed that his cousin Shyam Singh i.e. Uncle of Rekha was also present there alongwith other relatives but the said relatives had not disclosed anything to him.
32.Ld. Addl. PP for state asked one leading question to the witness after seeking permission of the court. PW10 stated that the said relatives of Rekha had not discussed anything in his presence and he could not say if Rekha was harassed by her husband or in-laws on the pretext of dowry.
33.This witness was not cross examined on behalf of accused persons despite opportunity given.
34.PW-11 Dr. Ashwani Kumar Mittal deposed that on 02.09.2013, he was posted as Medical Officer at FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 16 of 27 postmortem house, Etah, U.P. On that day, he alongwith Dr. N.S Tomar had conducted postmortem on the body of Smt. Rekha w/o Shailender and had prepared postmortem report bearing no. 586. He further deposed that upon conducting postmortem, the cause of death was opined to be axphesia as a result of ante-mortem hanging and prepared postmortem report is Ex.PW11/A.
35.This witness was not cross examined on behalf of accused persons despite opportunity given.
36.PW-12 Inspector Suresh Kumar deposed that on 08.12.2014, he was posted at PS Mundka as Inspector ATO. On that day, further investigation of the present case was marked to him. He further deposed that on 26.12.2014, Sh. Shyam Singh the relative of deceased had joined investigation and they went to the rented accommodation of accused persons at house No. 537/3/4, Mundka Extn. but the accused persons had already vacated the said rented accommodation. He prepared the site plan Ex.PW12/A of the said premises. He further deposed that during investigation, efforts were made for the search of accused persons at their native place but in vain. He further deposed that on 05.10.2016, he received an information that accused Shailender and Devender had moved an application for surrendering themselves before the concerned court. Accordingly, on 05.10.2016 he had moved an application for interrogation of accused Devender and Shailender and effected their arrest vide memo Ex.PW12/B & Ex.PW12/C respectively, conducted their personal searches vide memo Ex.PW12/D and FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 17 of 27 Ex.PW12/E and also recorded their disclosure statements Ex.PW12/D1 and Ex.PW12/E1 respectively. He further deposed that during PC remand, accused Shailender pointed out the place of commission of offence vide memo Ex.PW12/F and accused Devender pointed out the place of commission of offence vide memo Ex.PW12/G. He further deposed that on 06.10.2016, accused persons led them to Mohalla Koliyan, Awagarh District, Etah, U.P where efforts were made for the search of rope used in the commission of offence but in vain and he had prepared relevant memos Ex.PW12/H, Ex.PW12/I and Ex.PW12/J. He further deposed that he made efforts for the search of accused persons and initially obtained the NBWs and then process u/s 82 Cr.PC against accused Jamuna Devi and got her declared P.O. He further deposed that he had also got prepared scaled site plan Ex.PW12/K from draftsman ASI Om Prakash. He further deposed that during investigation, he had also seized the marriage card and marriage photographs.
37.During cross-examination, he denied the suggestion that he had falsely implicated the accused persons or that accused persons had not made any disclosure statement. FINDINGS & OBSERVATIONS:
38.I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. My findings are as under:
Ocular Evidence:
39.Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 18 of 27 witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies.
40.The entire case of the prosecution is based upon the testimonies of PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased.
41.In order to prove the case for the offence punishable under Section 304B/34 IPC, as charged in the present case, the prosecution was under obligation to prove the following three essential ingredients:-
(a) whether the death of victim Rekha took place within seven years of her marriage.
(b) whether the death of victim Rekha took place otherwise than under normal circumstances.
(c) whether the victim was subjected to cruelty on the pretext of demand of dowry soon before her death.
42.It is to be seen as to whether the prosecution has been able to prove the three essential ingredients of offence punishable under Section 304B/34 IPC.
(a) Whether the death of victim Rekha took place within seven years of her marriage:-
43.In this regard, the prosecution has examined PW2 Bahadur Singh who is the brother of the deceased and he stated FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 19 of 27 during his examination before the Court that marriage of his sister Rekha was solemnized 06 days prior to festival of Holi in the year 2010. PW2 was not cross examined by Ld defence counsel so as to dispute the aforesaid fact deposed by PW2. Hence, during trial it has been established that the marriage of deceased Rekha took place with accused Shailender in the year 2010 and she had expired at her matrimonial home on 01.09.2013. So the prosecution has been able to prove that the death of victim Rekha took place within seven years of her marriage.
