State vs Bhagat Singh Sharma Etc. on 31 August, 2012

[Cites 24, Cited by 0]

Delhi District Court

State vs Bhagat Singh Sharma Etc. on 31 August, 2012

    IN THE COURT OF SH.SURESH CHAND RAJAN
 ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
          DWARKA COURTS, NEW DELHI

SC No.12/1/10
FIR No.121/08
U/s 498A/304B/302/34 IPC
PS Palam Village

State 

Vs.

1. Bhagat Singh Sharma S/o Late Sh.Gyan Chand    
2. Bijender Sharma @ Birju S/o Sh. Late Sh. Gyan Chand
3. Beena W/o Sh. Late Sh. Gyan Chand
4. Jeetin W/o Sh. Arvind Jangid
                                     ........ Accused

Challan filed on : 07.03.2009
Reserved for Order on : 29.08.2012
Date of Pronouncement : 31.08.2012

JUDGMENT

Briefly stated the facts of the prosecution case are that on 10.12.08 DD no.4 was recorded in PS Palam Village at about 2.40 a.m regarding admission of Smt. Sucheta w/o Bhagat Singh has been admitted in DDU hospital after fall from the roof and after examination doctor has declared her brought dead and on receipt of this DD, ASI Rajender Singh reached in DDU Hospital where he came to know that deceased Sucheta@ Jyoti was married on 18.05.2008. The dead body was preserved and Executive State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 1 of 75 Magistrate Sh Surender Singh was informed who asked to give information to the parents of deceased. The parents of the deceased were informed and Executive Magistrate reached at the spot and inspected the spot. Mobile Crime team was summoned alongwith photographer and photographs were taken. Exhibits lying at the spot i.e. blood stained cement, broken glass pieces and blood stained peticoat were seized. The exhibits were deposited in the malkhana. On 11.12.2008 the statements of Smt. Sushila mother of deceased and Sh Satbir Singh father of deceased were recorded. In her statement Smt. Sushila has alleged that she is mother of Sucheta@ Jyoti and she solemnized the marriage of her daughter with Bhagat Singh on 18.05.08 according to Hindu Rites and Customs. Before 6 months of marriage, her daughter was taken away by Bhagat Singh. He was arrested after one month and he also remained in jail. Thereafter they solemnized the marriage due to force of relatives(biradaari). After one month of marriage she gave Rs.1.00 lac to her daughter and Rs.50,000/ was given after taking from her father. Her daughter had told that articles for shop has to be purchased. After about 2 or two and half month, the boy asked her daughter that there are two vehicles in their house and asked that one motorcycle be given to him. Thereafter they gave him one scooter which was belonging to someone known for use. It is further the case of the prosecution that mother in law of her State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 2 of 75 daughter told her that Jeeten (her Nanad) has been bless with a son and asked her to bring some money for ceremonies. She gave Rs. 12,000/ on this demand. On 6.12.08 her daughter had come to their house and told that they are under debt of Rs.1.00 - 1.25 lac and if helped, they will be debt free. Thereafter on Tuesday this incident had taken place. She has further alleged that whenever she had a talk with her daughter she used to say that Jiten (nanad) used to harass her. She suspects that her daughter has been murdered for which the responsibility lies on her damad Bhagat Singh, her mother in law, devar and Nanad. They had killed her for dowry. Legal action be taken against them. On this statement Ex.PW2/D , Executive Magistrate made endorsement to take action as per Law. The case vide FIR no. 121/08 was registered.

2. It is further the case of the prosecution that site plan was prepared by the IO, marriage card and photographs were seized and statement of bank showing withdrawl of money from the bank was also seized. The accused persons were arrested. Bhagat Singh was found sustaining injury on his right hand, his blood sample was got preserved. Disclosure statement of Bhagat Singh was recorded and he got recovered his blood stained clothes i.e. pant and baniyan worn by him at the time of incident. Post mortem on the dead body was got conducted. Broken glass pieces on the dressing table State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 3 of 75 supports the scuffle in the room. The dowry articles were seized. Exhibits were sent to FSL. After completion of the investigation challan was filed in the court for judicial verdict.

3. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 23.03.09.

4. The charge against accused Bhagat Singih Sharma, Bijender Sharma, Smt. Beena has been framed u/s 498A/304B/34 IPC and accused Smt. Jeetin has been charged u/s 498A/34 IPC only on 05.08.2010 by my Ld. Predecessor Ms. Ravider Kaur, Ld. ASJ to which accused persons pleaded not guilty and claimed trial. Thereafter, on an application moved on behalf of the State, alternate charge u/s 302/34 IPC was framed on 09.08.12 to which the accused persons pleaded not guilty and claimed trial.

5. The prosecution in all has examined as many as 23 witnesses.

6. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Accused Bhagat Singh has stated State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 4 of 75 that he has been falsely implicated by the parents of his wife as they were against the marriage with they were forced to do due to intervention of respectables of the society. Sucheta was also willing to marry him due to which reason, she had deposed in his favour in the court during the evidence recorded in FIR no.913/07 of PS Dwarka. On the night of the incident, after they came back from attending a marriage in their friend circle, Sucheta had gone to the roof of their house to pick up the dry clothes and she had fallen from the roof accidentally. On hearing the cries of Suchita, Ravi Jain from Jain Sweets came and then he informed them that Sucheta had fallen from the roof which he had seen. Thereafter, he told that he is taking her to the hospital and requested him to inform her parents. On that night only his mother and he were present in the house. Accused Bijender Sharma has taken the plea that he was not present at his house on that night and had gone to the house of his grandfather at village Palam. Accused Jeetin has stated that after attending marriage she went to her matrimonial house alongwith her cousin. She does not know what happened thereafter. Later on she came to know that her bhabi Sucheta had gone to the roof to pick up the clothes and she had fallen from the roof accidentally. The accused persons also led evidence in their favour and examined DW1 Smt. Kanti Sharma and DW2 Smt. Rajrani. Thereafter the case was fixed for final arguments.

State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 5 of 75

7. I have heard the Ld.counsel for the accused persons as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.

8. In view of the arguments advanced by the Ld.APP and Ld.counsel on behalf of the accused persons, I have perused the testimonies of all the PWS.

9. PW1 Lady Ct. Urmila has deposed that on 12.12.08 she went to the house of accused Veena alongwith Ct. Surender and arrested her. She also conducted her personal search. The documents relating to the arrest of accused were prepared at the PS. She does not remember how many documents were prepared and who prepared the same. She was declared hostile and cross examined by the Ld. APP for the State wherein she has admitted that Insp.SS Rathi was present at the house and he interrogated accused Veena and documents relating to arrest were prepared by him. She had made statement Ex.PW1/X to the IO. She admitted that accused Veena was taken to DDU Hospital for her medical examination. In reply to court question she has stated that since she was not present at the spot as such she did not narrate these facts in her chiefexamination.

State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 6 of 75

10. PW2 Dr.Komal Singh has deposed that on 13.12.08 he conducted the postmortem on the dead body of Suchetaaged about 19 years. In his opinion the cause of death was carniocerebral injury subsequent to fall from the height. Post mortem report is Ex.PW2/A. He has also deposed about receiving of inquest papers. He also examined Bhagat Singh vide MLC no.24615 Ex.PW9/A for expert opinion. He opined all the injuries to be fresh in nature i.e. less than the duration of 72 hours and opined that the said injuries could be possible in a scuffle caused by blunt impact or brushing over the rough surface. His report is at point A to A on MLC Ex.PW9/A. He has also given the duration of injury vide report Ex.PW2/G.

11. PW3 Vipin Adlakha is the Dy.Manager from SBI Delhi Cantt who produced the record of account no.10469779033 of Kapil Furniture w.e.f 1.6.08 to 30.6.08. The account statement is Ex.PW3/A.

12. PW4 ASI Jagdish Singh has deposed that on 10.12.08 SI Rajinder made entry no.27A regarding his arrival in case FIR no. 32/08. He has further deposed that he recorded the FIR of this case which is Ex.PW4/B and after registration of the FIR he handed over State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 7 of 75 the copy of FIR to SI Rajinder Singh.

13. PW5 Smt.Sushila is the complainant and mother of deceased Suchita. Her statement recorded by the SDM is Ex.PW5/A. She handed over the marriage card Ex.P1, 11 photographs of marriage Ex.P2 (colly.), photocopy of list of dowry articles mark PW5/A1, photocopy of statement of account mark PW5/A2 of her husband to the police which were seized vide memo Ex.PW5/B. She was declared hostile by the Ld. APP for the State on some material points and cross examined wherein she had admitted the suggestions put to her by the Ld.APP for the State.

14. PW6 Smt. Maya Devi is the grand mother of deceased. She has stated that whenever Sucheta met her she told her that she was being harassed for want of dowry by her husband, mother in law and sister in law. She was declared hostile by the Ld. APP for the State on some material points

15. PW7 Satbir Singh is the father of deceased Sucheta and he has deposed that before marriage his daughter was induced and kidnapped by Bhagat Singh and FIR no.913.07 was recorded. Later on his daughter was recovered from accused and accused also remained in jail. Thereafter due to interventions of the respectables State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 8 of 75 of the society he got solemnized marriage of Sucheta with accused Bhagat Singh. He further deposed about giving of dowry articles to his daughter and regarding demand raised by the accused persons and stated that she was harassed by her in laws. The copy of bank statement is Ex.PW7/A. The statement recorded by Executive Magistrate is Ex.PW7/B. He had handed over the copy of RC of scooter no. DL 9SF 4618 Ex.PW7/C. He received the dead body vide receipt Ex.PW7/E. He was declared hostile by the Ld. APP for the State on some material points. He has stated that form no.29 & 30 are Ex.PW16/A and B.

16. PW8 SI Balram has deposed that he was informed about admission of Sucheta in the hospital vide DD no.4A copy of which is Ex.PW8/A. ASI Mahavir was also informed but investigation was handed over to SI Rajender.

17. PW9 Dr. Yogendra Nath Maurya has deposed that he examined patient Bhagat Singh on 13.12.08 patient Bhagat Singh was brought to hospital at about 11.35 a.m with alleged history of asaault on 10.11.08 vide MLC no.24463 dated 10.11.08. He was brought for reexamination and for forensic opinion. The MLC is Ex.PW9/A. State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 9 of 75

18. PW10 Dr. Dhananjay Kumar has deposed that Dr. Chanchal Singh had prepared the MLC of Sucheta. The MLC is Ex.PW10/A.

19. PW11 HC Satish Kumar is the MHCM who has deposed that he made entry no.215 Ex.PW11/A, entry no. 222 Ex.PW11/B, Entry no. 223 Ex.PW11/C, entry no.227 Ex.PW11/D in register no.

