Delhi District Court
Titled As Ashok Kumar vs . State Of Haryana, Air 2010 Sc 2839, on 25 April, 2012
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IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03
OUTER DISTRICT, ROHINI COURTS : DELHI
FIR No. : 236/05
PS : Kanjhawala
U/s : 498-A/304-B/34 IPC
Unique Case ID : 02404R0 112972005
In the matter of
The State
Versus
Naveen s/o Sh. Rajender Singh
R/o H. No. 109, Village Qutub Garh
Delhi.
...CONVICT
ORDER ON SENTENCE
25.04.2012.
Pr.: Ld. Addl. PP for the state.
Convict Naveen in J/C.
Sh. R. S. Yadav, Advocate for the convict.
Arguments heard on the sentence.
It is submitted on behalf of the convict that convict is young
person aged 30 years and that convict is not a previous convict and has
clean antecedents. It is also submitted that convict was gainfully
employed as school teacher in MCD and he is regularly appearing during
the trial and has co-operated in the trial. It is further submitted that the
convict is already remained in custody for three years. It is further
submitted that he has old aged parents to support and has one sister of
marriageable age. It is further submitted keeping in view his conduct
during the trial, lenient view is prayed for and minimum punishment be
FIR No. : 236/05, PS : Kanjhawala Page 1 of 48
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awarded provided for the offences.
On the other hand Ld. Addl. PP for the state submits that this is
very serious type of offence which is the result of a greed of some
persons who harass the young brides to force their parents to meet their
unlawful demand in the name of dowry. In the present case, a young
woman who was married for less than a year died. It is further submitted
that deceased was a talented young woman and she had diploma in
naturalpathy, lab technology and also in railway transport management
and she had also passed M.A. Previous, therefore, he be given the
maximum punishment provided under the law.
The Dowry Prohibition Act was enacted in the year 1961 but it
failed to check the menace of dowry in the society. Thereafter the evil of
dowry spread and become such a monster that young brides were
burning for dowry. Thereafter, the Parliament was forced to amend
Indian Penal Code in the year 1986 to check the death of woman who are
harassed on account of dowry. Time and again question has arisen as to
why in the four walls of matrimonial house bride dies. There are various
explanation, however, one fails to comprehend despite stringent
provision firstly prohibiting the dowry and thereafter declaring 'death of
a woman' a dowry death, as to why has failed to check the menace of
dowry in the society. Young woman continues to fell prey to the evil of
dowry. One cannot be oblivious to the fact that even after the
amendment the message has not gone down in the society that dowry is
evil. One may find the message on the buses and common places that
"Dulhan Hi Dahej Hai" (Bride is dowry) but fact remains that Dulhan is
required with dowry. Even the educated people accepts and expects
FIR No. : 236/05, PS : Kanjhawala Page 2 of 48
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dowry as matter of pride. The bridegroom who gets less dowry is looked
down in the society that he must be having some handicap and
deficiency and therefore he has not been given adequate dowry as per
their status. The tag of bridegroom is somewhat fixed, as government
job will fetch more dowry than a private job and it is open price tag as if
it is market. The question is why have we not been able to change the
mindset of the society by making the law and use the same as social
engineering. It appears that either the dowry cases have gone unreported
as it has backing of the society or they are not adequately represented or
the adequate punishment is not given.
In this case, the convict is held guilty of offence punishable u/s
304-B IPC and 498 A IPC. S. 304 B IPC provides for punishment for a
term which shall not be less than seven years but which may extend to
imprisonment for life.
I may be failing in my duty if I had not mentioned that parents of
the girl must become sensitive towards her suffering. If they realise that
their daughter is not happy or is not being treated well by the in-laws,
they should ready to accept willingly her back to the parental home and
not that if her DOLY leave the house only her dead body will be received
which commonly accepted norm of the society. It is the duty of husband
of bride to take her care and save her from taunts and harassments as
protector and do not become oppressor himself.
Therefore, keeping in view the facts and circumstances of the fact
and that the woman was young and even colour of her mehandi had not
been faded she took extreme steps thinking that the world is over for her
despite being so talented, this needs to be checked with drastic measures,
I am of the opinion that ends of justice would be met in sentencing the
FIR No. : 236/05, PS : Kanjhawala Page 3 of 48
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convict to undergo to undergo rigorous imprisonment (RI) for a period
of 10 years for the offence punishable U/s 304-B IPC.
The convict is further sentenced to undergo rigorous
imprisonment for a period of 03 years and fine of Rs. 25,000/- for
offence punishable U/s 498-A IPC. In default of payment of fine, he
shall further undergo simple imprisonment (SI) for three months.
Both the sentences shall run concurrently.
The benefit U/s 428 Cr. PC given to the convict.
Copy of the judgment and order on sentence be given to the
convict free of cost.
File be consigned to record room.
Announced in the open court
today i.e. on 25.04.2012
GURDEEP SINGH
ASJ-03/Outer/Rohini/Delhi
25.04.2012
FIR No. : 236/05, PS : Kanjhawala Page 4 of 48
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IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03
OUTER DISTRICT, ROHINI COURTS : DELHI
FIR No. : 236/05
PS : Kanjhawala
U/s : 498-A/304-B/34 IPC
Unique Case ID : 02404R0 112972005
In the matter of
The State
Versus
1. Naveen s/o Sh. Rajender Singh
R/o H. No. 109, Village Qutub Garh
Delhi.
2. Rajender Singh s/o Sh. Banwari Lal
R/o H. No. 109, Village Qutub Garh
Delhi.
3. Krishna Devi W/o Sh. Rajender Singh
R/o H. No. 109, Village Qutub Garh
Delhi.
4. Navneeta D/o Sh. Rajender Singh
R/o H. No. 109, Village Qutub Garh
Delhi.
5. Surender S/o Sh. Pyare Lal
R/o Ram Nagar, Sonepat (Haraya)
Also at :
H. No. 5, Gali No.26B
Swatantra Nagar, Narela
Delhi.
...ACCUSED
Session Case No. : 53/08
Date of Institution : 26.11.2005
Date of Committal : 02.01.2006
Date of reserving judgment/order : 16.04.2012
Date of pronouncement : 18.04.2012
FIR No. : 236/05, PS : Kanjhawala Page 5 of 48
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J U D G M E N T
1. Accused Naveen, Rajender Singh and Krishna Devi were sent up by police of PS Kanjhawala to stand trial for offence punishable u/s 498-A/406/304B/34 IPC being husband, father-in-law and mother-in-law respectively of deceased. Subsequently accused Navneeta and Surender Singh, were also sent to stand trial by way of supplementary charge sheet for the same offences being sister-in-law (nand) and brother-in-law (jija) respectively of the deceased.
