Delhi District Court
In Satvir Singh & Others vs . State Of Punjab And Anr. [2009 on 29 August, 2013
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IN THE COURT OF SHRI SANJEEV KUMAR, ASJ01 , NORTH, ROHINI, DELHI
SC No.409/06
FIR No.479/05
PS Prashant Vihar
U/s 498A/304B/34 IPC
STATE
VERSUS
1. SUNIL YADAV,
S/o Shri Ved Prakash,
R/o D4/50, Sector15,
Rohini, Delhi.
2. VED PRAKASH
S/o Late Khushi Ram,
R/o 1582A, Housing Board Colony,
Sector10A, Gurgaon, Haryana.
3. OMWATI
W/o Ved Prakash,
R/o 1582A, Housing Board Colony,
Sector10A, Gurgaon, Haryana.
4. SATISH
S/o Ved Prakash
R/o E1/11/9, Sector15,
Rohini, Delhi.
5. SHARMILA
W/o Satish
R/o E1/11/9, Sector15,
Rohini, Delhi. ... Accused Persons
State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.1 of 61
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Date of Institution:17.09.05
Date of Argument: 26.07.13
Date of Decision: 29.08.13
JUDGMENT
1. Brief facts of the case are that on 22.05.05, a DD no.37D was received at PP Sector15, Rohini PS Prashant Vihar by SI Jai Prakash that one lady Poonam Yadav wife of Sunil Yadav resident of D4/50, Sector15, Rohini who has declared brought dead in Saroj Hospital. He informed SDM of the area namely Radhe Shyam . Thereafter IO called the crime team ,sent the dead body to morturary and thereafter he reached at spot i.e. D4/50 sector 15 Rohini, there crime team inspected the spot and took photographs. IO seized one chunni and some broken piece of bangle.
2. On 23.05. 2005 PW1 Suresh Kumar Yadav brother of deceased filed a written complaint before SDM that his sister Poonam Yadav was married to Sunil Kumar Yadav S/O Ved Parkash yadav on 27.04.03 and one son was born out of the said said wedlock. In the marriage they had given dowry articles as per custom and cash of Rs.360,000/ for purchasing of Santro car to the accused Sunil. After the marriage Sunil and his parents Ved Parkash and Omwati, elder brother Satish and his wife Sharmila used to harass her sister for demand of dowry and Sunil Yadav used to beat her sister Poonam Yadav and in this regard time to time complaint was made in the PS Saraswati Vihar. He fuether complaint that Rs.4 lacs has been given by him at the time of purchase State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.2 of 61 3 of flat no.D4/50, Sector15, Rohini which is in the name of his sister (deceased). He further stated that on 22.5.05 in the evening at about 8.30 pm he received telephone call from Sunil Yadav that his sister Poonam had committed suicide by hanging and he was in Saroj Hospital, you come soon.
3. SDM Radhey Sham made endorsement for the registration of FIR and accordingly SHO PS Prashant Vihar registered a case u/s 304B/498A/34 IPC and accordingly FIR no.479/05 was recorded.
4. The investigation was assigned to Inspector Ram Mehar SHO PS Prashant Vihar and he got conducted the postmortem on 24.05.05, arrested accused Sunil Yadav on 25.05.05. He also arrested accused Ved Prakash. During investigation he collected the document regarding marriage of deceased. On 31.05.05 he searched the flat no. D4/15 and one register in the handwriting of deceased Poonam was recovered which was seized by the IO. He arrested accused Satish and Sharmila and they were released on bail as they were granted anticipatory bail by the court. IO sent the exhibits to FSL Rohini, collected the admitted handwriting of deceased from GGS IP University, Kashmere Gate, prepared the site plan and also got prepared the scaled site plan. He recorded the statement of witnesses time to time and after completion of investigation he filed the charge sheet u/s 498A/304B/34 IPC.
5. After compliance of provision of Section 207 Cr.P.C. the case was committed to the court of Session. Thereafter, same was assigned to this court for trial in accordance with the law.
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6. The charge u/s 498A/304B/34 IPC was framed against all the accused vide order dated 30.11.05 to which all accused pleaded not guilty and claimed trial.
7. In order to prove its case, the prosecution examined 28 witnesses. PW1 Surender Yadav who is complainant. PW2 HC Tejbir Singh. PW3 Ct. Radhakishan, PW4 Dr. Akhil Vohra, PW5 Devender Yadav, PW6 Sanjeev Yadav, PW7 Ram Bachchan Pandey, PW8 Ct. Kamal, PW9 SI Manohar Lal, PW10 Jai Narain, PW11 Raj Kumar Mittal, PW12 Ct. Jitender Kumar, PW13 Ct. Jagat Singh, PW14 Radhey Shyam, PW15 Dr. B.N. Acharya, PW16 Inspector Satya Parkash Vashishth, PW17 Anil, PW18 Ct.Sushil Kumar, PW19 Ct. Jagbir Singh, PW20 HC Mahavir, PW21 Rohtash Yadav, PW22 SI Ramesh Kumar, PW23 HC Om Prakash, PW24 HC Subhash Singh, PW25 SI Sudama, PW26 Inspector Jai Parkash, PW27 Dr. L.C. Gupta, PW28 Inspector Ram Mehar Singh.
8. The prosecution proved seizure memo of bangles as ExPW1/A, complaint to SDM as ExPW1/B, statement of complainant as ExPW1/C, carbon copy of FIR as ExPW2/A, endorsement on rukka as ExPW2/B, DD no.15A as ExPW2/C, DD no.37 as ExPW3/A, MLC of Poonam Yadav as ExPW4/A, statement regarding identification of dead body as ExPW5/A, dead body was handed over vide receipt ExPW5/B, photocopy of letter of Poonam Yadav as ExPW5/C, carbon copy of letter dt.13.2.04 as ExPW5/D (ExPW1/DX), photocopy of kalandra as ExPW5/E, statement of Devender Yadav as ExPW5/F, statement State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.4 of 61 5 of Poonam Yadav in kalandra as ExPW5/G, photocopy of MLC of Devender Yadav as ExPW5/H, statements of Devender Yadav as ExPW5/J and K, scaled site plan as ExPW9/A, seizure memo of answer sheet as ExPW11/A, answer sheet as ExPW11/1 (24 pages), arrest memo of accused Ved Prakash as ExPW13/A and personal search memo as ExPW13/B, inquest proceedings as ExPW14/A, application for conducting postmortem as ExPW14/B, endorsement dt.23.5.05 as ExPW14/C, postmortem report ExPW15/A and opinion as ExPW15/B, positive photographs as ExPW17/A1 to A8, video cassette as ExPW17/A9, photographs as ExPW18/A1 to A10, seizure memo of four pages in the handwriting of Poonam Yadav as ExPW20/A and pages as ExPW20/A1, entries in register no.19 as ExPW23/A to C, Road certificate as ExPW23/E, CD of postmortem examination as ExPW25/A, application for preservation of dead body of Poonam Yadav as ExPW26/A, seizure memo of chunni as ExPW26/B, arrest memo of accused Sunil Yadav as ExPW26/C and his personal search as ExPW26/D, seizure memo of viscera as ExPW26/E, arrest memos of Satish, Sharmila and Omwati are ExPW28/A to C respectively, site plan as ExPW28/D, seizure memo of marriage card as ExPW28/E, Marriage card as ExP1, Register with blue cover is also ExP1, Chunni is ExP3, broken pieces of bangles as ExP4, FSL Result as ExPX and PY.
9. The statement of all accused were recorded U/s 313 Cr.P.C. and all the incriminating evidence are put to them and they denied the same and submitted that they have been falsely implicated by complainant party out of State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.5 of 61 6 vengeance.
10. Accused Sunil stated that he was residing with his wife Poonam peacefully and he never tortured his wife and never demanded any dowry article from his wife or inlaws. He stated that his wife was disturbed due to muli asking as she was pursuing B.Ed. and managing household, her son and her studies and due to stress she might have committed suicide.
11. Accused Vedpal and Omwati have stated that they were living separately in a govt. accommodation since Oct 2004 at Flat no.251/C MIG Flats Rajouri Garden from accuse Sunil and deceases Poonam who were living in KD154 Pitam Pura.
12. Accused Sharmila and Satish also stated that they were residing separately since September 2003 and have nothing to do with Accused Sunil and Poonam. All the accused stated that they want to lead defence evidence.
13. In their defence both the accused have examined Randeep Singh as DW1, Inderjeet Singh as DW2, Arun Kumar Gupta as DW3, R.K. Aggarwal as DW4, Ravinder Kaur as DW5, Inspector Om Dutt Vats as DW6, DW7 ASI Jai Pal Singh, DW8 Ratul C. Kalita.
14. I have heard the arguments from Shri A.K. Gupta, Ld. APP for the State and accused Sunil, Shri C.L. Gupta, Advocate for accused Ved Parkash and Omwati, Shri S.P. Minocha, Advocate for accused Satish and Sharmila, and gone through the record.
15. PW1 Surinder Yadav , PW5 Devender Yadav and PW6 Sanjeev State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.6 of 61 7 Yadav are the most material witness. There testimonies will be discussed later.
16. PW2 HC Tejbir is a formal witnes as he only recorded FIR of he case.
17. PW3 Ct. Radhakrishnan is also a formal witness as he only recorded DD no. 37 EXPW3/A.
18. PW4 Dr. Akhil Vohra is also not a material witness as he pnly prepared MLC of victim Poonam EXPW4/A.
19. PW7 Ram Bachan Pandey was the pandit who performed the marriage of accused Sunil Yadav with Poonam Yadav. Since Marriage of the victim Poonam and accused Sunil is not in dispute therefor he is not a material witness.
20. PW8 Ct Kamal Singh is a formal witness as he only deposited Viscera of victim in FSL.
21. PW9 SI Manohar Lal is also a formal witness as he only prepared scaled site plan of the spot where victim Poonam found hanging. Since it is not in dispute that deceased died in Flat no. D4/50 Sector 15 Rohini hence his testimony is not material.