19. He has further deposed that on 13.1.09 five exhibits bearing no. S1 to S4 and S6 were deposited vide entry Ex.PW11/A and were sent to FSL Rohini through Ct. Karamvir vide RC no.21/21/9 copy of which is Ex.PW11/E. The receipt regarding deposit is Ex.PW11/F.

20. PW12 Dr.Avnish has appeared for Dr. Rajesh Saha who prepared MLC no.24463 of Bhagat Singh who was brought for medical examination on 12.12.08. He has deposed that as per MLC there were multiple/three healed abrasions over ulnar aspect of right hand of reddish violet colour with crusting. There were nine other abrasions (healed). The MLC is Ex.PW12/A. These injuries were of about one week and it may be from 2 days to 7 days.

21. PW13 HC Rajeev has deposed that he reached at the spot on 10.12.08 and taken 14 photographs, the negatives of which State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 10 of 75 are Ex.PW13/1 to Ex.PW13/14 and print photos are Ex.PW13/15 to

28.

22. PW14 Ravi Jain has deposed that that wife of Bhagat Singh had fallen from the balcony of her matrimonial house. It was around 12 midnight, he was present at his shop when he heard some sound of the leaves of the tree in front of the house of accused Bhagat Singh and when he looked above he saw the wife of accused falling from the balcony of her house to the ground. He did not see any other person from the matrimonial house of deceased present there. He knocked at the door of the house and at this accused Bhagat Singh and his mother came out of the house. He also called his brother. Some neighbourers also came out on hearing noise. He alongwith Bhagat Singh etc removed her to DDU Hospital. He has further deposed that when the lady had fallen on the ground she was holding some clothes in her hand, the same were consisting of sarees, pant, shirt and some such like clothes which were kept aside when they removed her to his vehicle. He told his brother to inform the parents of wife of accused. He remained in the hospital for about 2/3 hours. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he was confronted with his State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 11 of 75 statement Ex.PW14/PA where the facts narrated by him has not been mentioned.

23. PW15 HC Ram Chander has deposed that on the intervening night of 9/10.12.08 Sucheta was admitted in the hospital in injured condition with injuries on her head and left shoulder and elbow. She was declared brought dead and her dead body was sent to mortuary.

24. PW16 S.M. Sehgal has deposed that he purchased scooter no. DL9SF 4618 of blue colour in the year 1999 and he sold the said scooter for Rs.10,000/ approx in the month of August 2008 to Satbir. Sale letter was executed. Form 29 & 30 produced by PW Satbir Singh which were put to witness. Ld. Defence counsel raised objection to these documents but documents form no.29 and 30 are Ex.PW16/A and B. The RC of the scooter is Ex.PW7/C. The scooter is Ex.P3. He was declared hostile by the prosecution and cross examined wherein he has denied the suggestion that in July/Aug 08 Satbir Singh came and told him that he wanted to give 2nd hand scooter to his son in law and further told to inform if any 2nd hand scooter for sale is in his knowledge to which he replied that he would give his own scooter to him. VOL. Satbir came to State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 12 of 75 him and asked for 2nd hand scooter as it was urgently needed by him.

25. PW17 SI Rajender Singh has deposed that on receipt of DD no.4A he reached DDU Hospital and found Sucheta brought dead on MLC no.24290. The death occurred within 7 years of marriage, so he informed the Executive Magistrate Sh Surender Singh. He found parents of the deceased in the hospital and informed them that Executive Magistrate would come in the morning for interrogation. On 10.12.08 he alongwith Ct. Surender went to the spot where Executive Magistrate also reached. The spot was inspected by SDM and crime team officials and photographs were taken and exhibits were lifted and seized vide memo Ex.PW17/A. He has further stated that the parents of Sucheta did not give the statements on the same day. On 11.12.08 the case was got registered investigation was handed over to Insp.SS Rathi who prepared the site plan at his instance. Satbir produced photographs of marriage and marriage card and statement of Bank of India. Invitation card is Ex.P1, photographs are Ex.P2, list of dowry articles is Ex.PW7/C, statement of account of Satbir Singh is Ex.PW7/A. They went in search of accused person. Accused Bijender Sharma @ Birju was apprehended form the main gate of the house and arrested vide memo Ex.PW17/C. Accused Bhagat State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 13 of 75 Singh was arrested vide memo Ex.PW17/B. Accused Beena was arrested vide memo Ex.PW17/A. Personal search memos of accused are Ex.PW17/D&E. He has further deposed that there was injury mark on the right hand wrist of accused Bhagat Singh. Case property was deposited in the malkhana. Accused Bhagat Singh was interrogated and his disclosure statement was recorded which is Ex.PW17/F. Accused had disclosed that his blood stained clothes which he was wearing at the time of incident were hanged behind the door of the bathroom and some cash and jewellery of Sucheta were also lying in the house. Accused led the police to the bathroom on first floor of the house and produced one vest of sandoz, one jeans with blood stains which he was wearing at the time of removing the deceased to hospital. The clothes were seized vide memo Ex.PW17/G.

26. PW18 Sh.Naresh Kumar is the witness from FSL who examined the exhibits and given his detailed report which is Ex.PW18/A. The serological report is Ex.PW18/B.

27. PW19 Sh Surender Singh is the then Executive Magistrate who recorded the statements of the parents of deceased and directed the SHO for registration of the case. He conducted the inquest proceedings and found some scratch mark on the left State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 14 of 75 forearm and 3 cm approx wound on left portion of head. He also found excess bleeding from head and mouth. The death report is Ex.PW2/F. He recorded the statements of Stabir Singh Ex.PW7/B and Sushila Ex.PW5/A. He prepared the brief facts Ex.PW2/C. He got the post mortem conducted.

28. PW20 Insp. S.S.Rathi is the second IO who visited the spot and prepared the site plan Ex.pW20/A. Father of deceased produced photographs and marriage card which were seized by the IO. He also seized the bank statement and list of dowry articles. He further deposed about arrest of accused Bhagat Singh, Beena and Bijender. He found injury on the right wrist of Bhagat Singh. He has further stated that accused Bhagat Singh on interrogation disclosed that he had received injury on his right writs on the night of this incident after he alongwith his wife and other family members had returned to their house after attending a marriage, at the time of quarrel between him and his wife as she had brought insufficient dowry and he had asked Sucheta to keep quite and to traumatize her, he had hit on the mirror of the dressing table as a result of which it was broken and he had received injury on his right wrist. He further deposed about arrest and personal search of all the accused. All the accused were taken to hospital for medical examination and blood sample of Bhagat Singh were taken which State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 15 of 75 was seized vide memo Ex.PW20/B. Accused was again interrogated and his disclosure statement is Ex.PW17/F. He has further deposed that the accused got recovered his clothes which were seized vide memo Ex.PW17/G. The case property was sent to FSL . Post mortem on the dead body was conducted and exhibits were seized vide memo Ex.PW20/C which were deposited in malkhana. Accused was referred to Forensic medicine for expert opinion regarding nature of injury where Dr. Komal Singh given his opinion on MLC Ex.PW9/A. He seized the jewellery items. He collected the photographs and crime team report. He sent notice u/s 91/160 to Chief Manager, SBI for producing the details of statement of account w.e.f 1.6.08 to 30.6.08 in the name of Kapil Furniture. He got prepared the scaled site plan and sent the exhibits to FSL. He formally arrested Jatin and moved an application for clarification about time of injury on the person of accused Bhagat Singh. He seized the copy of RC of scooter no. DL 9SF 4618 Ex.PW7/C from Satbir Singh vide memo Ex.PW7/D. ON 27.2.09 Dr. Komal Singh had given opinion Ex.PW2/G on his application Ex.PW20/G. He placed DD no.4A, 29A and 27A Ex.PW20/G, H and J on record. The scooter is Ex.P3. Jeans and baniyan are Ex.P4 & P5. He identified other household items recovered from the premises of accused.

State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 16 of 75

29. PW21 HC Karambir Singh has deposed that he had taken five pullandas to FSL vide RC no.21/09 already Ex.PW11/E and after depositing the same he handed over the receipt Ex.PW11/F to MHCM.

30. PW22 ASI Khajan Singh has deposed that he was posted as Incharge Mobile Crime team and he reached at the spot and inspected the same. He prepared his report Ex.PW22/A.

31. PW23 SI Mahesh Kumar is the witness who had prepared the scaled site plan Ex.PW23/A.

32. I have also perused the evidence led by the accused persons in this case. DW1 Smt. Kanta Sharma has deposed that she was residing opposite the house of Bhagat Singh. The wife of Bhagat Singh had died unnatural death. Neighbour Mr. Jain knocked the door of their house at about 2.30 midnight and they came out and found that the wife of accused Bhagat Singh was lying dead in the middle of the road who fell between the house of accused and their house. They did not come to know as to how she was lying there dead. She had never heard any complaint from her against the accused persons. She was on talking terms with Jyoti who used to speak a lot with them and used to remain cheerful. On State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 17 of 75 the day of incident accused Jatin was not present at her house. She was married and used to visit her parents house after 5/6 months. 5/6 months prior to the incident accused Jatin had delivered a male child and as such they had not seen her at the house of her parents. The deceased had never complained to them that accused persons used to demand dowry from her or were harassing her. Several neighbourer had collected at the spot after Mr. Jain had knocked at their door. No cloth was lying near the dead body.

33. DW2 Smt. Rajrani has deposed that accused Bhagat had married with Jyoti about 5/6 months before her death. On the night of incident there was commotion outside their house and Mr. Jain had knocked the house and they came out and they found wife of accused Bhagat Singh lying dead in front of the house of accused. She had heard that Jyoti had fallen from the roof. She had never heard about any dispute between the accused and Jyoti. She used to meet Jyoti and she was always found by her to be cheerful. She never found her in depressing mood. She never complaint to her against her inlaws. She had not seen accused Jatin at her parents house. She had delivered a baby about 5/6 months back.