2. Prosecution case in brief is that on 28.09.2005, on the receipt of DD No. 47B at 10:10 p.m. regarding the information which was received at police station from duty constable M. B. Hospital by way of telephone that one Neelam wife of Naveen, aged about 25 years brought by Rajender in the hospital in dead condition, ASI Dharambir Singh alongwith constable reached at the hospital and obtained the MLC of deceased wherein doctor declared her brought dead. The photographs of the dead body was got done from the private photographer and worn ornament on the dead body two gold kade, one gold ring, two tops, two small ear rings, one nosepin and two chutki of silver of toes were seized. Dead body was got preserved in mortuary for postmortem. The room was got inspected from the crime team and SDM was informed by way of telephone. Thereafter on 29.09.05 IO alongwith SDM went to the house of Kartar Singh, father of deceased, at RZ-172 A, J-Block, Roshanpura Extn. Najafgarh, Delhi where SDM recorded statement of Smt. Angoori Devi, mother of FIR No. : 236/05, PS : Kanjhawala Page 6 of 48 7 deceased and Dr. Ravinder Kataria and handed over the same to ASI Dharambir. SDM directed SI Dharambir Singh to see the spot. Angoori Devi, mother of deceased, made statement to the SDM that her daughter Neelam, aged about 25 years was married to accused Naveen on 26.11.2004 and on 28.09.2005 at about 10:30 p.m., the father-in-law of Neelam called them saying that she is not well and has been admitted to Balmiki Hospital. On this within half an hour, she reached alongwith her husband at the hospital and found dead body of Neelam and on enquiry from the doctor, it revealed that she was brought in dead condition to the house at about 10:00 p.m. On seeing, it revealed that she has been strangulated with cloth etc. and her lips, nails of hands and feet were blue and there was fresh injury mark on right side elbow. She suspected that she has been killed by husband, father-in-law, mother-in-law, Navneeta and accused Surender who is lawyer. She stated that in-laws of her daughter had not given the information in time and they had tried to hide facts and removed the evidence from the spot. Neelam was brought in hospital in plain new clothe. On account of her suspicion, she had sent her brother-in-law (dever) namely Sh. Ravinder Kumar Katariya to spot. She stated that the in-laws of Neelam had started demand the dowry from the first day of the marriage and immediate after the marriage they demanded car and that they showed their inability and it was agreed that motorcycle would be given and within one month of marriage, they had given motorcycle make Hero Honda after purchasing in the name of Naveen Kr. Mehra but they kept on harassing Neelam. After two months of the marriage, demand FIR No. : 236/05, PS : Kanjhawala Page 7 of 48 8 of Rs.50,000/- was made from them. Neelam gave information to them that unless their demand is fulfilled, they would continue to harass her. They counselled her and also spoken to in-laws and sent Rs.10,000/- with her. The in-laws were getting all the works done from her and used to taunt her. The height of her daughter was 5'7" and she was well mannered girl and she used to do all household work. She was B.A. passed and was having diploma in naturopathy and she had also given examine of M.A. from IGNOU. In July, 2005 she qualified comption for nursery teacher training and Rs.40,000/- was required for her admission which was demanded from them by her in-laws.
3. She also stated that brother-in-law of accused Naveen namely Surender used to instigate the in-laws to harass her and to demand dowry. He used to say to accused to leave her and he will get him married to a working girl who will bring more dowry. She stated that on 19.08.2005 her daughter Neelam went to her house and stated that on 18.08.2005, her husband, mother-in-law, father-in-law, sister-in-law Navneeta gave beatings to her and asked to bring dowry. She stated that her daughter always remained under their pressure and scared. She stated that whenever she used to fall ill, they were not getting her treatment done and used to leave her to her parental home and they used to get her treated. They did not get them to talk her straight over phone. They used to allow her to speak them in their presence.
4. Statement of Ravinder Katariya was also recorded by SDM wherein he stated that he alongwith ASI Dharambir reached at the FIR No. : 236/05, PS : Kanjhawala Page 8 of 48 9 spot and Navneeta taken them to the room of the deceased. The door was open and bed sheet was properly spread. He further stated that Navneeta told that she committed suicide by hanging herself with chuni with big nail. However, the nail was at the height of 5 ft. whereas the deceased was having height of 5'7"
and the distance between bed and wall on which the nail was affixed was about 1 ft. They took one purse near the bed from the side of the pillow and when they opened the same it was found containing 20-25 new currency note of Rs.100/- each, one pair of pajeb and they had deliberately kept these articles and from the circumstance it appears that she had not committed suicide. He, further, stated that Navneeta had told them that the door was closed from inside and the same was subsequently broken by Naveen by pushing but on the spot no broken part of latch was found on the floor nor the door was broken, however, one piece of latch was hanging on the nail. It appears that latch had been deliberately broken subsequently.
5. On the basis of statements, case for offence punishable u/s 498-A/304-B/34 was registered. Postmortem on the dead body was got conducted. Accused Naveen, Rajender Singh and Krishna Devi were arrested. On 3.10.2005, the SDM sent one wrriten complaint of Angoori Devi to the police station wherein she stated that one day suddenly her daughter alongwith accused Naveen came to her house and accused said that it is his birthday and he needs gold chain and they gave 20 gms gold chain to her daughter and receipt of the same is with them and whenever her daughter FIR No. : 236/05, PS : Kanjhawala Page 9 of 48 10 used to come to their house, she used to say that accused Surender used to ask her husband Naveen as to why he had not demanded car from her in-laws and why he had taken the motorcycle. Whenever he comes, quarrel took place. On 04.10.2005 complainant Kartar Singh came to the police station and gave complaint alongwith dowry articles and marriage card stating therein they had given colour T.V., fridge, washing machine, sofa, and other articles, 15 gms of gold ornaments and half kg of silver ornament. Later on they had also given motorcycle on their demand. After sometime of the marriage, in-laws started harassing her. They used to get all household work done from his daughter from dawn to dusk and whenever she used to free in day time, she was given cloth of relative for stitching. Whenever he used to come to know this, he used to make telephone call and asked them to meet but they used to assure him through his daughter that everything is fine and on the next day, accused Naveen used to bring his daughter to their house. His daughter used to remain frightened and never used to tell anything openly. Whenever he or his family member called on telephone, they were not allowed to talk to her straight. He stated that accused Surender used to instigate family member of in-laws to harass her. He stated that on 28.09.2005 all the accused persons conspired and had killed her and taken her to the hospital and thereafter made telephonic call to them and when they reached he found his daughter dead. On receipt of list of dowry articles, offence punishable u/s 406 IPC is also added. On 05.10.2005 Kartar Singh had given complaint to the duty officer vide DD No. 6B FIR No. : 236/05, PS : Kanjhawala Page 10 of 48 11 reiterating the previous complaint. During the investigation the dowry articles were seized. The doctor who conducted the postmortem upon the dead body opined cause of death asphyxia as a result of pressure subsequent to hanging . Viscera was preserved to rule out the possibility of poison. However as per FSL result no poison was found. After completion of the investigation accused persons were chargesheeted.
6. After supplying the necessary copies, the case was committed to the court of session vide order dated 26.11.2005 by Ld. MM.
7. My Ld. Predecessor, after finding prima-facie case, charged accused persons namely Naveen, Rajender Singh, Krishna Devi, Navneeta and Surender Singh for offences punishable U/s 304-B/498-A/34 IPC vide order dated 16.11.2006 to which they pleaded not guilty and claimed trial. Accused Naveen, Rajender Singh and Krishna Devi were also separately charged for offence punishable u/s 406 read with 34 IPC, to which they also pleaded not guilty and claimed trial.
