Delhi District Court
State vs . Prem Sagar @ Sethi - Sc No. 46/2011 1/21 on 21 January, 2013
ID No. 02406R0276862011
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE-04
SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 46/2011
ID No. 02406R0276862011
FIR No. 308/2011
U/s. 304-B, 498-A IPC
PS : Sangam Vihar
State
Versus
Prem Sagar @ Sethi,
S/o Late Sh.D. C. Suman,
R/o F-2/60, Sangam Vihar,
New Delhi. ..........Accused
Instituted on : 22nd November, 2011
Argued on : 21st January, 2013
Decided on : 21st January, 2013
JUDGMENT
1. Accused in this case was charged and tried for commission of the offence punishable u/s 498-A and 304-B IPC.
2. In brief, the case of the prosecution as set out in the charge sheet is that deceased Seema got married with the accused on 29.11.2006 and she expired on the intervening night of 21/22.07.2011 i.e. within seven years of her marriage with the accused. A Daily Diary No. 54-A dated 22.07.2011 at Police Station Sangam Vihar was recorded at 12:15 am (midnight) to the effect that a lady was lying unconscious at House No. F-2/60, Sangam Vihar. On receipt of this information, SI Vijay Pal alongwith Ct.Jiauddin reached at the spot. It was revealed that the injured Seema had been shifted to the Hospital in PCR Van. In the meantime, SI Vijay Pal received another information vide DD No. 55-A that Smt. Seema, wife of accused Prem Sagar @ Sethi, aged about 23 years was admitted in the AIIMS Hospital vide MLC No. 3976/11. She was declared 'brought dead' by the Doctor. Postmortem on the dead body was got conducted. Viscera was sealed and thereafter, dead body was handed over to the parents. SDM State Vs. Prem Sagar @ Sethi - SC No. 46/2011 1/21 ID No. 02406R0276862011 recorded statement of complainant Sh.Dharambir, father of the deceased, who stated that Seema (deceased) had got married with accused Prem Sagar @ Sethi about five year ago. Accused used to have quarrel with his mother and father and that they had no quarrel with their son-in-law. About two/two and half years ago their son-in-law (accused Prem Sagar @ Sethi) had threatened to throw out their daughter and had beaten her. Accused Prem Sagar @ Sethi was not working and Seema (deceased) was working in the kothis and offices and complainant also used to financially help her. Complainant stated that he was running an auto-rickshaw and his son-in-law (accused Prem Sagar @ Sethi) was habitual to drink liquor. He was admitted in Nasha Mukti Kendra on two-three occasions and since last two-three months, he was working in Nasha Mukti Kendra. Accused used to quarrel with his mother and Seema (deceased). On the day of incident, accused raised a quarrel with his mother and thereafter, he inflicted injuries on his own foot with a screw driver. He was under the influence of liquor. He had not taken Seema (deceased) to the Hospital despite the fact that her physical condition was not good. His wife reached at the matrimonial house of Seema (deceased) after she was telephonically called by her. She informed the police at 100 number and at about 09:30 pm, Seema (deceased) was taken to the AIIMS Hospital, otherwise, his son-in-law refused to take her to the Hospital. He was saying that Seema (deceased) was sleeping and let her sleep. Complainant further stated that father of the accused Sh. D. C. Suman was doing Government job and the accused as well as his elder brother, both were drunkard. They were not working and not getting any money from their parents. They used to beat their parents and used to raise quarrel with their mother regarding the pension received by her after the demise of her husband. Complainant stated that he had no suspicion on the mother of the accused and his other family members. Accused had also not come in the cremation of his deceased daughter. He stated that daughter was not suffering from any decease. On the statement of Dharambir, a FIR was registered under Section 498-A/304-B IPC. Thereafter, investigation was taken over by Inspector Subhash. On 28.07.2011, Inspector Subhash obtained photographs of the spot. He recovered State Vs. Prem Sagar @ Sethi - SC No. 46/2011 2/21 ID No. 02406R0276862011 three empty wrappers, which were labled as "spasmocip plus", "unwanted 72 emergency contraseptic tablets" and wrapper was labled as "concept bio science (P) Ltd." having some tablets. IO obtained 'list of stridhan articles' and joint photograph of Seema (deceased) with the accused. IO recorded statement of witnesses u/s 161 Cr.P.C. On conclusion of investigation, Charge sheet was filed before the Court of Learned Metropolitan Magistrate on 24.10.2011.