34. In the overall analysis of the testimonies of all the PWS, it is revealed that PW5 Sushila is the mother, PW6 Maya Devi is State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 18 of 75 the dadi, PW7 Satbir Singh is the father of the deceased Sucheta@Jyoti and PW14 Ravi Jain is the neighbourer/public witness, PW16 S.M. Sehgal is the witness who sold scooter to Satbir. These witnesses including PW19, Sh Surender Singh, the then SDM are the main star witnesses of the prosecution. PW5,6& 7 the near relatives of deceased Sucheta @ Jyoti. Before discussing their deposition made in the court and to bring home the guilt of the accused persons u/s 498A/304B IPC it is necessary to discuss the relevant provisions. Section 304B relates to dowry death. The same was introduced in the Indian Penal Code and it reads as under: Sec.304 B (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 demands for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death.

For the purpose of this sub section dowry shall have the same meaning as in section 2 of the dowry prohibition Act 1961. 'Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life'.

And if the ingredients of section 304B have been completed then the presumption u/s 113 B in the Indian Evidence Act is State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 19 of 75 required.

Section 113 B Presumption as to dowry death when the question whether a person has committed the dowry death 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.

In a case of dowry death cruelty on part of husband towards his wife by prosecution has to be proved beyond reasonable doubt and section 113 B of Evidence Act does not alter this requirement of stick proof.

Section 498 A IPC reads as under: 'Husband or relatives of husband of a woman subjecting her to cruelty - Whoever being the husband or the relative of the husband or a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine'.

There is explanation for the purpose of this section cruelty means:

(a) any wilful 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.

35. From the conjoint reading of section 304B of the IPC and Sec. 113B of the Indian Evidence Act, it is apparent that a presumption arising State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 20 of 75 thereunder will operate if the prosecution is able to establish the circumstances as set out in Sec.304B of IPC. The ingredients of the aforementioned provisions are :

1. That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;

2. Such death occurs within 7 years from the date of her marriage

3. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband

4. Such cruelty or harassment should be for or in connection with demand of dowry and

5. Such cruelty and harassment was made soon before her death.

36. In the normal circumstances though cruelty at any time after marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged in section 304B is to be seen before the death of a woman and it is the duty of the court to scrutinize the evidence carefully because cases are not rare in which occasionally there is demand and then the atmosphere becomes calm and quiet and then again there is demand. Where a wife dies in the house of the husband within the short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined within the four walls of the house. However, the courts are to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and her in State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 21 of 75 laws are strained for any reason whatsoever it might be.

37. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological trouble or mental agony or such circumstances that the person committing suicide may think that the life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person. Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life.

38. Reverting back to the testimonies of witnesses, firstly I would consider the testimonies of the witnesses adduced by the prosecution who are related to deceased Sucheta @Jyoti. PW1 Smt. Sushila who is the mother of deceased and complainant in this case has deposed that Sucheta was married to Bhagat Singh on 18.05.2008. Five/Six months before marriage accused Bhagat Singh had allured her daughter and took her away and case was registered. Thereafter they solemnized the marriage with the intervention of members of the society and they had given various household articles, gold and Rs.21,000/. After ¾ days of marriage her daughter came to her house and told that her inlaws were expecting more dowry. She further told that accused Bhagat Singh State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 22 of 75 asked her to bring Rs.1.00/1.50 lacs so that he could put articles in his cycle shop to earn better livelihood. She has further stated that after about one month a sum of Rs.1.00 lac was withdrawn from the account of her husband which she alongwith her husband had given to accused Bhagat Singh at his house. She has further stated that after about 2 months, her daughter told her on telephone that her sister in law Jatin had come from her matrimonial house and she along with her mother in law were harassing her by saying that her father was having two vehicles and they could not afford to give a scooter to them. Her husband arranged for an old scooter from an acquittance of his in office and gave the same to Bhagat Singh after two/two and half months of marriage. After ¾ months of marriage deceased came to their house and she was quite disturbed and when she insisted she told her that her sister in law had delivered a son and that her mother in law, brother in law Birju @ Brij Mohan and her husband had been harassing her since morning and told her to bring RS.20,000/ from her parents for giving chhuchak to her sister in law. At that time they gave Rs.12,000/ to Jyoti and Bhagat Singh who had come to their house in the evening again said the said amount was given to Bhagat Singh. Whenever Jyoti complained, she tried to make Bhagat Singh understand and also told him that it was is duty to make her happy. She has further stated that on 6.12.08 her daughter came to their house and she was State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 23 of 75 too much disturbed. On enquiry she told her and her husband that her mother in law, husband, sister in law Jitin, brother in law Birju had been harassing her since morning and had given her beating to bring Rs.1/1.50 lac to pay the debts of Bhagat Singh so that the creditors do not visit their house. Deceased further told her that Jitin had threatened her that she would not be allowed to live peacefully till the aforesaid demand is fulfilled. She told that they will see to fulfill this demand. She has stated that before 6.12.08 she alongwith her husband visited the house of accused and told that they should not harass their daughter and everything would be fine in due course of time. After 6.12.08 when her daughter went back, she had no talk with her. On 8.12.08 she had given a call on mobile of Bhagat Singh and she told him that he should make her to talk to her daughter but he told that he was out of house and when he would go back, he would make her talk to her daughter but it did not happen nor he made any call. She also did not make any call to him thereafter. On the intervening night of 9/10.12.08 around 2 a.m one Jain Sweet maker who runs his shop near the matrimonial house of her daughter came alongwith one person on motorcycle to their house and informed them that their daughter is in serious condition and he did not disclose what had happened. She alongwith her husband went there and saw and there was pool of blood outside the house. On information regarding their daughter, State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 24 of 75 they went to DDU Hospital and found her in emergency on stretcher and her hair, face and clothes all were smeared with blood and she was lying dead. Bhagat Singh and his mother were present there. Bhagat Singh informed them that Jyoti had fallen from roof as she had gone to remove clothes. She knew that Jitin had come to her parents house two days before for attending the marriage. All the accused have killed her daughter for non fulfillment of the demand of dowry made on 6.12.08. her statement is Ex.PW5/A. She handed over the marriage Card Ex.P1, 11 photographs of marriage colly. Ex.p2, photocopy of dowry articles mark PW5/A1, photocopy of statement of account Mark PW5/A2 of her husband which were seized vide memo Ex.PW5/B. She has further stated that after 34 months of marriage her daughter called up on phone and told that her husband and mother in law were beating her for demand of money. She had spoken to Bhagat Singh and made him understand to live peacefully and told 'hum bhi jaise hoga kuch karenge' and everything would be alright with the passage of time. She was declared hostile by the prosecution and cross examined by the Ld. APP for the State on some material points wherein she has admitted the suggestions put by the Ld. APP for the State that her daughter told her that she was being harassed and tortured by her in laws and husband for demand of money from her to buy State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 25 of 75 vehicle to ply the same on hire basis, all were pressurizing for vehicle and mother in law and brother in law were saying jab gadi dila doge tabhi Jyoti ko chain se rehne denge". In Cross examination she has stated that accused Bhagat Singh was acquitted in case FIR no.913/07 as her daughter deposed that she had gone and married with accused of her fee will and wanted to live with her husband and does not want to go with her parents. She admitted that at the time when her daughter had eloped with accused, she and her husband were against their relationship. She was never told by her daughter that she had married with accused Bhagat after she had eloped. She had inquired from her daughter if she was happy with this marriage at that time of discussion of her marriage with accused Bhagat to which she replied in affirmative. On her return her daughter told her that she would marry only Bhagat Singh and nobody else. She admitted that there was no demand of dowry from accused or his family at the time of settlement of marriage. She does not know if her daughter had stated in the court in her statement recorded in case FIR no.913/07 after 18.5.08 when she was got married with accused Bhagat that she was living happily with accused Bhagat Singh. About 200250 persons from both the sides attended the marriage. AT the time of marriage they had voluntarily given gifts to her and there was no State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 26 of 75 demand of dowry by the accused persons at that time. At the time of marriage her mother in was living in the house of her brother in law near her house vol. On the day of marriage of her daughter she was in their house and she also used to live in village and sometimes she used to come to stay with them in Delhi and at present also she is in village. She cannot admit or deny if her daughter visited their house after 15 or 20 days of perphera ceremony. She cannot tell if after the marriage of her daughter Jyoti (since deceased) till 31.5.08 when the order of acquittal in case FIR no. 913/07 was passed by the court besides perphera ceremony her daughter had visited their house or not. Vol. On the day when her statement was recorded she had come from the house of accused persons and they had also accompanied them. She denied that her statement as well as statement of her husband was recorded and they had stated that Jyoti was living happily with accused Bhagat Singh after their marriage. She has further stated that her husband had handed over Rs.2,00,000/ to her after withdrawal from the bank, however, she is not aware about the exact amount withdrawn by him from the bank on that day. Her statement was recorded by the police in her house in the night of between 9 p.m to 11.00 p.m perhaps on the intervening night of 10/12/08 and 11/12/08. In her presence statement of other witnesses were not recorded at her house. Her statement was recorded by the Executive Magistrate on State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 27 of 75 the same day in the afternoon and thereafter in night her statement was recorded by the police at her house. She had not stated in her statement u/s 161 Cr.PC that after 34 days of marriage, her daughter came to house and she was appearing to be disturbed and on her asking she told her that accused Bhagat had asked her to bring Rs.1/1.50 lac VOL. She had stated that he was told by her daughter that her inlaws were demanding money. She had not stated in her statement u/s 161 Cr.pC that Rs.1.00 lac were withdrawn by her husband from the bank after one month of marriage of her daughter. She had not stated in statement u/s 161 Cr.PC that a sum of Rs.1.00 lac was given to accused Bhagat Singh at his house in the presence of his mother and Jyoti. She further made improvement by mentioned the name of Jatin and mother in law of Jyoti regarding harassing for scooter. The matrimonial house of her daughter was situated at the distance of one or one and half km from her house. Her daughter stayed in their house for 34 times till her death. Once she had stayed for 23 nights at their house and on other occasions she used to come and stay for a night at their house. She and her husband had visited the matrimonial house after about one month of marriage and thereafter about one and half - two months of their first visit. She know Sh SM Sehgal who is working in the office of MES where her husband is working as contractor. She cannot tell the date and month when the scooter was State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 28 of 75 purchased by her husband. The male child was born to Jatin on 17.9.08 and at that time she was staying at her matrimonial home. She had not gone to meet Jatin at the matrimonial home of her daughter after her visit to her parental home. Her daughter visited their home after 34 months of her marriage with accused and her visit was before Dussehra. Rs.12,000/ were given to Jyoti by her and her husband from their personal savings. She admitted that in her statement u/s 161 Cr.PC she had stated that somehow her husband had given RS.12,000/ to her daughter and pacified her. No landline phone was installed at her matrimonial home Vol. She used to call from the mobile phone of her husband. On 6.12.08 Jyoti came and at that time she was alone. Her husband returned at about 7/7.30 p.m on that day. She had stated in her statement u/s 161 Cr.PC that on 6.12.08 they were informed by their daughter that her mother in law, husband, sister in law Jatin, brother in law Birju were harassing her since morning and had also given her beating to bring Rs.one /one and half lac. She was confronted with her statement where the name of only husband is mentioned. She denied the suggestion that she is deposing falsely as she was against the marriage of her daughter with accused Bhagat Singh. She was not told by her daughter on that night she had to accompany her in laws to attend some marriage. She denied the suggestion that no complaint was lodged with police or the SDM on 10.12.08 as she State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 29 of 75 was aware that it was an accidental fall of her daughter from the railing of the roof when she had gone to pick the dry clothes.