8. The prosecution in support of their case examined as many as thirteen (13) witnesses.
9. The prosecution examined following material witnesses :
i) PW-1 Sh. Kartar Singh, father of deceased. He proved dead body identification statement as Ex.PW-1/A, receipt Ex.PW-1/B, written complaint as Ex.PW-1/C, recovery memos of dowry articles as Ex.PW-1/D and Ex.PW-1/E. FIR No. : 236/05, PS : Kanjhawala Page 11 of 48 12
ii) PW-2 Dr. Ravinder Kumar Kataria who proved his statement made to SDM as Ex.PW-2/A.
iii) PW-5 Smt. Angoori Devi is mother of the deceased. She proved her statement made to SDM as Ex.PW-5/A, her supplementary statement as Ex.PW-5/B, list of dowry articles as Ex.PW-5/C, forwarding letter as Ex.PW-5/D and photocopy of marriage card as Ex.PW-5/E.
iv) PW-10 Sh. Kedar Nath, is the then SDM who recorded the statement of witnesses and got conducted the postmortem.
He proved the request for postmortem as Ex.PW-10/A, brief facts of case as Ex.PW-10/B, death report as Ex.PW-10/C in addition to other.
10. The prosecution also examined following formal witness :
i) PW-3 Sh. Deep Chand is witness of dead body identification and proved the dead body identification statement as Ex.PW-3/A.
ii) PW-4 Dr. Yudhvir Singh is the doctor who examined the patient Neelam and declared her brought dead and proved the MLC as Ex.PW-4/A.
iii) PW-6 HC Ram Singh is the duty officer who on the basis of rukka recorded FIR of this case and proved the carbon copy of the same as Ex.PW-6/A.
iv) PW-8 Ct. Bhartari is the witness who initially alongwith the IO reached at the hospital and witness of seizure of worn jewellery articles from the dead body.
FIR No. : 236/05, PS : Kanjhawala Page 12 of 48 13v) PW-9 Dr. Ashish Jain is the doctor who conducted postmortem upon the dead body of deceased Neelam. He found as many as four antemortem injuries and opined cause of death as asphyxia as a result of neck pressure subsequent to hanging and proved the detailed postmortem report as Ex.PW-9/A.
11. The prosecution also examined following witnesses of investigation :
i) PW-7 Ct. Jai Karan is witness of arrest of accused persons namely Rajender Singh, Krishna Devi and Naveen and proved arrest memos as Ex.PW-7/B, Ex.PW-7/C and Ex.PW-7/D respectively and their personal search memos as Ex.PW-7/E, Ex.PW-7/F and Ex.PW-7/G respectively.
He is also witness of seizure of kunda and proved the seizure memo of the same as Ex.PW-7/A and identified the same as Ex.P19.
ii) PW-11 ACP Baljeet Singh is the then SHO, investigating officer, who got registered the case and witness of seizure of viscera. He proved rukka as Ex.PW-11/A and seizure memo of viscera as Ex.PW-11/B.
iii) PW-12 ASI Dharambir is the first investigating officer who initially on the receipt of information reached at the hospital and got the dead body preserved and witness of arrest of accused persons and seizure of kunda of silver colour.
FIR No. : 236/05, PS : Kanjhawala Page 13 of 48 14iv) PW-13 Inspector Surender Dev is also part IO, who prepared site plan and witness of formal arrest of accused persons. He in addition to memos proved site plan as Ex.PW-13/A, arrest memo of accused Surender and Navneeta as Ex.PW-13/B and Ex.PW-13/C and their personal search memos as Ex.PW-13/D and Ex.PW-13/E and report of viscera as Ex.PW-13/F.
12. After the conclusion of the prosecution evidence, the statement of accused persons was recorded U/s 313 Cr.PC. Accused Rajender Singh admitted that IO reached at the spot and taken the jewellery from the dead body. He also admitted that dowry articles were recovered from their house and returned to PW-1 on superdari. He also admitted that dowry articles were given to accused but other facts were denied regarding demand. He stated that in fact prior to the marriage, the father of the deceased booked two motorcycles, one motorcycle for their own use and the other for giving in the marriage, but at the time of marriage the black colour motorcycle was available, but due to having black colour, the same could not be given, due to bed omen in the society, the same could not be given in the marriage and after the marriage a brown (mehroon) motorcycle was given by their own, without demanding by them. He admits that he informed the parents of deceased about the alleged incident on telephone and got her admitted. He stated that he is innocent and falsely implicated in this case at the instance of the parents of the deceased. The deceased was suffering from anemia, T.B. etc. and she wanted to get the job, but in spite of FIR No. : 236/05, PS : Kanjhawala Page 14 of 48 15 best efforts she could not get any job. The two sisters of the deceased were living in urbanized area, while the deceased was living in local rural area, which she was not liked by deceased. She wanted to live in urbanized area. The deceased was also not happy with the house of accused persons, situated in the village. There were no basic amenities available in their house and the deceased was not happy with the facilities, given by them (sic) to her, as comparable available to her other two sisters and due to aforesaid reasons, the deceased was under depression and committed suicide. They had shown her to so many doctors for her treatment. He stated that he would lead evidence in his defence.
13. Accused Navneeta stated that she was studying in 12th class and she had nothing to do with the house affair and similarly stated that deceased was depressed and committed suicide. She also chose to lead evidence in defence.
14. Accused Surinder Kumar admitted his arrest and similarly stated deceased was under depression and committed suicide. He also chose to lead evidence in defence.
15. Accused Smt. Krishna Devi, mother-in-law of deceased similarly stated on the line of statement of her husband recorded u/s 313 Cr.PC.
16. Accused Naveen, husband of the deceased, also similarly stated on the line of statement of his father recorded u/s 313 Cr.PC and examined DW-1 Sh. Rajbir Singh, DW-2 Smt. Rekha Kataria and FIR No. : 236/05, PS : Kanjhawala Page 15 of 48 16 DW-3 Sh. Balbir Singh in their defence.
17. I have heard Sh. A. K. Srivastava, Ld. Addl. PP for the state and Sh. Chander Maini, Advocate for all accused persons and Sh. R. P. Dhania, Advocate for the complainant. I have also gone through the record.
18. 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.
19. As regards the first ingredient, prosecution examined PW-4 Dr. Yudhvir Singh stated that he was posted as Medical Officer at M.B. Hospital and on 28.09.2005, he examined patient Neelam and observed that there was no pulse, BP was not traceable and he opined that patient was brought dead.
20. PW-9 Dr. Ashish Jain conducted the postmortem on the dead body of deceased Neelam. He opined cause of death as asphyxia as a result of neck pressure subsequent to hanging. There is no cross-examination. Accordingly it is proved on record that the death was unnatural.
FIR No. : 236/05, PS : Kanjhawala Page 16 of 48 1721. As regards second ingredients, it is not disputed that deceased Neelam died within seven years of her marriage. PW-1 Sh. Kartar Singh, father of deceased, stated that Neelam aged about 25 years was married with accused Naveen on 26.11.2004. On 28.09.2005 at about 10:30 p.m. accused Rajender telephonically told him that his daughter was unwell and had been admitted to M.B. Hospital and then he alongwith his wife reached at the hospital in about half hour and found her daughter lying dead. Similarly PW-5 Smt. Angoori Devi, mother of deceased, corroborated her husband. There is no cross-examination of these witnesses to this aspect. Moreover, accused persons admitted in their statement recorded u/s 313 Cr.PC that Neelam was married with accused Naveen on 26.11.2004. Therefore, indisputably deceased Neelam died within seven years of her marriage with accused Naveen.
22. 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.
