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[Cites 10, Cited by 0]

Delhi District Court

Judgment State vs Babloo Etc. on 17 October, 2015

                                         1
                                                              Judgment State vs Babloo etc.
                                                                           FIR No. 498/14
                                                                            PS Kanjhawala

                 IN THE COURT OF SH. PANKAJ GUPTA
                       ADDL. SESSIONS JUDGE­II 
                (NORTH­WEST): ROHINI COURTS: DELHI

Sessions Case No. 67/14 
Unique Case ID: 02404R0317042014

State

Vs

1.      Babloo s/o Lachhiram
        r/o H.No. H­53, Sawda JJ Colony, Delhi.


2.      Lachhiram 
        r/o H.No. H­53, Sawda JJ Colony, Delhi.
3.      Siyarani w/o Lachhiram 
        r/o H.No. H­53, Sawda JJ Colony, Delhi.


FIR No.               :    498/14
Police Station        :    Kanjhawala  
Under Section         :    498­A/304­B/34 IPC

Date of committal to Sessions Court                 :      28.10.2014
Date on which judgment reserved                     :      17.10.2015
Date on which judgment pronounced                   :      17.10.2015


JUDGMENT

1. This is a case u/s 304­B/498A/34 Indian Penal Code, 1860 (IPC).

2. Case of the prosecution is that on 03.06.2013, Gudia daughter of Bindu (the complainant) married Babloo (the accused no. 1) according to Hindu Rites and Ceremonies. On the date of marriage, Page Number 1 2 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala father of the accused no. 1 i.e. Lachhey Ram (the accused no. 2) demanded a motorcycle. However, the complainant asked to first return the dowry articles and then he would give the motorcycle which was not done, hence, he refused to gave the same. Thereafter, Gudia was taken to her matrimonial home. Gudia along with the accused no. 1 used to live separately in a rented house no. H­66, Sawda JJ Colony, Delhi. After marriage, Gudia informed her father that the accused no. 1 used to consume liquor and beat her. One day, the accused no. 1 under the influence of liquor asked Gudia to cook meat. Since, she was pregnant, she refused to cook the meat. That time, the accused no. 1 gave a knife blow to her and also beaten her. Gudia made a call at phone no. 100. The complainant visited the hospital and took her to his house. Thereafter, a complaint was filed with CAW Cell. In those proceedings, the accused no. 1 showed his readiness to take her to her matrimonial home. Gudia was also ready to go along with him. Accordingly, the accused no. 1 to 3 took her to her matrimonial home. That time, the in­laws of Gudia did not demand anything. Ten days prior to the date of the incident, Gudia gave birth to a female child. Three days prior to the incident, mother of Gudia namely Ram Kali had a talk with mother­in­law of Gudia namely Siya Rani (the accused no. 3) and she requested the accused no. 3 to get Gudia medically examined as Gudia had swelling in her stitches. However, the accused no. 3 refused to get her medically examined and asked her to take back Gudia. After the marriage, no dowry demand was ever made to the complainant. Except that, there was no quarrel nor any demand for dowry. Gudia committed suicide on 02.07.2014.

Page Number 2 3 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala

3. Charge under section 304­B/498A/34 IPC 1860 were settled against all the accused. The accused pleaded not guilty and claimed trial.

EVIDENCE:

4. In order to discharge the onus, the prosecution has examined 23 witnesses.

Public Witnesses:

5. PW­14 Bindu, (father of Gudia and the complainant) deposed that he was mason (mistri) by profession and had three sons and two daughters. Gudia (the deceased) was his youngest child. She married the accused no. 1 in June, 2013. He gave dowry articles to the deceased as per his capacity. On the day of marriage, before vidai ceremony, the accused no. 2 asked the mediator as to why the motorcycle was not given in dowry. He stated that it was not demanded and otherwise also, he, being a poor person, could not afford the same. Thereafter, vidai ceremony was performed. Since the date of marriage, the accused no. 1 along with the deceased was residing separately from his parents in a rented house. The deceased informed him that she was not kept properly at her matrimonial home. At once, he talked to the accused no. 2 and asked him to keep her properly. For two three months thereafter, they behaved well with the deceased. After few months, the deceased called him and informed that the accused no. 1 had stabbed her; she made a call at number phone no. 100; PCR van came and took her to the hospital. They Page Number 3 4 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala visited the SGM Hospital and after discharge, he took her to his house. The deceased lodged a complaint with CAW Cell, Sector­3 Rohini, Delhi. There the matter was compromised and the accused were ready to take her back. The accused no. 1 gave in writing that the deceased would never be harassed or tortured in any manner. But, the case was not closed. That time, the deceased was having pregnancy of six to seven months. 8­10 days prior to the date of incident, the deceased gave birth to a female child. After discharge, she was taken to her matrimonial home along with the child. He also deposed that to his knowledge, no talk had ever taken place between his wife and the accused no. 3 immediately prior to the date of incident. The deceased committed suicide on 02.07.2014. Accused persons did not inform him or his family members about the same. Rather, the police informed him. On 03.07.2014, his son attended the proceeding at CAW Cell and informed about the death of the deceased. He made a statement to SDM Ex.PW9/A. He identified the dead body of his daughter Ex.PW9/B. He identified the accused person in the court.