3. Accused was served with charge u/s 498-A, 304-B IPC, to which accused pleaded not guilty and claimed trial.
Charges
4. Points which emerge for determination in this case are :
(i) Whether during the period between November, 2006 to 22.07.2011 in her matrimonial home at F-2/60, Gil Farm, Sangam Vihar, Delhi Smt. Seema (deceased) was subjected to cruelty by accused?
(ii) Whether accused committed cruelty upon Smt. Seema (deceased) 'soon before her death' on 22.07.2011 and thereby committed her dowry death?
Prosecution Evidence
5. To establish accusations against the accused, prosecution examined fourteen witnesses in all. Gist of the testimony of the prosecution witnesses is as under:
5.1 Sh. Kuldeep Singh, SDM (PW-1), prepared inquest paper (Ex.PW1/A). He prepared an application for request to Hospital for conducting postmortem on the dead body of Seema (Ex.PW1/B and Ex.PW1/C). He recorded statement of Sh. Dharambir (Ex.PW1/F) and Smt. Mahenderi (Ex.PW1/H).
5.2 Head Constable Phool Kumar (PW-3), Duty Officer recorded FIR (Ex.PW3/A) and made endorsement (Ex.PW3/B) on the rukka. 5.3 Doctor Ashish Jain (PW-5), conducted postmortem on the dead body of Smt. Seema vide postmortem report (Ex.PW5/A). He placed on record the viscera report (Ex.PW5/B) and subsequent opinion (Ex.PW5/C). Cause of death opined by Autopsy Surgeon is "poisoning due to drug over doses".
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ID No. 02406R0276862011
5.4 Sub-Inspector Mahesh Kumar (PW-6), Draftsman prepared scaled
site plan (Ex.PW6/A).
5.5 Sub-Inspector Veer Singh (PW-7), was witness to the seizure
memo (Ex.PW7/A) of exhibits and sealed viscera.
5.6 Head Constable Ram Niwas (PW-8), joined the investigation with
IO/Inspectr Subhash Malik and Constable Anil. He is witness to the seizure memo (Ex.PW8/A) of list of stridhan articles, arrest memo (Ex.PW8/B) of accused, his personal search memo (Ex.PW8/C) and recorded disclosure statement (Ex.PW8/C) of accused.
5.7 Constable Anil Kumar (PW-10), is witness to the seizure memo (Ex.PW10/A) of joint photograph of Seema (deceased) with accused Prem Sagar @ Sethi. He identified joint photograph (Ex.PW10/B) and list of istridhan articles (Ex.PW10/C).
5.8 Constable Ziauddin (PW-12), reached at the place of occurrence with SI Vijay Pal. He placed on record DD No. 54-A (Ex.PW12/A) and DD No. 59- A (Ex.PW12/B).
5.9 Sub-Inspector Vijay Pal (PW-13), reached at the place of occurrence fist of all. He prepared site plan (Ex.PW13/A) at the instance of complainant and placed on record seizure memo (Ex.PW13/B) of medicine tablets wrappers (total-6 wrappers out of which 3 were empty) from the room. 5.10 Inspector Subhash Malik (PW-14), conducted investigation and placed on record documents prepared by him during investigation. He identified three empty wrappers labled as "sapasmocip plus", one wrapper labled as "unwanted 72 emergency contraseptic tablets" containing half round shaped tablet, one wrapper labled as "concept bio science (P) Ltd." containing two pink & white colour capsules and one small cut wrapper labled as "neurobion forte"
containing two round shape tablet and one half table (Ex.PA-1 to Ex.PA-4).
6. Sh. Dharamvir (PW-11), complainant, Father of the deceased, Smt. Mahendari (PW-9), mother of the deceased, Ms.Chandani (PW-2), sister of the deceased and Sh.Rohit Kumar (PW-4), is the brother of the deceased. Testimony of these material witnesses, who are close relatives of the deceased, is State Vs. Prem Sagar @ Sethi - SC No. 46/2011 4/21 ID No. 02406R0276862011 discussed below.