22. PW10 Jai Narain is the maternal uncle of victim Poonam. He deposed that on 27.4.03 marriage of Poonam was solemnized with accused Sunil Yadav with pomp and show. Santro car and all other articles were given in the marriage. After sometime of the marriage, inlaws of Poonam started harassing her for dowry. When brother of Poonam went to her matrimonial house to pacify the accused persons, accused Sunil gave helmet blow on the State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.7 of 61 8 head of Bhole the middle brother of the Poonam, regarding which complaint was lodged in PS Shalimar Bagh. He further deposed that when he came to know about the incident, then inlaw of Poonam had apologized for the said incident and he visited the house of Shakuntala and pacify her and in view of apologize suggested to send the Poonam back to her matrimonial house and Poonam was sent back. Poonam was allowed to enter in the house only when they paid Rs.4 lacs for purchase of flat. In cross examination, he stated that Poonam had complaint him about the harassment given to her by her inlaws but he was confronted with statement mark 10/DA where said fact was not mentioned. He also admitted that he had not stated to the police in his statement that Poonam was allowed to enter into the house when Rs.4 lacs were paid to them. He was also confronted with his statement that Ved Parkash and Omwati had apologized for helmet blow given by accused Sunil to Bhole.
23. PW11 is Raj Kumar Mittal VC Tirthankar University Moradabad is a formal witness. He only deposed that on 7.7. 2005 he was working as OSD examination branch GGSIP university and Poonam appeared in exam of B.Ed course and IO seized the answer sheet of Poonam vise seizure memo EXPW11/A and identified answer sheet as EXPW11/1. Since it is not disputed that Poonam was pursuing B.ED course and since he is an independent witness I do not find any ground to disbelieve he has not handed over correct answer sheet of Poonam to IO.
24. PW12 Ct. Jitender is a formal witnes as he only deposited one seal State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.8 of 61 9 pullanda in FSL Rohini on 14.7.05.
25. PW13 Ct. Jagat Singh is a formal witness who arrested accused deposed that on 25.5.2005 Inspector Bhalinder arrested accused Ved Parkash vide arrest memo ExPW13/A and personal search of accused was conducted vide ExPW13/B.
26. PW14 Radhey Shyam was the area SDM. He is not a material witness as he has testified that on 22.5.05 he received information from SI Jai Parkash that one dead body of female was brought to Saroj Hospital. He went there and gave direction to SI Jai Parkash to carry out appropriate proceedings. He further testified that on 23.5.05 Surender Kumar Yadav, brother of the victim gave complaint ExPW1/B to him and requested to him to conduct the postmortem on the dead body of victim from medical board and postmortem be photographed and videographed vide application ExPW1/DX2 in this regard. In his cross examination, no suggestion has been given to him that complaint ExPW1/B has not been given to him.
27. PW15 Dr. B.N Acharya deposed that on 24.5.2005 he conducted post mortem on he body of Poonam and proved PM report EXPW15/A. He further deposed that on10.2.2007 he along with Dr, Upender gave opinion that victim Poonam died died due to asphyxia as a result of hanging and prove his opinion EXPW15/B
28. PW16 Inspector Satya Parkash is not a material witness as he only that on 23/5/2005 he reached at spot D4/50 Sector 15 Rohini and inspected the State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.9 of 61 10 spot and prepared the crime team report EXPW16/A.
29. PW17 Anil is a private photographer and not a material witness. He has deposed that on 24/2/2005 he took 8 photograph of victim Poonam Yadav EXPW17/A1 to EXPW17A8.
30. PW18 Ct. Sushil Kumar is crime Team Photographer and not a material witness. He deposed that on 23/5/2005 he reached at spot D4/50 Sector 15 Rohini and took 10 photograph EXPW18/A1 to A10.
31. PW19 Ct. Jagbir Singh is participated in investigation with PW26IO SI Jai Parkash prior to registration of case and deposed same facts as by SI Jai Parkash.
32. PW20 HC Mahavir is a formal witness. He only deposed that on 7.7.2005 he was called by IO SI Sudama at Geeta Ratan Public School and there he collected4 pages of handwriting (EXPW20/A1) of Poonam from Chairman of school and seized vide memo EXPW20/A. There is nothing in his crossexamination to disbelieve his testimony.
33. PW21 Rohtash Yadav is friend of PW1 his testimony will be discussed with testimonies of PW1, PW5 and PW6.
34. PW22 SI Ramesh Kumar deposed that on 14.8.03 on receipt of DD no.22 A he along with Ct. Satish Kumar went at H.No. KD158, Pitampura, Delhi where he recorded statements of Poonam Yadav and Devender Yadav and after preparing the kalandra u/s 107/151 Cr.P.C. arrested the accused Sunil Yadav. In cross examination he denied the suggestion that he had not State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.10 of 61 11 recorded the statement of Poonam Yadav. He also denied that despite the fact that accused Sunil Yadav was injured, he favoured Devender Yadav and filed false kalandara u/s 107/151 Cr.P.C.
35. PW23 HC Om Parkash was the MHC(M) and is a formal witness.
36. PW24 HC Subhash Singh is a formal witness. He deposed that he met Inspector Balwinder Singh at flat no.D4/50, Sector16, Rohini from where one register ExP1 was recovered from the almirah. In cross examination he stated that he left the house prior to the leaving of spot by IO and complainant. He denied the suggestion that he had not visited the said flat and no register was seized in his presence.
37. PW25 SI Sudama deposed that on 7.7.05 on the direction of SHO Inspector Ram Mehar Singh, he had gone to Guru Gobind Singh, IP University, Kashmere Gate and collected answer sheet (English) of Poonam Yadav of B.Ed which was seized vide ExPW11/A and also collected answer sheet (Hindi) from Geeta Rattan Jindal Institute of Advance Studies and Training, Rohini, Sector7 and seized vide ExPW20/A and on 14.7.05 obtained one CD of postmortem examination of Poonam Yadav and handed over the same to SHO. In cross examination on behalf of accused Ved Parkash and Omwati he stated that he has also attended bail matter of accused Omwati in High Court.
38. PW26 Inspector Jai Parkash is the first IO of the case. He deposed that on 22.5.05 he along with Ct. Jagbir reached at Saroj hospital and collected the MLC of Poonam Yadav on which doctor has opined her brought State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.11 of 61 12 dead. The family members of deceased were also found there and he came to know that she was married about two years ago therefore he informed to area SDM, crime team was called, photographer took photographs and dead body was sent to mortuary BJRM Hospital, one chunni lying on the bed same was seized vide memo ExPW26/B, some broken pieces of bangles also lying in the bed room and seized vide memo ExPW1/A. On 24.5.05 after receiving information he along with Inspector Bhalinder Singh reached at D4/50 and apprehended accused Sunil Yadav. He interrogated accused Sunil Yadav and arrested vide memo ExPW26/C, conducted his personal search vide memo ExPW26/D. The postmortem was got conducted under the supervision of SDM and thereafter dead body was handed over to relatives of deceased. In cross examination on behalf of accused Satish, Ved Parkash, Sharmila and Omawti, he stated that he reached at Saroj hospital at about 9.20 pm and made inquiries from both the brothers of the deceased. But did not record their statements and their statements were recorded by the SDM on 23.5.05 at 12 noon at BJRM Hospital. Crime team reached at the place of occurrence at about 10 pm on 22.5.05 and inspected the spot in his presence. SHO had not gone to the place of occurrence. In the cross examination on behalf of accused Sunil Yadav he stated that he informed the crime team about the place of occurrence. He tried to find out who has brought down the deceased when she was hanging from ceiling fan but he could not find the same. He also tried to find out who had brought the deceased to hospital but he could not find the answer. He further State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.12 of 61 13 stated that no one told to him that chunni found on the bed was used in hanging. He had not opened the knot from the said chunni. He collected the MLC of deceased. He denied the suggestion that on the same day he handed over the son of accused Sunil in the custody of relative Ram Avtar Yadav in PS.
39. PW27 Dr. L.C. Gupta conducted the postmortem on the dead body of deceased and proved the postmortem report as ExPW15/A. In cross examination he stated that the injuries mentioned at point A and B in PM report are visible from the naked eye. He denied the suggestion that there was no visible external injury.
40. PW28 Inspector Ram Mehar then SHO of PS Prashant Vihar and subsequent IO of the case. He deposed that on 24.6.05 he has taken over the investigation of the case. He further stated that on 10.7.05 he called SI Manohar Lal who took rough notes for measurement of scaled site plan and handed over the same to him. He further testified that on 14.7.05, he sent questioned documents and admitted handwriting to FSL through Ct.Jitender. He further deposed that on 15.7.05, he formally arrested accused Satish, Sharmila and Omwati vide memo ExPW28/A, B and C. He after completion of investigation filed the charge sheet. In cross examination he stated that he do not know whether flat no.251C, MIG Flat Rajouri Garden was allotted to accused Ved Parkash. He further stated that he reached at the hospital at 9.30 pm on the day of incident. The brother of deceased was also present in the hospital but he do not remember whether he made any inquiry from them. He admitted that State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.13 of 61 14 address of accused Satish Yadav and Sharmila was E1/11/9 Sector15, Rohini on the day of arrest but stated that he do not remember if he investigated as to accused Satish and Sharmila were residing on the day of incident.
ARGUMENT
41. Ld. Addl.PP Shri A.K. Gupta for the State argued that from the testimonies of PW1 Surender Yadav, PW5 Devender Yadav and PW6 Sanjeev Yadav, it is proved that accused demanded car after the Sagan ceremony and also demanded Rs.5,00,000/ in cash and when only Rs.2 lacs were paid, Poonam (since deceased) was treated with cruelty and was physically harassed and the said demand continued till she died. Hence the prosecution has been able to prove that deceased was subjected to cruelty soon before the death. Since the Poonam (since deceased) has died other than normal circumstances within seven years of the marriage, therefore onus was on the accused persons to prove that deceased has not died due to cruelty committed by them for demand of dowry which they have failed to discharge. Hence both the accused are liable to be convicted u/s 304 B and 498A IPC.
42. On the other hand, accused Sunil Yadav who himself chose to contest the case and did not engage any counsel argued that there are number of contradictions and improvements in the statements of PWs which clearly proved that there statements are nothing but an afterthought to cover the ingredients of Section 304B IPC. He further argued that Poonam (since deceased) has committed suicide because her B.Ed. exam papers did not go State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.14 of 61 15 well.