23. Now, the prosecution is required to prove, the other 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.
FIR No. : 236/05, PS : Kanjhawala Page 17 of 48 1824. Ld. Counsel submitted that there are material inconsistencies in the testimony of the witnesses. The testimonies of the witnesses are false as the motorcycle which was given in dowry, was given subsequent to the marriage and was booked even prior to the marriage but could not be given in as the colour available was black and on account of bed omen the same could not have been given. Further it is submitted that there was no telephone installed at the house of accused persons and therefore the said allegation is also false that accused persons did not allow Neelam to talk on the telephone alone. Further submitted that the deceased was suffering from T.B. and accused persons were getting her treatment done from AIIMS and was got treated on 9.4.2005 and again on 13.04.2005 and got conducted the test directed by the doctor. It is further submitted that the deceased was highly qualified and her other two sisters were settled in urban area and her parental house was also in urban area having all amenities and she was married in the village lack of basic amenities and on that account she was depressed and hence committed suicide. Further, it is submitted that there is delay in lodging FIR and it was lodged after deliberation. Ld. Defence Counsel cited judgment of our own Hon'ble High Court in case titled as Rani v. State of NCT of Delhi, 2011 [1] JCC 688 in support of their arguments.
25. On the other hand, Sh. A. K. Srivastava, Ld. Addl. PP for State and Sh. R. P. Dhania, Ld. Counsel for the complainant submitted that witnesses are consistent regarding the cruelty and harassment for or in connection with demand of dowry and she was beaten on FIR No. : 236/05, PS : Kanjhawala Page 18 of 48 19 the date when she allegedly have committed suicide, which amounts to cruelty or harassment soon before her death for or in connection with demand of dowry. Ld. Counsel for complainant filed judgments which are Hira Lal & Ors. v. State (Govt. of NCT) of Delhi, 2003 (2) JCC 1182 (SC), Bachni Devi & Anr. v. State of Haryana 2011 (1) JCC 418 (SC), Balwant Singh v. Partap Singh & Ors. 2000 VI (2000) SLT 803 (SC), Kans Raj v. State of Punjab & Ors. 2000 (2) JCC (SC) 665, State of Rajasthan v. Jaggu Ram (2008) 12 Supreme Court Cases 51, Gurbachan Singh v. Satpal Singh & Ors, AIR 1990 Supreme Court 209, Gora Lal & Ors. v. State of Punjab 2004 (1) RCR (Criminal) 698 and Kundula Bala Subrahmanyam & ors. v. State of A.P. 1993 Crl. L J 1635 (SC) in support of his arguments.
26. Firstly I shall deal with citation given on behalf of accused. In the cited case of Rani v. State of NCT of Delhi (supra), the deceased committed suicide by hanging herself. After her death her brother gave statement to the SDM that he had visited to in-laws of her sister a week ago before her death and found her in sad mood and she told him her in-laws were asking Rs.50,000/- and scooter as they wanted to open a shop and scooter was required for roaming around. He stated thereafter he talked with in-laws of her sister and told that he would respond after thinking over. After that he received information that she had died. It was observed that allegations were vague in nature and as to who demanded Rs.50,000/- and scooter, whether the demand was made by husband, mother-in-law and sister-in-law, when it was FIR No. : 236/05, PS : Kanjhawala Page 19 of 48 20 made, the answer of the same was absent. It was also observed that every suicide after marriage cannot be presumed to be a suicide due to dowry demand. Further, it was also observed that u/s 106 of Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him and when a death takes place within the four walls of matrimonial home, the husband and in-laws should come forward and depose as to what was the real cause of death.
27. As regards the judgment cited on behalf of the complainant, hon'ble Supreme Court in case of Hira Lal (supra) observed that 'soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It was also observed that Section 304-B IPC and 498-A IPC deals with two distinct offences and cruelty is a common essential to both the sections and that has to be proved. The explanation to Section 498-A IPC gives the meaning of 'cruelty' and in Section 304-B IPC there is no such explanation about the meaning of 'cruelty' but having regard to common background to these offenes it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498-A IPC under which 'cruelty' by itself amounts to an offence. Under Section 304-B IPC it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage and no such period is mentioned in Section 498-A IPC. A person charged and acquitted under FIR No. : 236/05, PS : Kanjhawala Page 20 of 48 21 Section 304-B IPC can be convicted under Section 498-A IPC without the charge being there, if such a case is made out and if the case is established there can be a conviction under both the sections. It was further held that even, if, no charge has been framed u/s 306 IPC the accused can be convicted u/s 306 IPC.
28. In Bachni Devi (supra) case, deceased died within three months of her marriage after hanging. Motorcycle was demanded. The hon'ble Supreme Court has observed that as per Section 4 of Dowry Prohibition Act, mere demand is sufficient to bring home the offence to an accused and thus any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of dowry under the Act.
29. In Balwant Singh (Supra) case, the mere fact that in-laws of deceased has sent intimation to the parents of the deceased would not indicate that they had not ill motive.
30. In Kans Raj (Supra) case, Hon'ble Supreme Court observed that presumption u/s 113-B of Evidence Act would not be drawn against accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with dowry demand is shown to have existed earlier in FIR No. : 236/05, PS : Kanjhawala Page 21 of 48 22 time not too late and not too stale before the date of death of the woman.
31. Similarly, in Jaggu Ram (Supra) case, hon'ble Supreme Court held that 'soon before death' is to be decided by the court after analysing facts and circumstance leading to death of victim whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment and the death. It was also held that once the prosecution establishes essential ingredients mentioned therein, it becomes duty of the court to raise presumption that accused caused dowry death.
32. The cited judgment of Gurbachan Singh (supra) is with respect to delay in lodging of FIR. In this case, the deceased newly married girl, information was given to the father of deceased in evening who alongwith family member rushed to hospital where deceased was taken staying there throughout night and also on next day till body of deceased was handed over. It was held that evidence of father could not be doubted on account of delay in filing in F.I.R.
33. Similarly, Gora Lal (supra) is with respect to delay in lodging of FIR. Hon'ble Supreme Court held that it is no delay, even if some deliberations were made so as to ascertain as to what had actually transpired before any irreversible action was taken, the same must be overlooked. In this case, dowry demand from time to time and last demand 2 months before death and it was held that it would be considered soon before death.
34. In Kundula Bala Subrahmanyam (supra) case, hon'ble Supreme FIR No. : 236/05, PS : Kanjhawala Page 22 of 48 23 Court observed that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished.
35. There is no quarrel to the above stated legal proposition and 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 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 FIR No. : 236/05, PS : Kanjhawala Page 23 of 48 24 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.
36. 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 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.
37. 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' FIR No. : 236/05, PS : Kanjhawala Page 24 of 48 25 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.
38. 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 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."
39. In the light of above, I shall examine the evidence. Firstly I shall take circumstance with respect to the suspicion alleged by witnesses in complaint in which deceased has died. PW-2 Dr. Ravinder Kr. Katariya testified that on receiving the information regarding death of Neelam , he alongwith his wife, Ram Chander (elder son-in-law of Kartar Singh) went to the FIR No. : 236/05, PS : Kanjhawala Page 25 of 48 26 house of accused persons. Accused Navneeta was present at the house who revealed that Neelam had committed suicide by hanging and when he looked into the room he saw that the bed sheet was not crumbled (sic) at all and the bolt was hanging from the door. The nail on which Neelam was alleged to have committed suicide was at the height of about 5 feet, from which she could not have hanged herself, as she herself was of 5 feet 7 inches tall. A ladies purse was lying nearby which contained new currency notes, gold chain, new payjeb which seems to have been planted by the accused persons. Then he returned to the house of his brother and narrated him his findings.