39. PW6 Maya Devi is the dadi/grand mother of deceased Sucheta@ Jyoti and she has deposed that after marriage of her grand daughter she was living at her village near Rewari. Whenever her grand daughter met her she told her that she was being harassed for want of dowry by her husband, mother in law and sister in law. She also asked her to convey it to her mother that she should give her some dowry. She was told by Sushila that they had given Rs.one lac and scooter to Bhagat Singh vol. She had not seen Sushila and her husband delivering the same. In the same year after Diwali Jyoti had died. She cannot say as to how she died. Her statement was recorded after about one and one and half month of death of Jyoti. Sucheta informed her that she was being harassed by her husband, mother in law and sister in law for demand of dowry which she conveyed to his son and daughter in law. She was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she has admitted that all the four accused persons used to harass Jyoti for demand of dowry and used to give her beatings. She denied that her grand daughter had told her that she was being taunted by the accused persons. She admitted State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 30 of 75 that she had stated to the police that her grand daughter told her that after about one month of her marriage i.e. in June 2008 her husband, mother inlaw and her other in laws were demanding Rs. 2.00 lacs in cash and a motorcycle from her and she conveyed this fact to her son and daughter in law. In cross examination she has stated that she is residing in village Bawal Rewari with her husband. She came to Delhi at the time of marriage of Suchetaand Bhagat Singh and stayed for 2/3 days. Sucheta did not visit her parents house during this period. She came to Delhi after about one/one and half month of marriage VOL. At that time she met her. At that time she reached Delhi at the house of her son Jyoti was not there. VOL. She had come to know that Jyoti had visited her parents house and had informed that she was being harassed at her in laws house. She was informed this fact by Jyoti herself on telephone. She never met Jyoti during her stay. When a question was put to her as to whether she was happy when Jyoti got married, she replied 'khush to hona hi pada aur kya karte'. She never met Jyoti after her marriage till she died, though she had been coming to Delhi but she came in the morning and left in the evening. She admitted that her statement recorded by the police was not read over to her.

40. PW7 Satbir Singh is the father of deceased and he has State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 31 of 75 stated that his daughter was induced and kidnapped by Bhagat Singh and FIR no.913/07 was recorded and Bhagat Singh also remained in jail. He got solemnized the marriage due to intervention of respectables and given dowry articles, gold chain and Rs.21,000/. After 2/3 days of marriage his daughter came to their house and she was disturbed and on being enquired she told that she was being harassed by her mother in law and husband and they were expecting more dowry . In the evening his daughter went back. He has further deposed that after about one month of her visit to their house, she had made a call to his wife and told her that accused Bhagat Singh had demanded Rs.1.00 lac for his business as he wanted to purchase items to be sold at his shop. On 18.6.08 he has withdrawn Rs.1.00 lac from his SBI account and paid the same to Bhagat Singh at his house on the same day in the evening. Again said after seeing the relevant entry of bank record, Rs.2,50,000/ was withdrawn by him out of which Rs.1,00,000/ was given and remaining was kept for business. The amount was withdrawn from the account which was in the name of M/s Kapil Furniture which he operates, the copy of statement is mark 5/A1 is Ex.PW7/A. He has further deposed that next day he accompanied Bhagat Singh to Jhandewalan cycle market from where goods were purchased and thereafter his daughter was kept well. After about 2/3 months, accused Bhagat Singh had made a call to him and told him to talk to State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 32 of 75 his daughter. He was told by Jyoti that accused Bhagat Singh was quarreling with her for demand of some more money from her. Jyoti told him that Bhagat Singh was telling that her parents were having two cars and a motorcycle and that they should give a new scooter or motorcycle to him. He had purchased a old scooter for Bhagat Singh The ownership was not transferred in the name of Bhagat Singh as he was not holding a driving licence and it was purchased in his name. He has further stated that after about four months of marriage his daughter called up and stated that Jitin was bless with a son and stated that chchuchak is to be given to her and Bhagat Singh demanded Rs.20,000/ for that purpose. His daughter came to his house and in the evening Bhagat Singh also came to take her back and he was given Rs.12,000/ by his wife which amount she was having of her own since she was also running a cloth shop in the house. He has stated that accused Jitin used to tell that her parents were having two cars and atleast they should arrange one car for accused Bhagat Singh. He has further stated that on 6.12.08 his daughter came to his house and told that she was being harassed by her mother in law and husband and she was sent back after she was pacified. On the intervening night of 9/10.12.08 Jain Halwal told them that Jyoti is serious. They reached at the matrimonial house and then went to hospital where she was declared brought dead. On enquiry they were told that Sucheta went State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 33 of 75 to remove the clothes kept for drying from the roof and she had fallen from the roof. His statement was which is Ex.PW7/B. He had handed over the marriage car of his daughter, 11 photographs and list of dowry articles alongwith statement of bank . Marriage card is Ex.P1, photographs are Ex.P2/1 to 11, photocopy of dowry articles Ex. PW7/C. He also handed over the copy of RC of scooter no. DL 9SF 4618 which is Ex.PW7/C. The RC was seized vide memo Ex.PW7/D. The postmortem on the dead body was conducted on 13.12.08 and he received the dead body vide receipt Ex.pw7/E. He was declared hostile by the Ld. APP for the State and cross examined wherein he has stated that Sucheta visited their house after 24 days of her marriage and told that her husband and mother in law had asked to bring Rs.1.00 lac for running of their cycle shop. He admitted that he purchased scooter for Rs.10,000/ from Sh SM Sehgal. He admitted other suggestions put by the Ld. APP for the State as recorded in his statement u/s 161 Cr.PC. In cross examination he has stated that he is working as Govt. contractor in MES (military engineering service) since 1999 and operating from his house. He admitted that FIR no. 913/07 was registered on his complaint when his daughter Jyoti was taken away by accused Bhagat Singh. He admitted that when her statement u/s 164 Cr.PC was recorded he accompanied his daughter to court. He denied that State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 34 of 75 his daughter pressurized him that she would get marry with Bhagat Singh. Bhagat Singh was acquitted in FIR no. 913/07. He admitted that when Bhagat Singh was acquitted, he alongwith his wife and daughter were present in the court. On that day they had gone in car. On that day Suchitra had accompanied them to the court from her matrimonial home. His mobile number is 9891354243 and his wife's number is 9911140039. After peg phera he met his daughter after one week when she came to their house. His house is situated at the distance of about 11/1/2 km from her matrimonial home. He admitted that the matrimonial home of Sucheta was on way to market from his house. He had visited her matrimonial home during her lifetime for 23 times. His wife never visited there. His daughter never came to stay overnight in his house. There was no demand from the side of accused persons at the time of marriage of his daughter with accused and whatever he had given, was given out of his own free will. He had not informed any member of society, mediator/members of biradari or his relatives except his mother that his daughter was being harassed by accused persons for demand of dowry. She does not know if his daughter has stated before the court that she was happily living with accused. He admitted that she and his wife had stated before the court that their daughter was married to accused and was living happily with him. He came back to the matrimonial home of Sucheta at about 4 a.m on 10.12.08 State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 35 of 75 from the hospital and stayed for 1015 minutes. Again he went on 10.12.2008 and reached at about 9.3010 a.m. He admitted that the shop of Jain Sweets is situated near the house of Bhagat Singh. He had not narrated the entire facts in his statement to SDM vol. he had only given his statement in brief. He admitted that account number 10469779033 of SBI is in the name of his company Kapil Furnitures. He had never informed the police nor the SDM that he had withdrawn Rs.2.50 lacs from his account on 18.6.08. He does not recollect that the amount of Rs.1.00 lac, 1.50 lac withdrawn by him on different dates as shown in the statement Ex.PW7/A were withdrawn for what purpose. Accused Bhagat Singh was not possessing any driving licence. Accused Bhagat Singh had purchased goods for his cycle shop for RS.50,000/ to Rs.60,000/ approx. He had not stated in his statement recorded by the police or by Sh Surender Singh that accused used to sell cycles at his shop. A son was born to accused Jatin before Dusshera in the year 2008. He does not know as to after how many days, accused Jain came to her parental home after the birth of her son. He had not gone to the house of accused Jatin when a son was born to her. None from her family had gone to meet Jatin when she came to her parental home after birth of her son. The chhuchhak was given to accused Jatin by her parents after the birth of her son in Sept. 2008. He did not state in his statement that his daughter called him on phone regarding State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 36 of 75 demand of Rs.20000/ for chhuchhak. He made various improvements in his statement. He know that on the night of 9/10.12.2008 accused persons alongwith her daughter had gone to attend some marriage and he was told by his daughter that they were to attend the said marriage which was in their relation. He was told by Bhagat Singh that his daughter had gone to pick up the dry clothes from the roof and she had fallen from there. He denied the suggestion that his daughter was never harassed or tortured by accused for demand of dowry and no demand as alleged has been raised He admitted that Ex.PW16/A and B were filled in his handwriting. He admitted that some of the contents of Ex.PW16/B and his signatures on it are in different ink. He denied the suggestion and Ex.PW16/A &B are false and fabricated documents. At the time of the sale/purchase of the scooter no receipt of payment was executed.

