Delhi District Court
Kumar vs . State Of Haryana, Air 2010 Sc 2839, The ... on 26 May, 2012
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03
OUTER DISTRICT, ROHINI COURTS : DELHI
FIR No. : 246/06
PS : S. P. Badli
U/s : 498-A/304-B/34 IPC
Unique Case ID : 02404R0 109072006
In the matter of
The State
Versus
1. Sanjay s/o Sh. Mahesh
R/o: H. No.83, E-Block
Sardhanand Colony, Gali No.4
Bhalaswa Dairy, Delhi.
2. Mahesh s/o Har Dayal
R/o: H. No.83, E-Block
Sardhanand Colony, Gali No.4
Bhalaswa Dairy, Delhi.
3. Smt. Urmila w/o Sh. Mahesh
R/o: H. No.83, E-Block
Sardhanand Colony, Gali No.4
Bhalaswa Dairy, Delhi.
...ACCUSED
Session Case No. : 243/09
Date of Institution : 24.05.2006
Date of Committal : 03.07.2006
Date of reserving judgment/order : 22.05.2012
Date of pronouncement : 26.05.2012
J U D G M E N T
1. Accused Sanjay, Mahesh and Urmila were sent up by police of PS S. P. Badli being husband, father-in-law and mother-in-law respectively of deceased Sarita to stand trial for offence punishable u/s 498-A/304B/34 IPC FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 1 of 28 2
2. Prosecution case in brief is that on the receipt of information from BJRM hospital on 26.03.2006, ASI Kuldeep alongwith constable reached at the hospital and obtained MLC of Smt. Sarita wife of Sanjay on which the doctor had recorded brought to casualty by her husband and the body was sent to mortuary. SDM was called at the spot, who inspected the spot and recorded statement of Jitender, brother of deceased who stated that on 26.03.2006 he received the information at about 8:30 p.m. on the phone that sister Sarita has expired. She was married about one year ago with accused Sanjay, who was living at E-Block, Gali No.4, Panchwati Road, Sardhanand Colony, Delhi alongwith his parents and two younger brothers. He stated that after few days of marriage, they used to taunt her sister on account of insufficiency of dowry and they were demanding fridge and motorcycle. His father had given dowry beyond his capacity. He stated when his sister told regarding the demand made by her father-in-law, mother-in-law and husband, they went to their house and with folded hand requested them that whenever they will have financially good condition, they will gradually try to fulfill their demand. On this they said whatever, they want to do they should do at the earliest but they did not mend their ways. He stated that his sister had many times complaint regarding the same, but they used to counsel her that gradually everything will be alright and used to encourage her. The information about death was not given by in-laws of his sister today. He stated that his parents had gone to village which falls in Dist. Hardoi, UP on account of TEHARVI of his maternal grand mother (nani) and they FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 2 of 28 3 would come on the next day. On the basis of the statement, SDM directed the police to take action. FIR u/s 498-A/304-B/34 IPC was registered. Thereafter the SDM also recorded the statement of father and mother of the deceased on their arrival on 28.03.2006, who also made similar statement. The postmortem was got conducted and accused persons were arrested. In the postmortem report, the doctor opined regarding cause of death asphyxia as a result of ante-mortem hanging and time since death was given 36 to 40 hours. Ligature mark was also found present on the neck. After completion of the investigation, accused persons were charge sheeted.
3. After supplying the necessary copies, the case was committed to the court of session vide order dated 03.07.2006 by Ld. MM.
4. My Ld. Predecessor, after finding prima-facie case, charged accused persons namely Sanjay, Mahesh and Urmila for offence punishable U/s 498-A IPC read with S.34 IPC and 304-B IPC read with S. 34 IPC vide order dated 12.09.2006 to which they pleaded not guilty and claimed trial.