6. In his cross examination, PW14 deposed that he was earning Rs. 400/­ per day and was residing in his own house. Accused no. 1 was working as a baildar and the accused no. 2 was working as mason. Accused no. 1 did not make the demand of motorcycle personally. He did not inform the police about the demand of motorcycle made by the accused no. 2. Deceased informed him telephonically about the behavior of the accused no. 1 and his drinking habit. He did not make any complaint to the police to that effect. Accused no. 1 never consumed liquor nor gave beating in front of him. Except the demand of motorcycle and some money, no other demand was made by any of Page Number 4 5 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala the accused. Whenever he visited the house of accused person, they never made any dowry demand. Again stated, the demand was raised by the accused person at his house.

7. PW­15, Ramkali (mother of the deceased and wife of PW­14) deposed on the line as that of PW­14. She deposed that before marriage, there was no dowry demand by the accused persons. After marriage, the deceased was residing along with the accused no. 1 to 3, jeth and jethani in her matrimonial home. On the day of marriage, before vidai ceremony, the accused no. 2 demanded one motorcycle and some money. However, they refused to pay the same. On reaching her matrimonial home, jeth of the deceased started quarreling with him as informed to them by the deceased. However, she did not disclose the reason for the same. Whenever, the deceased whenever visited her parental house, she informed that she was not kept properly at her matrimonial home. She also used to call telephonically and inform about the harassment at the end of the accused no. 1. PW­14 talked to the accused no. 2 about the same and thereafter, she was kept well for 2­3 months. The deceased became pregnant and thereafter, never visited her parental home. Accused no. 3 used to comment 'SHAADI KARKE PATNI KO MAARNE KE LIYE HI TO LATE HAIN.' She requested the accused no. 1 to mend his ways, but, of no use. After a few months, the deceased informed her about the incident of stabbing. She also told about the CAW complaint and the compromise taken place at CAW cell. She also deposed that she was not willing to send the deceased back as she was apprehending that she could be stabbed again. But once the accused no. 1 gave in writing not to harass Gudia in future, she sent her. She also admitted Page Number 5 6 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala that the deceased along with the accused no. 1 was living separately in a rented house since the date of marriage. Once, she along with her daughter Chanda visited her house, she found the deceased in a very bad condition as the cooler was not working and wires of the fridge were cut. TV connection was not there. She stated that immediately prior to the date of incident, she did not have any talk with accused no. 3. Accused did not inform about hanging of the daughter. She identified the accused in the court.

8. In her cross­examination, she deposed that the deceased used to talk to her on telephone only from the phone of accused no. 1 that too in his presence. Deceased was not having her own mobile phone. She did not lodge any police complaint in writing. Accused no. 1 did not give any beating to the deceased in her presence. She saw the beating marks on the body of the deceased, but, she did not make any police complaint. She did not inform the said fact to her husband and son. Accused no. 2 demanded money and motorcycle from her and used to say 'ISKI MAA NE KYA DIYA, 1500 RUPAYE KI SHAADI KAR DI HAI.' She did not inform the said fact to the police. She failed to disclose the number of persons who had gone to the hospital to see the deceased after the incident of stabbing.

9. PW­11 Ashok (brother of the deceased) deposed that on the day of marriage, the accused no. 2 demanded a motorcycle and some money before vidai ceremony. He was also complaining about the quality of the dowry articles given by PW­14. In her matrimonial home, besides the accused no. 1 to 3, jeth and jethani of the deceased were also Page Number 6 7 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala residing. Whenever the deceased visited her parental house, she informed about the beating given to her by the accused no. 1 under the influence of liquor. He also deposed about the incident of stabbing and stated that that day, the accused no. 1 was under the influence of liquor and got annoyed because of the delay in cooking the meat and gave a knife blow on the hand of the deceased. He also mentioned about the CAW proceedings and the compromise taken place at that time. He also deposed that his mother and sister visited the house of the deceased and found that she was living in a rented room and was not allowed to use cooler and fridge etc. which were given by him in dowry to her. After delivery of the child, the deceased was complaining stomach ache, but, she was discharged. He did not know what happened thereafter in her matrimonial home. On 03.07.2014, he gave a written application at CAW Cell Ex.PW5/A informing about the death of his sister. After birth of the child, all the accused demanded Rs. 20,000/­ from the deceased. His statement was recorded by the police.

10. In his cross­examination, PW11 deposed that the deceased used to inform him telephonically as well as on her personal visit that the accused no. 1 used to beat her under the influence of liquor, but, he did not make any police complaint. He did not inform the police about the demand for motorcycle. Neither he nor any of his family member went to the hospital, when the accused no. 1 stabbed the deceased. Ram Swaroop, the mediator of the marriage, informed him about the said incident. Accused no. 1 had consumed liquor in his presence on holi festival and that time, his elder brother in law Kamal had also consumed liquor. On holi festival, the accused no. 1 Page Number 7 8 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala did not quarrel with the deceased after consuming the liquor nor raised any dowry demand. He admitted that the accused no. 1 did not demand the motorcycle on the day of marriage.