Ld. Defence counsel for accused Satish and Sharmila argued that there is only one direct allegations against the accused Satish and Sharmila that after the birth of child they went to the house of deceased and demanded Rs. 25,000/ cash but said fact is not mentioned in the complaint ExPW1/A hence same is an afterthought. Ld. Counsel has relied upon Lalita & Ors. V State 2013 III AC (Crl) (DHC) 126; State V Chander Mohan 2012 III AC (Crl) (DHC) 334; Narender Kumar & Ors. V State 2008 (1) JCC 1 (Delhi); Gajula Surya V State of A.P. 2010 (1) CCC (SC) 87 (D) 346; State of H.P. V Sukhvinder Singh 2004(1) CCC (SC) 297 and Verkey Joseph V St. of Kerala 1993 Cr.L.J. 2010 (SC).
Ld. Counsel for accused Ved Parkash and Omwati has argued that there are no allegation at all against accused Ved Parkash and Omwati rather from the evidence it is proved that accused Ved Parkash had helped the deceased. Ld. Counsel further argued that all accused persons except accused Sunil Yadav were living separately since November 2004. Ld. Counsel also relied upon Vipin Jaiswal V State of A.P. 2013 (2) RCR (Crl.) 342 SC; Appasaheb & anr. V St. of Maharashtra 2007 (1) CAR (SC) 53; Rohtash V St. of Haryana 2012 (5) RCR (Crl) 799 SC; Devender Singh V St. of Haryana 2007 (1) JCC 457 SC; Jagjit Singh V St. of Punjab 2009 (2) RCR (Crl.) 337 SC; Sunil Bansal V St. of Delhi 2007 (2) JCC 1415 Delhi High Court; Dev Kumar Juneja V St. Delhi 1996(3) CCC 428 Delhi High Court; St. of Haryana V Chandvir & ors. 1996 (2) CCC85 SC; Subhash Gulati V State 1996 (2) CCC State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.15 of 61 16 High Court of Delhi.
FINDINGS
43. I have heard the arguments and gone through the record. The accused persons have been charged u/s 498A & 304 IPC. Before appreciating the evidence, it would be appropriate to go through the provisions of law relevant to dowry death.
44. Section 304B IPC reads as under: 304B. Dowry death (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - for the purposes of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a terms which shall not be less than seven years but which may extent to imprisonment for life. A legal fiction has been created as per Section 304B IPC. If it is established that soon before the death, the deceased was subjected to cruelty State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.16 of 61 17 or harassment by her husband or any of his relative, for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The Parliament has also inserted Section 113B in the Evidence Act, 1972 which reads as under : 113B Presumption as to dowry death When the question is whether a person has committed the dowry demand of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
ExplanationFor the purposes of this section, "dowry death", shall have the same meaning as in Section 304B of the Indian Penal Code.
In the combined reading of Section 304B IPC and Section 113B, Evidence Act, 1872 reflects a presumption if the prosecution establishes the following circumstances as set out in Section 304B IPC:
i) The death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;
ii) Such death occurs within 7 years from the date of marriage;
iii) The victim was subjected to cruelty or harassment by her husband or relatives of her husband;
iv) Such cruelty or harassment should be for or in connection with demand of dowry; and State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.17 of 61 18
v) Such cruelty and harassment was made soon before her death.
45. Section 498 A IPC reads as under : Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation--for the purpose of this section, "cruelty" means--
a)any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
46. The object of introducing Chapter XXA containing section 498A IPC was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A IPC was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. It must be established that the cruelty or harassment to wife was to force her to cause bodily injury to herself or to commit State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.18 of 61 19 suicide or the harassment was to compel her to fulfill illegal demand for dowry.
47. Now reverting back to the present case. It is undisputed fact that the Poonam (since deceased) had married with the accused Sunil Yadav on 27.3.2003. It is also undisputed fact that the deceased had died on 22.05.2005. Hence it is proved that the deceased had died within seven years of her marriage. Hence first ingredient of Section 304B is fully proved. It is also undisputed fact that Poonam (since deceased) had died due to hanging. Even otherwise as per the testimony of PW15 Dr. B.N. Acharya who conducted the postmortem on the dead body of Poonam (since deceased) on 24.05.2005 death oh victim Poonam He found following injuries:
a) Abradded bruise 6 cm X ½ to ¾ cm, vertically placed at outer aspect of left eye shocked when extended up to forehead laterally, reddish on incision underneath sub scalp hematoma of reddish colour present. Ante mortem simple blunt fresh prior to death.
b) dried up abrasion 1.5 cm X 1 cm at left side mandible, just below & laterally to left angle of mandible, reddish brown simple, ante mortem blunt within about 24 hours in duration.
c) ligature mark in form of dried up parchmatised pressure mark, size 23 cm X 3 to 4 cm, V shape placed at the junction of upper rd rd 1/3 and mid 1/3 of neck in front and bilateral aspect of neck, with bare area at nape of neck (10 cm area), 6 cm below chin, 3 cm below left side mastoid process and 2 cm below right side mastoid State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.19 of 61 20 process on fine dissection underneath tissue found. Blood loss with subcutaneous tissue pale and glistening died due to asphyxia as a result of hanging, ante mortem in nature, subject to cause, injury no.1 and 2 produced by blunt force impact.
He further opined victim died due to asphyxia as a result of hanging, ante mortem in nature, subject to cause, injury no.1 and 2 produced by blunt force impact.
During cross examination by accused Sunil, PW15 stated that as per postmortem report ExPW15/A injury no. (a) and (b) were external injuries and visible. Hence it is prove that deceased died unnatural death. Since it is not the defense of the accused persons that victim was hanged accidentally hence it is either murder or suicide. Since there is no other anti mortem injury on the victim and no evidence that she was murdered hence it is a case of suicide.
48. Now the next and most important ingredient of Section 304B IPC is whether deceased was treated with cruelty for demand of dowry by her husband or relative of the husband and whether soon before death, deceased was subjected to such cruelty or harassment then presumption u/s. 113 B of the Indian Evidence Act shall be raised against the accused persons that they had caused dowry death then onus should shifted upon them. But initial burden to prove that she was subjected to cruelty is on prosecution.
49. The word 'dowry' in Section 304B IPC has to be understood, as it is State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.20 of 61 21 defined in Section 2 of the Dowry Prohibition Act, 1961, 'the word dowry means any property or valuable security given or agreed to be given either directly or indirectly ; (i) by one party of the marriage to the other party of the marriage, (ii) by the parents of either party to a marriage or by any other persons but either party to the marriage or to any other person.
In Satvir Singh & Others Vs. State of Punjab and Anr. [2009 SCC 633] it is held that, 'there are three occasions related to the dowry, one is before the marriage, second is at the time of marriage and third is at any time after the marriage. The third occasion may appear to be a unending period. But the crucial words are that, "in connection with the marriage of the said party". This means that giving or agreeing to give any property or valuable security or any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment or giving property as between the spouses. For example customary payments in connection with birth of a child or other like ceremonies are proceeded in different societies. Such payments are not enveloped within the ambit of dowry.
50. Hence, the dowry mentioned in the Section 304B IPC should be any property or valuable security given or agreed to be given in connection with the marriage. .
51. Meaning of cruelty for the purpose of Section 304B IPC is same as defined in explanation of Section 498A of IPC which is reproduced as under :
a) any willful conduct which is of such a nature as is likely State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.21 of 61 22 to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
52. It is the case of the prosecution that accused persons committed cruelty for demand of dowry due to which deceased Sonia committed suicide within seven years of marriage, hence it is dowry death.
53. The prosecution has relied upon testimonies of PW1 Surender Yadav, PW5 Devender Yadav and PW6 Sanjeev Yadav, PW 10 Jai Narain and PW21 Rohash to proved that deceased were continuously harassing the victim Poonam for demand of dowry and due to said harassment she committed suicide. Besides this prosecution has relied upon the diary of victim Poonam.
54. PW1 Surinder has testified that at the time of marriage it was settled that they will marry on sagan of Rs. one only and ring ceremony of his sister was solemnized on 15.12.12 at his house and after ring ceremony he received telephone call from accused Ved Prakash who stated that he wanted to talk with him. He along with his younger Devender Yadav and friend Rohtash Yadav went to the house of accused at KD154, Pitampura where accused persons told that they had spent Rs.20 lacs in the marriage of their daughter hence he should also incur at least Rs.20 lacs in the marriage of Poonam (since deceased) and State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.22 of 61 23 accused persons also given details of expenditure of Rs.20 lacs and accused Ved Parkash told that Santro car and sum of Rs.5 lacs be given in cash therefore on 06.04.03, he paid Rs.3,60,000/ in cash for purchase of Santro car to accused Ved Parkash and he handed over the same to Omwati and all the accused persons were present in the house. After 34 days of days of giving money for purchasing car, he paid Rs.2 lacs to Sunil Yadav, Satish Kumar and Sharmila and told that he will pay balance of Rs.3 lacs after few days. On 23.04.03 Sagai of his sister Poonam (since deceased) was held at that time accused Sunil Yadav refused for Tilak and stated that he should pay balance amount of Rs. 3 lacs and after great persuasion and assurance that Rs.3 lacs shall be paid after tilak but in the cross examination PW1 says that Rs 360000/ were given at the time of sagai to accused Ved Parkash and Sunil. The witness has further stated in the crossexamination that sagai/ tika ceremony was held on 23.04.2003. Then again in reply to question asked from him by Ld. Defense Counsel that whether in the video film the giving of Rs.3,60,000/ is not displayed he stated that he gave the Rs.3,60,000 on 6.04.2003 and thus said amount was not given on Sagai. PW5 Devender also stated that at the time of Sagai a sum of Rs 360,000 was given to accused Sunil and Vedpal in the presence of other accused for purchase of Santro car. PW6 Sanjeev has stated that money was given to purchase the Santro car to Sunil Yadav and Vedpal by his brother Surender Yadav but he do not remember what amount was given. Thus there is contradiction in the statement of PW1, PW5 and PW6 when State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.23 of 61 24 cash for santro car was given. In his written complaint ExPW1/A, PW1 has not stated that the money for purchase of car was given on the demand of accused persons.