5. The prosecution in support of their case examined as many as fifteen (15) witnesses.
6. The prosecution examined following material witnesses :
i) PW-1 Sh. Vijay Dogra, SDM who recorded statement of complainant and parents of deceased and is also witness of seizure of sutli and some broken pieces of bangles and got conducted the other proceedings. He proved FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 3 of 28 4 statement of Jitender as Ex.PW-1/A, seizure memo of sutli and broken pieces of bangles as Ex.PW-1/B, statement of Sishpal as Ex.PW-1/C, Smt. Munni Devi as Ex.PW-1/D, inquest proceedings as Ex.PW-1/E, brief facts Ex.PW-1/F, form no. 25.35 (1) B is Ex.PW-1/G, the copy of DD No. 17/A as Ex.PW-1/H, identification statement of dead body of brother and father as Ex.PW-1/I and Ex.PW-1/J respectively, receipt of handing over of dead body as Ex.PW-1/K.
ii) PW-2 Sh. Jitender, brother of deceased, is complainant.
In addition to other memos, he proved arrest memo of Sanjay, Mahesh and Urmila as Ex.PW-2/A, B, C and their personal search as Ex.PW-2/D to F respectively and their disclosure statement as Ex.PW-2/G to I.
iii) PW-3 Sh. Shish Pal, father of the deceased. He was partly declared hostile regarding statement recorded by SDM.
iv) PW-4 Smt. Munni Devi, mother of the deceased.
7. The prosecution also examined following formal witness :
i) PW-5 HC Azad Singh is the duty officer who recorded information regarding admission of Sarita in BJRM Hospital in dead condition vide DD No. 17 A and proved the same as Ex.PW-1/H. He also recorded formal FIR of this case and proved the same as Ex.PW-5/B, his endorsement on the rukka as Ex.PW-5/C and DD No.2A as Ex.PW-5/D. FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 4 of 28 5
ii) PW-7 Sh. Amar Pal Singh, Sr. Scientific Officer, Chemistry, FSL Rohini, Delhi examined the exhibits and proved the chemical analysis report of viscera as Ex.PW-7/A. As per report, no poison was detected.
iii) PW-8 Dr. Upender Kishore is the doctor who conducted postmortem upon the dead body of deceased and opined cause of death was asphyxia as a result of antemortem hanging and proved the postmortem report as Ex.PW-8/A.
iv) PW-9 Ct. Mukesh deposited the sealed pullanda containing viscera vide RC No. 127/21/06 alongwith FSL form at FSL Rohini for examination.
v) PW-10 HC Babu Ram, duty constable at BJRM Hospital who got recorded DD No.17 A regarding admission of Sarita in the hospital in dead condition.
vi) PW-14 Inspector Ravi Singh, incharge mobile crime team, inspected the spot and got the spot photographed and proved crime report as Ex.PW-14/A.
vii) PW-15 Ct. Sushil, photographer, crime team took five photographs of the spot on the instruction of IO and proved the photographs as Ex.PW-15/1 to Ex.PW-15/5 and its negatives as Ex.PW-15/6 collectively.
8. The prosecution also examined following witnesses of investigation :
i) PW-6 Ct. Manoj Kumar who joined the investigation alongwith first IO ASI Kuldeep Singh on the receipt of FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 5 of 28 6 DD entry 17 A and witness of seizure of rope and broken bangles from the spot.
ii) PW-11 ASI Kuldeep Singh is first IO who on the receipt of DD entry 17 A reached at the spot and is also witness of seizure of rope and broken pieces of bangles from the spot.
iii) PW-12 HC Ramesh Kumar also joined the investigation of this case after registration of FIR and witness of arrest of accused persons.
iv) PW-13 SI Mohammand Nabi is second IO who conducted the investigation after the registration of the FIR. He is witness of arrest of accused persons and in addition to other memos proved site plan as Ex.PW-13/A.