11. PW­16 Kranti (sister in law of the deceased) deposed that there was no dowry demand prior to date of marriage. On the day of marriage, the accused no. 2 demanded motorcycle and some money from PW­14 as she came to know from PW­11. After marriage, jeth of the deceased started quarreling with her. Deceased informed her on phone about the beating given to her by the accused no. 1 under the influence of liquor. She also deposed about the talk between PW­14 and the accused no. 2 and that she was kept well for two three months thereafter. She also deposed that once the deceased became pregnant, she never visited her parental house. She also deposed about the comments made by the accused no. 3; incident of stabbing; CAW Cell and the compromise that taken place as deposed by PW­15.

12. In her cross­examination, PW16 deposed that when the accused no. 1 & 2 demanded motorcycle from PW­14 in the marriage, she was also present, but, she did not complain. She told the fact of beating given to the deceased to PW­11. She never visited the matrimonial home of the deceased because it was not as per their custom. Accused no. 1 did not raise any demand. She did not visit the hospital at the time of stabbing.

13. PW­12 Manoj deposed that he made a call at number 100 from his mobile. In his cross­examination, he deposed that he knew the accused no. 1 for the last 15­16 years and the accused no. 1 never Page Number 8 9 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala consumed liquor in his presence nor quarreled with the deceased.

14. PW­10 Jai Bhagwan deposed that he was running a shop of selling utensils. On 11.09.2014, the police officials came to his shop and inquired about the bill Ex.PW10/A issued from his shop. In his cross examination, he deposed that on 24.05.2013, one aged lady, two boys along with one another lady came to his shop to purchase the utensils. He proved the carbon copy of the bill Ex.PW10/A as Ex.PW10/DA. He admitted that he had not brought the entire bill book in the court.

15. PW­18 Sh. Vishnu Kumar Verma deposed that he was running a jewellery shop under the name Shri Balaji Jewellery. On 12.01.2012 (wrongly typed as 12.01.2013) and 10.01.2013, Ashok and Parwati purchased gold articles i.e. one chain, one pair of jhumka, two gold rings and one locket from his shop. He issued the bills Ex.PW18/A & Ex.PW18/B. In his cross examination, he deposed that as per bill Ex.PW18/B, the jewellery was purchased by Parwati.

POLICE/OFFICIAL WITNESSES

16. PW­4 SI Ashwini Kumar proved the copy of DD no. 32A Ex.PW4/A (OSR) regarding knife injury sustained by Gudia.

17. PW­22 SI Sunil Dagar deposed that on 30.04.2014 on receipt of DD no. 32A Ex.PW22/A about stab injury to a lady, he reached the hospital and obtained her MLC. He tried to record her statement, but, she did not give the statement. He came back to the PS and made DD Page Number 9 10 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala no. 36A Ex.PW22/B. In his cross examination, he deposed that according to the doctor, the injury was simple and there was no allegation against the accused regarding demand for dowry.

18. PW­1 HC Kishori Lal proved the complaint filed and the proceedings taken place before CAW Cell Ex.PW1/B.

19. PW­5 SI Mahender deposed that he received the complaint Ex.PW5/A from PW­11 regarding the death of the deceased. He relied upon his report Ex.PW1/B regarding transfer of the file to PS Kanjhawala. In his cross examination, he deposed that none of the parties ever quarreled in CAW Cell proceedings in his presence. He admitted that the deceased was ready to go with accused no. 1 after one or two counseling.

20. PW­6 HC Kishan Lal proved the true copy of DD no. 18/A Ex.PW6/B and photocopy of the same Ex.PW6/C regarding hanging of a lady i.e. Gudia.

21. PW­3 HC Gaikwad M.A., proved the computerized copy of FIR Ex.PW3/B (OSR) and endorsement on the rukka Ex.PW3/C.

22. PW­2 L/Ct. Suman Kumari proved the certificate u/s 65 B Ex.PW2/B regarding genuineness of the contents of the FIR.

23. PW­17 HC Virender deposed that on 02.07.2014, once he reached the spot, doors of the room were bolted from inside. He peeped through window and saw one lady was hanging in the room.

Page Number 10 11 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala With the help of public persons, he broke open the door of the room and on enquiry, came to know that she was Gudia. Thereafter, local police and SHO came and he left the spot.

24. PW­7 ASI Ram Kumar, I/C Crime Team proved his report Ex.PW7/B prepared by him after inspection of scene of crime.

25. PW­8 Ct. Raj Kumar deposed that he took the photographs of the scene of crime and proved the negatives Ex.PW8/B­1 to B­10 & the developed photographs Ex.PW8/A­1 to A­9.

26. PW­9 Sh. Ranbir Singh, Executive Magistrate­Kanjhawala deposed that on 03.07.2014, he went to SGM Hospital and recorded the statement of PW­14 Ex.PW9/A. He made the endorsement on the same and directed SHO to register the case and relied upon Ex.PW3/C. He also proved the letter to conduct the postmortem Ex.PW9/B, form 25.35 Ex.PW9/C, the statement of PW­14 Ex.PW9/D and Man Singh Ex.PW9/E about the identification of the dead body of the deceased. He deposed that the dead body was handed over to relatives of the deceased.