Further in the complaint ExPW1/A given to SDM also it is not mentioned that after ring ceremony accused persons called him at their house and their they demanded that RS 20 Lakhs be spent in the marriage and beside Santro car and cash of Rs 5 lakh. He had not stated at all that accused persons either before or at the time of marriage demanded any dowry. He had only stated that they had given dowry according to custom.
55. PW5 Devender who allegedly visited with him at the house of accused persons when said demand was made had also not stated in his testimonies that after ring ceremonies they were called by accused persons at their house and he along with his brother and Rohtash went their house where accused persons asked them to spent at least Rs 20 lakh and gave Rs 5 lakh cash and after 34 days of days of giving money for purchasing car, PW1 paid Rs.2 lacs to Sunil Yadav, Satish Kumar and Sharmila and told that he will pay balance of Rs.3 lacs after few days. On 23.04.03 Sagai of his sister Poonam (since deceased) was held at that time accused Sunil Yadav refused for Tilak and stated that he should pay balance amount of Rs. 3 lacs and after great persuasion and assurance by them that Rs.3 lacs will be paid after tilak accused got ready for tilak.
56. However, PW6 Sanjeev has testified that after 15/20 days of sagai State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.24 of 61 25 Ved Parkash call his brother Surender to his house. And his brother surender, Devender and Partner of Surender went to their house and after coming back his brother Surender told him that Surender told him that Sunil asked him to spent Rs 20 lakh in the marriage of their sister and he further stated his brother paid Rs. 2 lakh in the year 2003. Hence he did not took name of other accused. He also did not testify that in tilak ceremony accused Sunil refused to have Tilak unless balance 3 lakh is paid as stated by PW1 in his testimony.
57. PW21 Rohtash had also testified that after about 45 days of Godbhrai i.e.15.12. 2003 Ved Parkash telephoned to Surender and asked him to meet at his house and one day he along with Surender visited to their house and their accused persons Ved Parkash and Omwati told that they have spent Rs20 lakh in the marriage of their marriage therefore they should spend this much of amount in the marriage and when they showed their inability accused Sunil stand there and stated that he wanted a car at any cost hence even PW21 has not stated that Rs 5 lakh cash was demanded on that day. In the cross examination he was confronted with his statement Ex PW21/DA where only name of accused Omwati and Sunil were mentioned as the persons who stated that not less then Rs 20 lakh be spent in the marriage. On the other hand PW1 stated that Rs. 360000/ was given to Sunil only, hence he did not take name of accused Ved Pal. Further he did not state that on that day Rs. 5 lakh cash was also demanded. Though, he testified that after 56 days accused Omwati made call to Surender and asked him to arrange Rs 5 lakh. But said portion of State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.25 of 61 26 PW21 testimonies is hearsay as he did not say that telephone call was made in his presence. Even PW1 did not say in his testimony that accused Omwati made any such call to him.
PW21 testified he went with Surender to the house of accused persons to give Rs 2 lakh which Surender gave to accused Sunil hence he did not supported the testimonies of PW1 that Rs. 2Lakh were also given to accused Satish and Sharmila or in their presence or accused Sharmila said balance Rs 3 lakh be paid soon. Further PW21 also not stated that in tilak ceremony accused refused to have tilak until balance Rs 3 lakh is paid. He is the friend and partner of PW1 therefore it cannot be ruled out that to support his friend he has exaggerated the event which have happened before him. Being mediator he may have participated in the negotiation what amount is to be spend in marriage and how to spend which could be voluntarily from both side.
58. Thus from the aforesaid discussion it is evident that there are lots of improvement in the testimonies aforesaid witnesses from their previous statements given to police and it is evident that there are lot of inter se contradiction in their testimonies which make testimonies of PW1, 5,6 and 21 unreliable to the extent that accused persons demanded either Santro car or demanded Rs 5 lakh cash or asked that Rs.20 lacs be spent in the marriage. Family member of victim may have given dowry article including amount for purchasing car and Rs. Two lakh but it is evident that same may have been given voluntarily as stated by PW1 in his initial complaint EXPW1/A lodged after State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.26 of 61 27 next day of death of her sister that he gave dowry according to social custom. Had accused persons demanded the dowry in the marriage then definitely he would have mentioned that accused persons demanded dowry before marriage in his complainant. Hence I held that prosecution has failed to proved that accused persons have demanded dowry either prior to marriage or after marriage.
59. It is admitted fact that marriage between accused Sunil and victim Poonam was solemnized on 27.04.2003 and no complaint was made by victim till 22.5.2003 regarding harassment by accused persons as PW5 has testified that on 22.5.2003 when he went to take his sister at her matrimonial house she told that accused Omwati used to tell her that she should bring Rs 3 lakh from her brother Surender as the balance amount which was to be given at the time of marriage. He talked to Omwati and Sunil and Sunil told that "itne naak wale bante ho Rs 3 lakh Kyun nahi de dete". But he was confronted with his statement ExPW5/J recorded on 23.5.2003 where said fact was not recorded though said fact is recorded in his supplementary statement ExPW5/K recorded on 25.5.2003 hence it cannot be ruled out that same is afterthought.
60. PW1 has also testified that on 22.5.03 his younger brother brought his sister Poonam to their house and then she told that accused persons told her that he (PW1) had agreed to incur Rs.20 lacs in the marriage but had not incurred the said amount and had paid only Rs.2 lacs. PW1 has testified that on next day he along with Devender Yadav went to the house of accused persons State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.27 of 61 28 and requested the accused persons that before Sagai he told them that marriage will be on Rs.1/ but to avoid any complication he incurred Rs.20 lacs and requested that he will pay balance amount of Rs.3 lacs later on as he was already under debt. But he has not stated what the accused person have said on his assurance to pay later on. Further PW5 had not stated in his complaint EXPW1/A about the arrival oh his sister on 22.5.2003 or his visiting to the house of accused persons on next day. He has only levelled general allegation that after marriage accused persons used to harass his sister for bringing dowry but he has not stated that his sister told them that accused persons were harassing her for balance Rs 3 lakh.
61. Further PW5 had testified that after 22.05.2003 they had gone to the house of accused persons after 34 days and further he says that accused persons told them to give three lakh in short period. Further in his statement U/S161 PW5 had not stated that either next day after 22.05.2003 or after 34 days they went to the house of accused persons to make them understand that they could not pay balance Rs 3 lakh right now.
62. PW5 testified that on 27.7.2003 his brother Sanjeev went to the house of his sister on the occasion of teej, the accused persons again demanded Rs 3 lakh and accused persons refused to accept the sweets and told him to get out and he further testified that Poonam told him (Sanjeev) that on 27.7.2003 on her birthday accused Sunil beaten her. PW6 also testified that he visited to the house of his sister on 28.7.2003 and his sister told him about State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.28 of 61 29 beating by accused Sunil on 27.7.2003 and shown knife to her, hence he did not take name of other accused persons. But he had not stated that accused persons demanded Rs 3 lakh on that day as alleged by PW5 and due to non payment accused persons refused to accept the sweet. But he stated that due to complaint by her sister they threw the sweets which cannot be considered demand of dowry by other accused persons.
63. PW5 further testified that after two three days he went to his sister house then his sister handed over her a letter mark X in which she had written that when she was pregnant , all the accused persons made her to drink poison which she did not drink and they all used to beat her but accused persons have given suggestion that letter is not in handwriting of victim and handwriting of said letter has not been got compared from FSL hence prosecution has failed to proved that letter mark x was in the handwriting of Poonam.
64. Further PW1 testified that on 12.8.03 i.e. on the day of Raksha Bandhan accused persons did not allow him to talk his sister and in the evening accused Sunil Yadav dropped his sister outside their house and then his sister told that accused persons used to harass her and accused beat her for non payment of Rs.3 lacs and she told that on the day of her birthday i.e. on 27.7.2003 accused Sunil beat her in the presence of other accused person and accused threatened her that Ved Parkash is in police and nobody can harm them. Hence he came to know about the incident of 27.7.2003 only on 12.8. 2003. It is very unnatural that PW5 or PW6 did not tell him anything about the State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.29 of 61 30 incident happened with her sister on 27.7.2006 which was not small incident. Neither he has deposed anything about the letter mark X.
65. Further PW1 stated that on 12/13.8.2003 he talked to Ved Parkash and sought some time to pay the amount of Rs 3 lakh. However he was confronted with his complaint PW1/A where said fact were not recorded. Hence same is improvement.
66. PW6 Sanjeev in his testimony recorded on 3.9.2009 has not stated that his sister visited on raksha bandhan but in his testimonies recorded on 22.7.2010 he stated that his sister visited to their house on raksha bandhan and told that Ved Parkash Omwati and other are saying that marriage was settled for 20 lakh but only Rs 2lakh have been paid and accused persons are giving beating to her and she cannot live there. Hence it cannot be ruled out that in between his two testimonies he was tutored. Further while PW1 had stated that her sister told that only accused Sunil beat her PW6 took name of all accused persons. However PW5 in his testimonies have not testified that on 12.8.2003 Poonam came to their house. Hence there are inter se contradiction.
67. PW1 testified that on 14.8.03 his younger brother Sanjeev took Poonam (since deceased) to her matrimonial house at that time accused Sunil Yadav and Omwati told to Sanjeev Yadav whether he had brought Rs.3 lacs and when he stated that his brother will talk with Ved Parkash on telephone. Accused Sunil Yadav and Omwati closed the door of the house by saying that they will not keep Poonam (since deceased) unless Rs.3 lacs were not paid. State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.30 of 61 31 PW1 further testified that on the same night Sunil Yadav made a call to him and stated that Rs.3 lacs will not be paid he will kill his sister. He along with his mother,sister, wife and younger brothers went to the house of accused persons and there all the accused told that they would not keep Poonam Yadav unless Rs 3 lakh is paid and when his sister tried to enter into the house, accused Sunil pushed her and hit a helmet on the head of his brother Devender Yadav. He rang at no.100. Police arrived and took Devender Yadav to hospital and thereafter he brought his sister back to their house but he did not lodge any complaint against any of the accused person under the impression that matrimonial house of the Poonam Yadav will be saved. Thereafter accused persons did not come to talk back.