(b) Whether the death of victim Rekha took place otherwise than under normal circumstances:-
44.In this regard, the prosecution has tendered the postmortem report in evidence and the said report has been exhibited as Ex.PW11/A. The said postmortem report is dated 02.09.2021. In the said report, Dr. Ashwani Kumar Mittal and Dr. N.S Tomar have opined that the cause of death of Rekha was due to asphyxia as a result of ante-mortem hanging. So in my considered opinion, the prosecution has been able to establish that the death of victim Rekha took place otherwise than under normal circumstances.
(c) Whether the victim was subjected to cruelty on the pretext of demand of dowry soon before her death and whether victim was subjected to cruelty on account of demand of dowry so as to prove charges for offences punishable u/s 498A/304B/34 IPC:-
45.In this regard, the prosecution has examined PW2 Sh.
FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 20 of 27 Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased. The aforesaid witnesses are the most material witnesses for the prosecution. Their respective testimonies reveal that they have not supported the case of prosecution in any manner, rather they all have deposed that after marriage, Rekha was living peacefully and comfortably at her matrimonial house. The aforesaid witnesses during their testimonies have not deposed that Rekha was treated with cruelty on the pretext of demand of dowry. Since the aforesaid witnesses i.e. PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased Rekha did not support the case of prosecution in any manner, all the said three witnesses were cross examined at length by Ld. Additional PP for the State after seeking permission from this Court. Ld. Additional PP for the State has cross examined all the said three witnesses at length and read over their respective statements which they allegedly made before the concerned SDM/IO during the course of investigation. Despite cross-examination, the aforesaid witnesses namely PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased Rekha have not supported their respective statements which they allegedly made before concerned SDM/IO. They have specifically stated that they had not made any such allegation of demand of dowry by any of the accused persons before concerned SDM/Police. During FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 21 of 27 cross-examination, Ld. Additional PP for State has confronted them with their respective statements which they made before concerned SDM/police but they denied to have made any such statements before the police/SDM. The witnesses during cross-examination have specifically denied that some days after marriage, in-laws of Rekha used to harass her and beat her for more dowry. They also denied that they tried to make accused persons understand but none of them paid any heed. They also denied that Rekha committed suicide due to harassment and beatings given by accused persons for the demand of dowry.
46.The overall impact of the testimonies of PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased Rekha reveals that they have not supported the case of the prosecution in any manner and have not alleged any cruelty being committed by any of the accused persons upon deceased, on the pretext of demand of dowry. They have also not alleged that victim Rekha was subjected to any cruelty on the pretext of demand of dowry soon before her death. So, the testimonies of PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased Rekha are not helpful to the case of the prosecution. In view of the aforesaid discussion, I am of the considered view that prosecution has not been able to establish that the victim Rekha was subjected to cruelty on the pretext of demand of dowry soon before her death or that victim was subjected to cruelty on account of demand FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 22 of 27 of dowry, so as to prove charges for offences punishable u/s 498A/304B/34 IPC. Thus, the prosecution has not been able to prove the charges for offences punishable u/s 498A/304B/34 IPC.
Charge for offence punishable u/s 3 & 4 of Dowry Prohibition Act against accused persons.
47.It has already been observed that the overall impact of the testimonies of PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased Rekha is that they have not supported the case of the prosecution in any manner and have not alleged any cruelty being committed by any of the accused persons upon deceased on the pretext of demand of dowry and had not alleged that at the time of marriage, accused persons took dowry articles or that they further demanded dowry articles from Rekha (since deceased) and her family members. So, the testimonies of PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased Rekha are not helpful to the case of the prosecution. In view of the aforesaid discussion, I am of the considered view that prosecution has not been able to establish that accused persons took dowry articles or that they further demanded dowry articles from victim Rekha (since deceased) or from her family members so as to prove charges for offences punishable u/s 3 & 4 of Dowry Prohibition Act. Thus, the prosecution has not been able to prove the charges for FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 23 of 27 offences punishable u/s 3 & 4 of Dowry Prohibition Act.