Statement of accused
7. On conclusion of prosecution evidence, Statement of accused was recorded under section 313 Cr.PC. Accused stated that he is innocent and was falsely implicated. He was married with Seema on 29.11.2006 and it was a love marriage. Later on, his in-laws reconciled the factum of marriage between him and Seema. No dowry was given by his in-laws or was received by him at the time of marriage or thereafter, at any point of time. He never demanded any dowry and never demanded any money for consuming liquor from his wife or from his in-laws. Rather his father in law, used to demand money from him in order to consume liquor. He never harassed or caused cruelty or gave beating to Seema (his wife) during her life time. Accused stated that on day of incident, he was not under the influence of liquor. Occasionally, he used to consume liquor. He stated that Seema (deceased) used to take medicines, since her marriage with him and was habitual in taking medicines. He had neither given any medicine to his wife nor had purchased any medicine for her.
8. I have heard arguments advanced by Sh. R. S. Negi, Learned Addl. PP for the State and Sh. Naval Kishore, Learned Defence Counsel and have carefully considered material on record.
Submissions advanced
9. Learned Addl. PP for the State submits that witnesses have deposed that money was given to the deceased by her parents at the time of construction of additional house on the demand of the accused. He submits that accused Prem Sagar @ Sethi had demanded motorcycle and the Seema expired withing seven years of her marriage in a unnatural manner and therefore, ingredients of Section 304-B and Section 498-A IPC are made out.
10. On the other hand, Learned Counsel for the accused submits that there is no dispute about the fact that the marriage of Seema (deceased) took place with accused Prem Sagar @ Sethi on 29.11.2006 and that her death occurred with the seven years of marriage, but prosecution has failed to establish that she died an unnatural death due to any 'act' on the part of accused or that State Vs. Prem Sagar @ Sethi - SC No. 46/2011 5/21 ID No. 02406R0276862011 'soon before her death' or otherwise accused had committed cruelty upon deceased/wife. He submits that there was a love marriage between Seema (deceased) and accused. No dowry was given by in-laws of accused or received by him and no previous complaint against the accused was ever lodged either by Seema (deceased) or by her parents or any other family member.
11. Learned Defence Counsel submits that there is nothing in the statement of Sh. Dharamvir (PW-1) and Smt. Mahendri (PW-9) to prove that soon before death of Seema (deceased) was subjected to cruelty or harassment on account of demand of dowry. He submits that prosecution has relied upon the testimony of PW-2, PW-4, PW-9 and PW-11 close relatives of Seema (deceased) being sister, brother, mother and father, who are interested and motivated witnesses, so their testimony is requires close scrutiny. Learned Defence Counsel submits that PW-2 and PW-9 met Seema (deceased) twice prior to her death, but the deceased made no complaint against the accused regarding the demand of dowry and cruelty, harassment etc. and this is a most vital circumstance. He further submits that Seema (deceased) never made any complaint against the accused during her life time to police or any other authority regarding the demand of dowry and cruelty. Learned Defence Counsel submits that the economic condition of the parents of the deceased was not such that they could help the accused financially and there is no evidence to show as to from where they raised money for making alleged payment of Rs.60,000/- for the construction of the additional room. He argued that independent witnesses have not been cited or produced deliberately by the prosecution.
12. In support of his submissions, Learned Counsel relied upon "Ashok Kumar Vs. State of Haryana" 2011 (2) CCC 443 (P&H)", "Sunil Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262", "Narayanamurthy Vs. State of Karnataka & Anr., 2008 (2) JCC 1372".
Legal Position
13. To appreciate the submissions made at bar and before discussion of testimony of material witnesses, relevant legal position may be noted.
14. In order to attract application of Section 304-B IPC, the essential State Vs. Prem Sagar @ Sethi - SC No. 46/2011 6/21 ID No. 02406R0276862011 ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
15. As per the definition of "dowry death" in Section 304-B IPC and the wording of Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment "soon before her death" and that too "for or in connection with the demand for dowry". The legal position is well settled that on a joint reading of Section 113-B of the Evidence Act and Section 304-B IPC it would reveal that there must be cogent material to show that soon before her death the victim was subjected to cruelty or harassment, and that too in connection with any demand for dowry. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where presumption u/s 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption would operate. Evidence in this regard has to be led in by the prosecution and established beyond doubt. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would be the quantum to constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a State Vs. Prem Sagar @ Sethi - SC No. 46/2011 7/21 ID No. 02406R0276862011 presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive section 304-B IPC and section 113-B of the Evidence Act is present with the idea of proximity test.
16. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. Thus, it is well settled that before a presumption is raised under Section 113-B Evidence Act, the foundation thereof must exist. Unless and until the preliminary facts are established beyond reasonable doubt by the Prosecution, it is not open to draw a presumption against the accused to invoke this Section.
17. " In Hazarilal v. State of M.P. 2007 (8) SCALE 555 it was observed that there being no other material to show as to how the deceased was being harassed or subjected to cruelty, the conclusion of the High Court that because the deceased committed suicide there must be some harassment and cruelty is insupportable and indefensible. There was no material to substantiate this conclusion. Merely on surmises and conjectures the conviction could not have recorded. There is a vast difference between "could have been", "must have been" and "has been".
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ID No. 02406R0276862011
18. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence."
19. In K. Prema S. Rao vs. Yadla Srinivasa Rao, (2003) 1 SCC 217, Hon'ble Supreme Court considered the definition of "dowry" in the context of offence under Section 304B, I.P.C. alongwith Section 113B of the Evidence Act, and held that :
"one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment "in connection with the demand for dowry" shortly before her death. Para 16 of the judgment reads as under:
"The evidence which has been found acceptable by the Courts below against accused is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death "otherwise than under normal circumstances". To attract the provisions of Section 304B, I.P.C. one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry". There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was "not in connection with any State Vs. Prem Sagar @ Sethi - SC No. 46/2011 9/21 ID No. 02406R0276862011 demand for dowry". One of the main ingredients of the offence of "demand of dowry" being absent in this case, the High Court cannot be said to have committed any error in acquitting accused for offence under Section 304B, I.P.C."
20. In Appasaheb and another vs. State of Maharashtra, 2007 (1) Crimes 110, their lordships of the Hon'ble Supreme Court observed that, "A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, I.P.C. viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."
21. In a case reported as Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon'ble Supreme Court observed that :
"In case of an offence under section 304-B Indian Penal Code an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution."
22. In Babita Vs. State 2009 (2) Crimes 772 it was observed :
"There is no thumb rule as to what is meant by the expression "soon before" death of a woman, under Section 304-B yet despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. The Supreme Court has held in Kedya Perumal Vs. State of Tamil Nadu AIR 2003 SC 3828 and Yashoda Vs. State of M.P. 2004(3) SCC 98 that there should not be too much of a time-lag between cruelty and harassment in connection with demand for dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of State Vs. Prem Sagar @ Sethi - SC No. 46/2011 10/21 ID No. 02406R0276862011 cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence".
23. The expressions "harassment" and "cruelty" have been dealt with and explained by our High Court in `Savitri Devi Vs. Ramesh Chand and Ors' 2003 CrLJ 2759 wherein it was observed:
"Offence of 'harassment' is peculiar to Indian conditions and society where evil of dowry and its perpetuation through customary gifts or demands is widely prevalent and is eating the very vitals of matrimony and tearing familial social fabric apart. To curb this evil, the acts of not only the husband but the entire household have been brought within the net of "harassment of a woman" if done to coerce her or her relatives to fulfill the unlawful demands for property or valuable security.....The word 'harassment' in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to 'coerce' any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to "harassment" as contemplated by Section 498-A. Word 'Coercion' means persuading or compelling a person to do something by using force or threats. Thus to constitute "harassment" following ingredients are essential:-
(i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation;
(ii) Such act should be with a view to pursue or compel her to do something which she is legally or otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.
It appears that the legislature was mindful of the fact and situation that this provision may be exploited that it defined 'cruelty' and for that purpose "harassment" falling within the parameters of "intentional conduct' "of such a degree that may either drive the woman to commit suicide or cause danger to life, limb or health or cause 'grave' injury. Of course "health" means not only physical but mental also. But unfortunately, these provisions have been abused by the Investigating and Prosecuting Agencies and State Vs. Prem Sagar @ Sethi - SC No. 46/2011 11/21 ID No. 02406R0276862011 exploited by the women and their relatives to such an extent that these have proved to be most ineffective in curbing the evil of dowry as well as disciplining the husband and his relatives to treat the woman in human and humane manner and give the bride or wife proper respect and honour."