68. PW5 also corroborated the said facts. PW6 in his examination in chief had not stated about the said facts and only on the leading question of Ld. Addl.PP he admitted the aforesaid facts. Hence in my view prosecution has been able to prove on 14.8.2003 quarrel took place between Pws1,5, 6 and accused Sunil. Testimonies of the aforesaid PWs that quarrel took pace on 14.8.2003 and police was inform is also proved from the kalandara u/s 107/151 Cr.P.C., statements of PW5 and victim Poonam EXPW5/E and EXPW5/F and G respectively during investigation of said kalandara. On perusal of the cross examination of aforesaid PWs, I found that accused persons have not given any suggestion that on 14.8.2003 no quarrel took place and Kalandara EXPW5/E was not registered. Rather from suggestion given by accused Sunil that State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.31 of 61 32 thereafter the matter was settled with the intervention of respectable persons prove quarrel between accused Sunil and brother of victim and also proved that quarrel used to take place between accused Sunil and Poonam which is also proved from the diary of victim Poonam which I shall discuss later.
69. PW22 SI Ramesh Kumar had testified that on 14.8.03 on receipt of DD no.22 A dt. 14.8.03 he reached at H.No.KD158, Pitampura, Delhi and found Sunil Kumar was shouting and he tried to pacify him but he was not pacified. Thereafter he recorded statements of Devender Yadav and Poonam Yadav ExPW5/F and ExPW5/G respectively and arrested the accused Sunil Kumar. The accused persons have not given any suggestion to him that he had not recorded statements ExPW5/F and ExPW5/G. Hence it is proved that statements ExPW5/F and ExPW5/G were given by PW5 Devender Yadav and victim Poonam Yadav. In the said statement ExPW5/G victim Poonam Yadav has stated that "accused Sunil was taunting her after 23 days of marriage for bringing less dowry and started beating her but she did not tell to anyone to save her family. On the day of occasion of raksha bandan accused left her to her parental home and he was pressurizing her for bringing more dowry and today i.e 14.8.03 when his brother came to drop her at her matrimonial house accused Sunil abused her and her brother without any reason and when his brother asked him not to do the same he hit helmet on the head of her brother and he got injuries and accused also pushed him and abused her and also threatened her to teach a lesson".
State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.32 of 61 33 Similar facts are mentioned in the statement ExPW5/F given by PW5 Devender Yadav. Further on perusal of diary/register of victim EXP1, I found that in the said diary also she has noted that accused has hit her brother Devender Yadav with helmet. Accused Sunil has given no explanation in his statement u/s 313 Cr.P.C why quarrel took place or what happened that he had to hit brother of his wife with helmet. Hence it is proved that on 14.8.03, when PW5 Devender Yadav came to the drop his sister , accused Sunil beaten him and it is also proved that accused Sunil was harassing Poonam for bringing more dowry, but she had not stated in her statement EXPW5/Gthat accused was asking for balance Rs.3 lacs hence it also become evident that accused persons including accused Sunil were not harassing her for dowry amount of Rs.3 lacs which was demanded by accused persons prior to marriage as alleged by PW1, PW5 and PW6 in their testimonies. Further I am agree with the contention of other accused persons that in the statements of PW5 and victim ExPW5/F and ExPW5/G there is no allegation of demand of dowry or harassment against accused persons other than accused Sunil.
70. PW1 has further deposed that on 8.4.04, his sister gave birth to a male child and in the morning of 9.4.04 accused Satish and Sharmila came to their house and demanded Rs.25,000/ and he paid the said amount and they told that he should deduct the said amount from Rs.3 lacs but again on perusal of his complaint ExPW1/A, I find that in the said complaint it is not mentioned that accused persons came to his house on 9.1.04. Even in his statement u/s State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.33 of 61 34 161 Cr.P.C. he has stated that accused Sharmila and Satish have demanded expenses of hospital hence same cannot be considered as dowry demand.
71. PW5 further testified that on 13.2.04 his sister made call to his brother Surender and stated that accused persons are beating her and then he along with his brothers, his bhabhi Nirmal and his mother Shakuntala and Rohtash went to the matrimonial house of Poonam. His sister was weeping and thereafter he took his sister and her child and went to police post Sector16 and also took the Santro car which he had given at the time of marriage and made complaint ExPW5/D. PW1 has also deposed the same facts. On perusal of complaint ExPW5/D which is also relied upon by counsel for accused persons as exhibited as ExPW1/DX. It is evident that in the said complaint also it is stated that he (PW1) came to know that accused Sunil used to beat his sister daily and harass her for demand of dowry, therefore he is taking her sister along with car. Hence in this complaint ExPW5/D also there is allegation against the accused Sunil only.
72. PW1 has further testified that he went to the house of accused persons and informed them that Poonam has been admitted in the B.Ed. course. At that time accused Ved Parkash told him that they had sold H.No.KD154, Pitampura and he should purchase a house for Poonam if he wanted to settle her. He enquired from him how much amount he would have to pay on which accused Ved Parkash told that he should arrange Rs.4 lacs and on 19.7.04 he paid Rs.4 lacs to all the accused persons. The accused persons were having a State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.34 of 61 35 flat D4/50, Sector15, Delhi in the name of Sandeep Yadav s/o Ved Parkash and they sold the said house in the name of his sister Poonam. PW5 has also corroborated his testimony that they gave Rs.4 lacs to all accused persons for purchase of flat. Though PW5 stated that they had given the said amount under pressure whereas PW6 stated that his brother gave RS.4,65,000/ for purchase of flat to accused Sunil Yadav. Hence there are interse contradictions in the testimonies of PWs to whom amount has been given further while from the testimony of PW1 it appears that if at all Rs.4,00,000/ was given and same was given to transfer /purchase of the said flat in the name of his sister as same was in the name Sandeep other brother of accused Sunil. Hence it cannot be considered as dowry demand even if I believe that said amount at all given. Though I find force in the contention of Ld defense counsel that on the one hand PW1, PW5 and PW6 stated that they could not pay Rs 3 lakh of balance dowry amount which allegedly they agree to pay at the time of marriage because of which allegedly face so much harassment as they have no money to pay the same then how they could arranged such a huge amount. Hence in these circumstances I do not find testimonies of PW1, PW5 and PW6 much reliable that on the demand of accused persons they gave Rs 4 lakh.
73. There is no fixed period provided in the statue in which if demand is made it could be considered as demand of dowry made soon before death. In Hira Lal & Others V State (Govt of NCT) Delhi, (2003) 8 SCC 80, the Supreme Court of India observed that the expression "soon before her death"
State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.35 of 61 36 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. 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. if Section 304 IPC is to be invoked. But it should have happened "soon before her death". The said phrase no doubt is an elastic expression and can refer to a period either emotionally before her death or within few days or few weeks before it. But proximity to her death. No definite period has been indicated and 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 or has received the goods knowing them to be stolen, unless he can account for their 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 State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.36 of 61 37 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."
74. Soon before the death depend upon the facts and circumstances of each case. No definite interpretation of soon before death can be given. It normally conveys that the interval should not be much between cruelty harassment and the death in question. There must be proximity and live link between the cruelty caused due to dowry demand and death of deceased. In this case it is alleged by the prosecution that after two months of marriage, accused persons started demanding Rs.2lakhs for purchasing the car and that demand continued till her death.
75. The same opinion was expressed by Apex Court in Kaliya Perumal and Another V. State of Tamil Nadu, [(2004) 9 SCC 388, 157 Para 4] and Kamlesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar. [(2005) 2SCC 388, Para 10] also in State of A.P. v. Raj Gopal Asawa and Another, [(2004) 4 SCC 470. Hence,as per various judgments of higher courts period of demand of dowry made soon before death could extend from few fays days to up to many month or even a year prior to death of victim if cruelty towards deceased State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.37 of 61 38 continue in pursuance to that demand. Hence it depend upon facts and circumstances of each case.
76. Now coming back to the case, PW1 has testified that on 28.4.05 his sister made telephone call on his mobile phone which was picked by his younger brother Devender Yadav and accused Sunil Yadav told that he should pay Rs.2 lacs for opening a school but his brother refused to pay and on this accused Sunil Yadav threatened him that he should prepared himself for facing the consequences but in his complaint ExPW1/A he had not stated that accused Sunil Yadav made telephone call on 28.4.05 demanded Rs.2 lacs. In his statement u/s 161 Cr.P.C. he stated that his sister made telephone call on 20.5.2005 on his mobile phone which was received by his brother Devender in which she told about the demand of RS.2 lacs by accused Sunil.
PW5 also testified that telephone call was made by Sunil on 28.4.05 and he demanded Rs 2 lakh for opening school but in his statement u/s 161 Cr.P.C. he also stated that on 20.5.2005 accused Sunil made call to him demanding Rs 2 lakh. Hence there is contradictions in the testimonies of Pws1 and PW5 from their previous statement given to police about the date accused Sunil made call and demanded Rs.2 lacs. PW6 in his testimony had admitted the suggestion of Ld. APP in leading questions that accused Sunil demanded Rs.2 lacs from his brother Devender on telephone on 20.5.05. I find force in the contention of accused Sunil that since he filed an application for preservation of call record of mobile phone of PW1 they changed the date from 20.5.2005 to State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.38 of 61 39 28.4.2005. Further no call details of the mobile phone was produced by the prosecution to corroborate the testimonies of PWs that call was made by accused Sunil on 28.4.05. Even witnesses have not mentioned the phone number by which accused Sunil made telephone call or the phone number on which call was made. Hence I am agree with the contention of Ld. Defense counsel that no call was made by accused Sunil on 28.4.05 or 20.5.05 as alleged by witnesses and they have concocted a false story so that they could proved the necessary ingredient of dowry death i.e. Soon before death there was demand of dowry by accused persons due to which victim Poonam Yadav committed suicide as last incident of demand of dowry , as per the prosecution prior to it is of 19.7.04 whereas victim has died on 22.5.05. Thus there was gap of ten months. But as stated above, prosecution has failed to prove that accused Sunil made call on 28.4.05 or 20.5 2005 and demanded Rs 2lakh for opening the school. Further the most important evidence which prove that no demand was made on either 28.4.05 is proved from the fact that PW1 has not stated in his complaint ExPW1/A he had not stated about the demand of Rs 2lakh made by accused Sunil. No person can forget the such a crucial fact which happened just before few days, despite the fact that PW1 filed complaint next day hence he had sufficient time to recover from shock of death of his sister. Hence I held that prosecution has failed to prove that accused persons or accused Sunil soon before death committed cruelty for demand of dowry. Hence in my view, prosecution has failed to prove that it is a case of dowry State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.39 of 61 40 death.
