Delhi District Court
State vs . 1. Daulat Ram on 28 September, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 31/10
Unique ID No.: 02404R0440822006
FIR No.: 173/06
PS: Jahangir Puri
U/Sec. 498A/304B/34 IPC
STATE VS. 1. DAULAT RAM
S/o Sh. Rajjan Singh,
R/o I1720, Jahangir Puri,
Delhi.
2. UMESH KUMAR
S/o Daulat Ram,
R/o I1720, Jahangir Puri,
Delhi.
3. KHAJJANI DEVI,
W/o Daulat Ram,
R/o I1720, Jahangir Puri,
Delhi.
4. RAMESH KUMAR
S/o Daulat Ram,
R/o I1720, Jahangir Puri,
Delhi.
5. MAMTA
D/o Daulat Ram,
R/o I1720, Jahangir Puri,
Delhi.
6. GEETA
W/o Sunil Kumar,
R/o E465, Gali No. 17,
Ashok Nagar, Delhi.
State Vs. Daulat Ram & Ors. page 1
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Date of Institution: 29.09.2006
Date of conclusion of Arguments: 16.09.2010
Date of pronouncement of Judgment: 28.09.2010
JUDGMENT
1 All the accused persons have been chargesheeted for commission of offences u/s 498A/304B/34 IPC.
2 As per prosecution story, Kalpana (daughter of Mahadev Sharma and Mahavati Devi) was married to accused Umesh Kumar. Marriage had taken place at Neemach, Madhya Pradesh on 21.05.05 as per Hindu Rites. According to Mahadev Sharma, he had given sufficient dowry as per his capacity but Umesh Kumar and his father did not accept the dowry articles claiming that neither TV nor motorcycle had been given. They left all the dowry articles at Neemach. However, out of social pressure, Kalpana was brought to Delhi. When Mahadev Sharma came to meet her at her matrimonial home after 1½ months of such marriage, he was rebuked by all the accused and demand of TV and motorcycle was reiterated. Kalpana also told her father that accused used to maltreat her frequently and did not use to give her sufficient food either. He brought Kalpana to Neemach. In September, 2005, accused Daulat Ram and Khajjani Devi (parents of accused Umesh) and accused Mamta (younger unmarried sister of Umesh) came to Neemach and again State Vs. Daulat Ram & Ors. page 2 of 31 demanded TV and motorcycle. Mahadev Sharma claimed that he would send TV in few days and would also give them motorcycle after he got the balance amount of retirement dues. They then brought Kalpana back to Delhi and 1½ months thereafter, he himself came to Delhi and gave TV to accused. According to Mahadev Sharma, in January, 2006 when he again visited Delhi, all the accused again quarreled with him and his wife and demanded motorcycle. According to Mahadev Sharma, Kalpana used to make telephonic calls and used to tell them that she used to be maltreated. On 16.03.06, a similar call was received from Kalpana and she told her parents to take her back immediately else she would not be spared. Her parents decided to visit her after one week but before that they learnt about death of Kalpana.
3 On receipt of DD No. 10A on 21.03.06, SI Vijay Singh and Ct. Kulbhushan reached at the matrimonial house of Kalpana and learnt that Kalpana had hanged herself. Sh. B.S. Thakur, SDM, Model Town was informed and requested to reach at the spot. Crime Team was also summoned. SDM inspected the spot and during the investigation, he recorded statements of parents of deceased Kalpana and recommended registration of FIR. He, however, also mentioned in his recommendation that during enquiry, issue of extramarital affair of husband of deceased had also come into picture and he ordered that detailed examination of the case be got done through efficient officer. Police carried out necessary investigation. Postmortem revealed suicidal death. During State Vs. Daulat Ram & Ors. page 3 of 31 investigation, specimen signature and handwriting of accused Mamta and Geeta (sisters of accused Umesh) were also obtained and were sent to FSL for necessary comparison. After completion of investigation, chargesheet was filed before the Ld. Magisterial Court on 20.05.06. 4 Case was committed to the court of Sessions and all the accused were charged u/s 498A/304B/34 IPC vide order dated 18.12.06. 5 Prosecution was directed to adduce evidence and has examined 22 witnesses viz. PW1 Mahadev (father of deceased Kalpana), PW2 ASI Prem Raj (Duty Officer), PW3 Brijesh (elder sister of deceased Kalpana), PW4 Dr. Anil Shandilya (doctor who had done the postmortem on the dead body of Kalpana), PW5 SI Manohar Lal (Draftsman), PW6 Ami Lal Daksh (Sr. Scientific Assistant, Documents, FSL), PW7 Sh. B.S. Thakur (the then SDM, Patel Nagar), PW8 SI Suraj Bhan (In charge, Crime Team), PW9 Ct. Sudhir Kumar, PW10 HC Seema, PW11 HC Govind Singh, PW12 Ct. Dalbeer Singh (photographer), PW13 Ct. Ajeet Singh, PW14 Sanjeev Kumar (brother of deceased), PW15 HC Rohtash, PW16 HC Rajender (DD Writer), PW17 HC Surender Singh, PW18 HC Rakesh Singh, PW19 Retired SI Vijay Singh, PW20 HC Kulbhushan Rana, PW21 HC Ajay Kamal, PW22 Inspector Rohtash Singh (First IO). 6 It would be also worthwhile to mention that present case was received on transfer by this court on 26.05.10.