27. PW­19 HC Rajbir proved the photocopy of entry no. 1953 in register no. 19 Ex.PW19/B.

28. PW­13 Ct. Yad Ram deposed that on 03.07.2014, he joined the investigation with IO SI Manoj and arrested the accused no. 1 vide arrest memo Ex.PW13/A. He also proved his personal search memo Ex.PW13/B. Page Number 11 12 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala

29. PW­20 SI Manoj deposed that on 02.07.2014, on receipt of DD no. 18A Ext.PW6/B, he along with Ct. Ajay reached at the spot. PCR van and public persons were at the spot. Crime team inspected the scene of occurrence and took the photographs of the spot Ext.PW8/A­1 to A­9. He informed the SDM of the area. As per his directions, he got the dead body shifted to the mortuary of SGM Hospital and got it preserved for 72 hours vide application Ext.PW20/X. On 03.07.2014, PW9 recorded the statement of PW14 Ext.PW9/A. Statement of mother of deceased was also recorded by PW9 i.e. Ext.PW20/A. PW­9 got done the postmortem on the dead body of the deceased vide Ext.PW9/B to Ext.PW9/E. After the postmortem, the dead body was handed over to the accused persons. Autopsy Surgeon had handed over to him a sealed pulanda which was taken into possession vide seizure memo Ext.PW20/B. PW­9 made his endorsement on Ext.PW9/A, on the basis of which he made his endorsement for registration of FIR and prepared rukka Ext.PW3/C. Accordingly, FIR was registered. Thereafter, he recorded the statements of relatives of the deceased. He inspected the spot and prepared site plan of the place of incident Ext.PW20/C. He arrested the accused no. 1 vide arrest memo Ext.PW13/A. His personal search memo is Ext.PW13/B. On 10.07.2014, he examined other brothers, sister, bhabhi and brother in law of deceased. He also relied upon the CAW proceedings and 2 photographs of marriage Ext.PW1/B. PW11 gave him two bills of Shri Balaji Jewellers Ext.PW18/A and Ext.PW18/B. Two bills of purchase of utensils are Ext.PW10/A. He proved the PCR forms Ext.PW20/D and Ext.PW20/E. Page Number 12 13 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala MEDICAL EVIDENCE

30. PW­21 Dr. Mahipal Singh, CMO, SGM Hospital deposed that on examination of MLC no. 7915 of Gudia Ext.PW21/A, he found the injuries "Superficial incised wound of 4 cm was found present over extensor aspect of right forearm (one wound) and on left forearm (two wounds)." He opined that nature of injury as simple and injury with sharp object. In his cross examination, he deposed that the injuries mentioned in the said MLC could be caused by any sharp object like knife.

31. PW­23 Dr. Vivek Rawat, Senior Resident Forensic Medicine, SGM Hospital, deposed that on 03.07.2014, he conducted autopsy of Gudia. Time since death was within 6 to 12 hours prior to preservation of body in the mortuary. The cause of death was asphyxia as a result of hanging. All injuries were ante mortem in nature. He proved PM report Ex.PW­23/A. He also proved the pink Saari which was tied around the neck of the deceased as Ex. P1.

STATEMENT OF ACCUSED

32. After completing the prosecution evidence, statement of accused persons were recorded under Section 313 Code of Criminal Procedure in which the incriminating evidence / material was put to them to which they have denied. The accused stated that they are innocent and has been falsely implicated in this case.

Page Number 13 14 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala DEFENCE EVIDENCE

33. The accused examined Sheikh Zahir as DW1 who deposed that he attended the marriage of the deceased on 03.06.2013 and in his presence, no altercation took place between PW­14 and the accused no. 2 nor the accused no. 2 made any demand for motorcycle in his presence. He did not notice the accused no. 1 consuming liquor.

34. The accused examined Maya Devi as DW2 who deposed that the accused persons did not make any demand for dowry in her presence. She did not notice the accused no. 1 consuming liquor.

35. I have heard the Ld. Addl. PP for the State and Ld. counsel for the accused and have perused the material available on record.

36. Admittedly, the accused no. 1 married Gudia (the "deceased") on 03.06.2013 according to Hindu Rites and ceremonies. Gudia committed suicide on 02.07.2014. As such, death of the deceased took place within 7 years from the date of marriage.

37. Ld Add. PP pleaded that the accused made the demand for dowry on the deceased and her parents from time to time and treated her with cruelty due to non fulfillment of the same and the same led into her death. To substantiate the same, he specifically pleaded the demand for the motor cycle & money; the incident of stabbing by the accused no. 1; and CAW cell complaint filed by the deceased. He also pleaded that the prosecution has proved the acts of cruelty done by Page Number 14 15 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala the accused persons and that the death took place within 7 years of date of marriage, hence, presumption under section 113(B) of Indian Evidence Act, 1872 may be drawn against the accused and they may be held guilty.

38. On the contrary, counsel for the accused pleaded that the accused had never made any demand for dowry on the deceased or her parents nor ever treated her with cruelty. Parents of the deceased had never made a single complaint against the accused about the alleged demand for dowry and cruelty prior to lodging of the FIR. As such, the accused have been falsely implicated in the present case. Therefore, it is prayed that the accused may be acquitted.