In view of the aforesaid discussion and considering the improvements and contradiction I find force in the contention of Ld. Defense counsel that testimonies of PW1, PW5, PW6 and PW21 are not much inspiring to the extent that accused Ved Parkash ,Omwati Satish and Sharmila demanded dowry or commited cruelty with victim Poonam for demand of more dowry. DW5 Ravinder Kaur official from Food & Supply Department has proved the ration card of accused Satish which was issued on 23.03.2004. Hence it is proved that accused Satish and Sharmila were residing separately at Flat no.9, Pkt.11, Block E1, Sector15, Rohini where as accuse Sunil with his wife was residing at flat no. D4/50 Pitampura since said flat was purchased in the name of victim. Even PW1, PW5 have admitted that accused Satish and Sharmila were living separately on the day when victim committed suicide.
77. Further from the testimony of DW7 SI Jai Singh, it is proved that accused Ved Parkash were allotted flat no.251C, TypeIV, MIG Flats, Rajouri Garden on 26.10.04 and he occupied the same on 27.10.04. Even PW1 and PW5 have not denied that accused Ved Parkash and Omwati were not living separately at the time of death of Poonam. Hence in these facts and circumstances, there are inter se contradictions and improvements in the testimonies of PWs, hence I do not find their testimonies reliable to the extent that accused Ved Parkash, Omwati, Satish and Sharmila treated the victim Poonam Yadv with cruelty for demand of dowry. Hence I held that prosecution State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.40 of 61 41 has failed to prove that other accused persons except Sunil had committed the cruelty towards victim Poonam Yadav for demand of dowry or for any reason Hence I acquit them for offence u/s 498A/304B IPC.
78. However from the aforesaid discussion it is proved that accused Sunil Yadav was treating the victim Poonam Yadav with cruelty, he used to beat her and taunt her for bringing more dowry from her house. There is previous complainant/ statement of victim as mentioned above. Due to his ill treatment her brother brought her back to their house and she had to remained at her parental house. The most incriminating circumstance against the accused Sunil which proved that accused was committing cruelty towards her which is proved from her diary/register ExP1 in which she has specifically mentioned, not on one occasion but on many occasion, that accused Sunil used to beat her badly. Some of excerpts of diary are as under : On 8.9.03 yeh sab kuch unki vajeh se hua hai par unhe galti kabhi bhi realize nahin hoti. Bhagwan unhe unki galti jald se jald realize karao, unhein ek kamyab insaan banao aur lambi aayu do. Mein bhi nai sari, suit, bahut saari churian pehanna chahti hoon. Unhone mujh par lanchan lagaya, maara, gharwalo ko galian di, Devender bhai ke sar par helmet maara jisse dimag par chot aayi. ........ Sabse kimti chiz pati ka bharosa nahin mila, unse santan mili jis par bhi shaq karne mein inhone koi kasar nahin chori.
Aaj unka phone aaya, unke bhai ghar change kar rahe hain, woh kitne jhute nikle, keh rahe the hum joint family me rahenge aur tumhe har tarah se support karenge.
State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.41 of 61 42 Inhone kaha ki Satbir dada ke paas Rewari gaya aur kaha jahan shaadi tai ki hai woh to kutch bhi nahin denge. Tab dada KD154 mein aaye aur khoob danta aur kaha itne paise wale rishte chor diye, 25 lakh nagad lete par jab maine kaha ab to dada bhi yahin hain baat clear karao to unhone kata Satbir Rewari nahin Nakhdola gaya tha. Inhone ek jhoot chipane ke liye doosra jhoot bola. Mujhe pata hai, Satbir kehin bhi nahin gaya, dahej ki to inhe aur inke gharwalon ko lag rahi thi.
Inhone kaha ki inki mummy ne kaha tha ki isse do, char mahino ke liye chor aata unki aankh ho jaati. Par jab mummy aur yeh aamne saamne hue to inhone accept kar liya ki inhone mummy ka naam lekar khud kaha tha.
Inhone kaha tha ki Surender ne to lalach kar liya, janwasa nahin lagvaya, humne apni bahen ke liye kitna bara lagya tha. Surender to ghari sasti si dilvata woh to maine hi mehangi pasand kar lee. Yeh bed hai, iski kya aukaat hai meri bahen ke bed ke aage, yeh dressing table hai, A/C bhi kharab diya hai. Mein to bari gaari maangta. Jab maine kaha kahan khari karte iski to maintenance ho nahin rahi. Inhone kaha uski ho jaati. Almari ke liye kaha ki maine janva rakhi hai aur baad mein keh diya woh to deni hi chahiye thi. Inhone kaha tum accept kar lo tumhare sambandh Sandeep ke saath hain, par jab maine nahin kaha to inhone kaha mera kamra sone ke liye use karegi, bathroom use nahin karegi, meri chizon ko haath nahin lagayegi. Inhone kaha jhagra mera aur Devendar ka ho raha tha tu bich mein kyon aaee. Koi inse puche ki kya Devender mera kutch bhi nahin lagta. Agar hamare gharwalon ki jageh koi aur hota to mein State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.42 of 61 43 bich mein nahin aati. Mein apne ghar walon ki bezati sahen nahin kar sakti. Inse to rishta jure 4 ½ mahine hue hain par unse to 23 saal ho gaye hain. Pandit ne Diwali ke baad aane ko kaha hai. Mein inke bina ji hi nahin sakti. Agar woh mujhe bahut pyaar dein to mein yahin aane ka naam hi na loon rehne ke liye. Sirf mujhe yahan ek do mahine mein mila kar le jayen. Lekin woh aise nahin hain. Mein apni mummy ki aankhon mein woh chinta dekh sakti hoon jo shaadi se pehle thi tab to ek aas thi ki koi aycha ghar baar mil jaye phir mein aaram se mar sakoongi. Lekin ab to woh aas bhi toot chuki hai unhein bahut fikr rehti hai. Lekin apne bachche ko pregnancy mein inhone mujhe itna rulaya hai jitna mein aaj tak nahin roi. Inki mummy ko pandit ne pehle hi bata diya tha yeh shaadi mat karo goon kam hain, larai hoti rahegi par unse dahej ke lalach mein meri, inki, hamare bachchon ki aur hamare gharwalon ki zindgi khrab kar di. Use mein kabhi bhi maaf nain karungi usne dahej maang kar liya. Woh vasae to meethameetha bolti hain par ander hi ander apna matlab nikalti rehti hain.
On 12.9.03. Shaadi ne humein kutch nahin diya, dahej unke pure parivaar ko chahiyae tha unko, mummy ko, papa ko, bhaion ko, bhabi ko, dada ko, bahen, jija, chacha, chachi, lagan par tikka nahin karvaya kyonki jo saaman gaya woh bhi kam tha unke liye.
On 14.9.03. Devender bhaiya aur Sanjeev bhaiya ne dukaan mein kuch bartan kharide the woh meri shaadi mein dena chahte the par ghar mein larai jhagra itna raha ki woh bhi mana ho gaye. Aisae lalchion ko to kutch dena hi nahin chahiye tha. Is shaadi ko lekar vahan se to larai rahi aur yahin bhi gharwalon mein aapas mein bahut larai rahi. State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.43 of 61 44 Unhone kaha ko maine tumhe kissi ke hawale to nahin kiya par unhone to khud hi itne khanjar chalaye hain jo puri zindgi chubhte rahenge. Mein jab bhi navratron ka vrat karti thi mandir jaati thi to bhagwan se ek hi chiz maangti thi ki pati loving and caring hona chahiye.
On 15.9.03. Mujh par izlam laga kar, dara dhamka kar maar kar woh kaya le lenge. Hamare bich durian hi aayengi, hamara mazak banega.
On 16.9.03. June ki mahine mein gaari ke shishe, A/C band karke bethna. Mujhe jabardasti vehin bethe rehne ke liye kehna. Shisha agar mein niche karun to mujhe dantna, aur gali dena, gharwalon ko bhala bura kehna. Pasina itna aa raha tha mujhe aur kehte ki tujhe to A/C ki aadat hai. Mein pregnant thi iske baavjood. Aisa hi kamre mein karna, pankha band kar dena, A/C band kar dena. Woh aisa tab karte the jab unhe gussa aata tha. Unhein jab pasina aata hai to unhe maza aata hai kyonki unki body hi aisi hai, garmi mein bhi khushki rehti hai jab pasina aata hai to normal ho jaati hai. Sharmila ne bhi kabhi tane dene mein kasar nahin chori, ek baar woh bed sarka rahe the to woh kehti hai kaya ab bed bhi alagalag kar rahe ho. Usko pata tha mere saath kya ho raha hai par ek baar bhi mere saath bethkar nahin pucha, samasya ka samadhan nikalne mein merei sahayata nahin ki. Ek din park mein bethe hue the woh puchte hain jo sagai mein bari si chain pehni hui thi woh to maine phir kabhi nahin dekhi. Maine kaha woh meri nahin mummy ki thi to unhone kaha kissi se maang kar chiz nahin pehanni chahiye. Unki maan ne unke saamne mujhse saari maangi shaadi mein pehanne ke liye jo abhi tak wapas nahin di. Sunita ki sagai ka haar uski maan meri sagai mein pahen rahi thi. Ab State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.44 of 61 45 mein bhi yahain ki saari chizen aur wahen ki bhi yehin laaungi. Unka pura aurton wala dimaag hai. Jo baatein aurten karti hain yeh karte hain. Agar unke is formula par chala jaye to unhein dahej ki maan bhi nahin karni chahiye thi. Unka kahne ka matlab tha ki woh chain bhi wahen se le aaye. Unki maan unke kaan bharti rehti hai aur to woh hi bolte hain. Jab tak woh apne maan ki baaton ko chor kar apna dimaag nahin chalate mera ghar nahin bas sakta woh do naavon par ek saath savar nahin ho sakte. Unki maan, woh aur unke ghar wale sab kitne laalchi hain. Woh mujhe nahin meri wajeh se dahej milne wala tha use pyaar karte the aur hain. Par mein ab saara hisaab chukta karungi. Unki is mamle mein nahin soonne waali. Maine apna final year bhi chinta mein khrab kar liya ab yeh parai to khrab ho rahi hai saath hi sabse kimti mere bachche ki sehat par asar par raha hai jiske liye mein apne aapko gunehgaar maan rahi hoon. Mera shuru mein faisla bilkul sahi tha.