40. PW-5 Smt. Angoori Devi, mother of the deceased, also raised suspicion and stated that she saw the dead body of her daughter, her nails and lips had turned blue and there was sign of strangulation on the neck and there was blood on the right elbow and she had been made to wear fresh clothes.
41. PW-7 Ct. Jai Karan joined the investigation and went to the house of accused at village Qutubgarh. Accused persons were present and they were apprehended, interrogated and arrested. IO also inspected the spot and prepared site plan. IO also removed kunda from the door from inside and seized the same and identified the kunda as Ex.P19.
42. PW-12 ASI Dharambir Singh also stated that he also visited the place of incident i.e. at H. No. 109, Qutubgarh and crime team was called and the site was inspected by them. The said room was FIR No. : 236/05, PS : Kanjhawala Page 26 of 48 27 locked and kept the keys with him at Roshanpura, Najafgarh i.e. the parents of the deceased. On 30.09.2005, one kunda of silver colour with one screw and one plastic patti was seized from the room. PW-13 Inspector Surender Dev stated that he inspected the room and prepared the site plan at the instance of ASI Dharambir and found one kunda detached from the door of the room lying in the room and he seized the same.
43. PW-7 in his cross-examination stated that no public person was with them when they went to the house of accused persons. However, no question has been asked regarding removal of the kunda from the door. PW-12 ASI Dharambir Singh in his cross-examination stated that crime team inspected the scene of crime and took photographs but he had not collected the scene of crime report from crime team. He was also not questioned regarding recovery of kunda. PW-13 was also not cross-examined regarding seizure of kunda.
44. PW-10 Sh. Kedar Nath stated in his cross-examination that he also visited the spot thereafter and he had visited the room in which the incident took place. The said room was locked at that time and it was opened in his presence by someone.
45. Surprisingly in the present case, the photographs of the dead body with ornament was got done from the private photographer but neither photographer was cited as witness nor those photographs were placed on record. Further the crime team has inspected the spot and got the place photographed but interestingly neither the FIR No. : 236/05, PS : Kanjhawala Page 27 of 48 28 scene of crime report has been placed on record nor the photographs have been placed. In this case, as per statement of the Dr. Ravinder Kumar Katariya there was some suspicious circumstance i.e. the bed sheet was not crumbled at all and the bolt was hanging from the door, the nail on which Neelam was alleged to have committed suicide was at the height of about 5 feet, however, she herself was of 5 feet 7 inches tall, a ladies purse was found lying nearby containing new currency notes, gold chain, new payjeb which seems to have been planted by the accused persons. Despite these categoric suspicion and narration by the witness, no investigation has been carried out in that direction and merely one kunda has been seized. It is also not clear from where the said kunda was seized. Even the SDM, who had himself recorded statement of Ravinder Kumar Katariya wherein he expressed the said suspicion, had not carried out any investigation to rule out any possibility of any foul play.
46. PW-2 in his cross-examination, on the aspect of suspicion which he had noticed, stated that on 29.09.2005 he had gone to the house of accused persons with police. No proceeding was conducted in his presence. During that time, crime team also reached and carried out the proceedings. However, there is no suggestion to this effect that no such circumstance was existed. As regards PW-5 Smt. Angoori Devi, she saw nails and lips turned blue and there was blood on the right elbow. The postmortem on the dead body was conducted by PW-9 and viscera was preserved. The report on the viscera has come wherein no common poison was FIR No. : 236/05, PS : Kanjhawala Page 28 of 48 29 detected. Therefore the suspicion of Angoori Devi are misplaced. However, the fact remains that circumstance suggested by PW-2 have not been investigated by the investigating officer but the same have also not been denied by the accused persons and it stands established on record.
47. Now we shall examine whether soon before her death she was subjected to cruelty for or in connection with demand of dowry. PW-1 Sh. Kartar Singh, father of deceased testified that at the time of marriage, he had given double bed, colour T.V. fridge, almirah, washing machine, trunk, seweing machine, clothes of his daughter and accused persons, gold as well as silver ornaments. The gold ornaments weighed about 150 grams and the silver ornaments weight about 500 gms alongwith other items. After marriage his daughter shifted to Qutubgarh at the house of accused Naveen where his father Rajinder, mother, sister Navneeta and a younger brother also lived. After marriage all the accused persons including accused Surinder started demanding a car and he gave a Hero Honda motorcycle to accused Naveen. They again raised the demand of Rs.50,000/- in cash but he expressed his inability to arrange the amount of Rs.50,000/-. He stated that he was told by his daughter that on refusal to pay the amount of Rs.50,000/-, she was tortured by the accused persons and after negotiation with the accused persons he paid an amount of Rs.10,000/- to his daughter to be further given to accused persons. Despite having received the said amount accused persons did not stop harassing and torturing his daughter and they used to FIR No. : 236/05, PS : Kanjhawala Page 29 of 48 30 taunt her.
48. He further stated that accused Surinder, brother-in-law (jija) of accused Naveen, used to abet the accused persons for demand of car and more dowry and used to tell accused Naveen to divorce his daughter and he could arrange for his marriage in a richer family. He further stated that his daughter was graduate, she had diploma in natural pathy, lab technology and also in railway transport management and she had sat for the M.A. Previous exams and had passed therein. She had passed the admission test for nursery teacher training, the fee of Rs.40,000/- for the said course was asked to be paid by him as the accused persons had refused to pay the same but he could not arrange for the same and therefore she did not join the course.
49. He further stated that on 19.08.2005 (Raksha Bandhan day), his daughter and accused Naveen came to his house and his daughter told his wife that she was being harassed and tortured for demand of dowry by her in-laws including accused Surinder. His daughter was well versed in household chores and used to do all those activities at her in-laws house and the accused persons did not let them speak to his daughter on telephone, whenever she was permitted to speak on phone, she used to be surrounded by accused persons, therefore she was not in a position to speak freely. On 28.09.2005 at about 10:30 p.m. he received information regarding the incident.
50. He also stated that during the investigation he had handed over a FIR No. : 236/05, PS : Kanjhawala Page 30 of 48 31 written complaint to the SHO PS Kanjhawala regarding the murder. Some dowry articles had been returned by IO to them after recovering the same from the house of accused persons. He also stated that at the time of death, there was some ornaments on the dead body of his daughter which were seized.
51. PW-5 Smt. Angoori Devi, mother of deceased, corroborated her husband regarding dowry articles given in the marriage, demand of car, Hero Honda motorcycle given to the accused, demand of Rs.50,000/- and Rs.10,000/- given. She further stated that whenever her daughter fell sick, she was not taken to the hospital by the accused persons and was dropped at their house for treatment. She stated that once accused Naveen came to their house and demanded a gold chain weighing two tolas on his birthday and they met his demand. She stated that accused persons got his daughter's filled up form for teacher training course and for depositing the fee, accused Naveen dialed their phone number and handed over the phone to his daughter to demand the fee and she was told that she could sit for the training in case the fee was deposited by them but they could not arrange for the said money and therefore her daughter did not sit for the training course.