39. To succeed in the case, the prosecution has to prove the following essential ingredients of section 304 B IPC:

(i) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(ii) such cruelty or harassment must be for or in connection with demand for dowry; and
(iii) such cruelty or harassment is shown to have been meted out to the woman soon before her death.

40. Under section 304 B IPC, "cruelty" is not defined. "Cruelty" is defined under explanation attached to section 498A IPC.

41. The prosecution examined PW14, father of the deceased as the main witness. PW15, mother of the deceased, deposed on the lines of Page Number 15 16 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala PW­14. PW­15 (brother) and PW­16 (sister in law) of the deceased are examined to support them.

DEMAND FOR DOWRY

42. PW­15 and PW­16 specifically deposed that before marriage, the accused persons had not made any demand for dowry. Therefore, it stands proved that before marriage, there was no demand for dowry made by the accused persons.

43. Ld. Addl. PP pleaded that parents of the deceased gave the utensils mentioned in the bill dated 24.05.2013 Ex. PW10/A and jewellary mentioned in two bills dated 12.01.2012 Ex.PW18/B and dated 10.01.2013 Ex.PW18/A as dowry to the accused in the marriage. On the contrary, counsel for the accused denied the said facts.

44. The bill dated 24.01.2012 marked as Ex. PW10/A­1 has not been proved by PW­10 and it cannot be also because it appears to be a bill related to some jewellary items. The prosecution has not examined any witness to prove the said bill. As such, the said bill is wrongly mentioned as Ex.PW10/A­1 and cannot be considered in evidence.

45. To prove giving of the utensils to the accused, the prosecution relied upon the testimony of PW­10 who proved the bill Ex.PW10/A and deposed that on 24.05.2013, one aged lady, two boys along with another lady purchased the utensils as mentioned in the said bill. Firstly, PW­10 failed to mention the name of the persons who purchased those utensils from his shop; secondly, the prosecution has Page Number 16 17 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala not made any effort to get the accused persons identified by him; and thirdly, it is the own case of PW­15 and PW­16 that before marriage, the accused had not made any demand for dowry. Therefore, merely on the basis of the said bill, it cannot be held that the accused demanded the utensils as dowry and the same were given to them on the date of marriage.

46. To prove giving of the jewellary to the accused, the prosecution examined PW­18 who proved two bills Ex.PW18/A dated 10.01.2013 and Ex.PW18/B dated 12.01.2012 and deposed that Ashok and Parwati purchased the gold items mentioned in those bills. Firstly, the prosecution had failed to connect the bill Ex.PW18/B with the parents of deceased as it is not disclosed how Parwati was connected with them; secondly, the bill Ex. PW18/B is dated 12.01.2012 and the marriage took place on 03.06.2013 and the prosecution has failed to show the proximate relationship between the date of bill and date of marriage; thirdly, so far as bill Ex.PW18/A is concerned, the prosecution has not made any effort to get the accused persons identified by him; and fourthly, it is the own case of PW­15 and PW­16 that before marriage, the accused had not made any demand for dowry. Therefore, merely on the basis of the said bills, it cannot be held that the accused demanded the jewelery as dowry and the same were given to them on the date of marriage.

47. Case of the prosecution is that on the date of marriage before vidai ceremony, the accused no. 2 demanded a motorcycle as dowry from PW­14, however, he refused to give the same.

Page Number 17 18 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala

48. Regarding the demand for motorcycle, PW­14 in his statement Ex.PW9/A stated about the said demand for motorcycle but did not disclose to whom the accused no. 2 made the said demand. In his testimony before court, he deposed that on that day, the accused no. 2 asked the mediator Ram Swaroop as to why motorcycle was not given as dowry. Hence, it can be held that the accused no. 2 had not made any dowry demand for motorcycle to PW­14 directly on the day of marriage. But Ram Swaroop, the mediator, is not examined by the prosecution. As such, the statement of PW14 is hearsay to that extent. Further, he deposed that he refused to give the motorcycle as he first asked the accused no. 2 to return the dowry articles which was not done. But the said statement is contrary to his statement that he refused because the said demand was not raised earlier and he, being a poor man, could not afford the same.

49. To this effect, PW­15 deposed on the lines of PW14. But she in her statement u/s 161 CrPC and statement Ex. PW20/A stated that on the day of marriage, the accused no. 2 commented on the quality of the articles and stated that that would be better if motorcycle would have been given instead of those articles. As such, she made the improvements in her statement.

50. In his testimony, PW­11 also stated about the demand for motorcycle but added the demand for money and the objection raised by accused no. 2 about the quality of dowry articles. However, his statement u/s 161 CrPC is silent about the demand for money and those objections. As such, the said statement does not inspire confidence of the court.

Page Number 18 19 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala

51. PW­16 in her examination in chief deposed that PW11 informed him about the said demand for motorcycle. However, in her cross­ examination she deposed that she was present that time. As such, an adverse inference can be drown against her. Therefore, it can be held that statement of PW16 about the said demand is merely hearsay in nature.