9. After the conclusion of the prosecution evidence, the statement of accused persons was recorded U/s 313 Cr.PC wherein they denied the prosecution evidence and claimed innocence. Accused Sanjay admitted the marriage with the deceased, however, denied receipt of dowry articles. He also admitted that she was living in matrimonial home after marriage, and denied other evidence. He stated that he himself got admitted Sarita in the hospital and told his name to the hospital authorities and his parent had also accompanied him the hospital. He was falsely arrested in this case from the hospital during the time of admission of Sarita. He further stated that he is innocent and falsely implicated in this case. He never demanded any type of article either before marriage or after the marriage either from FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 6 of 28 7 the deceased or from the parent of the deceased, so question of alleged torturing Sarita on the point of dowry does not arise at all. In fact before the marriage of Sarita, she was having boil on her private part and her parents had already got operated herself, about which they were not even told at the time of marriage by the parents of Sarita. After the marriage, he and his parents came to know about her disease through Sarita and they got operated her boil on her private part in government hospital as well as got medically treatment in the private hospital and expended huge money on it. The boil on her private part was not curable, as the same used to increase after the operation. During the 10 months period, when Sarita remained in their house, he and his parents got her operated and gave medical treatment to the best of their possible efforts, but the boil on her private part could not be cured and she used to remain depressed in their house, due to this reason, she committed suicide in the absence of him and his parents. He also stated that after the death of Sarita, the parents of Sarita and brother Jitender demanded Rs.6 lacs from them for not proceedings the matter to the police but they were not in financial position to pay such huge amount to them. They had also threatened them that in case they were not paying such huge amount to them then they will involve all of them in a false dowry death case alleging torture and later on in connivance with the police official they had falsely implicated them in this false case. He is innocent. He stated that he would lead evidence in his defence.
10. Similarly accused Mahesh and Urmila stated on the line of FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 7 of 28 8 statement of their son accused Sanjay.
11. Accused persons examined four witnesses in their defence.
DW-1 Smt. Anita Devi is the neighbourer. DW-2 Dr. Ritu Kaushik, CMO, Hindu Rao Hospital who operated deceased for bartholin abscess and proved treatment record as Ex.PW-2/A running into 18 pages. DW-3 Smt. Pinky is also neighbourer. PW-4 Dr. Shakuntla Rani, Chief Medical Officer, BJRM Hospital proved the treatment record as Ex.PW-4/A consisting of nine pages.
12. I have heard Sh. A. K. Srivastava, Ld. Addl. PP for the State with Counsel for the complainant and Sh. T. N. Puri, Advocate for accused persons. I have also gone through the record.
13. Ld. Counsel for complainant cited judgment of hon'ble Gauhati High Court in case titled as Nidhan Biswas and Ors v. State of Tripura, 2006 Crl.LJ 2439, which is in respect of presumption u/s 113 A of Evidence Act. The said judgment is not applicable to the facts of the present case as the case in hand is not case under S.306 IPC and presumption under S.113 B Evidence Act is relevant. He also cited judgment of hon'ble Kerala High Court in case titled as Vinodan @ Bose v. State of Kerala, 2008 (1) KLJ 226. This judgment is also with respect to offence under S. 306 IPC and 498 A IPC. In the said judgment it was held that willful conduct given in S. 498 A IPC so as to constitute cruelty cannot be defined in strait jacket formula. There is no quarrel with legal proposition. He also cited judgment of hon'ble Supreme Court of India in case titled as FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 8 of 28 9 State of Karnataka v. M.V. Manjunathegowda & Anr. (2003) 2 SCC 188. The said judgment is with respect to ingredient required to constitute the offence under S. 304-B IPC. There is no quarrel to the essential ingredients to constitute offence. He also cited judgment of our own High Court in case titled as C.P. Malik and Others v. State, 1999 Crl.LJ 4525. This judgment is under S.306 IPC with respect to abetment to commit suicide. This is not applicable to the facts of the present case. Ld. Counsel also cited Renubala Dey and Three Others v. State of W.B., unreported judgment of hon'ble Calcutta High Court. This judgment is also related to presumption u/s 113 A in cases of under S.306 IPC and not applicable to the facts of the present case.
14. Ld. Counsel also cited another judgment of hon'ble Supreme Court in case titled as G. V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152. This judgment is also with respect to the essential ingredients of 304 B IPC and presumption u/s 113 B Evidence Act. It was held by hon'ble Supreme Court that before raising presumption u/s 113 B Evidence Act, there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman. There is no quarrel with the legal proposition.
15. Ld. Counsel for the complainant also cited another judgment of hon'ble Gauhati High Court in case titled as State of Tripura v. Dulal Dey, 2008 Crl.LJ 555. In the said case, accused were FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 9 of 28 10 acquitted for offence S. 498 A and 304 B IPC by Session Court which was upheld by the hon'ble High Court. This judgment does not help the prosecution in any manner.
16. In order to attract the offence punishable u/s 304-B IPC the following ingredients must be proved i. The death of woman should be caused by any burns or bodily injury or occurs otherwise than under normal circumstances;
ii. such death should have occurred within seven years of her marriage; and iii. it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.