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7 All the accused in their respective statements u/s 313 Cr.P.C.
pleaded innocence and claimed that they had been falsely implicated. Accused Umesh claimed that Kalpana used to suppose him that he had relation outside marriage. All his coaccused also claimed that Kalpana had committed suicide as she used to suspect that Umesh was having affair outside the marriage. Aas Mohd. entered into witness box as solitary defence witness.
8 I have heard Ms. Purnima Gupta, Ld. APP and Sh. H.K. Gaur, Ld. Counsel for accused Umesh and Sh. D.K. Sharma, Ld. Counsel for remaining accused and carefully perused the entire material available on record.
9 Ld. APP has contended that prosecution has been able to prove its case beyond shadow of doubt. She has argued that testimony of PW1 Mahadev, PW3 Brijesh and PW14 Sanjeev Kumar (brother of deceased Kalpana) clearly reveal that right from the day of marriage, there was demand of dowry and Kalpana was harassed, maltreated and beaten up as the dowry demands, coming from the side of accused persons, had not been met. She has argued that accused persons did not even take the dowry articles with them at the time of marriage claiming that they wanted TV and motorcycle then and there but since the complainant side was not in a position to give those articles, the accused persons tried to exert pressure by leaving the entire dowry there. She has contended that State Vs. Daulat Ram & Ors. page 5 of 31 it was only due to social fear that they had to take along Kalpana. According to her, accused persons did not mend their ways and kept on maltreating her till she was compelled to take the extreme step of finishing her life. She has argued that suicidal death is also covered u/s 304B IPC and there is sufficient material on record to gather that she was subjected to cruelty soon before her death. She has argued that the accused persons had manipulated and fabricated one report and attempted to show that accused Umesh was having some sort of extra marital affair. She has argued that, actually speaking, there was never any report from the side of Kalpana and, therefore, such report (Ex.PW6/A) does not carry any legal weightage and has to be discarded and disbelieved.
10 Sh. Gaur has, on the other hand, refuted the contentions of Ld. Prosecutor. He has argued that there was not fair and impartial investigation. According to him, Brijesh (sister of Kalpana) was married and was living in her matrimonial house situated in the same locality near to the house of Kalpana and according to Brijesh, she used to meet Kalpana virtually daily. According to Sh. Gaur, it was Brijesh who had informed the police and police had come to the spot along with Brijesh and, therefore, statement of Brijesh should have been recorded immediately and FIR should have been registered immediately. He has contended that investigating agency demonstrated dishonesty and statements were manipulated and procured after due deliberation. He has State Vs. Daulat Ram & Ors. page 6 of 31 also argued that Kalpana had stayed at her matrimonial house for barely three months and there was never any question of demand of dowry. He has contended that accused Umesh was having extra marital affair and all the material public witnesses knew such fact very well and they had disclosed the same even before SDM and, therefore, only SDM was compelled to make an observation in this regard. He has argued that even if it is assumed that Umesh was having such extra marital affair, it cannot be said that it amounted to cruelty either under section 498A IPC. He has argued that police did not take any action on the basis of report Ex.PW6/A and when SDM directed to get the matter enquired into through some efficient official, it was attempted to show that police had gone to the matrimonial house and had met Kalpana who then allegedly claimed that she did not have any grudge against anyone. According to him, Kalpana never made any statement (Ex.PW6/B) and such document has been created by the investigating agency to nullify the impact of report Ex.PW6/A. 11 Sh. Sharma, Ld. Defence counsel for remaining accused has, however, a different opinion. According to him, the document Ex.PW6/B is not a false document. He has argued that all the family members of accused Umesh were also not happy with such extra marital relation of accused Umesh. He has argued that his own mother was very much unhappy with such extra marital affair and even the relation between them i.e. between Umesh and his mother Khajjani Devi did not State Vs. Daulat Ram & Ors. page 7 of 31 remain cordial and Umesh used to maltreat his mother. He has argued that there was never any demand of dowry at any point of time and Kalpana had committed suicide due to the fact that her husband was involved somewhere else. He has argued that even otherwise as far as Geeta is concerned, she was already married and was residing separately at her own matrimonial house far away and she has been falsely roped in. It has also been argued that the parents of Kalpana were hellbent in teaching lesson to each and every family member of accused Umesh as they were annoyed with the fact that Kalpana had committed suicide and they did not even spare unmarried sister of Umesh as she was also made accused.