41. It is noted from the statements of all these three main star witnesses that they were declared hostile by the prosecution on some material points and cross examined by the Ld. APP for the State and then they admitted the suggestions put in affirmative by the Ld. APP for the State. However, PW19 Sh Surender Singh the then Executive Magistrate has recorded the statements of PW5 Smt. Sushila (Complainant) and PW7 Satbir Singh and on the basis State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 37 of 75 of statement of PW5, the present case was registered. I have given my thoughtful consideration on the statement of complainant PW5 Sushila (mother of deceased) and PW7 Satbir Singh (Father of deceased). It is necessary to reproduce the same.

Statement/Vyan 'mai Sushila w/o Sh Satbir Singh r/o RZF 905/8 Raj Nagar PartII, Palam Colony, New Delhi vyan deti hu ki mai divangat Sucheta @ Jyoti ki maa hu.

Maine apni Ladki ki shadi Bhagat Singh s/o Late Sh. Lal Chand ke saath dinak 18.5.08 ko Hindu riti se yathashakti daan dahej se ki thi. Shadi se pehle karib 6 mahine, ladka ladki ko leker frar ho gaya tha. Ek Mahine baad police ne inhe girftar kiya tatha ye ush dauran jail mai band raha. Humne phir biradari ke dabab mai ye shadi ker di. Shadi ke ek mahine baad maine ladki ko Rs.1 lakh uske papa se leker tatha Rs.50,000/ apne paas se ladki ko diya. Ladki ne kaha tha ki dookan ka saman lana hai. Iske baad kareeb do dhai mahine baad ladke ne ladki ke madhyam se kehlvaya ki tumhere ghar mai 22 gadiya hai mujhe ek motor cycle de do. Tab humne ek scooter jo ki kisi parichit ki thi inko kaam chalane ke liye di. Iske baad ladki ki saas ne ladki ko kaha ki Jiten (nanad) ko ladka hua hai aur rasham ayadgi ke liye paise mangwa lo tub maine Rs.12,000/ diye. Shanivaar dinak 6.12.2008 ko ladki hamare ghar aae tatha kehne lagi ki hmare uper 1 to 11/4 lac kaarj hai agar aap paise de do to hum karj mukt ho jayenge. Uske baad Mangalvar ko raat ye hadsa ho gaya. Jab bhi ladki se meri baat hoti thi wo batati thi ki mujhe Jitin pareshaan karti thi Mujhe ashanka hai State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 38 of 75 ko meri ladki ki hatya ki gai hai tatha ishke liye zimedaar hai mera damad Bhagat Singh, ladki ki saas, devar tatha nanad. Unhone dahej ke liye milkar ish ghatna ko anjaam diya hai. Kripya inke khilaph kanooni karyavahi ki jaye tatha inshaf dilaya jaye. Vyan padh liya theek hai.' sd/ Sushila The statement of Satbir Singh, father of the deceased is as under: 'ki mai mritka Sucheta @ Jyoti ka pita hu. Maine apni ladki ki shadi Bhagat Singh ....... ke saath dinak 18.5.2008 ko ki thi. Shadi se pehle Bhagat Singih meri ladki Sucheta ko bhaga le gaya tha jiske karan ye FIR no.913/07 ke tahat, 4 maah jail me band bhi raha, baad mai hamne uske saath ladki ki shadi ker di. Shadi ke ek maah baad maine ladki ke kehne par 1 lakh rupee ka saaman Bhagat Singh ko dookan ke liye dilvaya. Shanivaar ko Dinak 6.12.08 ko ladki Sucheta 3 baje din me hamaare ghar aae tatha meri patni ko bataya ki hmaare uper 1 lakh ka karaj hai. Hame paise de dijiye taki hum vo utaar sake. Uske baad maine kaha ki abhi paisse hai nahi jaise hi payment milegi mai de dunga. Ladke - Ladki mai aaj tak jo meri knowledge mai aya ek hi baar mun mutav hua tha jise maine ladki va damad ko bulakar samjhaya diya tha. Uske baad mere saamne koi baat nahi aae. Mujhe ish hadse ki suchna ratri 1.53 per Jain Halwai jo ki unke padosh mai, ne di. Mujhe ashanka hai ko meri ladki ko maar ker sadak per daal diya gaya tatha baad mai shore macha diya ko ladko chhat se gir gai. Ghar mai hadse ke vakt 5 State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 39 of 75 vyakti maujood the, Bhagat Singh, uski maa va bhai tatha vahar va meri ladki. Hadse ke baad Bhagat Singh ki vahan mauke se bhaag gai aisa mujhe padosiyo dwara maloom hai. Kripya inke khilaph kanooni karyavahi ki jaye. Vyan padh liya sahi hai. Iske atirikat mai ek baat aur kehna chahata hu ko ladko ki Nanad Jitin jab bhi ghar aati thi meri ladki se jhagda karti thi kyonki vo ish baat se naraz thi ki jab Bhagat Singh meri ladki ke saath frar tha to police inke ghar talashi ke liye jati thi'.

Sd/ Satbir

42. Both the above statements were recorded by SDM on 11.12.08. These were the first/initial statements of the parents of the deceased. Considering these statements, it is manifest that there are contradictory versions of the parents of deceased. Sushila has stated that she had given Rs.1.50 lacs while Satbir has not stated anything in this respect. He only stated that he provided material for shop worth Rs. 1.00 lac. He has not stated about giving of Rs. 50,000/ by his wife. Satbir has stated that his daughter told him that they are under debt of Rs.1.00 lac while his wife Sushila has given different version. Sushila did not corroborate the version of Satbir that only once there was difference between Bhagat Singh and Sucheta. The statements were the first/initial statements. It is on record in the statement of PW19 Sh Surender Singh that he had requested them to give their statements however they refused and State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 40 of 75 stated that they were disturbed due to the death of their daughter and would give their statements next day. Further PW22 ASI Khajan Singh in cross examination voluntarily stated that the relatives of parents of Sucheta who had also accompanied them were not willing for taking of any legal action against the inlaws of Sucheta. PW17 IO/SI Rajender S Gurjar has stated in cross examination that the parents of deceased Sucheta were called in the PS by him but they refused to give any statement. He and the Executive Magistrate did not reduce this fact in writing that the parents of deceased were not willing to give statement on that day.

43. However, firstly I have considered the evidence for the charge framed u/s 498A/304B/34 IPC. Taking into consideration the deposition made in the court and above initial statements of PW5&7, it is revealed that PW5 Sushila who is the mother of deceased Sucheta has stated that they gave double bed, almirah, dressing table, utensil, jewellery,clothes, watch and Rs.21000/ in the marriage. PW7 Satbir has also stated about giving dowry articles in marriage. The said articles were given by them to their daughter in marriage as per their own wish.

44. PW5 has further stated that after ¾ days of marriage, deceased came and told that her in laws were expecting more State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 41 of 75 dowry and PW7 has also stated that after 2/3 days of marriage of his daughter, she came to his house in disturbed condition and told that she was being harassed by her husband and inlaws and they were expecting more dowry. It is admitted fact that the marriage between accused Bhagat Singh and Sucheta was a love marriage. It is also admitted fact that before marriage they both eloped and case FIR no.913/07 was registered in which later on accused Bhagat Singh was acquitted. In the said case deceased as well as PW Satbir and PW Sushila were also examined and they have stated that Sucheta is living happily with accused Bhagat Singh. The said FIR was decided on 31.05.08. Further PW6 Maya, dadi (grand mother) of Sucheta has stated that she again came to Delhi at the time of marriage of Sucheta with accused Bhagat and stayed for 2/3 days. She had not visited the matrimonial house of her grand daughter during this period. During the said period Sucheta had not visited her parents house. Therefore, the said allegation cannot sustain.

45. PW5 has further stated in continuation to her statement that when Sucheta came after ¾ days of marriage she told her that accused Bhagat Singh had asked her to bring Rs.1.00 - Rs.1.50 lac from them so that he could put some articles in his cycle shop to earn better livelihood. PW7 Satbir Singh has stated that after one month of her visit, she made call to his wife and asked that Bhagat State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 42 of 75 Singh is demanding Rs.1.00 lac for business. Firstly PW5 Sushila has stated that she asked for the said amount after ¾ days of marriage while PW7 has stated that it was asked after about one month. Secondly, if it is presumed that the said amount was asked, it was not as dowry but as admitted by PW7, it was for business purpose. PW5 has stated that her daughter told that Bhagat Singh asked for Rs.1.00 /1.50 lac while PW7 has stated that Rs.1.00 lac was asked.

46. PW5 Sushila has further stated that after about one month a sum of Rs.1.00 lac was withdrawn from the account of her husband which she alongwith her husband had given to accused Bhagat Singh at his house in the presence of his mother and thereafter they lived peacefully for sometime. PW7 Satbir has stated that on 18.6.08 he withdraw Rs.1.00 lac and paid the same to Bhagat Singh. He again said after seeing the entry of bank record, Rs.2,50,000/ was withdrawn by him out of which Rs.1.00 lac were given to Bhagat Singh and Rs.1,50,000/ were kept for business. PW5 has herself given contradictory version as in her initial statement she has stated that Rs.1.00 lac was given by her husband and Rs.50,000/ was given by her. Further PW7 has never stated this fact before SDM that he had given Rs.1.00 lac after withdrawing from his bank but to the contrary he has stated that he State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 43 of 75 provided articles for shop worth Rs.1.00 lac. The prosecution has also examined PW3 Sh Vipin Adlakha from SBI where account of M/s Kapil Furniture is maintained as the money of Rs.2,50,000/ was withdrawn from the said account on 18.6.2008. I have perused the statement Ex.PW3/A. It is admitted fact that this is a current account maintained for business purpose. On perusal of the entries, it is revealed that an amount of Rs.1,50,000/ was withdrawn on 3.6.08, Rs.1.00 lac each were withdrawn on 7.6.08 and 9.6.08, Rs, 2,50,000/ was withdrawn on 18.6.2008 and Rs.1,00,000/ was withdrawn on 30.6.08. There is no mention that an amount of Rs. 1.00 lac was given to accused Bhagat Singh out of Rs.2,50,000/ on any document. PW5 in cross examination has stated that her husband had handed over Rs.2.00 lac to her after withdrawal of the money from the bank, however she is not aware about the exact amount withdrawn by him on that day. PW20 IO Insp.SS Rathi has stated that he had not verified about the various payments made from the account of Satbir Singh to various parties. A question was put to PW5 Sushila during cross examination which is as under:

Question: I put it to you that in your statement recorded on 8.11.2010 in the court, you had stated that after about one month of marriage a sum of Rs.one lac was withdrawn from the account of your husband which you alongwith your husband had given to accused Bhagat Singh and today you have stated that your husband had given to you Rs.Two lac after withdrawing the said amount from the bank and out of which Rs.1.00 had been given to accused State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 44 of 75 Bhagat Singh. Which of your two statements is correct.