17. As regards the first ingredient, the deceased died on 26.03.2006 in the hospital and her postmortem was got conducted. PW-8 Dr. Upender Kishore conducted the postmortem on the dead body of deceased Sarita. According to the postmortem, the deceased died because of asphyxia as a result of antemortem hanging. Viscera was preserved, however, as per FSL result, no poison was detected. Accordingly it is proved on record that the death was unnatural.
18. In order to prove the second ingredients prosecution examined brother and parents of deceased. PW-2 Jitender deposed that deceased was married with accused Sanjay on 11.05.2005. There is no cross-examination. PW-3 father of the deceased testified the said date to be date of marriage. There is also no cross-examination on this aspect. Mother of the deceased has FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 10 of 28 11 also similarly corroborated them. Moreover, the accused persons admitted the date of marriage i.e. 11.05.2005 in their statement u/s 313 when Sanjay was married with deceased. Therefore, indisputably deceased Sarita died within seven years of her marriage with accused Sanjay.
19. Therefore, as per discussion above, I am of the opinion that the prosecution has proved first two above said ingredients i.e. the death was caused on account of circumstances other than normal circumstances and within seven years of marriage.
20. Now, the prosecution is required to prove, the third ingredient and, if, prosecution, succeeds in proving and showing that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, the court shall presume that accused persons have caused dowry death and shall raise presumption u/s 113-B Indian Evidence Act.
21. Before appreciating the evidence, it is worthwhile to have overview of the law on the subject. The law on the subject as to what amounts 'soon before death' and how the evidences are to be appreciated is now well settled. In case titled as Ashok Kumar Vs. State of Haryana, AIR 2010 SC 2839, the Hon'ble Supreme Court has reiterated the law on the subject and observed as under :-
11. From the above definition it is clear that 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 11 of 28 12 other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expression 'or any time after marriage' and 'in connection with the marriage of the said parties' were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression 'in connection with the marriage' cannot be given a restricted or a narrower meaning. The expression 'in connection with the marriage' even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time ie at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be ' in connection with the marriage' and not so customary that it would not attract, on the face of it, the provisions of this section.
22. In the said judgment, it was further observed that customary gifts given at the time of birth of a child or other ceremonies would not be covered in dowry. However, furnishing of list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc. to the parents or guardians of the bride, at the time of settlement of marriage, prima-facie amounts to demand of dowry. The definition of 'dowry' is not restricted to agreement or demand for payment of dowry and at the time of marriage, but even include subsequent FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 12 of 28 13 demands. It was further observed that :-
The Courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of 'dowry' under the act.
23. Further in the same judgment Hon'ble Apex Court have also explained the meaning of expression 'soon before death' which is as under:-
14. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the Section is 'soon before her death'. In our view, the expression 'soon before her death' cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have be read in conjunction with other relevant provisions and scheme of the Act. Further the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
24. It was further held by Hon'ble Supreme Court in the same judgment that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. It was further observed that :-
"However, there must be existence of proximate link FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 13 of 28 14 between the acts of cruelty alongwith the demand of dowry and the death of the victim. For want of any specified period, the concept of reasonable period would be application. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection."
25. Now coming to the facts of the present case. The deceased in this case died after about 9 months of the marriage. Before proceeding to appreciate the evidence regarding dowry harassment, it is necessary to firstly discuss the circumstances in which the deceased was brought to the hospital. As per MLC prepared at the hospital, although the same was not proved, original was also not placed on record but it is case of prosecution that MLC was obtained on which it was mentioned that the patient was brought to the casualty by her husband (accused Sanjay). She was unconscious. No pulse, B.P. was not recordable. There was no respiratory movement. Body sent to Mortuary for postmortem. She was brought at 8:30 p.m. on 26.03.2006 and information was given by duty constable from the hospital to the police and police reached at the hospital.
26. PW-1 Vijay Dogra SDM testified that a call was received at about 11:00 p.m. from police officials that a female, 21 years old namely Sarita had been brought dead at BJRM Hospital, Jahangirpuri, Delhi and he immediately rushed to the hospital and reached there within 15 minutes. The brother Jitender and Bhabhi of the deceased were available. None from her husband's family was present. He was informed by the hospital FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 14 of 28 15 authorities that the patient was brought at about 8:30 pm by a person who left the spot after the patient was declared to be brought dead. He was given to understand that the patient had been brought by her husband namely Sanjay.