12 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record. I have considered the language used in sec 304 B IPC, Sec 498A IPC, Section 2 of the Dowry Prohibition Act, 1961 and Section 113 B of the Indian Evidence Act.
13 On a conjoint reading of said provisions, it becomes apparent that in order to press charge for the commission of offence under Section 304B IPC the following ingredients are, in essence, required to be shown by the prosecution:
(i) The death of the woman must have been caused within seven years of her marriage;
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(ii) Such death should be due to burn injury or bodily injury and should occur otherwise than in normal circumstance;
(iii) The deceased should have been subjected to cruelty or harassment by her husband or any relative of her husband in connection with the demand of dowry; and lastly
(iv) Such cruelty or harassment should have been committed soon before the death.
14 There is no doubt that death has taken place within a very short span. Marriage had taken place on 21.05.05 and Kalpana died on 21.03.06.
15 Kalpana remained at her matrimonial house barely for three months even as per her father.
16 It is not in dispute that even suicidal death is covered within Section 304B IPC. I have seen the report of Autopsy Surgeon i.e. PW4 Dr. Anil Shandilya and as per his opinion, the cause of death is asphyxia resulting from antimortem ligature hanging. His report has been proved as Ex.PW4/A. It rather alleviates the fear from the mind of complainant party who felt that death was homicidal not suicidal. 17 Now, it is to be seen whether deceased was maltreated in connection with dowry and whether such maltreatment existed soon before her death as well. In this regard, testimony of her father, brother and sister is required to be evaluated. Undoubtedly, her mother had also State Vs. Daulat Ram & Ors. page 9 of 31 been examined by SDM during the investigation but unfortunately, she died before she could depose before the court.
18 PW1 Mahadev Sharma has reiterated the allegations made by him before SDM. According to his deposition, he had given sufficient dowry as per his status and accused Umesh Kumar and his father Daulat Ram demanded motorcycle and TV at the time of vidai and they also uttered words, "aapne hamey loot liya". He was unable to give motorcycle and TV at the time of vidai and due to pressure of relatives, accused took Kalpana after vidai to their residence but they did not take along the articles for dowry claiming that they would not take those since they had not been given motorcycle and TV. Then, he sent all those dowry articles later on through middleman. This middleman seems to be an important link. Moreover, corroboration from neutral corner is always welcome but it is not clear as to why this middleman was not examined during the investigation and why her statement was not recorded. It would have given a very strong boost to the case of prosecution. Name of such middleman is, admittedly, Santosh.
19 PW1 Mahadev Sharma then deposed that after 1½ months of marriage, he along with his wife went to the house of his daughter at Jahangir Puri and then all the accused persons quarreled with him and told him that motorcycle and TV were not given and, therefore, they were abused. After great persuasion, accused sent Kalpana with them. Then, State Vs. Daulat Ram & Ors. page 10 of 31 accused Khajani Devi, Daulat Ram, Ramesh Kumar, Mamta and middleman came to their house after about three months of marriage for taking back Kalpana and at that time, again, there was demand of motorcycle and TV and accused had also quarreled with him. Now, again middleman had gone along with the accused party to the house of Mahadev Sharma situated at Neemach. It would, therefore, have been certainly better if police had examined Santosh. 20 Moving further, PW1 Mahadev deposed that he told the accused that he would give TV after sometime and motorcycle after he received the amount of his retirement. After about 1½ months, he came to Delhi and handed over TV to accused. Receipt of such color TV has not been placed on record. It is important because according to Mahadev, he was having the receipt. He, however, does not remember the make of the TV and does not remember the name of the shop and also admits that such receipt was never shown to the police. He also claimed that when he gave TV to the accused persons even at that time, they all quarreled with him by claiming that motorcycle had not been brought and he was abused and insulted.