52. She also stated that accused Surinder used to visit the matrimonial home of her daughter every week and used to instigate the accused persons to demand car and Rs.50,000/- by way of dowry and used to tell accused Naveen that he should dump Neelam and that he will get him married again and also ensure that he gets a car and cash in the second marriage. Her daughter used to cook FIR No. : 236/05, PS : Kanjhawala Page 31 of 48 32 food on 'chula'. She stated that on 19.08.2005, her daughter came to their house on the occasion of 'Raksha Bandhan' and told her that accused persons except accused Surinder had beaten her the previous day and asked her to demand car and Rs.50,000/- from her father. She stated that she (deceased) told her that she (deceased) was also told that in case she did not bring the above said articles, she will not be allowed to live in the matrimonial home. She stated that her husband told her daughter that he will speak to the accused persons and sort out the matter but accused persons did not invite them for any talks, nor they came to them for the talks, though they had expressed their intention to meet and discuss and finally the accused persons killed her daughter on 28.09.2005.
53. PW-2 Dr. Virender Kumar Katariya, is the uncle of the deceased.
He also corroborated his brother and sister-in-law regarding dowry articles given in the marriage, demand of car, Hero Honda motorcycle given to the accused, demand of Rs.50,000/- and money given and harassment. He further stated that deceased Neelam used to tell that accused Surinder was indirectly the master mind who used to abet the remaining accused persons for demanding dowry and corroborated witnesses regarding instigation, and demand of Rs.40,000/- for her admission in nursery teacher training and visit of Neelam on the occasion of Rakhi prior to her death.
54. Broadly following are the instances of cruelty and harassment as alleged :
FIR No. : 236/05, PS : Kanjhawala Page 32 of 48 33i) Demand of car; but given motorcycle instead.
ii) Demand of Rs.50,000/-;
iii) Demand of Rs.40,000/- for admission in nursery teacher training course;
iv) Deceased visited her parental house on the occasion of Raksha Bandhan and told about demand of dowry and harassment and beatings;
v) She was not allowed to speak on telephone alone; and
vi) She was not got treated whenever fallen sick.
55. PW-1 in his cross-examination stated articles gifted by him to his daughter at the time of marriage were given voluntarily. He stated that on 28.09.2005 when he reached at the hospital ASI perhaps Dharambir Singh met but he did not make inquiry from him regarding marriage and he did not express any grievance and voluntarily stated that they were in state of shock. The dead body was cremated next day and on that day, he had met Additional SHO and SHO but he does not remember if he made any statement expressing grievance against the accused persons on that day. He does not know if his first statement was recorded on 02.10.2005. He did not make any statement before the SDM.
56. The SDM had recorded the statement of Angoori Devi on 29.09.2005. The deceased was brought to hospital at 10:00 p.m. After body was sent for postmortem and other investigation was done of spot visit. Thereafter statement is recorded. The deceased FIR No. : 236/05, PS : Kanjhawala Page 33 of 48 34 died within seven years of her marriage, therefore the SDM enquiry was necessary. Therefore I am of the opinion that delay in recording statement is duly explained.
57. The father stated in his cross-examination that he had booked one motorcycle at Prince Automobiles, Mahipalpur and voluntarily stated that this was booked by his son for his own use and amount of Rs.42,000/- had been deposited. He denied the suggestion that an amount of Rs.80,700/- had been deposited by him with Prince Automobiles on 13.12.2004. After having seen the receipt executed by Prince Autolinks Pvt. Ltd. Mahipalpur, Delhi for Rs. 80,700/- which bears the name of Naveen Kumar Mehra as the recipient of delivery, he voluntarily stated that this amount was deposited after the marriage of his daughter Meena. In his cross-examination on behalf of Navneeta, he stated that red colour motorcycle gifted to the accused Naveen, was purchased from Prince Autolinks and no motorcycle was purchased from Shastri Automobiles. He denied the suggestion that since motorcycle other than black colour was not available with Prince Autolinks therefore they had made arrangement of red motorcycle from Shastri Automobiles. He admitted that two motorcycles have been paid for at Prince Autolinks and voluntarily stated it was after the marriage. He stated that initially only one motorcycle was booked but on the demand of accused persons another motorcycle was booked after the marriage. He also denied the suggestion that accused persons neither harassed (sic) nor maltreated for or in connection with demand of dowry. He also denied the suggestion FIR No. : 236/05, PS : Kanjhawala Page 34 of 48 35 no dowry was given or made.
58. PW-5 mother of deceased with respect to motorcycle stated in her cross-examination that it was given after marriage which was purchased in the name of accused Naveen. She admitted that motorcycle was also booked for her sons. She denied that it is bad omen in their society to give black colour item. PW-1 also denied that it is bad omen but one witness i.e. PW-3 states that it is bad men. There are inconsistencies between the witnesses as to how many motorcycles were booked and when. The witnesses are trying to hide some facts. However, the witnesses are consistent that motorcycle was given after marriage. The same is also case of accused. The only controversy is why it was given after marriage. The case of the accused is that since only black colour motorcycle was available at the time of marriage and it, being bed omen, was not given and when subsequent mehroom colour motorcycle was available it was given and therefore there was no demand with respect to motorcycle. However, giving black item in the marriage is not always a bed omen. The PW-3 was not put specific question that whether giving of black motorcycle is bad omen. In any case the tiers of all the motorcycle are black. Therefore it cannot be believed. It is not always bed omen to give black items. There are many articles which are black by its nature like Tawa. Therefore, tt stands proved on record that the motorcycle was given after marriage.
59. As regard the Raksha Bandhan visit, PW-1 father of the deceased was cross-examined and he stated that deceased visited on the FIR No. : 236/05, PS : Kanjhawala Page 35 of 48 36 occasion of Raksha Bandhan to the parents' home on 19.09.2005 wherein the name of accused Surender was not mentioned to which the witness was confronted. However with respect to the harassment and torture for the demand of dowry by other accused persons have not been questioned. The mother stated that her daughter told her that she was beaten on previous day and demand of car and Rs.50,000/- was made. She has made some improvement regarding accused Surender Singh. PW-1 has given name of Surender Singh. PW-1 claimed that accused Naveen had also come but PW-5 gives the name of daughter only. The said demand and incident is inconsistent and therefore not proved.
60. As regard demand of two tola gold chain, the mother was confronted with the portion of her statement dated 29.09.2005 that once accused Naveen came to their house and demanded a gold chain, weighing two tolas on his birth day and they met with his demand wherein it was not so recorded. However, she voluntarily stated that, this fact is mentioned in her statement dt. 03.10.2005. PW-5 Smt. Angoori Devi has made improvement regarding two tola of gold chain was demanded and given to accused on his birthday. She had not stated so in her initial statement, however, in her subsequent statement, the same was stated. Therefore, the same is liable to be ignored as afterthought.
61. As regard demand of fee, the mother of the deceased stated that she had not stated in her statement, recorded by the SDM that for depositing the fee, the accused Naveen dialed their phone number and handed over the phone to her daughter to demand the fee and FIR No. : 236/05, PS : Kanjhawala Page 36 of 48 37 she was told that she could sit for the training in case the fees was deposited by them. Therefore she made some improvement. However, PW-1 and PW-2 are consistent on that and there is no cross-examination of PW-1. But this demand cannot be said to be in connection with marriage as the incident had occurred subsequent to the marriage when she qualified and required the fees for admission.