24. Hon'ble Supreme Court in Gangula Mohan Reddy Vs State of AP (Crl. App No 1301/02)dated 05.01.2010 observed as under:
"In State of West Bengal v. Orilal Jaiswal & Another. (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. ''
25. In Ashish Batham Vs. State of MP, 2002 SCC (Cri.) 1718, Hon'ble Supreme Court observed that the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive State Vs. Prem Sagar @ Sethi - SC No. 46/2011 12/21 ID No. 02406R0276862011 appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
26. Improvements made in the court over the earlier statements in FIR/161/164 were commented with deprecation in the case of Haladhar Behera Vs. State of Orissa 2008 Cri LJ 3389 wherein it was observed:
"so far as charge under Section 304-B, I. P. C. is concerned, it was contended by the learned counsel for the appellant that the evidence with regard to demand of dowry or torture for non- fulfillment of demand of dowry as stated by P.Ws. 1, 2, 4 and 5 cannot be accepted considering the fact that such statements made in Court were neither reflected in the F. I. R. nor in the statements recorded by the police during investigation under Section 161, Cr. P. C. As indicated earlier, none of these four witnesses during their examination in the course of investigation has stated before the police regarding such demand of dowry or torture at the hands of the appellant for non-fulfillment of demand of dowry. Even in the FIR also an omnibus statement has been made but no specific allegation has been brought against the appellant so far as demand of dowry is concerned".
27. In State of Haryana Vs. Gurdial Singh,1974 SCC (Cri.)530 while rejecting the inconsistent and contradictory version and improvements,Hon'ble Supreme Court observed :
''The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in Court, while the other version in contained in their statements made before the police..... In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained.'' Discussion of evidence
28. Now, on the touchstone of the legal position noted above, I shall advert to the crux of the evidence adduced by material witnesses. In this case, case of death opined by Autopsy Surgeon after examination of the viscera report is that "poisoning due to drug over doses". PW-5 Doctor Ashish Jain, Autopsy Surgeon, about the nature of drug found after the examination of viscera of deceased, in his deposition stated, that the drugs found were Acetaminophen, State Vs. Prem Sagar @ Sethi - SC No. 46/2011 13/21 ID No. 02406R0276862011 Dicyclomine and Propoxyphene, Acetaminophen, Norgestrel & Niacinamide and that no common poison was found. According to subsequent opinion (Ex.PW5/C) prepared by Dr. Sudeepta Ranjan Singh, the cause of death was "poisoning due to drug over doses". FIR was lodged on the basis of the statements of Sh. Dharmavir (PW-11), father of the deceased (Ex.PW1/F) and the statement of Smt. Mahenderi, mother of the deceased, who appeared as PW-9 was also recorded by the SDM, which is Ex.PW1/H.
29. In his deposition, Dharmavir (PW-11) stated that the accused used to have a quarrel with his mother. It was stated that at about two or two and half years ago, the elder brother of the accused had threatened to threw their deceased daughter out of the house and had beaten her and thereafter, he was beaten by them and accused was not doing any work and was a drunkard. It was stated that on one day prior to the demise of Seema, accused had raised the quarrel with his mother and thereafter, he had hit himself with screwdriver (sua) and he was under the influence of liquor. It was stated that despite the fact that his daughter was not well. He was not taking her to the Hospital. It was only alleged that accused as well as his brother were not working and they were under the influence of liqour and it was vaguely stated that on the ground that no money was given by their mother they used to raised quarrel with their mother and used to beat their parents.
30. Whereas, Smt. Mahenderi Devi (PW-9) in her statement (Ex.PW1/H) given to the SDM stated that her daughter Seema had telephonically informed her that accused and his mother were quarreling and asked her mother to come to their house on which her mother told Seema (deceased) that let them quarrel and advised her deceased daughter not to speak in between them. Her deceased daughter again called her. At about 09:30 pm, she left her residence and reached at the matrimonial house of his deceased daughter at about 10:30 pm alongwith her younger daughter Chandani (PW-2). On reaching there, Seema (deceased) asked Chandani to prepare tea and at that time deceased was feeling drowsy and she was made to lay down. PW-9 further stated that at that time, her husband (i.e. accused) was not present there and after ten minutes of laying State Vs. Prem Sagar @ Sethi - SC No. 46/2011 14/21 ID No. 02406R0276862011 down, Seema (deceased) had some fits. She cried and became unconscious. After sometime, PW-9 called police. Seema did not got up and thereafter, she was taken to the Hospital in PCR Van. PW-9 further stated that at about two years ago, Seema had a quarrel with her Jethani, who had threatened to kill her and despite that, thereafter, they were on talking terms. PW-9 had no suspicion on anybody.