Answer: My statement recorded today is correct.

47. The witness has made contradictory statement regarding giving of Rs.1.00 lac to accused Bhagat Singh. It seems that the plea for giving a sum of Rs.1.00 lac was taken after thought just for the sake of plea as PW7 has stated in his initial statement that he provided goods to accused for shop and never stated that he had ever given Rs.1.00 lac in cash.

48. PW5 has further stated that after two months her daughter told her that her mother in law and nanad Jeetin were harassing her by saying that her father was having two vehicles and they could not afford to given even a scooter to them and at this her husband arranged a scooter and gave to Bhagat Singh. Admittedly they did not demand scooter. PW7 Satbir Singh has stated that after about 2/3 months, accused Bhagat Singh had made a call to him and told her to talk to his daughter Sucheta. He was told by Jyoti that accused Bhagat was quarreling with her for demand of some more money and she further told him that Bhagat Singh was telling that they had two cars and motorcycle and that they should give a new scooter or motorcycle to him. PW7 has not specified as to how much more money was demanded by accused Bhagat Singh. He has State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 45 of 75 further stated that he purchased a old scooter form SM Sehgal and gave it to Bhagat Singh. The prosecution has examined PW16 S.M Sehgal who has stated that he sold his scooter for Rs.10,000/ to Satbir Singh in the month of August and a sale letter was executed. It was observed by the court that there is no document on record and there is no evidence that any such document was seized during investigation. During the examination of this witness, original documents i.e. form no.29 & 30 were produced by PW Satbir to which Ld. Defence counsel raised objection regarding authenticity of documents and manipulation during investigation and it was to be decided at final stage. The photocopy of form no.29 and form no.30 are Ex.PW16/A and B. RC of the scooter is Ex.PW7/C and witness identified the scooter Ex.P3. His statement was not recorded by the police. He was also declared hostile by the prosecution and he denied the suggestion of Ld. APP that he has stated to the police that in the month of July/August 2008 Satbir Singh came and told him that he wanted to give a 2nd hand scooter to his son in law and further told if any 2nd hand scooter for sale is in his knowledge to which he replied that he would given his own scooter to him. Pw16 has specifically denied that Satbir Singh came to him for purchase of scooter for his son inlaw. In cross examination he has stated that he had not issued receipt regarding the payment which he had received from Satbir Singh against the State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 46 of 75 scooter. The letter of sale Ex.PW16/A was brought by Satbir Singh and it was already filled by him. He never had any document to show that he had sold the scooter to Satbir Singh. I have perused the documents for which the Ld. Defence counsel raised objection during examination of PW16. It is on record that these documents were not seized by the police during the investigation of this case. The same were never produced by PW7 to the police during investigation. PW20 IO/Insp. SS Rathi has stated that on 26.2.09 he seized the photocopy of RC of scooter no. DL L9SF 4618 already Ex.PW7/C from Satbir Singh vide memo Ex.PW7/D. Admittedly the RC of scooter was recovered from PW7 Satbir which clearly indicate that the scooter would also have been in his possession. Further, seizure memo Ex.PW20/D shows that the scooter alongwith other articles were recovered by PW20 alleging that these are dowry articles. Copy of RC shows that the scooter is in the name of PW16 S.M.Sehgal. Had the scooter in question was given to accused Bhagat Singh, the RC of the same should also have been recovered from him. But to the contrary, it was recovered from PW7 Satbir. As admitted by PW7, Bhagat Singh was not possessing any driving licence. The form no.29&30 were never produced during investigation by PW Satbir to the Police. PW16 has denied the suggestion of Ld. APP for the State that Satbir told him that he took scooter to be given to his soninlaw. State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 47 of 75 Even had no document to show that he had sold the said scooter. Therefore the authenticity of these documents are doubtful and it could not be established that the scooter in question was given by PW7 Satbir Singh to accused Bhagat Singh.

49. Another allegation levelled by PW5 in her statement recorded before the court is that after ¾ months her daughter came in disturbed condition and told that her mother in law, brother in law, husband are harassing and told her to bring Rs.20,000/for giving chhuchhak to Jeetin. They gave Rs.12,000/ to Jyoti and Bhagat Singh who had come to their house in the evening. PW7 Satbir has stated that his daughter had called him and his wife that Chuchak is to be given to Jeetin and Bhagat Singh demanded Rs. 20,000/ and when his daughter called him on his mobile phone regarding this demand he told her to talk to his wife. His wife called him up on the same day and informed about demand of Rs.20,000/. PW5 has not stated that her daughter (since deceased) talked on phone on that day and demanded the said amount. PW7 has stated that an amount of Rs.12,000/ was given by his wife from her cloth shop to Bhagat Singh while PW5 has stated that it was given by them. Further as per the deposition of PWs, this amount was given for chuchak which cannot be termed as demand of dowry. State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 48 of 75

50. PW7 Satbir has further alleged that his daughter called him up on phone and told him that Jatin used to tell his daughter that they had two cars and at atleast they should arrange one car for accused Bhagat Singh for his livelihood. He was told about this fact by his wife. On perusal of the testimony of PW5 Sushila, wife of PW7, it is revealed that she did not state about arranging of car by accused Jatin for accused Bhagat Singh. Further, this fact is also not found mention in initial statement recorded by Executive Magistrate.

51. PW5 Sushila has stated that on 6.12.08, Jyoti came in disturbed condition and on enquiry she told to her and her husband that her in laws are harassing her since morning and given beating and asked to bring Rs.1.00/1.50 lac to clear the debt of Bhagat Singh so that the creditor do not visit their house. She has further stated that Jatin extended threatening that if the demand is not fulfilled she would not be allowed to live peacefully and after 6.12.08 when her daughter went back to her matrimonial house she had not talk with her. PW7 Satbir has stated that on 6.12.2008 in the morning his daughter alone came in rickshaw to his house and told that she was being harassed by her mother in law and husband and she was sent back after she was pacified. In answer to court question he has stated that she had only told them that she was State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 49 of 75 being harassed by her mother in law and husband but did not disclose as to how she was being harassed. Both the PWs have made contradictory version regarding the allegations as PW5 has stated that her daughter told that since morning she is being given beating and asked to bring Rs.1.00/1.50 lac while PW7 Satbir who is her father has not alleged any such demand in his statement. As far as the allegation for beating since morning is concerned, this does not inspire confidence as no parents will send back the daughter after pacifying has she been given beatings since morning. Further, there is no MLC on record showing that such beatings were given. Had the beatings were given since morning, she would definitely have injury/marks on her body which would have been clear from MLC. But in this case no MLC is on record. Further, there is no allegation made by PW5&7 that deceased Sucheta was ever given beatings before 6.12.08. There is also no complaint filed on record regarding harassment meted to Sucheta. PW7 has clearly stated that Sucheta did not disclosed as to how she was being harassed on 6.12.08. PW5 has stated that before 6.12.08 she alongwith her husband had visited the house of accused and had told them that they should not harass Sucheta and after 6.12.08 when her daughter went back she had no talk with her. Had the deceased stated about the treatment meted to Sucheta on 6.12.08 as alleged by PW5, she would have definitely talked to her after State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 50 of 75 6.12.08 but there is no evidence on record that she had ever talked to her in between 6.12.08 to 09.12.2008. There is also nothing on record that the deceased had given a call to her parents on 09.12.2008. It is admitted fact that on the night of incident accused alongwith deceased had gone to attend a marriage and after returning from there, the present case incident had taken place. Further the house of PW5&7 and matrimonial house of Sucheta is at the distance of about one km as admitted by PW7 even that neither PW5 nor PW7 had tried to visit the house of deceased Sucheta after 6.12.08 as to why she was being given maltreatment. Both the PW have alleged that the deceased was being harassed from the day of her marriage for more dowry. But they did not take any step to lodge complaint with the police or settle the matter by the intervention of respectables. As per version of PW5, the amount of Rs.1.00/1.50 lac was demanded to clear the debit of Bhagat Singh so that creditors do not visit their house. It is manifest that it was not a demand for dowry but it was to clear the debt. A question was put by the Ld. APP after declaring him hostile which is as under: Question: I put it to you that in your examination dated 22.1.2011 you had stated that on 6.12.2008 in the morning your daughter alone came to your house in rickshaw and told you that she was being harassed by her husband and mother in law and that she was sent back after she was pacified and that you also could not explain State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 51 of 75 to the court as to how she was being harassed by her mother in law and husband and that the said statement of your is incorrect? Answer: It is correct that my above statement referred above in my examination in chief is incorrect. My statement recored today regarding the incident dated 6.12.2008 is correct. Due to tension, I could not give correct statement on 22.1.2011.

52. It seems that this question was put by the Ld. APP, only just to fill up lacunae while the witness has clearly admitted that on 22.1.2011 when his examination in chief was recorded he did not depose correctly. There is no evidence for any demand of dowry between 6.12.08 to 9.12.2008 and no maltreatment was report by deceased to her parents during this period. Had there been any such demand or maltreatment, she would have also faced the same during these days and consequently she would have reported the same to her parents. But this aspect is missing. The version of PW5 Sushila and PW7 Satbir regarding the incident of 6.12.2008 is also an improved version as it does not find mention in the initial statement recorded by the Executive Magistrate.

53. The prosecution has also examined PW6 Maya Devi who is the dadi of deceased. She has stated that after marriage whenever her grand daughter met her she told her that she was being harassed for want of dowry by her husband and inlaws and State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 52 of 75 that she was harassed after one and half month of her marriage. In cross examination she admitted that she is residing in Rewari with her husband. She had not visited the matrimonial house of her grand daughter and Sucheta never met her when she came to Delhi. She has clearly admitted that she never met the deceased after marriage. She has further stated that she was informed by Jyoti on telephone. This witness has not levelled any allegation as to what demand was raised by accused which was told to her by deceased Sucheta @ Jyoti. She has stated that Sushila told her that they had given Rs.1.00 lac and scooter to Bhagat Singh. But she admitted that it was not given in her presence. She was also put a question during cross examination which is as under: Question: Were you happy when Jyoti got married to accused Bhagat Singh?