62. As regard demand of Rs.50,000/- and out of which Rs.10,000/-
was given within two months of the marriage, PW-1 father of deceased was not cross-examined at all. PW-2 also corroborated regarding the same. PW-5 has also stated so. All the witnesses are consistent regarding the same.
63. Therefore the prosecution has succeeded in proving that a motorcycle was given after the marriage and Rs.50,000/- was demanded by accused persons and out of which Rs. 10,000/- was given within two months of marriage and accused persons persisted with demand after marriage and the deceased was harassed on that account.
64. Now coming to the injury on the dead body of deceased. PW-9 Dr. Ashish Jain is the doctor who conducted postmortem on the dead body of deceased and found following external injuries :
i) Abrasion 1x1 cm and ½ x ½ cm present over right arm posteriorly just above elbow and back of left elbow of size ½ x ½ cm, right lower leg of ½ x ½ cm with clotted blood.FIR No. : 236/05, PS : Kanjhawala Page 37 of 48 38
ii) Abraded bruise over left forearm of size 7x4 cm reddish in colour.
iii) Bruise of size 3x1 cm over medial side of left great toe with reddish in colour.
iv) Obliquely placed pressure abrasion marks present over neck on front and sides, left end going below left ear lobule upto mastroid region and on right side 7 cm from right ear lobule.
The length of ligature mark is 21cmx1cm. On dissection skin at ligature mark was pale, white and glistening. Subcutaneous tissue was pale.
65. The doctor opined the cause of death as asphyxia, as a result of neck pressure, subsequent to hanging. Time since death was opined to be approximately 40 hours. The viscera was preserved.
66. PW-4 Dr. Yudhvir Singh examined the deceased at the hospital at about 10:00 p.m. and observed that there was no pulse, BP was not traceable, heart sound was nil and he opined that the patient Neelam was brought dead. In his cross-examination he stated that he did not examine the body minutely to detect the presence of any injuries and voluntarily stated that since patient was brought dead, there is no practice to examine the body in detail. He does not remember if there were any apparent injuries on the portions of body which were exposed. No such injuries has been mentioned in the MLC. He denied the suggestion that whenever a dead body is brought to the hospital, any visible injuries on the same are mentioned in the MLC, however, voluntarily stated that FIR No. : 236/05, PS : Kanjhawala Page 38 of 48 39 the postmortem examination of the body is carried out to detect any such injuries.
67. The doctor who examined the deceased had declared her brought dead and she was brought actually dead and he had not noted any injury on the dead body as the dead body was to be examined by the postmortem. The injury on the dead body was on the right arm posteriorly just above elbow, bruise over right left forearm and bruise over medial side of left great toe. These are the places i.e. toe and elbow which will not be seen by the doctor as these are on the back portion of the body of the patient. Even if it is believed that the doctor would examine the injury on the visible portion, injury would not come into notice of the doctor except the bruise over left forearm. Apparently injury no. 1 to 3 cannot be caused on account of hanging and these were injuries caused before hanging and they were antemortem in nature. Therefore there are three important circumstance which has come in this case. The circumstance taken in which she has committed suicide which are not explained. Prosecution has succeeded in proving that there was demand of dowry for or in connection with marriage and thirdly the dead body had some antemortem injuries. The burden is u/s 106 of Evidence Act is on the accused as to how she sustained injury as she was living in their house and it is within their exclusive knowledge. The circumstance leading to the injuries on her person and leading to her death, had not been explained by accused persons.
68. FIR No. : 236/05, PS : Kanjhawala Page 39 of 48 40
69. There are as many as five accused persons were sent for trial being husband, mother-in-law, father-in-law, sister-in-law (nanad) and brother-in-law(jija) of accused.
70. Firstly I shall take role of accused Surender. He is brother-in-law of accused Naveen. The mother of the deceased was confronted with the portion of her statement that accused Surender used to visit the matrimonial home of her daughter and used to instigate the accused persons to demand car and Rs. 50,000/- by way of dowry. She was further confronted with portion of her statement that he (Surender) used to prompt the accused persons to harass and beat Neelam for the above said demand, where the words beating are not mentioned, but the word tang karna (harassment) and prompting is mentioned. She also confronted with portion of her statement that accused Surender used to tell to Naveen that if he married again then he would get a car and cash in the second marriage wherein word car and cash is not mentioned.
71. PW-1 Sh. Kartar Singh father of the deceased was cross-examined in this regard, he stated that accused Surender was living at Sonepat at the time of marriage and voluntarily stated that he lives somewhere in Narela, which is about 8 to 10 km. From the matrimonial home of his daughter. He denied that Surender lived at Sonepat till July, 2005. However, PW-2 in his cross-examination admitted that he was living in Sonepat. Several improvements have been made by Smt. Angoori Devi in respect of accused Surender. He was admittedly not living in the house of accused persons when and was married brother-in-law.
FIR No. : 236/05, PS : Kanjhawala Page 40 of 48 41Apparently the allegations against him is also that he used to instigate Naveen and there was no harassment directly from his part. Nor the said demand has been made by him to the deceased and her parents. The demand of Rs.50,000/- was also admittedly not made by him.
72. As regard accused Navneeta. She is unmarried sister of accused.
There are no direct allegation against her except that she is referred to as accused persons used to harass. The statement of witnesses are omnibus in nature and there is no specific allegation against her.
73. Similarly as regard accused Rajender and Krishna Devi, there are no direct allegations. Their name is also used in omnibus manner that they used to harass.
74. However, as regard accused Naveen, who is husband of deceased Neelam, there are direct evidence against him.
75. In this case the deceased was married in the month of November 2004 and died in the month of September, 2005 approximately after about 10 months of the marriage. During these ten months, there was demand of dowry on one pretext or other and persisted with. Admittedly the motorcycle was given after the marriage and within two months of the marriage Rs.50,000/- was demanded, however, only Rs.10,000/- could be arranged and given. Moreover, there are injuries on the body of deceased which are antemortem in nature, the burden of which were on the accused persons u/s 106 of Evidence Act as to how these injuries were FIR No. : 236/05, PS : Kanjhawala Page 41 of 48 42 sustained by the deceased, which they did not explain. Therefore there is live connection in between the demand of car and motorcycle was given, demand of Rs.50,000/- and Rs.10,000/- given and injuries sustained by deceased soon before her death which presumably caused by accused persons in order to harass and torture her for or in connection with demand of dowry soon before her death. Once the prosecution has succeeded in proving and showing that soon before her death, Neelam was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, it is presumed that accused persons have caused dowry death and presumption is raised u/s 113-B Indian Evidence Act against accused Naveen.
76. In order to rebut the presumption accused taken the defence that the motorcycle was given subsequently as initially the motorcycle of black colour was available and on account of bed omen, the same was not given at the time of marriage. PW-3 stated in his cross-examination that it is practice in the village that items of black colour are not gifted at the time of marriage. However, this witness was not given suggestion whether motorcycle of black colour can be gifted or not. There are many articles which from their very nature are black like tawa and it cannot be said that they cannot be given. Therefore the defence that the motorcycle of black colour is of bed omen and subsequent another motorcycle of mehroon colour is given, is far fetched and cannot be accepted and defence is devoid of merit.
FIR No. : 236/05, PS : Kanjhawala Page 42 of 48 4377. Second portion of the defence is that prior to marriage, the deceased was living in the house belonging to her parents wherein all amenities were available and her two sisters were also married in urbanized areas full of amenities where the deceased was married in the village lacks of basic amenities and she was depressed on that account as well as on account of not finding of job despite best efforts.