31. Supplementary statements u/s 161 Cr.P.C. of Sh. Dharamvir, father of the deceased and of Smt. Mahender Devi, mother of the deceased as well as of Ms. Chandani, sister of the deceased were recorded later on. In these supplementary statements., there is improvements to the effect that accused used to harass Seema (deceased) in connection with demand of money and used to treat her with cruelty and that he used to beat her. He used to threaten her to desert her. It was further stated that in February, 2011, a demand of Rs. 60,000/- was made from her daughter, which was fulfilled and thereafter, again accused made a demand in order to do some business. It was mentioned that deceased was doing the work of 'cleaning' in kothies. Accused used to consume liquor every day and used to treat her with cruelty and that accused forcibly gave poison/drug to Seema (deceased) and made her unconscious.
32. In her supplementary statement u/s 161 Cr.P.C. recorded on 29.07.2011 Smt.Mahenderi, stated that sometime Rs.1,000/- and sometime Rs. 2,000/- used to be given to the accused. He was habitual of drinking liquor and used to demand money. He used to harass and beat her daughter. Smt.Mahenderi (PW-9) stated that in January, 2011, they had fulfilled demand of Rs.60,000/- raised by her son-in-law i.e. the accused in order to construct additional room in the house, but thereafter, they again demanded money and used to ask the deceased to bring money and the accused was made to understand that he should not beat Seema (deceased), but he did not mend his ways and used to harass their daughter.
33. In her examination in chief, Smt. Mahenderi (PW-9) has not uttered about the demand of dowry by accused. She has narrated the incident about the quarrel between the accused and his mother. She deposed about the complaint State Vs. Prem Sagar @ Sethi - SC No. 46/2011 15/21 ID No. 02406R0276862011 by Seema (deceased) that her objects used to become to wet in the rainy season and she was in trouble because of the small room and that her husband used to tell her to bring money for construction of other room from her mother. On her request, they had got constructed one backside room in her matrimonial house, so that she would live happily and that they had spent some amount at the time of delivery of child of Seema. She deposed that Seema (deceased) generally never used to quarrel with her husband Prem Sagar @ Sethi (accused). On 11.07.2011, on the occasion of birthday of Seema, she requested her mother (PW-9) to provide a motorcycle to her husband on the occasion of his birthday in January. PW-9 told Seema (deceased) that when she will have enough money, she would buy motorcycle for him. On asking specifically, whether her deceased daughter had ever informed her about any demand made or about any harassment caused to her by the accused, PW-9 deposed that Seema (deceased) used to tell her about the difficulties and the fact that her husband was not doing any work and that her mother-in-law used to refused to financially help them and used to raise quarrel as to why she should help. PW-9 categorically stated that apart from this, her daughter Seema did not make any complaint against the accused/husband of the deceased. She further stated that the financial problem arose after the death of the father of the accused. Learned Addl. PP cross examined and PW-9 stated that accused used to demand money and give beating whereas she had not stated about this fact in her statement to the police. In response to this question, PW-9 deposed that quarrel used to took place between the deceased and the accused as his deceased daughter desired that accused to do some work, but the accused would not do any work and used to remain idle. Daughter used to tell her that accused used to beat her during such quarrels. PW-9 deposed that his deceased daughter was in financial difficulty, therefore, they used to help to the extent possible. In the cross examination by Learned Defence Counsel, PW-9 deposed that she had not stated to the SDM about demand of motorcycle by her daughter for her husband. She could not tell the date, month or year, when her deceased daughter had requested her for construction of the additional room. She deposed that her State Vs. Prem Sagar @ Sethi - SC No. 46/2011 16/21 ID No. 02406R0276862011 daughter had told about this fact after the birth of her daughter and she had told her that the accommodation available with her was not sufficient, therefore, one additional room was required to be constructed.