Charge for offence punishable u/s 174A IPC against accused Shailender:-
48.As per the case of prosecution, accused Shailender had concealed himself from the process of the court and was subsequently declared P.O by the court of Sh. Jitender Singh, Ld. MM vide order dated 02.09.2016. In this regard, it is observed that the prosecution witnesses namely PW2 Sh. Bahadur Singh i.e. brother of deceased, PW3 Sh. Shyam Singh i.e. Uncle of deceased and PW4 Smt. Prema Devi i.e. mother of deceased have not supported the case of prosecution in any manner. In this regard, it is further observed that IO PW-12 Inspector Suresh Kumar in his testimony has deposed that on 05.10.2016, he received an information that accused Shailender had moved an application for surrendering himself before the court. Accordingly, on 05.10.2016 he moved an application for interrogation of accused Shailender before Ld. MM and after interrogation, effected his arrest. This clearly reveals that intention of accused Shailender was not to abscond. Had it been the intention of accused Shailender to abscond himself from the process of law, then, he would not have surrendered before Ld. MM by moving an appropriate application. The material prosecution witnesses have not supported the case of prosecution in any manner and the aforesaid facts clearly reveals that the intention of accused Shailender was not to abscond from the process of law. Further, it is also FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 24 of 27 pertinent to mention that the proclamation u/s 82 Cr.PC against the accused Shailender was executed at the address i.e. H. No. 537/3/4, New Lal Dora, c/o Raj Kumar, Village Mundka, Delhi and there is no evidence produce on record to show that the accused was ever residing at the aforesaid address. The accused was later on admitted to bail in this case and he furnished the bail bond in which he mentioned his residential address to be Mohalla Koliyan, City and Thana-Awagarh, Distt-Etah, UP and the aforesaid bail bond was accepted by Ld Predecessor after receiving the verification report from the concerned SHO. In these circumstances, the benefit of doubt is given to accused Shailender in respect of commission of offence u/s 174A IPC and he is accordingly acquitted for the said offence.
Charge for offence punishable u/s 201 IPC:-
49.In this regard, it is observed that both the accused persons namely Shailender and Devender @ Deve are charged for offence punishable u/s 201 IPC upon the allegation that they took the dead body of deceased Rekha to Awagarh, U.P with an intention to destroy the evidence. In this regard it is pertinent to mention that none of the material prosecution witnesses has supported the case of the prosecution and as discussed above, the prosecution has failed to establish that the accused persons who are facing the trial have committed the alleged offence punishable u/s 498A/304B/34 IPC or that they were involved in the death of deceased Rekha. Further, the deceased Rekha was the wife of the accused Shailender who is resident of Awagarh, FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 25 of 27 District Etah, UP and as per the allegations u/s 201 IPC, the accused persons took the deadbody of the deceased Rekha to Awagarh, UP and merely taking away the deadbody of his deceased wife to his place of residence by accused Shailender cannot be said to be an act of destroying the evidence. Further, it is also pertinent to mention that postmortem of the deadbody of the deceased Rekha was also conducted and as per the testimony of SI Vinod Kumar, the deadbody of the deceased Rekha was kept on ice in front of house of accused Shailender on the street and thereafter, the deadbody of deceased Rekha was sent for postmortem which was conducted by PW11 Dr. Ashwani Kumar Mittal who exhibited the postmortem report as Ex.PW11/A. In these circumstances, it is not established that the accused persons intentionally caused the evidence in the form of deadbody of the deceased to disappear with the intention of screening the offenders from legal punishment.
50.Since the prosecution has not been able to prove the allegations of cruelty or dowry death as alleged against the accused persons it cannot be presumed that the accused persons took the deadbody of deceased Rekha to Awagarh, District Etah, UP with an intention to destroy the evidence and hence, the accused persons are entitled to be acquitted for the offence u/s 201 IPC.
CONCLUSION:
51.Accordingly, the accused persons namely Shailender and Devender @ Deve are acquitted for the offences punishable u/s 498A/304B/34/201 IPC and for the offence FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 26 of 27 u/s 3 & 4 of Dowry Prohibition Act. Accused Shailender is also acquitted for offence punishable u/s 174A IPC.
52.Their previous bail bonds furnished during trial are hereby cancelled. Their previous sureties stand discharged.
However, the bail bonds furnished by accused Shailender and Devender @ Deve under Section 437A Cr.P.C. shall remain effective for a period of six months from the date of this judgment.
53.Since accused Jamuna Devi is proclaimed offender in this case, the Record Room Incharge is directed not to destroy the file. The same can be revived as and when accused Jamuna Devi would appear and produce before the Court.
File be consigned to Record Room.
(Passed & announced
in open court today) (MANISH KHURANA)
Addl. Sessions Judge-04
West District/Tis Hazari Courts
Delhi/30.11.2022
FIR No. 25/2014 PS Mundka State Vs. Shailender & Ors Page no. 27 of 27