27. PW-2 Jitender brother of deceased also stated that on 26.03.2006 his wife had received a telephone call from unknown person at 8:30 p.m. that Sarita was admitted in a Emergency Ward of BJRM Hospital, and shortly thereafter one another phone call was received advising them to reach at the BJRM Hospital in Emergency Ward. He reached the hospital alongwith his friend Raj Kumar, and identified the dead body. None from the family of accused persons was present there. He stated that he had not received any telephone call from the accused persons intimating about the mishap with his sister.
28. PW-1 SDM was cross-examined on this aspect. He reiterated that none from the husband's family was present. He denied the suggestion that all the three accused were present at the hospital or that they had carried the deceased to hospital for treatment. He, however, does not know as to who had called the brother of the deceased to the hospital. He does not know if accused persons had informed the family of deceased about the occurrence at 8:30 p.m. He stated that on the next morning at about 10:30 a.m. he reached at the house of the deceased and when he reached there none of the accused persons was present there and the house was not locked and only the door had been shut. He denied the suggestion that accused Mahesh and Urmila were present or they had opened the house for inquest FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 15 of 28 16 proceedings.
29. PW-2 stated in his cross-examination he voluntarily stated that it was an un-identified person who telephoned him. PW-3 the father of deceased, however, admitted in his cross-examination that he was told that she had been taken to hospital on 26.03.2006 by accused person. Therefore apparently the deceased was brought to the hospital by the accused persons but there is suspicion as to who were present at the hospital and who had informed the brother of deceased regarding the incident.
30. Now coming to other investigation carried out by SDM. He recorded the statement of Jitender on the spot at the hospital on 26.03.2006. On the next morning, he went to the house of the deceased and in his presence, IO seized one rope (sutli) about 20 ft. in length and some broken pieces of bangles. On 28.03.2006 parents of deceased had returned to Delhi and he went to the hospital where they both made their statements. In his cross-examination he stated that the sutli and bangles had been taken into possession by the crime team during the night before his arrival but were sealed in his presence in the morning.
31. PW-2 in his cross-examination stated that statement was recorded by the SDM at about 11:00 p.m. in the hospital.
32. PW-6 Ct. Manoj Kumar stated in his examination-in-chief that on the receipt of DD entry 17 A, he alongwith ASI Kuldeep Singh reached at the hospital. IO obtained the MLC. SDM and FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 16 of 28 17 SHO were also requested to report at spot. Crime team was summoned. Rope and broken bangles were separately sealed and seized. SDM recorded statement of the brother of deceased.
33. PW-11 ASI Kuldeep, is the first investigating officer to whom the matter was entrusted. He testified that he reached at the hospital, obtained the MLC, and informed the SHO who reached at the spot with staff and SDM also reached at the spot. Sutli and broken pieces of bangles which were lying at the spot were taken into police possession. The brother of deceased also appeared at the spot and on the dictation of SDM, he reduced into writing the statement of Jitender, brother of the deceased. In his cross-examination, he stated that he reached at the hospital at about 9:15 to 9:30 p.m. and during his stay at hospital SDM or the SHO had not come in the hospital. From the hospital, he reached at the spot at about 10:15-10:30 p.m. SHO and SDM were there and again said that the SDM came after the arrival of SHO. SDM had got recorded the statement of the brother of the deceased from him at the spot in his hand writing. He admitted that before the arrival of SDM, the articles were seized. He categorically denied the suggestion that SDM had recorded the statement of Jitender at about 11:00 p.m. on 26.03.2006 in front of mortuary in the hospital. However, he shown is memory loss with respect to the fact whether articles were sealed before arrival of SDM or after his arrival.
34. Therefore there is material discrepancy in testimony of police official and SDM regarding manner in which the initial investigation was carried out. SDM claims that he had gone go FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 17 of 28 18 the spot on the same very day and Sultli and broken bangles were seized in his presence. However, in his cross-examination he turned around that they were taken into possession by crime team during the night before his arrival. He claims that he recorded statement of Jitender in front of mortuary at hospital on the same day whereas IO who had recorded the statement of Jitender in his handwriting on the dictation of SDM claims that it was recorded at the spot i.e. house of in- laws of deceased. IO also claims that brother of deceased has come to the spot whereas the brother of deceased categorically denies the same. Therefore in the manner, the SDM has conducted the enquiry is far from satisfactory and his statement also cannot be relied upon.