21 It is admitted fact that thereafter, PW1 Mahadev Sharma did not meet his daughter. He received telephonic calls from his daughter who told him that all accused had tortured her and were not giving her proper food. He claimed that before Holi of 2006, he received telephonic call State Vs. Daulat Ram & Ors. page 11 of 31 from Kalpana that she be taken back else she would be killed. He then discussed matter with his children and it was decided that they would go to house of accused persons and try to persuade them but before that, he received information from his elder daughter that Kalpana had been killed on 21.03.06.
22 It is noticed that Ms. Brijesh, real sister of Kalpana is residing in the same area. Her matrimonial home is also situated in Jahangir Puri. According to her, she used to visit her house almost daily and she used to talk to her daily. Naturally, if such a serious call was made by Kalpana before festival of Holi and if she had informed her parents that she be taken back immediately else she would be killed, then the normal and obvious reaction would have been to immediately contact Brijesh so that Brijesh, who is residing very near to the house of Kalpana, goes to her and meets her. However, Brijesh has not deposed that she had received any call from her father. As per PW3 Brijesh, accused Khajjani Devi had come to their house (house of Brijesh) after two days of Holi and she had taken Kalpana back to her matrimonial home. It rather indicates that Kalpana was at the house of Brijesh on or around Holi and if at all, she had made such an alarming call to her parents, it was expected that she would have said something in this regard to her sister also but Brijesh has not stated anything in this regard.
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23 According to Mahadev, after receiving call 4/5 days prior to Holi
from his daughter Kalpana, he had asked his daughter Brijesh to visit Kalpana. He further deposed that he never enquired whether Brijesh had visited the house of Kalpana or not. Brijesh also never gave any feedback to him regarding any such visit. His such conduct does not look normal and probable. He should have been a worried man in case he had received any such call. He should have tried to contact Brijesh in order to take stock of the situation. On the other hand, he did not make any attempt to have any sort of response from her. As already noticed, Brijesh has not uttered even a single word in this regard. 24 I have seen the testimony of Brijesh also very carefully. She has also deposed that dowry articles were left by accused persons at Neemach and her father brought TV from Neemach for accused. She also deposed that even when her father had come to deliver TV, accused had misbehaved and abused her father but her father kept quite in order to maintain relation. According to her, she used to visit Kalpana almost daily because of the behaviour of accused persons. Whenever Kalpana used to fall ill, she never used to be given any treatment and accused Umesh used to ask her to either get herself treated of her own or to go to her sister.
25 PW14 Sanjeev Kumar is real brother of Kalpana. He has deposed that TV and motorcycle were not part of the dowry articles and, State Vs. Daulat Ram & Ors. page 13 of 31 therefore, a scene was created at the time of marriage and dowry articles were left and not even a single article was taken by the accused persons and his father came down to Delhi along with all the dowry articles. According to him, his parents were insulted by all the accused claiming that motorcycle and TV had not been given. His father again came to Delhi with TV and accused persons again made requirement of motorcycle and threatened that they would sent Kalpana back if the motorcycle was not given. He claimed that his father had told him that he was beaten up with chappal by accused Umesh and his sisters. His testimony, to such extent, is found to be hearsay in nature as he had admitted in his crossexamination that he had not accompanied his father to Delhi when his father was allegedly beaten by the accused. Moreover, his father nowhere claimed that he was beaten up by chappal. Sanjeev has claimed that he had visited the matrimonial house of Kalpana thrice but he does not remember the date or month. He does not remember whether he had met her in the month of February. He rather claimed that he had come for five minutes and, therefore, did not enter into much conversation.
26 According to defence counsels, statement of Brijesh should have been recorded either by the police or by the SDM immediately. They have argued that Brijesh was living in the same locality and police had first contacted her and then had come to the matrimonial house of Kalpana and there was no impediment in recording her version and State Vs. Daulat Ram & Ors. page 14 of 31 lodging FIR. It has been deposed that suicide had taken place on 21.03.06 and all the family members from the parental side of Kalpana sat together and with the connivance of police authorities and after due deliberation, statements were manufactured. Undoubtedly, the police could have immediately recorded the statement of Brijesh but fact remains that in such a situation, any real sister can come under great mental stress and trauma and cannot be always said to be in a fit frame of mind to make statement. She had already sent message to her parents who were to arrive in Delhi shortly and it really does not matter if their statements were recorded next day. Moreover, SDM had reached at the spot and so was the police. As far as investigation part is concerned, there is found to be no delay.