52. So far as demand for motorcycle is concerned, the CAW complaint Ex. PW1/B reveals that it was after one month of the marriage, her in­ laws started demanding motorcycle.

53. In view of the foregoing discussions, it can be held that there exists material contradictions in the testimony of the prosecution witnesses and also the complaint Ex. PW1/B relating to the demand for motorcycle made by the accused no. 2 and time when it was made. Therefore, it can be held that the prosecution has failed to prove that the accused no. 2 demanded motorcycle as dowry on the day of marriage before the vidai ceremony.

54. Case of the prosecution is that the accused persons demanded money as dowry on the day of marriage and other occasions.

55. Perusal of the records reveals that on 01.05.2014, the deceased made a complaint Ex. PW1/B before CAW Cell wherein she mentioned about the expenses of Rs. 1,00,000/­ incurred by her parents in the marriage and the dowry of Rs. 5,00,000/­ given to her. In her said complaint, the deceased also stated that the accused demanded Rs.

Page Number 19 20 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala 20,000/­ one month after her marriage. PW14 and PW15 though stated that the deceased informed them about each and every demand made by the accused persons but they did not make any statement to that effect. In view thereof, it can be held that the allegations made in the said complaint are contradictory to the case of the prosecution.

56. Further, PW­14 in his statement Ex.PW9/A deposed that after marriage, no dowry demand was ever made to him. PW­14 in his examination in chief remained completely silent about any money demand. He also deposed that even when the accused took the deceased to her matrimonial home from CAW cell, they did not demand anything. PW14 in his cross­examination also deposed that except the demand of motorcycle, no other demand was made by the accused even when he visited the house of the accused. Thereafter, in his cross­examination, he made a shift in his stand and stated that the accused also demanded some money and that the demand was raised by the accused persons at their house. Firstly, PW14 made the improvements in his statement; and secondly, vide the said improvements, he made the vague allegations of demand for money against the accused.

57. Regarding the demand for money, PW­11 mentioned about the demand for money on the date of marriage and stated that after birth of the child, all the accused demanded Rs. 20,000/­ from the deceased. Firstly, no such demands were mentioned in his statement u/s 161 CrPC. Secondly, no specific date and month of the said demand were mentioned. Thirdly, on the one hand, PW11 deposed that he did not know what happened in the matrimonial home of the Page Number 20 21 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala deceased after her discharge from the hospital and on the other hand, he stated that the accused demanded Rs. 20,000/­ after the birth of the child.

58. In view of the foregoing discussions, it can be held that the statement of PW­11 and PW14 to this effect are not reliable. For the same reason, the statement of PW­15 and PW­16 about the demand of money are not reliable. Further, the statement of PW11, PW14, PW15 and PW16 remained consistent to the effect that the accused no. 1 never made any demand of motorcycle or any dowry at any point of time. Therefore, it can be held that the prosecution has failed to prove that the accused made the demand for money as dowry.

INCIDENTS OF BEATING

59. PW­15 deposed that after marriage, once the deceased reached at her matrimonial home, her jeth­jethani started quarreling with her, however, she did not know the reason for the same. It is evident from the testimony of PW­14 & PW­15 that since the date of marriage, the deceased along with the accused no. 1 resided separately at house no. H­66. Therefore, the said plea of the prosecution does not inspire confidence of the court.

60. PW­15 in her cross examination stated that she saw the beating marks on the body of the deceased. Firstly, PW15 made the improvement in her statement to this effect. Secondly, no specific date, month and year has been mentioned when she noticed those marks and their nature.

Page Number 21 22 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala

61. Case of the prosecution is that the accused no. 1 under the influence of liquor used to beat the deceased. To substantiate the same, the prosecution has relied upon the incident of stabbing and the complaint filed by the deceased with CAW Cell.

62. On the contrary, counsel for the accused pleaded that the accused no. 1 had never consumed liquor nor had beaten the deceased.

63. Except the incident of stabbing, none of the prosecution witnesses specifically deposed the date, month and year when the accused no. 1 beaten the deceased under the influence of liquor. As such, the allegations made to that effect are vague in nature.

64. Except one statement made by PW­11 that on the occasion of Holi festival, the accused no. 1 consumed liquor at his place along with his elder brother in law, none of the prosecution witnesses deposed that they had ever seen the accused no. 1 consuming liquor. But PW­11 in his cross examination, deposed that on that day, the accused no. 1 neither quarreled with the deceased nor raised any demand even after consuming liquor. As such, on the one hand, PW­11 made improvement in his statement and on the other hand, it shows that even after consuming liquor, the accused no. 1 had behaved properly.

65. Case of the prosecution is that on one occasion, the accused no. 1 asked the deceased to cook meat. Since she was pregnant, hence, she showed her reluctance to cook the same for the accused. Being Page Number 22 23 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala annoyed by the said act of the deceased, the accused no. 1 gave the stab blow to the deceased. Being aggrieved by the same, she made a police call at 100 number and she also filed the complaint with CAW Cell. The prosecution relied upon the CAW Cell proceedings Ex.PW1/B and MLC no. 7915 Ext.PW21/A of the deceased to prove that the accused no. 1 inflicted stab injury on the deceased. PW­11, PW­14, PW­15 & PW­16 deposed to that effect.