On 17.9.03. Ek din Sanjeev bhaiya teej dene aaye to kehne lage saale aaye kyon nahin samne agar maan ki dudh piya hai to mujh thappar maara. Maine jaa kar inke baap ko bata diya. Apne baap ko inhone kaha mujhe inse mil hi kya raha hai. I am not enjoying even sex with her, delivery ke time bhi chillati rahegi mein to ise lekar nahin jaaounga, chali jaayegi parosion ke saath. Meri mummy ko gaali di teri maan ne tera baap maar diya. Criminal khaandan hai aur pata nahin kyakya kaha. Aakhir mein meri galti na hote hue bhi kehne lage mujhse maafi maang, pair chu kar, uski maan bhi kehne lagi. Maine pair chu kar maafi maangi. Hamesha Sharmila ko bich mein ara dete hain khane mein, rehne mein, kapre mein, parai mein, bachche paida karne mein. Yeh Satish ko dhoka de rahe hain aur donon ki bich illegal relations hain. State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.45 of 61 46 Uski fees bharte the aur meri nahin bhari. Apni Sharmila se hi shaadi kar lete, do pation ke saath reh leti woh. Mujhe kyon fasaya. Sab kehte hain bachche ne bhi jaldi kar di aane mein. Lekin mujhe lagta hai yeh ekdam sahi waqt par aaya hai jis tarhein Abhimanyu apne maan ke garbh mein chakrvyuh mein ghusne ka raasta sikh aaya tha. Yeh mere garbh mein sab ke dwara satai gai apne maan ki har ek pareshani ko note kar raha hai aur samai aane par in sab baaton ka jawab avashya dega. Neo se hi ab umeed hai nahin to is duniya mein mera koi sahara nazar nahin aata. Iske liye mein apna sab kutch dene ko taiyaar hoon.
On 20.9.03. Ab mein thak chuki hoon. Mein ek aisi nind sona chahti hoon jisse duniyadaari ki koi khabar hi na ho. Mein apni kami khojti hoon, auron ke saath apna comparison karti hoon, to paati hoon sab alag hone hain, sabki parvarish, dekhbhaal, ghar ka maahol, parivaar alagalag rahe hain koi bilkul similar mahool mein pali larki hai hi nahi. On 21.9.03. Unhone mujhe kyakya nahin keh rakha kamini, gandi, bigri hui, basted, criminal, bigre hue khaandan ki. Gharwalon ko gali de rakhi hai. Mein kya karun meri kutch bhi samajh mein nahin aa raha. Wahien mujhe jaana to hai par kaise jayun woh hi baat kare le jaane ki pehle to aycha hai. Ek rupya tak mein vahain se le kar aayi hoon na kapre, unhone kaha aur mein chali gai, natija kya nikla mein hi galat nikli. Sab kutch jhooth nikla na woh parate hain, na tuitions dete hain, naukri par bhi hafte mein woh bhi late, chaar din mushkil se jaate hain. Aurton waali baatein karna aur oont patang harktein karna yeh hi aata hai unhe.
On 22.9.03. Agar Poonam ne kissi se pyaar kiya hai to State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.46 of 61 47 pehle bhi Sunil hain aakhri bhi. Maine pyaar kiya aur dhoka khaya lekin is dhoke ke baavjood mein unse pyaar karti hoon aur karti rahongi chahe zaban se mein keh doon I hate you. On 24.9.03. Us ghar ke log mujhe maar bhi sakte hain, lekin agar marne se dar jayen to phir koi bhi kaam na hoga. Maut jaise aani hogi aayegi use koi bhi nahin rok sakta. Mentally woh mujhe zaroor torture karenge. Lekin ab mujhe apne ander intna saahas jutana parega ko koi bhi bari se bari baat mujhe tang na kare. Mein JBT/B.Ed. Ki taiyari karungi. M.Com ke baad bhi job prospects bahut kam hain mein inki taiyari mein din raat ek kar doongi iske baad aage parai kar loongi. Kyonki inke baad experience maangenge jo mere paas nahin hai.
On 2.10.03. Aaj mummy ne kaha agar woh sudhar jaye to meri bhi izzat bani rahegi, mein apne mummy ki izzat ke liye zaroor yeh rishta bana kar rakhungi chahe mujhe kitna hi kyon na soonna pare. Meri sasural ka 5 minute ka raasta hai lekin is se nazdik to mujh saat samuder paar bhi lagta hai. Mummy ka hum chaar bachche sahara bane aur unhone jo socha bhi nahin tha aaj hum unki aur bare bhai ki vajeh se us mukaam tak paunch gaye hain duniya vale chahe jo marzi kahen. Mujhe puri duniya mein sabse zayada bharosa apne gharwalon par hai, pati ne mujhe sabse zayada dhoka diya. Us pati par se ab mera bharosa, vishwas bilkul khatam ho chuka hai.
On 4.10.03. Itni bari saza unhein nahin deni chiyae hi jiska jatija aane wala bachcha tak bhugte. Mein apne aap ko kabhi bhi maaf nahin kar paungi is gunaah ke liye. Us time to mein itne gusse mein thi ko unko itna khoon nikal raha tha State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.47 of 61 48 maine koi parwah nahin ki. Mujhe is gunaah ki saza zaroor milegi. Mujhse zayada kamini aur gandi larki ho hi nahin sakti jiske saat phere ho chuke hain aur usi insaan se larti rehti hai, tu tarak karti rehti hai. Jiske saath use aane wali zindgi kaatni hai. Unhone mujhe sahi gali di hai haram ki kha rahi hai yeh bhi ek dam sahi kaha tha.
On 6.10.03. Unki mummy mere saamne to unse mere baare mein meethi meethi baatein karti hai lekin peeche se unke kaan mere khilaf bharti rehti hai. Unke father to bas kutch bhi nahin kar sakte.
On 7.10.03. Maine faisla kar liya hai ki mein sab kutch chor char kar unke paas chali jaaungi unhein meri zaroorat hai. Ab to Neo ki movements dekhi bhi ja sakti hain. Woh jab pet mein ekdam se uchalta hai to mujhe bahut zayada khooshi hoti hai jaise pata nahin mujhe duniya ka kyon sa khazana mil gaya.
On 12.10.03. Mere paas ab do hi raaste hain yah to mein fully devoted ho jaoun unke liye nahin to suicide kar loon. Mere kissi bhi chiz mein man nahin lagta. Woh mujhe keh rahe hain ki woh suicide kar lenge to mein bhi suicide kar loongi. Neo ko to mein vassae bhi kutch shiksha nahin de sakti, ise kissi bharosemand haathon mein de kar jaaoungi. Ab meri zindgi mein koi khushi laa sakta hai to bas do hi hain pehle Sunil aur doosra Neo. In dono ki khatir maine apni saari ichaaen maarne ka soch liya hai mein sirf ab ek patni aur maan do rishton ko bhali bhanti nibhana chahti hoon. On 6.1.04. Mein yahen soch ke aai thi ki mein inke har sitam seh loongi lekin mein koi pathar nahin hoon jiske saamne State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.48 of 61 49 jitne marzi galian de do rakhel, vaishya, haramzadi, kutia, apne baak ko to pehle hi kha gai ab mujhe khayegi, aaye din maarne buri tarahen se khoon aa jana, baal khinchna.
Churian, mangalsuter, bindi mujhe kutch nahin chahiye mein sirf shanti se jina chahti hoon. Itne lambe gap ke baad mein 3 Nov. 2003 ko apne sasural aai thi. Maine in do mahinon mein sab kutch kiya . Yeh thik thak tha. Phir bhi jootejoorab pahnane ke liye kehta, meine pehnai, thappar bina to koi baan hi nahin hoti thi. Yahen mummy (saas) ne bataya ki yeh keh raha tha ki bhar mein jaaye woh haramzadi aur bhar mein jaaye bachcha. Ab ki baar use sidha ooper hi pahuncha doonga. Mujhe is aadmi se nafrat hai. Bhagwan se mein yehi dua maangti hoon yah to mujhe ya isse utha le, mujhe hi utha le. Kyonki kutch bhi nahin jiske sahare sapne boon sakoun. Abhi kiss tarahen se sabr kar rakha hai mein hi jaanti hoon. Bas Neo ke aane ka intzar kar rahi hoon. 26.01.2005 vaise to mujhe in per visvas bilkul nahi hai par pyaar mujhe sabse jyada hai inse nafrat bhi hai aur pyar bhi main vaise apni is stage ke liye apne aap ko sabse gunaggar samajhti hu mere ghar valo ka sabse jyad badhe bhai bhabhi ne mujhe is stage per pahuchaya hai bhabhi nai kaha tha shuru shuru main tokhacha hoga hi nahi kapde to hum hi de denge us time main bus sub ladkiya chati hain shadi ho jaye mujhe shadi ka matlab thik se pata hi nahin tha bhabhi ko sab kuch pata hote hai ghar kaise chalta hai mujhe dhakel diya navy vale ladke se meri shadi hone ke liye saaf mana kar diya mujhe puri duniya se nafrat hai maine kisi ka kya bighada tha lakin apna sab kuch bigadh liya aage pata nahin kya hona baki hain ek government noukri chahti hu taki bhagwan meri madad karo aapme visvas hai aur nahin bhi koi bhi pal aisa nahin jata jab rah rah karpichli bate kachoti State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.49 of 61 50 hoaur mujhe apne aap se puchne ke liye utsuk karti ho aaj ke din hum 26 jan 2004 main kd vala ghar khali karke buaji ke yahan kiraya pa gaye the aayush ka kal janam din hai pata to nahi ji rahi hu aapne aap ko tho rahi hu kyoki mere paas sabse kimti cheej mera pati bacha ghar hai phir bhi shanti nahin hai kamata hua pati , intelligent aur sunder bacha hai aur kya chahiye nahin maine to aapna bighada lakin mujhme itne akal nahin thi aur bighadne main ghar sasural valo pati ne bhagwan ne sabne saath diya past bhulaye nahin bhulata perashan karta rahta hai
79. Thus from the aforesaid diary of victim it is evident that accused used to torture the victim in every manner physical as well as mentally he used to taunt her for bringing less and inferior kind of article gicen in marriage,used to beat her abuse her that she had come into depression. Hence it is evident that conduct of accused Sunil was driving her toward suicide.