27 Now, I touch the most material aspect of the case i.e. extramarital relation of accused Umesh with other girl. PW7 Sh. B.S. Thakur was posted as SDM, Model Town at the relevant time. He received information that one Kalpana had died by hanging and he visited the spot. He deposed as the parents of deceased were living outside Delhi and were expected to come next day, he told the police to bring them before him so that their statements could be recorded. On 22.03.06, parents of deceased Kalpana came to his office and he recorded their statements. Statement of Mahadev Sharma was recorded by him. It would be, however, pertinent to extract the endorsement made by him beneath the statement of Mahadev Sharma.
State Vs. Daulat Ram & Ors. page 15
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"SHO, Jhangir Puri, Delhi.
The complainant Sh. Mahadev Sharma has been recorded before me. In the statement, the complaint alleges that he has informed by his daughter Brijesh on telephone that the inlaws of deceased 'Kalpana' have killed her. It is a serious allegation. During enquiry, an issue of extramarital affair of the husband of the deceased also came into picture and a written complaint in that regard is also filed in your PS by the deceased and her motherinlaw. Register the FIR and have a detailed examination of the case through some efficient officer.
28 Deposition of SDM nowhere reveals that he had ever any chance to meet or to talk to any of the accused. It, therefore, has to be assumed that the factum of extramarital affair was brought to his notice by none other than parents of Kalpana. Surprisingly, neither in the statement of Mahadev Sharma nor in the statement of Mahavati Sharma, such factum of extramarital relation, is found to be mentioned. However, since there is categoric endorsement just beneath the statement of Mahadev Sharma. I strongly feel that revelation in this regard must have come from him. 29 SDM had noted that a written complaint had already been filed in the PS Jahangir Puri with respect to such extramarital affair and he ordered detailed enquiry through efficient officer. Such complaint was State Vs. Daulat Ram & Ors. page 16 of 31 collected during the investigation. It has been proved as Ex.PW6/A. I have seen this complaint very carefully. It is a joint complaint made by Kalpana as well as her motherinlaw Khajjani Devi. It bears their signatures also. It was received at PS Jahangir Puri on 27.01.06 and was marked to HC Rohtash for enquiry.
30 In such complaint, Kalpana allegedly claimed that she was married to accused Umesh on 21.05.05 and her husband was having illicit relation with another woman. She had given the name of such woman as well as her address. She claimed that due to such illicit relationship, she was forced to live a life full of insolence (is kaaran veh mujhe tiraskaar ki zindagi jine ko majboor karta hai). She also claimed that she was living with her parentsinlaw and her husband used to torture them also and used to beat up his mother also. She claimed that her husband and his paramour used to threaten her to finish her and she was apprehending threat in this regard from her husband, his such paramour and mother and brother of such paramour.
31 Enquiry was conducted by HC Rohtash and if HC Rohtash is to be believed then he visited the matrimonial home of Kalpana and recorded her statement on 03.03.06 wherein she claimed that she was leading a happy life with her parentsinlaw and she had no further complaint against her husband. Such statement has been proved as Ex.PW6/B. State Vs. Daulat Ram & Ors. page 17 of 31 32 It would be now pertinent to see as to what is the stand of the rival parties with respect to such complaint Ex.PW6/A as well as statement Ex.PW6/B. 33 As per the prosecution, such complaint is a manufactured document and cannot be considered at all.
34 As per accused Umesh, complaint Ex.PW6/A was admittedly made but it has been contended by his counsel Sh. Gaur that police never contacted Kalpana. Mr. Gaur contends that Ex.PW6/B, purported to be the statement of Kalpana, is a false and a bogus document which has been created by police to annul the impact of complaint Ex.PW6/A. 35 Sh. Sharma, Ld. Defence counsel for remaining accused has another stand. According to him, these both are genuine. 36 I would again like to remind myself that according to Ld. Prosecutor, complaint Ex.PW6/A is liable to be discarded as it was never ever actually made by Kalpana. She feels that it has been created by accused in order to wriggle out of clutches of law. However, despite that prosecution itself chose to cite HC Rohtash as one of its witness. 37 HC Rohtash deposed that on 27.01.06, he was posted at PS Jahangir Puri and was Beat In charge of IJ Block, Jahangir Puri and one State Vs. Daulat Ram & Ors. page 18 of 31 complaint from Kalpana was received by their beat from PS Jahangir Puri and was assigned to him for investigation. He went to the house of Kalpana, met her and enquired from her about the facts mentioned in the complaint. Kalpana did not give any statement complaining anything against anyone and he recorded her account to that effect. Complaint has been proved as Ex.PW6/A and the statement made by Kalpana to HC Rohtash has also been proved as Ex.PW6/B. 38 Contention made by Ld. Prosecutor, during the course of arguments, cannot be accepted when its own witness has affirmed the correctness of the same.