35. Now coming to the statement of material witnesses regarding dowry related harassment. PW-2 Jitender, the brother of deceased, testified that at the time of marriage, his father had given sufficient dowry as per their capacity which included single bed, mattress, one dressing table with stool, one sofa set, a wrist watch and a ring for the accused Sanjay, clothes for the family members and five gold items and five silver items for his sister and she had also been given a big box, utensils, sarees and other articles. After marriage his sister resided in Sardhanand Colony with accused Sanjay, his father Mahesh, his mother Urmila and also his two younger brothers. He stated whenever he went to the house of sister, accused Urmila used to ask him for more dowry and Jitender taunt him for not having given fridge and motorcycle. Similar demands were also made FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 18 of 28 19 by all the accused persons from his sister, who used to complain to them. When his sister came to their house for the first time after four days of marriage her valuables/jewellery had been retained by the accused Urmila. She also told them that she was harassed as sufficient dowry had not been given in the marriage. They sent her back after counseling that the articles shall be provided as and when they are in financial position to do so.
36. In his cross-examination, he admitted that there was hundreds of visits exchanged between his family and that of the accused after the marriage of his sister. He stated that he used to visit his sister frequently and his parents also used to visit her. He admitted that accused persons had new refrigerator in their house, however, he voluntarily stated that accused Mahesh still demanded another fridge for his son. Accused persons resided jointly till the death of his sister in 50 sq. yards house which is single storey.
37. PW-3 Shish Pal, father of deceased, similarly stated at the time of marriage dowry articles given including cash of Rs.4100/- and after the marriage the deceased lived in matrimonial home at Shrada Nagar, Delhi alongwith accused persons. He stated that all the three accused persons used to taunt his daughter of having brought less dowry and they specifically demanded fridge and motorcycle. He stated that he tried to explain to accused persons that he had given them dowry beyond his capacity and he had not promised to give anything more. Still accused Urmilla and Mahesh did not agree and kept harassing FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 19 of 28 20 his daughter for more dowry. On her visits to his house, his daughter used to tell him about harassment by accused persons for demand of dowry. His daughter had been threatened by the accused persons not to disclose the harassments meted out to her by the accused persons.
38. In his cross-examination, he admitted that the marriage had been finalized through the relations of accused Mahesh and there was no demand of dowry at the time or before the marriage. He admitted that whatevever dowry had been given by him at the time of marriage of his daughter had been voluntarily given by him. He stated he himself or his wife used to visit the matrimonial house of his daughter after about a month or so. Accused Sanjay had attended the birth day for the said function. He cannot state the number of times, his wife had visited the house of his daughter. He stated that it was definitely not 20-25 times, but must have been lessor number of times. He stated that accused used to visit his house whenever his daughter visited, that was just two to three times. He denied suggestion that accused persons possessed fridge, however, voluntarily stated that accused Mahesh had said that another fridge may be required if Sanjay starts living separately. He admitted that he had not made any complaint to the police prior to the present occurrence but voluntarily stated that he had not made any complaint because he wanted his daughter to live peacefully at the matrimonial home. He stated that he had made a complaint to Bahadur, through whom the marriage proposal had been finalized.
FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 20 of 28 2139. PW-4 mother of deceased similarly deposed regarding articles given in the marriage. She stated that when his daughter came to their house, she told him that the accused persons namely Sanjay, Urmila and Mahesh asked her for more dowry and demanded fridge and motorcycle from her (witness). Accused persons also harassed her daughter as sufficient dowry has not been given in the marriage and when she went to the house of the accused persons for counseling they started quarelling with her and abused her saying that sufficient dowry had not been given at the time of marriage of her daughter. In her cross-examination she could not tell the date or month of the demand of dowry and voluntarily stated that she is illiterate. She alone went to the house of accused persons for counseling. Her husband or her son did not go to their house and voluntarily stated that accused persons demanded dowry during such visits. She did not make any complaint to any police authorities regarding such demands. She admits that the distance between her house and that of the accused persons is merely one kilometer and is a walking distance. She also admitted that there was a fridge in the house of accused persons, however, voluntarily stated that accused Mahesh and Urmila did not permit her daughter to use the said fridge.