66. To prove the incident of stabbing dated 30.04.2014, the prosecu­ tion also examined PW­22 who deposed that on receipt of DD no. 32A Ex.PW22/A at about 8.35 pm, he reached the house no. 553, Sawda JJ Colony and came to know that the injured had been removed to Mahrishi Balmiki Hospital (MBH). He reached there and obtained the MLC of the injured namely Gudia mentioning "superficial injury in­ cised wound over left forearm with hesitation mark over it". The in­ jured did not give her statement. Hence, he came back to the police station and made DD no. 36A Ex.PW22/B regarding his arrival and filed the DD. In his cross examination, he stated that according to doctor, the injury was simple and there was no allegation against the accused persons regarding the demand for dowry.

67. Perusal of DD no. 36A recorded at 10.30 pm on 30.04.2014 reveals that PW­22 collected MLC no. 1886/14 of Gudia with injury as mentioned above. It was also mentioned that there was some quarrel between that Gudia and her husband, but, there was no incident of stabbing. According to the doctor, the injury was self inflicted and the police call was made by the brother in law (JiJa) of Gudia whose mobile phone was switched off and he ran away. Since Gudia refused Page Number 23 24 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala to make the statement, hence, DD was filed.

68. The prosecution filed the illegible copy of MLC 1886/14 drawn by MBH as a part of the CAW proceedings Ex. PW1/B only. The prosecution has not examined any doctor from MBH to prove the MLC 1886/14. As such, the prosecution has not proved MLC 1886/14 as per law.

69. To prove the incident of stabbing, the prosecution also examined PW­21 who proved the MLC of the deceased i.e. injured that time Ex.PW21/A drawn by the doctor at Sanjay Gandhi Memorial Hospital (SGMH) which shows the arrival time of the deceased with her brother at 12.50 am. In the said MLC, he mentioned three injuries i.e. "superficial incised wound of 4 cm over extensor aspect of right forearm (one wound) and on left forearm (two wounds)."

70. Further, according to DD no. 36A Ex. PW22/B, the deceased was having only one incised wound on the left forearm with hesitation mark. On the contrary, according to MLC Ex.PW21/K, she had incised wound on both the arms. It implies that the wound on the right forearm and second wound on the left forearm came into existence after 10.30 pm but how the prosecution remained completely silent. Hence, it can be inferred that after taking the discharge from MBH, the deceased self inflicted other injuries and then she visited SGM Hospital.

71. Further, according to the prosecution, the deceased along with the accused no. 1 was residing at house no. 66 where the said incident Page Number 24 25 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala took place. However, according to PW­22, the incident was reported at house no. 553, Sawda JJ Colony. It is not the case of the prosecution that the accused no. 1 had any connection with the said premises. As such, there exists contradiction as to the place where the incident took place also.

72. In view of the foregoing discussions, it can be held that on 30.04.2014, there was a quarrel between the deceased and the accused no. 1 but no incident of stabbing had taken place that time. It was brother in law of the deceased who under the influence of liquor made a police call which resulted in DD no. 32A Ex.PW22/A and not the deceased as alleged by the prosecution. In response thereto, PCR van came and removed the injured i.e. the deceased to MBH where she was medically examined and her MLC no. 1886/14 was drawn. Only one superficial incised wound over left forearm was noticed by the doctor that too with hesitation mark. This shows that the said injury was self inflicted which is substantiated by the version of the doctor also, as mentioned in DD Ex.PW22/B. The deceased had refused to give her statement. In the given circumstances, DD was filed at about 10.30 pm. After filing of the said DD, the deceased along with her brother visited SGM Hospital at 12.50 am with two more wound injuries which came into existence after 10.30 pm but how, the prosecution remained silent to that effect.

73. The best person to tell the truth of the said incident of stabbing and its cause was the deceased. According to the prosecution, being aggrieved by the said act, the deceased filed the complaint Ex. PW1/B with CAW Cell on 01.05.2014. About the cause of the injury, she Page Number 25 26 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala mentioned that on 30.04.2014, the accused no. 1 to 3 along with her jeth and jethani brutally beaten her and attempted to murder her and in the said process, they gave the stab blow with a knife due to which she sustained injuries. As such, the cause of injury mentioned in the said complaint is contradictory to the case of the prosecution.

74. In view of the foregoing discussions, it can be held that the evidence led by the prosecution to prove the incident of stabbing on 30.04.204 is full of material contradictions. Hence, an adverse inference can be drawn against the prosecution. Therefore, it can be held that the prosecution has failed to prove that the accused no. 1 stabbed the deceased on 30.04.2014.

75. Ld. Addl. PP also pleaded that the accused no. 1 was not keeping properly the deceased in her matrimonial home. To substantiate the same, it relied upon the statement of PW­15 that on one occasion, once she visited the matrimonial home of the deceased, she found that the cooler was not working, the connection of TV was not there and wires of the fridge were cut. No specific date, month and year of the said visit of PW­15 was mentioned. Therefore, the said plea is vague in nature. PW­11 also deposed to that effect but his statement is hearsay in nature. PW­11 further stated that it was he who gave cooler and fridge in dowry to the deceased. On the one hand, it is the improvement in his statement, and on the other hand, he has failed to prove the same. As such, the prosecution has failed to prove the said plea.