34. Sh. Dharamvir (PW-11), in his testimony deposed that accused Prem Sagar @ Sethi raised quarrel with Seema (deceased) and had beaten her about two-three year earlier. Allegations are general and no date or month is specified. He deposed that brother of accused was under the influence of liquor and he lodged a complaint in this regard at Police Station Sangam Vihar. No such complaint has been placed or proved on record. PW-11 further stated that one and half years prior to the death of Seema (deceased), Seema had told him that accused demanded money for liquor. He further stated that she had not told her anything else.
35. Smt. Mahenderi (PW-9) and Sh.Dharamvir (PW-11), parents of the deceased have not proved the statements made by them in the supplementary statement to the police regarding spending of Rs.60,000/- at the time of construction of the house or any other demand made by accused or any amount given by PW-9 & PW-11 to the accused. PW-2 Chandani, sister of deceased in her testimony also stated that her sister was working in the Kothis as 'maid' and since her marriage, accused used to quarrel with her and ask for money in order to drink liquor. He used to quarrel with her under the influence of liquor. PW-2 deposed that on the day of incident, her sister had made many telephone calls to her mobile phone from her mobile phone and was requesting her to meet her. She informed her that she would visit her on the next day and thereafter, at about 08:00 pm, her husband consumed liquor and quarreled with her at night time. On specifically asking, whether any demand were made by accused Prem Sagar @ Sethi, PW-2 stated that after about two years of the marriage, her sister had informed her family members that her husband required money for construction of one additional room since, they had insufficient accommodation and after few days, her parents had given some money to her deceased Sister in the presence of her jija Prem Sagar @ Sethi (accused). PW-2 further stated that Seema had told her parents that her husband (accused) used to taunt that her mother had State Vs. Prem Sagar @ Sethi - SC No. 46/2011 17/21 ID No. 02406R0276862011 given all things in the marriage, but had not given motorcycle. In cross examination, PW-2 admitted that accused was doing the work of manufacturing fiber idols and she did not know, if accused Prem Sagar thereafter joined Brilliant University as a Peon or was earning Rs.4,000/- to Rs.5,000/- before and at the time of the alleged incident. She admitted that her sister Seema (deceased) had never lodged any complaint against her husband Prem Sagar @ Sethi (accused) regarding any harassment, beating or any demand. She admitted that their family had also never lodged any complaint against accused Prem Sagar @ Sethi.
36. Sh. Rohit Kumar (PW-4), brother of deceased, in his deposition stated that there was no demand from the side of accused except motorcycle. He was cross examined by Learned Addl. PP on the ground that he resiled from his previous statement. In cross examination, in response to the suggestion put by Learned Addl. PP to the State, PW-4 stated that his father used to give Rs.1,000/- or Rs.2,000/- to the police. PW-4 deposed that he did not know, if her sister Seema (deceased) was having a love affair with accused Prem Sagar @ Sethi before their marriage. PW-4 categorically stated that no other article was given at the time of marriage or thereafter at any point of time before the demise of his sister. PW-4, in her deposition stated that his mother had told him that accused had demanded motorcycle and he could not tell the date, month or the year, when her mother had told her about this fact. PW-4 stated that they had not told to the police that accused had demanded motorcycle from his parents. PW-4 stated that he had not told to the police that the accused had demanded money from his parents. He could not assign any reason as to why, he had not told to the police about the demand of motorcycle made by the accused.