40. Therefore, there is demand of fridge and motorcycle. As regard fridge, all the three witnesses have admitted that accused persons had a new fridge in their house and all the three persons gave different explanation as to why they needed second refrigerator. It is not at all believable that persons who FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 21 of 28 22 are living in 50 sq. yards single storey house in a joint family having a new refrigerator would require any other refrigerator in future uncertain event if accused person starts living separately, they would need it. Although, tenure of the marriage was only about 9 months, yet there is no specific date when such demand was expressed. The demands are rather not specific. However, it is admitted that deceased was living at a distance of only 1 km from the house of her parents and they were frequently visiting her, Yet no recent event was disclosed by them when the alleged demand was made. Therefore, it cannot be said that any demand of dowry was made from her daughter or any cruelty was meted out in connection with the dowry. It is also worthwhile to mention, as per PW-2 only demand was made, however, it was not accompanied by any physical assault or cruelty and it was only a taunt. Therefore it cannot be said that the deceased was subjected to cruelty or harassment soon before her death for or in connection with demand of dowry. Prosecution has failed to prove the third ingredients. The presumption u/s 113 B can only be attracted if the prosecution succeeds in proving all three ingredients. Therefore, the presumption cannot arise.
41. However, interestingly accused persons have brought in defence that deceased was suffering from recurrence of bartholin abscess on her private part and on account of that she was depressed and committed suicide. PW-2, brother of deceased, had admitted in his cross-examination that deceased had undergone a surgery about 10 days prior to the marriage FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 22 of 28 23 and was undergoing treatment even after the marriage. He also admitted that his sister was operated upon at BJRM Hospital after about two months of her marriage, for some growth in her private parts and was again operated upon at BJRM Hospital, four months later for the same problem and was again operated upon three months later at Hindu Rao Hospital for the same problem. All the three operations were got conducted by the accused persons. He stated that he does not know that after the third surgery also she was not fully cured.
42. PW-3, father of deceased, also admitted that his daughter had boil on her private part and she was admitted twice in BJRM Hospital and once in Hindu Rao Hospital for treatment. He also admitted that she was undergoing treatment at various hospitals for the above said problems and she was taken to various hospitals for threatment by the accused persons.
43. The mother of deceased PW-4 denied the suggestion that her daughter was suffering from boil on her private parts but admitted that she was operated upon twice for a small pimple at BJRM Hospital and once at Hindu Rao Hospital. She also admitted that expenses of such hospitalization were borne by the accused Sanjay. She denied suggestion that her daughter remained hospitalization for long period and voluntarily stated that she was discharged on the same day. She denied the suggestion that her daughter was suffering from the ailment even prior to the marriage contradicting her son who stated that deceased had undergone a surgery about 10 days prior to the marriage and was undergoing treatment even after the marriage.
FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 23 of 28 24Therefore from the testimony of PW-2 Jitender, who is brother of deceased, it appears that deceased was suffering from the said problem soon before her death.
44. Accused persons also examined four witnesses in their defence.
DW-1 Smt. Anita Devi, their neighbourer stated that she was troubled on account of boil on her private part and she was being taken for the treatment by her in-laws and therefore she came to know about the same and she may be depressed on that account. DW-3 Pinki is also neighbourer. She stated that she observed that there was some boil in the private part of Sarita and the accused persons had got operated three time the boil, but even after the operation/medical treatment the boil could not be cured and it again increased and due to this boil, she was fed up and due to this reason, she committed suicide.
45. They also examined DW-2 Dr. Ritu Kaushik from Hindu Rao Hospital. She stated that as per record, Sarita w/o Sanjay admitted in Hindu Rao Hospital on 8.2.2006 for I & D for bartholin abscess (abscess of the private parts) and she was discharged on 13.02.2006 and during this period on 8.2.2006, she was operated by her for the above mentioned complaint. She also stated that patient Sarita had already been operated for bartholin abscess in 2005 at Lal Bahadur Shastri Hospital and at this time she was admitted in Hindu Rao Hospital as a case of recurrent bartholin abscess.