39 Sh. Gaur has argued that no statement was ever made by Kalpana to HC Rohtash. However, Sh. Gaur did not put any suggestion in this regard to HC Rohtash. Crossexamination of HC Rohtash by Sh. H.K. Gaur is very clearcut. It reads as under:
"I had met the complainant personally. She did not make any sort of allegation against anyone. I recorded her correct statement and obtained her signatures".
40 It would be also very important to mention that during the investigation, the investigating agency was in some dilemma whether to rely upon this report Ex.PW6/A or not. I assume so as during the investigation, the investigating agency had taken specimen handwriting State Vs. Daulat Ram & Ors. page 19 of 31 and signatures of two accused persons, namely, Mamta and Geeta. These were taken on 25.06.06. Would someone explain as to why the specimen handwriting of these two female accused were taken? Perhaps our Delhi Police feels that only a lady can forge signature or handwriting of another lady. Someone needs to bestow them with basic commonsense.
41 Moreover, the complainant was not from the side of Kalpana alone. It was from the side of Khajani Devi as well. It was bearing her signatures also. Her signatures were never taken and I do not know why? Moreover, Kalpana was a Graduate. According to her father, she was in M.A. Final. Investigating agency could have very easily laid its hand upon the admitted handwriting of Kalpana. I have seen the case diary (police file) very carefully. Mahadev was served with notice u/s 160 Cr.P.C. and was directed to produce the admitted handwriting of Kalpana but surprisingly, he refused to produce any such admitted handwriting. I am, therefore, inclined to draw adverse inference against prosecution in this regard.
42 Moreover, when all the three material witnesses i.e. Mahadev Sharma, his daughter and his son entered into witness box, such complaint was not shown to them by the prosecution. Prosecution should have confronted them with such report Ex.PW6/A if at all Prosecutor felt State Vs. Daulat Ram & Ors. page 20 of 31 that such complaint was neither in her hand nor had been signed by her. Nothing of that sort was done and, therefore, it has to be assumed that prosecution has no dispute regarding the genuineness of this report. Moreover, how can prosecution, without explaining any reason and without putting any question to any of the witness including I.O., refuse to own up its own witness and its own document at the time of final arguments? It rather depicts that police is itself having serious reservation about the correctness of its own case. 43 HC Rohtash has clinched the issue in this regard as he has deposed that pursuant to such report, he had met Kalpana and had recorded her statement and such fact is virtually impeached. It would be interesting to see as to what I.O. has to say in this regard. In his cross, he deposed that Ex PW6/A and Ex PW6/B both bear signatures of Kalpana. A court question was put to him that if that was the case then why documents were sent to FSL and then he came up with yet another stand claiming that there was a doubt whether her signature were obtained under pressure. In FSL Form, he did not mention so at all. In his further cross, he admitted that as per his investigation, Ex PW6/A had been lodged by Kalpana.
44 Oral statements made by deceased , to her parents etc, prior to her death are admissible in evidence. Though these are hearsay in nature yet these are admissible u/s 32 of Evidence Act. Mahadev and his son and State Vs. Daulat Ram & Ors. page 21 of 31 daughter have, no doubt, made allegations regarding the cruelty and dowry. However, not a word has been whispered by any of them regarding such extramarital affair. When suggestions were put to them, they all, point blank, labelled such suggestions as incorrect and denied that there being any such extramarital affair. I strongly feel that they are trying to hold back such fact deliberately and intentionally. SDM must have learnt such fact from them only and, therefore, he made endorsement and ordered enquiry.
45 I would reassert that Santosh was a material witness. She was negotiator and through her, marriage got settled. I have already noticed above that her statement was never recorded during the investigation and she was not cited as prosecution witness either. 46 After the conclusion of final arguments and before pronouncement of Judgment, I had called for the case diary in order to find out any reason for such omission. To my utter astonishment, one photocopy of affidavit of Santosh dated 22.06.06 is found to be there in case dairy. It is the duty of investigating officer to have mentioned in case dairy as to how any particular document is finding its place in the case dairy. After the case dairy dated 21.06.06, the next case diary is of 12.07.06. Nobody knows as to when and under what circumstances, such affidavit was brought on police file and why such Santosh was not cited as witness. Visibly, such affidavit is found addressed to Ld. Metropolitan Magistrate, State Vs. Daulat Ram & Ors. page 22 of 31 Rohini Courts, Delhi and has been marked as Annexure 4. It seems that investigating agency has not come up with transparency. It was supposed to be fair.