78. As per statement of witnesses, the deceased was living her parents house built in 100 sq. yards at Old Roshanpura Extn. Delhi which is also a rural area and it is not unknown that girls from the urbanized area are getting married to village cultural to which they belongs and they are happy in their matrimonial life. In case she was depressed, she was not got treated for such ailment.
79. In defenece DW-1 Sh. Rajbir Singh, Record Clerk, AIIMS was examined. He proved record. It is stated that she was suffering from TB and they had got her treatment done. As per documents she had shown in the hospital on 9.4.2005 and on 13.04.2005, although the doctor had noted history of TB in their family but on examination there was no T.B. was found. However, it only shows that she was getting treated and contradicts the mother to this effect who said that accused persons were not showing her to the hospital in case of ailment. However, there is no evidence that she was treated for depression.
80. They also examined DW-2 Smt. Rekha Kataria in defence. She testified that prior to her marriage she was residing at Najafgarh FIR No. : 236/05, PS : Kanjhawala Page 43 of 48 44 and she knew Neelam (deceased) being her friend and they were studying together. She had attended her marriage. They both were married in village Qutubgarh. Their matrimonial houses were also situated nearby. At the time of marriage of Neelam, she met parents of Neelam (deceased) and she asked them that what articles were given in the marriage, on which father of Neelam told that, they were giving motorcycle. On some festivals, she met with Neelam (deceased) after her marriage, but she do not remember, when she had shifted her residence from Qutubgarh. Whenever she visited her matrimonial house, she used to meet with Neelam. She stated that during talks with Neelam, she (Neelam) told that, she was not happy, as her marriage had taken place in village and she did not like the atmosphere of village. On other aspect, she (Neelam) told that, everything was all right. Neelam never complained to her regarding the harassment given by her in-laws. Except the abovesaid thing nothing was disclosed by Neelam to her during talks. On 19.08.2005, they met together lastly at village Qutubgarh, and again said she does not remember the year and on that day, it was an occasion of Raksha Bandhan and she told that she was not feeling well on that day. Except this she did not tell anything else. In her cross-examination she stated that she had never disclosed the above said facts to her parents and other facts were denied.
81. DW-2 was also married in a village and she was also living in Najafgarh where deceased was living as per her statement and she states that she was not happy in village atmosphere. Merely by FIR No. : 236/05, PS : Kanjhawala Page 44 of 48 45 saying that she was not happy does not lead to the conclusion that deceased will commit suicide on that account itself. Further ordinarily as per the Indian culture, the family affairs particularly of matrimonial life are not discussed with the outsider, even, if they are close friends. Therefore the testimony of this witness to this effect does not show that she was not being ill-treated and that she was depressed on account of living in village.
82. DW-3 Sh. Balbir Singh stated that he was a mediator in the marriage of Neelam and Naveen and he had attended the said marriage, which had taken place at Najafgarh. Matrimonial house of Neelam (deceased) was at Qutubgarh. He met with parents of Neelam (deceased) on the date of marriage and prior to marriage. No demands were made by the Naveen and his parents at the time of the marriage. The motorcycle was given after the marriage, as the same was not available in the company prior to the marriage. This fact was told to him by the father of Neelam namely Kartar Singh. After the marriage, he met with Neelam and her parents. He met Neelam sometime in Qutubgarh and sometime when she visited his house. During the said visits he asked her about her about any difficulty, on which she told that, she did not have any difficulty. Her parents also did not disclose anything about harassment caused to Neelam.
83. He also stated that she had earlier also visited at his house on the occasion of Raksha Bandhan, which falls about 15-20 days prior to her death. At that time also he had inquired from Neelam for about any type of difficulties, on which she did not disclose any FIR No. : 236/05, PS : Kanjhawala Page 45 of 48 46 type of difficulty.
84. In his cross-examination, he stated that he is real Fufa of accused Naveen. He however does not remember the date when parents of Neelam told that they had booked two motorcycles and one motorcycle was given to accused Naveen. He was also given suggestion that Sh. Kartar Singh had also told him regarding demand of dowry of Rs.50,000/- by the accused persons and still he did not counsel the accused persons for this demand. He also could not tell the date of Raksha Bandan on which date he had alleged that deceased Neelam met him. After the death of deceased Neelam, he never made any complaint to SDM or any senior police officer that accused persons are falsely implicated in the present case to the effect that no dowry in the form of car and Rs.50,000/- were demanded by the accused persons.
85. The incident of Raksha Bandhan has been stated by the prosecution witnesses and therefore both defence witnesses i.e. DW-2 and DW-3 have spoken about Raksha Bandhan. However, DW-2 given the date, but later on stated she does not remember the same. Although the deceased remained married for only about 10 months and therefore the year would only be 2005 and Raksha Bandhan come only once in a year. Therefore it only shows that witness are trying to cover up the date of Raksha Bandhan stated by the prosecution witness. Raksha Bandhan was on 19.08.2005 whereas the deceased died on 28.09.2005 and it was one month and ten days after the Raksha Bandhan which clearly shows that these witnesses are trying to cover up and are even introduced FIR No. : 236/05, PS : Kanjhawala Page 46 of 48 47 witnesses. PW-3 is also closely related to the accused and therefore he has every reason to depose in favour of accused persons to save them.
86. The accused Naveen therefore failed to rebut the presumption u/s 113-B of Indian Evidence Act and therefore accused Naveen has committed dowry death as defined u/s 304-B IPC. Therefore, I am of the opinion that prosecution has succeeded in proving offence punishable u/s 304-B IPC against accused Naveen beyond reasonable doubt.
87. Now coming to offence punishable u/s 498-A IPC. As per discussion above, the dowry regarding harassment has been proved against accused Naveen and accordingly he is also convicted for offence punishable u/s 498 A IPC.
88. However, there is no evidence against other accused persons that they had committed cruelty within meaning of S. 498A IPC. Therefore offence u/s 498 A IPC is not proved out against them.
89. Accused Naveen, Rajender and Smt. Krishna Devi are also charged for offence punishable u/s 406 IPC. The prosecution witnesses have stated that dowry articles were given at the time of the marriage and some articles were also returned by investigating officer after recovering the same from the house of the accused. Some articles i.e. ornament which deceased was wearing at the time of death was returned. However, there is no evidence on record that dowry articles were demanded from the accused persons and they had refused. Therefore I am of the opinion that FIR No. : 236/05, PS : Kanjhawala Page 47 of 48 48 offence punishable u/s 406 IPC is not made out against accused persons.
90. Therefore, as per above discussion, I am of the opinion that prosecution has succeeded in proving offence punishable u/s 498-A/304-B IPC against accused Naveen beyond reasonable doubt. Accordingly he is convicted for the said offence and taken into custody. Prosecution has failed to prove their case against accused persons namely Rajender Singh, Smt. Krishna Devi, Navneeta and Surender Singh beyond reasonable doubt and therefore they are entitled to benefit of doubt. They are accordingly acquitted of the charges. Their bail bonds stand cancelled. Sureities discharged.
91. Let accused Naveen be heard on quantum of sentence. Announced in the open court today i.e. on 18.04.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/Delhi 18.04.2012 FIR No. : 236/05, PS : Kanjhawala Page 48 of 48