46. DW-4 Dr. Shakuntala Rani, from BJRM Hospital stated that Sarita was admitted on 17.09.2005 at BJRM Hospital with FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 24 of 28 25 history of recurrent bartholine abscess and she was operated on 19.09.2005 and discharged on 20.09.2005 after treatment. In her cross-examination by Ld. Addl. Public Prosecutor she stated that bartholine abscess is a common problem in ladies, which develops due to some infection in bartholine gland.
47. It is argued on behalf of prosecution that it is common disease among women and it is not serious one which may result in depression which is stated to be reason of suicide by Sarita. The deceased in this case was young bride. Admittedly she was being taken by the accused for her treatment and expenses were also borne by accused persons. The recurrence of the boil was frequent which may result in loss of self confidence by young bride. It is not necessary, it may be serious one which may endangers her life only, which may result in depression but if a small medical problem recurrence takes place time and again, it may give deep depression on the mind of a person and may result in loss of self esteem. Therefore I am the opinion that it appears that deceased thought of ending her life on account of recurrence of abscess bartholine, although she was being supported by the accused persons.
48. PW-2 brother of deceased has also stated in his statement that when he saw dead body, he found there was injury marks on the neck, face, ankle and the wrist of his sister. Whereas as per the postmortem report, there was no other injury on neck apart from ligature mark and there was also no injury on others parts of the body. Therefore it is only exaggeration.
FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 25 of 28 2649. There are also inconsistencies with respect to the arrest of the accused persons whether they were arrested from the house or from the some other place. PW-12 HC Ramesh Kumar is witness of arrest. In his cross-examination he stated that accused persons were arrested at about 7:00 p.m. but again said accused Sanjay was arrested from the hospital at about 7:00 p.m. and Mahesh and Urimila were arrested from their house. Whereas as per arrest memos, all the three accused persons shown to have been arrested at 7:00 p.m. from their house, which only shows that they were present at their house which falsify the version of prosecution that after the death of the Sarita, they went missing suspiciously.
50. It is worthwhile to mention that Raj Bahadur @ Bahadur who was cited as witness by the prosecution initially, was dropped from the list of the witnesses on the statement of Sh. Sanjay Saini, Ld. Addl. PP and parents of deceased on the ground that he was related to the accused persons and is likely to depose in favour of the accused, which is improper. The duty of prosecution neither to somehow prove their case nor to hide truth from the court, but it should be to bring truth before the court so that court may arrive at just conclusion of the case. The duty of the prosecution is not to get innocent prosecuted but if finds the person to be innocent it should see to it he gets acquitted. Unfortunately they are not doing so. Unfortunately there is a trend to get more conviction recorded with the prosecution, which is contrary to the law of land. The prosecution is required to make correction of such thinking.
FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 26 of 28 27Hon'ble Supreme Court in case titled as Sidhartha Vashisht @ Manu Sharma v. State (N.C.T. Of Delhi), AIR 2010 Supreme Court 2352 held that as to what is the duty of the prosecution. The prosecution is required to follow the law of land as declared by hon'ble Supreme Court. To quote :
76..........
"Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused."
51. Accordingly as per discussion above, I am of the opinion that offence punishable u/s 304-B IPC is not proved against accused persons.
52. Now we are left with the offence punishable u/s 498-A IPC. As already discussed, there was no demand of dowry before or at the time of marriage and there is also inconsistency with respect to the demand and moreover there is no specific date, month and year when the alleged demand was raised despite the short tenure of marriage. Therefore the same cannot be believed. Therefore I am of the opinion that offence punishable u/s 498-A IPC is also not proved against accused persons.
53. Therefore, as per above discussion, I am of the opinion that prosecution has failed to prove their case against the accused Sanjay, Mahesh and Urmila beyond reasonable doubt. Hence FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 27 of 28 28 they are entitled to acquittal. Accordingly, they are acquitted of the charges. Bail bonds of accused persons stand cancelled. Their sureties discharged. Case property, if any, be destroyed after the expiry of period of appeal. File be consigned to record room.
Announced in the open court today i.e. on 26.05.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/Delhi 26.05.2012 FIR No.:246/06, PS:S. P. Badli State v. Sanjay etc Page 28 of 28