Answer: Khush to hona hi padda aur kya karte.

54. The answer to above question clearly suggest that PW6 was not happy with this wedlock since earlier accused Bhagat Singh and Sucheta had eloped and thereafter case was registered and thereafter Sucheta got married with Bhagat Singh. She clearly admitted in cross examination that she never met Jyoti after her marriage till she died, though she had been coming to Delhi but she came in the morning and left in the evening. She admitted that her statement recorded by the police was not read over to her. In view State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 53 of 75 of the statement of PW6, she has not stated as to what demand was raised by the accused persons as told to her by Jyoti.

55. The prosecution has also examined PW14 Ravi Jain who is the neighbourer of accused and who had seen Deceased falling from the balcony. He has stated that he did not see any other person from the matrimonial house of deceased present there. He knocked the door on which Bhagat Singh and his mother came out. He also knocked the house of other neighbourer. He has stated that when the lady had fallen on the ground she was holding some clothes in her hand, the same was consisting of sarees, pant, shirt and some such like clothes which were kept aside when they removed her to his vehicle. He was declared hostile by the prosecution wherein he has stated that on that night he was present at his shop namely Jain Sweet and preparing sweets for next day orders. In cross examination he has stated that Bhagat Singh is running a puncture cycle shop and he does not used to sell cycle on his shop. At that time parents of deceased did not make any complaint to the SDM or to the police against the accused person. This witness has turned hostile and did not support the version of the prosecution.

56. It would be necessary to mention the relevant part of State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 54 of 75 cross examination of PW5 & 7. PW5 has stated in cross examination that Jyoti was in class 11th when she was taken away by Bhagat Singh and that Bhagat Singh was acquitted by the court as she had deposed in the court that she had gone with him on her free will. She admitted that at the time when her daughter had eloped with accused, she and her husband were against their relationship. She was not aware about the marriage of her daughter with Bhagat Singh after they had eloped. She had enquired from her daughter if she was happy with this marriage at the time of discussion with accused Bhagat to which she replied in affirmative. When her daughter returned to her house she told her that she would marry Bhagat Singh and nobody else. She admitted that there was no demand of dowry at the time of settlement of marriage and when accused Bhagat Singh was on bail in FIR no.913/07. Her statement was recorded by the police on the intervening night of 10/12/08 and 11/12/08. However, on perusal of the file it is revealed that the statement on which the present case was registered was recorded by the Executive Magistrate on 11.12.2008. She made various improvements in her statement recorded u/s 161 Cr.PC. PW7 has also made various improvements in his statement. He know that on the night of 9/10.12.2008 accused persons with his daughter Sucheta had gone to attend the marriage which in their near relation. He was told by Bhagat Singh that his daughter had State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 55 of 75 gone to pick up the dry cloths from the roof and she had fallen from there.

57. It is admitted fact that accused Bhagat Singh and deceased Sucheta had eloped together and case FIR no. 913/12 was registered. The marriage between them was solemnized on 18.5.2008 and thereafter deceased as well as her parents PW5 & PW7 made statement before the court that they are residing happily. They have also admitted that there was no demand for dowry at the time of marriage and till accused was on bail. Therefore the allegation that after 2/3 days or ¾ days deceased told them about demand of more dowry/ Rs.1.00 lac/1.50 lac cannot sustain. It has further come in evidence that PW5 & 7(mother and father) both were against the relationship of accused Bhagat Singh and Sucheta and even PW6 Maya Devi was also against this marriage. But it was solemnized due to intervention of the respectables of the family as they both had eloped together and deceased had also stated that she would marry only to Bhagat Singh and none else. Considering the fact that both the parents and grand mother of deceased were against marriage, their false implication cannot be ruled out.

58. In view of the deposition of star witnesses of the prosecution, I have also considered some case law and would like State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 56 of 75 to mention the same for just decision of the case. In case law Sunil Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262 it is stated in head note: 'Section 304B It is pleaded that last letter of deceased did not mention any allegation of dowry demand - The letter of deceased does not speak of any demand of dowry and there is totally absence of demand of dowry and so sec.498A of IPC is not at all attracted - Thus the necessary ingredients of the offence of sec.304B of IPC is absent and so the conviction and sentence of the appellant cannot sustain and so the appellant is acquitted of the conviction u/s 304B IPC. It is further stated that : Both the courts below concurrently committed the appellant - But out of so many witnesses of the neighbour none could say that there was a dowry death and the deceased was soon before her death was subjected to demand of dowry which was necessary ingredient of the offence u/s 498A of IPC committed by the husband or by any of the family members or near relatives'.

In case law Baljeet Singh & Anr Vs. State of Haryana, 2004(1) JCC 627 it is stated in headnote that :

'Evidence Act. 1872 - Sec.113B Presumption Dowry death - Against accused persons to be drawn provided the prosecution establishes that soon before her death if the woman was subjected to cruelty or harassment within 7 years of marriage'.

'Dowry death - Onus of proof Preliminary facts - Proof of

- Onus lies upon the prosecution - High Court erroneously shifted the burden upon the accused - About the date of marriage - Prosecution is required to prove that death occurred within 7 days of marriage - PW4 father of the deceased was not creditworthy - So were other related PW5

- Prosecution failed to discharge its initial onus of proof - PW5 the mother stated that the deceased was depressed -

State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 57 of 75 This indicated that woman committed suicide in a state of depression - Hence conviction is set aside and appeal is allowed'.

In case Law Raman Kumar Vs. State of Punjab, 2009(3) JCC 1840 it is stated in head note that :

'Sec. 304B - Evidence Act, 1872 - Sec. 113B - Dowry Death - No incidence of demand of dowry or cruelty or harassment 'soon before death' - Letter relied on shows demand of articles by her parents by her own and not on the behalf of appellant - Improvements in the statements of prosecution witnesses - Prosecution squarely failed to establish accusations against appellant - Appeal allowed - Conviction set aside'.

In case law Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 it is stated in head note that :

'Sec. 304B - Dowry death - soon before the death, deceased was subjected to cruelty or harassment by her husband for or in connection with demand of dowry - Once this is established, a legal fiction is created under section 304B IPC whereby such death would be called dowry death - On facts held, ingredients of Sec.304B IPC r/ sec. 113 B Evidnce Act not satisfied'.

In case law Tarsen Singh Vs. State of Punjab, 2009 (1) JCC 372 it is stated in head note that: 'One of the essential ingredients amongst others, is that the woman must have been 'soon before her death' subjected to cruelty or harassment for, or in connection with the demand for dowry - Nothing on record to show that any demand of dowry was made soon before her death The cause of action appears to be an ego problem on the part of the appellant, namely the deceased had not been coming to her State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 58 of 75 matrimonial home - Conviction u/s 304B not proved'.

In case Law Durga Prasad & Anr Vs. State of M.P, 2010 (3) JCC 1852 it is stated in head note that: 'Sec. 304B - Dowry death In order to hold an accused guilty of an offence of dowry death - it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of marriage - It has also to be shown that soon before her death she was subjected to cruelty and harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry'.

'Sec. 304B - In order to bring home a conviction u/s 304B, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim - But that such treatment was in connection with the demand for dowry'.

59. Considering the above discussion, to prove the case u/s 304B IPC these ingredients have to be proved (i) unnatural death (ii) within 7 years of marriage and (iii) soon before death she was subjected to cruelty or harassment by her husband or relative of her husband (iv) such cruelty must be in connection with demand of dowry (v) such cruelty is shown to have been meted to the woman soon before her death. In this case the death occurred due to fall from height. She was taken to the hospital by accused Bhagat Singh. The death of deceased Sucheta took place within 7 years of marriage and it was unnatural death. So, two ingredients have been State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 59 of 75 proved by the prosecution. Now it is necessary to find out as to whether the deceased was being harassed soon before her death by subjecting her to cruelty and demand of dowry. It is now well settled in view of a catena of decisions of Hon'ble Apex Court that what would constitute 'soon before her death' depends upon the facts and circumstances of the case. In this case PW5 Sushila, and PW7 Satbir have not made any allegations against the accused persons in their initial statements recorded by the Executive Magistrate. Whatever allegations they have made in those statements, that were also contradictory as PW5 had allegedly given Rs.1.50 lacs while Satbir has not stated anything in this respect. He only stated that he provided material for shop worth Rs. 1.00 lac. He has not stated about giving of Rs.50,000/ by his wife. Satbir has stated that his daughter told him that they are under debt of Rs.1.00 lac while his wife Sushila has given different version. Sushila did not corroborate the version of Satbir that only once there was difference between Bhagat Singh and Sucheta. The statements were the first/initial statements. It is on record in the statement of PW19 Sh Surender Singh that he had requested them to give their statements however they refused and stated that they were disturbed due to the death of their daughter and would give their statements next day. Further PW22 ASI Khajan Singh in cross examination voluntarily stated that the relatives of parents of Sucheta who had State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 60 of 75 also accompanied them were not willing for taking of any legal action against the inlaws of Sucheta. PW17 IO/SI Rajender S Gurjar has stated in cross examination that the parents of deceased Sucheta were called in the PS by him but they refused to give any statement. He and the Executive Magistrate did not reduce this fact in writing that the parents of deceased were not willing to give statement on that day. PW5 has stated that her statement was recorded by police on 10/11.12.2008 while the statement recorded by the SDM was recorded on 11.12.2008. There is no explanation as to what prevented PW5 & PW7 to make the allegations as alleged by them in their statements recorded u/s 161 Cr.PC. Further, the marriage between accused Bhagat Singh and deceased Sucheta was a love marriage and PW5 & 7 were against it. The incident had taken place on the intervening night of 9/10.12.2008. Executive Magistrate met the parents on 10.12.2008 in the morning but on perusal of their statements it is revealed that they were recorded on 11.12.2008. It is on record that the parents of deceased had refused to give their statements. Therefore false implication of accused persons cannot be ruled out. PW5&7 have not deposed that they had received any call from Sucheta @Jyoti soon before her death alleging demand for dowry. The version of above PWS cannot be termed as harassment for demand of dowry. The chargesheet revealed that on 6.12.208 Sucheta came to the house of State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 61 of 75 her parents and told that they are under debt of RS.1.00 lac - Rs. 11/4 lac and if they give the money, they (she and her husband) would be debt free. These lines does not constitute harassment for demand of dowry and it was a mere request made by deceased Sucheta. So, there is no evidence for harassment on account of demand of dowry soon before death in this case. In my view there is no evidence available on file in this case that deceased Sucheta was subjected to cruelty or harassment on account of demand of dowry. There is no indication that there was any cruelty or harassment meted out soon before the death of Sucheta. Hence, ingredients of Sec.498A/304B IPC are not complete in this case.