Page Number 26 27 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala

76. PW­14 in his statement Ex.PW9/A and PW15 in her statement Ex. PW20/A stated that three days prior to the date of incident, PW15 had a talk with the accused no. 3 and requested her to get the deceased medically examined as she had swelling in her stitches. But the ac­ cused no. 3 refused to get her medically examined and asked her to take her back. Even in that conversation, no demand for dowry was made. So far as the conversation is concerned, PW14 deposed that he had no knowledge of the same. PW11 deposed that he did not know what happened after discharged of deceased from the hospital. PW15 herself stated that she did not have any talk with the accused no. 3. As such, the prosecution has failed to prove the said fact.

77. According to the prosecution, in CAW proceedings, the accused no. 1 showed his readiness to take back the deceased and gave in writing that he would not cause any harassment to the deceased in future. Perusal of the proceeding sheet of CAW Cell Ex.PW1/B reveals that on 29.05.2014 and 05.06.2014, the deceased and the accused no. 1 showed their readiness and willingness to live together as husband and wife despite the fact that the settlement had not arrived between the two side. On 19.06.2014, the deceased was not present but her parents and all the accused herein were present and informed that all was well between the deceased and the accused no. 1. However, file was not closed. As such, the prosecution has failed to prove that the accused no. 1 gave in writing at CAW cell that he would not harass the deceased in future as his admission. It also reveals that the dispute between the parties were not major that is why they showed their readiness to live together despite the fact that no final settlement was arrived between them.

Page Number 27 28 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala

78. To this effect, PW15 deposed that she was not inclined to send the deceased back to her matrimonial home because she was apprehend­ ing that she might be stabbed again. However, CAW Cell proceedings are silent to that effect. Rather on 19.06.2014, PW14 and PW15 in­ formed CAW Cell that everything was going well between the de­ ceased and the accused no.1.

79. Now the question arises as to how PW­11, PW­14, PW­15 & PW­16 came to know about the facts of beating given by the accused no. 1 to the deceased under the influence of liquor. PW­14, PW­15 & PW­16 deposed that they came to know about the said facts as the deceased used to inform them on the telephone. PW­11 in his examination in chief deposed that the said facts were told by the deceased when she came at her parental home. However, in his cross examination, he modified the said statement and deposed that the deceased informed those facts on telephone. In the given circumstances, it can be held that the deceased never told those facts to any of the said witnesses on her visit to her parental home. So far as telephonic conversation is concerned, PW­15 in her cross examination deposed that the deceased did not have her own mobile phone. Rather, she used to talk to her from the mobile phone of the accused no. 1 that too in his presence. It is highly improbable that the deceased would complain about the said acts of accused no. 1 that too from his mobile phone and in his presence on frequent basis and he would not have reacted to the same. This fact is important because it is not the case of the prosecution that whenever she called PW11 and PW14 to PW16, the accused no. 1 had beaten her. It implies that the accused no. 1 was Page Number 28 29 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala comfortable with the telephonic talks of the deceased with her parents. In the given circumstances, the only inference which can be drawn is that the deceased had not made any such complaint to her parents or brother.

80. Regarding the condition of the deceased once she was removed to hospital, PW­23 deposed that the patient was declared brought dead and the cause of death was asphyxia as a result of hanging. All the injuries were ante mortem in nature. Therefore, it can be held that the deceased committed suicide in which the accused had no role to play.

81. In view of the foregoing discussions, it can be held that the prosecution has miserably failed to prove that the accused ever treated the deceased with cruelty within the meaning of section 498 A IPC.

82. As held above, the prosecution has failed to prove that the accused had treated the deceased with cruelty within the meaning of section 498A IPC. In the judgment titled as "Kanwar Pal vs. Shakuntala and ors." reported in 2015 IV AD (Delhi) 450, it was held:

"to establish the offence under section 304B IPC of dowry death, the presumption under section 113B of Evidence act cannot be raised against an accused until independently the offence under section 498A IPC is proved by leading evidence to the specific allegation with regard to time and date of such demand and cruelty and furthermore establishing the proximity live link between the effect of cruelty based on dowry demand (offence under section 498A IPC) and the death of the victim."

83. In view of the abovementioned judgment and foregoing discussions, it can be held that since the prosecution has failed to Page Number 29 30 Judgment State vs Babloo etc. FIR No. 498/14 PS Kanjhawala prove that the accused treated the deceased with cruelty within the meaning of section 498A IPC, the presumption u/s 113B of Indian Evidence Act of dowry death cannot be raised against the accused. Therefore, it can be held that the prosecution has failed to prove that the accused committed an offence u/s 304B IPC.

84. Accordingly, all the accused are acquitted for the offences under section 498A/304B/34 IPC. File be consigned to Record Room.

Announced in the open court on this 17th day of October, 2015.

(PANKAJ GUPTA) ADDL. SESSIONS JUDGE­II ROHINI COURTS: DELHI.

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