47 Such photocopy of affidavit of mediator Santosh is not liable to be read as it has not been proved in any manner whatsoever. However, it can be read for the benefit of accused at least and bare perusal of the same would show that even Santosh knew about the extramarital affair of Umesh as she claimed therein that Umesh was called and he also admitted his such relationship and he even claimed that he had already married Meenakshi two years back in a court and was not going to leave her. As per Santosh, Umesh had admitted such fact in the presence of sister and parents of Kalpana.
48 Be that as it may, in view of the endorsement made by SDM himself, the testimony of HC Rohtash Singh, non providing of admitted handwriting of Kalpana by her father, I feel persuaded to believe that complaint Ex.PW6/A was, in fact, lodged by Kalpana and her motherin law jointly. Suicide had taken place on 21.03.06 and said joint report was lodged on 27.01.06. Kalpana gave statement to HC Rohtash on 03.03.2006. There is no reference of any cruelty related to dowry in either of two. If at all, there had been any misbehaviour, harassment or cruelty related to dowry, Kalpana would have certainly mentioned so. Her report bearing her signatures has to be give preference over oral State Vs. Daulat Ram & Ors. page 23 of 31 hearsay evidence coming from the mouth of her father, sister and brother. Moreover, if at all, Kalpana was treated with cruelty from day one, there would have been some sort of complaint from her in this regard. Moreover, Brijesh though claimed that there were demands of dowry yet in her deposition, she also, interestingly, claimed that she started suspecting Umesh as he started earning Rs. 20,000/ per week. Kalpana remained at her matrimonial house for two or three months only and if at all, Umesh was earning that much amount, he really would not have been after TV or motorcycle from day one. It is important because as per the consistent stand of parental side of Kalpana, such demand was made at the time of vidai itself. Such demand does not seem logical if Umesh was earning that big.
49 One of the most important ingredients to make out a case u/s 304B IPC is act of cruelty related to dowry soon before death. The best piece of substantiation could have been her own report and her own statement. Her statement dated 03.03.06 is of vital importance because in such statement, she neither made any sort of complaint against her husband in connection with illicit relationship nor she claimed that she was being treated with cruelty or harassment in connection with dowry or demand of dowry by nay of the accused. She committed suicide on 21.03.06 and, therefore, if her statement dated 03.03.06 is to be believed, the element of "soon before" is found to be conspicuously missing.
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50 I have already noticed the deposition of father, brother and sister of
Kalpana. Their testimony also does not provide enough assurance to
conclusively hold that Kalpana was maltreated or treated with cruelty soon before her death. All the accused are, therefore, liable to be acquitted under sec 304B/34 IPC.
51 Section 498A IPC reads as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. For the purposes 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."
52 Word cruelty in common English jargon would define a state of conduct as painful and distressing to another and as per Section 498A IPC, consequences of cruelty should be of such degree which can likely to drive a woman to commit suicide and such cruelty can be mental or physical. Cruelty u/s 498A IPC can be of varied nature. In one Judgment, cited by defence i.e. Gananath Pattnaik Vs. State of Orissa State Vs. Daulat Ram & Ors. page 25 of 31 2002 CAR 123 (SC), it has been observed that concept of cruelty and its effect varies from individual to individual. Para 7 reads as under:
"The concept of cruelty and its effect varies from individual to individual also depending upon the social and economic status to which such person belongs "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case."
53 Undoubtedly, modernity is taking its toll and slowly and surely, we are losing out on moral values. Ld. Addl PP has contended that it is to be seen as to what is the social background of the parties concerned. According to her, Kalpana came from remote area of Neemach, MP. Extramarital affair may be rampant in the high strata of Metropolitan Cities but can be a rare thing in such like remote areas. She contends that keeping in mind the Indian culture and tradition, if any husband develops extramarital relationship and if such relationship comes to the knowledge of his wife, it can certainly disturb and spoil her mental peace. She asserts that for most of the Indian women, mental cruelty of such a nature would be of highest order.
54 Defence has countered her by strongly relying upon one Judgment of Hon'ble Supreme Court cited as U. Suvetha Vs. State by Inspector of Police and Anr. 2009(2) R.C.R.(Criminal) 923. I have carefully gone State Vs. Daulat Ram & Ors. page 26 of 31 through the aforesaid Judgment. In Para 11, it has been observed by Hon'ble Supreme court as under:
"The word `cruelty" having been defined in terms of the aforesaid explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498A of the Indian Penal Code."