60. I have also considered the statements of other PWS. PW1 L/Ct.Urmila is the witness for arrest of accused Veena, PW4 ASI Jagdish is the FIR recorder, PW8 SI Balram informed about incident vide DD no.4A, PW11 HC Satish is the MHCM, PW13 HC Rajeev took the photographs of the spot, PW15 HC Ram Chander has stated about admission of deceased in the hospital, PW17 SI Rajender is the first IO, PW20 Insp.SS Rathi is the second IO, PW21 HC Karambir Singh took pullands to FSL, PW22 ASI Khajan Singh is from Mobile crime team and PW23 SI Mahesh has prepared the scaled site plan.

State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 62 of 75

61. In this case alternative charge has also been framed against the accused persons for the commission of offence punishable u/s 302 IPC. I have also perused the testimonies of other official witnesses as well as relatives of deceased again. It is revealed that in this case no one had seen the accused persons killing the deceased. Therefore this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujarat, 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof it has been indicated by this court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. It is stated in Padala Veera State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 63 of 75 Reddy Vs. State of A.P. (SCC pp.71011, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: '10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

62. In the present case in hand, deceased Sucheta had allegedly fallen from second floor balcony in the night time. The accused persons have not taken any defence that they were not present at the house there. So, it is crystal clear that they are present at the house at the time of incident. PW5 & 7 were informed about the incident by PW14 Ravi Jain. It is stated by PW5 & 7 that when they reached they saw crowd collected outside their house and there was pool of blood and when they enquired it was told that their daughter has been taken to DDU Hospital. PW2 Dr. Komal Singh had conducted the post mortem examination of State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 64 of 75 Sucheta. The PM report is Ex.PW2/A. I have perused the same. The following injuries are mentioned in the PM report:

1. CLW 2cm x 0.25 cm on left fronto parietal regions having clotted blood

2. Bruise on left shoulder joint 2x4 cm

3. Bruise on right elbow (O/s) 4 cmx0.5 cm.

63. The cause of death was opined due to craniocerebral injury subsequent to the fall from height. PW2 Dr.Kamal has not stated that there was any sign of struggle on the body of deceased detected by him. Had the deceased been murdered and then thrown from the balcony, there must have been other medical evidence on that aspect but that is missing in this case.

64. Ld. Defence counsel has submitted that no recovery has been effected on the disclosure statements of accused Bhagat Singh. I have perused the said disclosure statements Ex.PW17/F. No recovery of any weapon was effected on the basis of disclosure statement. Further the disclosure statement is clear that Jyoti herself has jumped from the roof. It also does not disclose that she had been given beatings on the alleged day of incident by accused.

65. The IO of this case has stated that he recovered the exhibits from the spot. The same were sent to FSL. I have perused the result of FSL which is Ex.PW18/A & B. On Ex.S1& S2 State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 65 of 75 Cemented material, Ex.4 Concrete material, Ex.S6a jeans pant, Ex.S7 gauze cloth piece, Ex.S8 blood stained gauze, Ex.S9a lady's shirt, Ex.S9c&9d underwears human blood of B group was detected. It is the case of the prosecution that accused Bhagat Singh had removed the deceased to hospital. Therefore it is crystal clear that blood must have come on his wearing clothes.

66. As far as the injury sustained by accused Bhagat Singh is concerned, the prosecution has examined PW12 Dr.Avnish who appeared on behalf of Dr. Rajesh Saha who examined accused Bhagat Singh. He has stated that there were multiple/three healed abrasions over ulnar aspect of right hand of reddish violet colour with crusting. There were 9 other healed abrasions. The MLC is Ex.PW12/A. He has stated that the injuries on the person of patient was of duration of about one week and it may be from 2 to 7 days. The prosecution could not examine the doctor who prepared the MLC of accused Bhagat Singh in this case. PW9 Dr.Yogendra Nath Maurya who examined accused on 13.12.2008 with alleged history of assault on 10.12.2008 has also noticed heeled wounds. AS per PW2 Dr. Komal Singh, the injuries were of 72 hours old. Considering the duration, no doubt that the injuries sustained by accused Bhagat Singh seems to have been sustained by him on the day of incident. But there is no evidence that scuffle took place State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 66 of 75 between him and deceased on that day due to which he murdered the deceased.

67. In case law 186(2012) Delhi Law Times 411 titled Jasvinder Saini & Ors. Vs. State it is stated in head note that : 'IPC 1860 - Sec. 498A, 302, 304B, 406, 34 -

Criminal Procedure Code, 1973 - Sec. 216 - Cruelty, Dowry Death, Murder - Alternation of charges -

Supreme Court in Rajbir @ Raju, VIII(2010) SLT 309 =IV(2010) CCR 381 (SC)= IV(2010) DLT (Crl.) 627 (SC) directed all Trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, IPC so that death sentences can be imposed in such heinous and barbarous crime against women - Charge of Sec 302 can only be added in cases where unnatural death is homicidal in nature - Perusal of autopsy surgeon's report shows that there was prima facie evidence on record to show that death of deceased could be homicidal in nature - Additional Sessions Judge justified in framing charges u/s 302 IPC against the petitioners.

68. In the present case as well as the medical evidence, the death in the present case was caused due to fall from height. In my view the death in the present case was not a homicidal death. In the facts and circumstances of the case, I am of the view that sec.302 IPC is also not made out in this case.

State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 67 of 75

69. In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) S.C.C 706 it is stated in head note that : 'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8.

'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'. It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 2627) that : 'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.

70. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 68 of 75 is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. From the evidence on record as well as facts and circumstances of the case, the prosecution has failed to establish any motive to kill deceased Sucheta. It is stated in Yogi Choudhary etc. Vs. State of Bihar, 2005 CRI. L.J. 2285 that : 'Penal Code (45 of 1860) Ss.300, 34 - Murder - Absence of eyewitnesses - Motive of accused to commit murder found not convincing - Even otherwise, motive alone could not be made basis of his conviction - No evidence that he was present at place of occurrence when murder was committed - As far as second accused was concerned, informant stated in Fardbeyan that he recognized voice of that accused - Complete goby given to this statement by informant in his examination in court

- Stating that he named that accused on suspicion - There was absolutely no evidence against both accused - entitled to acquittal'.

State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 69 of 75 In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote : 'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302 - Murder - Proof of - Case based on circumstantial evidence - Motive of accused not proved by prosecution - Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.

71. The onus to prove case u/s 302 IPC is on the prosecution. But in the present case prosecution could not discharge its onus by leading cogent and reliable evidence. Suicide committed by living human beings for various reasons. There is no presumption that every suicide committed by married woman in her in law's house or at her parents, house has to be because she was suffering harassment at the hands of her husband or her inlaws. Some commits suicide because of frustration of not achieving the desired goals. In this case the defence of the accused is that she had gone to bring clothes from balcony. This version has also been stated by PW14 Ravi Jain who has stated that when Sucheta had fallen, she was holding some clothes in her hand and same were consisting of sarees, pant, shirt and some such like clothes which were kept aside when they removed her to his vehicle. PW17 SI Rajender IO of this case has stated in cross examination that he did State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 70 of 75 not notice any clothes lying on the road near the house of the accused. I have perused the photographs Ex.pw13/16. In the said photographs some clothes are shown to be lying. Though there is no evidence as to where these clothes are lying but the plea taken by accused seems to be true.

72. In view of the above overall analysis of the testimonies of the witnesses and in brief whatever allegations have been levelled by PW5&7 regarding demand of dowry does not inspire confidence. The important ingredient of 'soon before death' is missing. The circumstances also does not connect the accused persons with the present case incident. So, in this case ingredients of section 304B IPC are absent and there is no allegation for soon before death of harassing deceased Sucheta @ Jyoti for demand of dowry because whatever allegations have been made in the statements recorded before the court and recorded by the SDM does not inspire confidence. So, I am of the opinion that Sucheta @ Jyoti was not maltreated soon before her death or even at any time after marriage by the accused persons.

73. In view of my above discussions and considering the case laws discussed above, this case does not fall under the category of section 304B IPC and no presumption can be taken State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 71 of 75 against the accused persons u/s 113 B of Indian Evidence Act. The prosecution has failed to bring home the guilt of the accused u/s 498A/304B/34 IPC.

74. Realities of truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. There is a long mental distance between 'may be true' and 'must be true' and this basic and this golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 72 of 75

75. As far as charge u/s 302 IPC is concerned, no one had seen accused killing deceased Sucheta. The circumstances of the case do no link the accused with the present case crime. The death in this case was not a homicidal death. So, the prosecution could not form a chain of circumstances while it is well settled law that in a case of circumstantial evidence each and every chain of circumstances has to be established by the prosecution by leading cogent and reliable evidence pointing the guilt of accused. But in the present case the prosecution could not form a chain of circumstances.

76. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".

77. In over all analysis of the testimonies of the witnesses, this case does not fall under the category of 304B IPC and I also did State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 73 of 75 not find any evidence against the accused persons for the commission of offence punishable u/s 498A IPC. The prosecution also could not form the chain of circumstances to establish the charge u/s 302 IPC. So, I am of the considered view that the prosecution has failed to prove its case against the accused persons. In such circumstances, the accused persons are entitled to be given the benefit of doubt. I, therefore give the benefit of doubt to accused persons and I therefore, hereby acquit accused Bhagat Singh Sharma, Bijender Sharma and Smt. Beena for the commission of offence punishable u/s 498A/304B/34 IPC and accused Jatin is also acquitted u/s 498A/34 IPC. All the accused are also acquitted from alternative charge u/s 302/34 IPC. Accused Bhagat Singh Sharma, Beena and Jitin are on bail. Their BB/SB are cancelled and sureties are discharged. Accused Vijender is in JC. He be released from the jail forthwith if not required in any other case. File be consigned to record room.

Announced in the open Court on 31.08.2012 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Bhagat Singh Sharma etc. FIR no.121/08 Page No. 74 of 75

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

State vs Bhagat Singh Sharma Etc. on 31 August, 2012