80. Accused Sunil Yadav had not denied that handwriting in the diary ExP1 is not of victim Poonam Yadav. Even otherwise from FSL report ExPX it is proved that handwriting in the register ExP1 is of victim Poonam as same matches with her handwriting of her exam papers at the time of her B.Ed examination ExPW11/A. The accused Sunil Yadav was the only person who was residing with victim Poonam Yadav. His conduct shows that he was harassing the victim Poonam Yadav , he shattered all her dreams of a happy family to that extent that she started blaming herself for the failure of her married life. Her dairy ExP1 shows that she took admission in B.Ed. course because State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.50 of 61 51 she wanted to financially independent so that she could take care of her son as she was frustrated with the cruel behaviour of accused Sunil Hence after considering the statements of PW1, PW5 and PW6 and previous complaint and contents of diary ExP1, I held that prosecution has been able to proved that accused Sunil committed cruelty which led her to commit suicide. Hence in these circumstances, I held that due to the cruelty committed by accused Sunil, victim Poonam Yadav committed suicide. Hence I convicted him for offence u/s 498A IPC.
81. Next question is whether accused Sunil could be convicted under Section 306 IPC for abating victim Poonam to commit suicide. Section 306 IPC is reproduced as under: Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
82. Further in case of commission of suicide by a married women presumption under Section 113A of the Indian Evidence Act, 1872 can be raised against the her husband or relative. Section113A is reproduced as under
Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.51 of 61 52 marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation. For the purposes of this section," cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860 ).]
83. There is not much difference between 304B IPC and 306 IPC so far it relate to death of a married women committing suicide due to cruelty committed by her husband or husband relative section 304B IPC or U/S 306 IPC except that for 304B there must be cruelty soon before death for demand of dowry with in seven year of marriage for raising presumption U/S304B IPC where as no such requirement of cruelty soon before death for demand of dowry is required for demand of demand of dowry in case of raising presumption U/S 113A Indian Evidence Act to punish for abetment to suicide U/S306 IPC. In Shamnsaheb M. Multtani v. State of Karnataka 2001 Crl. L. J. 1075 (SC); the Supreme Court noted the difference in the legal position between the offence under Section 304B and Section 306 IPC, which was earlier merely an offence of abetment of suicide. The Court observed that by the introduction of Section 113A in the Evidence Act the said offence under Section 306 IPC had acquired wider dimensions and had become a serious marriagerelated offence. According to the Supreme Court, Section 113A of the Evidence Act provided that State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.52 of 61 53 under certain conditions, almost similar to the conditions of dowry death, the Court "may presume" having regard to the circumstances of the case that such suicide had been abetted by her husband. The Supreme Court observed that when the law provides that the Court "may presume" a fact, it was discretionary on the part of the court either to regard such fact as proved or not to do so and it depended upon all the other circumstances of the case. There was no compulsion on the Court to act on the presumption and, therefore, the accused could persuade the Court against drawing a presumption adverse to him. It must be pointed out that the case of Shamnsaheb M. Multtani (supra) was one under Section 304B and not under Section 306 IPC. The reference to Section 306 IPC and Section 113A of the Evidence Act was made to bring out the distinction between the presumption which has mandatory to be drawn under Section 113 B of the Indian Evidence Act, 1872 in respect of an offence under Section 304B IPC and the presumption that may, in the discretion of the Court, be drawn under Section 113A of the Evidence Act in respect of an offence under Section 306 IPC. The said decision is limited to that and would, therefore, be of no help to the petitioner.
84. In K. Prema S. Rao. vs Yadla Srinivasa Rao And Ors. AIR 2003 SC 11, 2002 (2) ALD Cri 871 the Supreme Court held that even though the charge had been framed under the aforesaid sections, if the evidence was sufficient, the husband could be convicted under Section 306 IPC for abetment of suicide of his wife. The Supreme Court held that the acquittal of the husband State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.53 of 61 54 of the offence under Section 304B IPC was correct in the absence of any demand of dowry but the willful conduct of the husband forcing the wife to part with her istridhan and for that purpose concealing her postal mails was so cruel that she was driven to commit suicide and, therefore, a clear case of conviction under Section 306 IPC was made out. The Supreme Court also observed that mere omission on the part of the trial court to mention Section 306 IPC at the time of framing of charges did not preclude a court from convicting the accused for the said offence when found proved. It was in the alternate charge framed under Section 498A IPC, that it had been clearly mentioned that the accused subjected the deceased to such cruelty and harassment so as to drive her to commit suicide. The Supreme Court held that the provisions of Section 221 of the Code of Criminal Procedure of 1973 were sufficient to enable a criminal court to convict an accused for an offence with which he was not charged, although on facts found in the evidence, he could have been charged for such offences. The Court also held in the facts of the case that the omission to frame a charge under Section 306 IPC had not resulted in any failure of justice and, therefore, Section 215 of the Code of Criminal Procedure, 1973 permitted the trial to ignore any error committed at the time of framing of the charge.
85. Hence in view of aforesaid judgments and section113A of Indian Evidence Act presumption can be raised against the husband or relatives of husband that they abated the commission of suicide by a women due if prosecution is able to prove that she had committed suicide within a period of State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.54 of 61 55 seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty. As stated above prosecution has been able to proved that accused committed cruelty toward victim Poonam by beating her,taunting her. It is also undisputed fact victim has died with 7 year of her marriage. It is also proved that victim committed suicide. Hence presumption U/s113A Indian Evidence Act can be raised against the accused Sunil that he abated victim Poonam to committed suicide. And onus is on the accused Sunil to disprove said presumption.
86. Accused has stated in defence u/s 313 Cr.P.C. that victim committed suicide as she could not face pressure of multitasking as she was simultaneously doing B.Ed. course, managing household, looking after her child, therefore she was under stress which she could not cop up. But I do not think that due to the said reasons, she will commit suicide, as now a days every working lady is doing multitasking. Her result of the exam of B.Ed. course ExDW8/A shows that she was passed in all the papers she appeared. Hence I also do not accept contention of accused Sunil that she committed suicide as her exam had not gone well. Therefore I held that accused failed to give any reasonable explanation why victim committed suicide.
87. Hence in view of the aforesaid facts I held prosecution been able to proved that due to abetment of accused victim Poonam committed suicide. Hence I convict him for offence punishable U/S 306 IPC. State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.55 of 61 56 Conclusion
88. In view of aforesaid facts and circumstance I convict accused Sunil for offence U/s 498A IPC and 306 IPC and acquit him for offence U/s 304B IPC. while all other persons i.e Ved Parkash, Omwati, Satish and Sharmila are acquitted from all the offences i.e. U/s 498A and 304B IPC.
Announced in open court (Sanjeev Kumar)
Date : 29.08.2012 ASJ01, North, Rohini, Delhi
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57
IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS JUDGE01:
NORTH: ROHINI: DELHI SC No.409/06 FIR No.479/05 PS Prashant Vihar U/s 498A/304B/34 IPC STATE VERSUS SUNIL YADAV, S/o Shri Ved Prakash, R/o D4/50, Sector15, Rohini, Delhi. ....Convict ORDER ON SENTENCE 31.08.2013 Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Convicts Sunil Yadav in JC with Ms.Kanchan Diwan, Advocate. Argument heard.
1. The convict was convicted vide judgment dt.29.8.13 u/s 498A/306 IPC as he committed cruelty towards his wife and due to said cruelties she committed suicide.
2. It is submitted by the Ld. Counsel for convict that convict has remained in judicial custody for four years nine months during trial and he is State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.57 of 61 58 facing the trial since 2005. Ld. Counsel further submits that convict is a young man of 37 years and he is not a previous convict and not involved in any other criminal case. Ld. Counsel further submits that convict has a son of ten years of age and at present he is bearing the expenses of his son who is living with the maternal uncle of convict Sunil Yadav and they are keeping him because convict is bearing the expenses. Hence Ld. Counsel submits that lenient view be taken and he be released for the period already undergone.
3. On the other hand, Ld. APP for the State submits that convict is a teacher and therefore his role was to teach moral values to the society but instead of it convict tortured his wife so much that she committed suicide within two years of her marriage. Ld. APP further submits that other family members of convict could support the child. Hence convict is not entitled for any leniency and he be given maximum punishment prescribed under Section 306 IPC.
4. I have considered the arguments and gone through the record.
5. The protection of society by stamping out criminal activity is essential function of State. It can be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the convict, the nature of weapons used and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.58 of 61 59 down. The object of sentencing is that the offenders does not go unpunished and the justice be done to the victim of crime and the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The measure punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defence less and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 : the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.59 of 61 60 and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
6. The wife of the convict has come into the matrimonial house with lots of dreams to establish a new world and fulfillment of all her dreams depend upon one person i.e her husband i.e convict. Had he supported her then she could face every challenge put to her. But instead of supporting her to settle in her new home, convict tortured her mentally as well as physically. Trauma of the victim is reflected from her diary ExP1 which she used to write when she was alive. Therefore, the act of convict is quite grave and he do not deserve any leniency. However, this court cannot loose the sight that convict has one son of ten years of age and it is his responsibility to look after him.
7. Therefore taking into account all the facts and circumstances, I sentenced the convict three years RI along with fine of Rs.5000/ for offence u/s 498A IPC, in default of fine, convict shall under go simple imprisonment of three months.
8. Further I sentenced the convict five years RI for offence u/s 306 IPC along with fine of Rs.20,000/ in default of same, convict shall undergo simple imprisonment of six months.
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9. All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C be given to the convict. Committal warrant be issued against the convict. A copy of the judgment and order on sentence be supplied to both the convict free of cost forthwith. The case property is confiscated to the State. The file be consigned to the record room.
Announced in the open court (SANJEEV KUMAR) On 31.08.2013 ASJ01, North, Rohini, Delhi State V Sunil Yadav SC No.409/06 FIR no.479/05 PS Prashant Vihar Page NO.61 of 61