55 Situation in that case was though slightly different. In that case also, husband was having illicit relation with one another woman i.e. U. Suvetha. The matrimonial discord between husband and his legally wedded wife culminated into litigation and U. Suvetha was also summoned to face charge u/s 498A IPC. She filed application for discharge which was dismissed by the trial court as well as by the Hon'ble High court. The question which arose for consideration whether such girl friend would be the relative of husband in terms of Section 498A IPC. Hon'ble Supreme Court, after considering the various Judgments, came to the conclusion that such girl friend or paramour of husband was not a relative of the husband and, therefore, relief was granted to her. Issue before the Hon'ble Supreme Court was never to the effect whether the husband had also committed any cruelty by having extramarital affair. However, the opinion echoed by Apex Court is very specific and explicit and leaves no room for discussion on this score. We State Vs. Daulat Ram & Ors. page 27 of 31 all know that even obiter dicta of Apex Court is equally binding. 56 As far as accused Geeta is concerned, admittedly, she was married much before Umesh and Kalpana tied knot. She was living separately at her matrimonial home. Her matrimonial home is not situated within the same vicinity either. She has been roped in on the basis of general and vague allegations. Simultaneously, accused Mamta is found to be unmarried nand and there are general and vague allegations against her. Same stands true for accused Ramesh Kumar (unmarried younger brother of Umesh). As far as accused Khajani Devi and Daulat Ram are concerned, it has already come on record that Kalpana was living with her parentsinlaw happily, as per her own report Ex.PW6/A. I would like to add that in her such report, Kalpana had claimed that Umesh used to beat up his own mother also and such fact has been affirmed even by Brijesh as she has deposed in her crossexamination that Kalpana had told her that once accused Umesh had tried to kill his mother with a sword. She also admitted that whenever she used to meet Khajjani Devi, even Khajjani Devi used to curse accused Umesh.
57 There is propensity to rope in all the relatives of inlaws in such type of matters. In the case of Kans Raj v. State of Punjab 2000 CRI. L. J. 2993 SC, it has been observed as under: State Vs. Daulat Ram & Ors. page 28 of 31 "A tendency has, however, developed for roping in all relations of the inlaws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused."
58 In the case of Raja Lal Singh v. The State of Jharkhand 2007 Cri.L.J. 3262 SC also, it has been observed that names of some accused are introduced only to spread the net wide as often happens in cases like 498A IPC.
59 As per Ld. Addl. PP when the marriage had taken place at Neemach, Umesh and his father Daulat Ram demanded TV and motorcycle at the time of vidai and they were found to be so adamant that they left all the dowry articles there at Neemach and came empty handed. She contends that cruelty starts from that moment itself. However, demand does not constitute any offence by itself. In State of Rajasthan Vs. Jagdish and Anr CRIMINAL APPEAL No. 1411 of 2010 (Date of Decision August 03, 2010) , it has been observed as under: ".........but demand of dowry by itself is not an offence under Section 498A or Section 304B IPC. What is punishable under Section 498A or Section 304B IPC is the State Vs. Daulat Ram & Ors. page 29 of 31 act of cruelty or harassment by the husband or the relative of the husband on the woman."
60 Keeping in mind Kalpana's own report and her subsequent statement, it cannot be said that there was cruelty in connection with dowry. Corroboration, which could have come from Santosh, has been, it seems, deliberately withheld. I have already note above that I would give preference to said complaint and statement of Kalpana over the hearsay evidence coming from her father, sister and brother. Mahadev was retired Railway Police Force official and if at all, Kalpana was being tortured constantly, it was expected that he would have lodged some sort of report at least at Neemach as Kalpana remained there more after marriage than her matrimonial home. No specific dates have been mentioned. In the case of SUNIL BAJAJ VS. STATE OF M.P. 2002(1) CC CASES 74 SC, there were allegations of demand and cruelty from all the family members of deceased but the letter written by deceased revealed that she was disturbed as accused used to bring girls to their house and it was observed that had there been any cruelty related to dowry, she would not have missed to write about the same. It was also observed that parental side members of deceased were in anguish due to death of deceased and they had a reason to involve accused in criminal case. Accused was resultantly acquitted. Position is, more or less, similar here.
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61 In view of the material on record and in view of my foregoing
discussion, I do not find sufficient material to hold accused guilty under sec 498A IPC either. Benefit of doubt is accordingly given to them. 62 All the accused are accordingly acquitted of all the charges levelled against them. Accused Umesh be released forthwith if not required otherwise. Bail bonds, on record, are cancelled and sureties are discharged.
63 File be consigned to Record Room.
Announced in the open court Today i.e. on 28th September, 2010.
(MANOJ JAIN)
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
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