37. Inspector Subhash Malik (PW-14), in his cross examination deposed that during investigation, the source of medicine or the person, who used to bring medicine, which were allegedly consumed by the deceased was not clear. He deposed that during investigation, it could not be revealed as to whether deceased used to take those medicine or since, when she was consuming those medicine. PW-14 deposed that no prescription slip or medical record regarding the consuming of the recovered medicines could be found. PW-14 admitted that State Vs. Prem Sagar @ Sethi - SC No. 46/2011 18/21 ID No. 02406R0276862011 he had not visited the place of occurrence before 28.07.2011. He further deposed that incident had occurred on intervening night of 21/22.07.2011, but he seized the wrappers of medicines on 28.07.2011. He deposed that the FIR in this case was registered on 24.07.2011. He further deposed that SI Vijay Pal had told him that he had locked the room in which the incident of suicide had occurred, pursuant to the direction of SDM on the intervening night of 21/22.07.2012 and the key of the lock of the said room were with SI Vijay Pal. PW-14 deposed that on 28.07.2011, lock of the room was opened by SI Vijay Pal in his presence. He deposed that he did not know, if SI Vijay Pal or any other person opened the lock of the room before 28.07.2011 or not. He deposed that no neighbours or any public persons had agreed to join the investigation on 28.07.2011 at the time of alleged seizure of wrappers. He deposed that in the statement of Smt. Mahenderi recorded on 29.07.2011, there is no mention of the stri dhan articles or regarding any list thereof. He admitted that accused Prem @ Sagar was having friendship and love affair with Seema (deceased) even before marriage. He admitted that later on the parents of Seema had consented to their marriage. He did not record statement of any independent witness or the neighbour regarding the conduct or about the occupation of accused. IO deposed that during investigation, no previous complaint lodged by the deceased against the accused at any time prior to the incident had come to his knowledge and no previous complaint against the accused had come to his knowledge and no specific date of the alleged demand of money for buying liquor by the accused or for beating Seema (deceased) was revealed and that allegation in this regard were general in nature. Conclusions
38. Evidence on record shows that on the intervening night of 21/22.01.2011 i.e. 'soon before her death' deceased was not feeling well. She called her mother Smt. Mahenderi (PW-9), her sister Ms. Chandani (PW-2), had also accompanied her mother at the matrimonial house of Seema (deceased). In her deposition, Smt. Mahendari (PW-9) stated that Seema (deceased) was feeling giddiness and was having fits and thereafter, she became unconscious. Information was given to the police after sometime and thereafter, she was taken State Vs. Prem Sagar @ Sethi - SC No. 46/2011 19/21 ID No. 02406R0276862011 to the Hospital, where she was declared brought dead. There is no evidence on record on the basis of which, it can be found that the drugs were taken by the deceased on her own voluntarily or she took it accidentally or were administered by any person. It has not been established that she took over dose of drugs due to cruelty committed upon her by the accused. It is neither the case of the prosecution nor it has been proved on record that accused had administered the drugs in any manner to Seema due to over dose of which she expired. On scrutiny of the evidence on record in its entirety, this Court finds that no reliance can be placed on the testimonies of PW-2, PW-4, PW-9 and PW-11 close relatives of the deceased, who have taken shifting stands and have made different statements at different point of time. There is no previous complaint that accused used to harass and beat deceased under the influence of liquor or he raised demand of money for liquor from the deceased or from her parents and no specific instance has been proved by the prosecution in this regard.
39. There is no satisfactory and reliable evidence on record of demand of dowry or subjecting Seema to cruelty for or in connection with demand of dowry other than improved and contradictory version of interested witnesses i.e. mother, father, sister and brother of deceased. Not a single neighbour or any other independent witness residing near the matrimonial home of the deceased has been produced, who could speak about subjecting deceased to cruelty by the accused in relation to demand of dowry. There are material contradictions and improvement in the testimony of material witnesses i.e. Sh. Dharamvir (PW-11), Smt. Mahenderi (PW-9), Ms. Chandani (PW-2) and Sh. Rohit Kumar (PW-4). The previous versions given by them before SDM soon after the death of deceased and supplementary statement u/s 161 Cr.P.C. and depositions in the court as well as inter-se contradictions are too glaring. In the present case, the standard of "proof beyond doubt" as required by law has not been achieved by prosecution. Testimony of material witnesses is not only untrustworthy, but is also insufficient thus, it would be unsafe to rely upon the evidence of prosecution witnesses to base the conviction of accused.
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40. In the result, considering the facts and circumstances noticed above as a whole, it cannot be concluded that the accused is guilty of the offences with which he is charged. Crucial and necessary ingredient that the Seema (deceased) was subjected to cruelty or harassment by him 'soon before her death' or was subjected to cruelty in connection with demand of dowry at any point of time has not been established beyond doubt by the prosecution. Prosecution having failed to discharge its burden, accused Prem Sagar @ Sethi is hereby acquitted from the charges under section 498-A and Section 304-B IPC. Accused shall furnish requisite bonds under section 437-A of the Code of Criminal Procedure. File be consigned to record room.
announced in the
open court on (VINAY KUMAR KHANNA)
21st January, 2013 Additional Sessions Judge-04
(South-East) Saket/New Delhi
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