Delhi District Court
State vs . Hardesh on 14 October, 2013
IN THE COURT OF SHRI NEERAJ KUMAR GUPTA,
DISTRICT & SESSIONS JUDGE : SOUTH WEST DISTRICT
DWARKA COURTS : NEW DELHI.
Unique I.D No. : 02405R0154302011
Session Case No. : 02/2011
Date of Institution : 15.04.2011
Date of Decision : 14.10.2013
State Vs. Hardesh
S/o Sh. Nand Ram
R/o RZ34A, Raghu Nagar, New Delhi.
FIR NO.: 40/2010
Police Station : Sagarpur
Under Section: 498A/304B/34 IPC
For State : Sh. Devinder Kumar, Ld. Public
Prosecutor, South West on behalf of the State.
For Accused : Sh. S.P Kaushal, Ld. counsel
for the accused.
JUDGMENT
Accused Hardesh had been sent for trial, after charge sheet against him was filed for offence punishable under Section 498A/304B/34 IPC and charges under Section 498A/304B IPC was framed against him by my Predecessor.
2. As per the chargesheet, Tina was married to Hardesh in January 2006 and on 30.12.2010, she was brought dead in Khanna Hospital and she was found to have committed suicide and since death was other than in normal circumstances and within seven years of the marriage, inquest proceedings were conducted. The SDM recorded statement of Janki Dass father of the deceased, Smt. Mala Mother of the deceased and Smt. Bhavana Sister of the deceased, SC No. 2/2011 Page No. 1/17 under Section 176 Cr.P.C and based on their statements, direction to lodge an FIR was given by Sh. Amod Barthwal, the then Executive Magistrate, Najafgarh.
It is own case of the prosecution that Janki Dass and Mala, parents of the deceased did not allege any thing against the present accused i.e husband of the deceased and categorically stated that at no point of time, either by the husband or other inlaws, no demand was ever made and only a little bit squirmishes as usual happens in married life, used to occur and they themselves used to settle the same and they cannot tell as to why she had committed suicide. The mother had only stated that it could be because of quarrel, or the habit of the husband to take liquor, which could be the reason for committal of suicide by her daughter. So far as Bhavana, sister of the deceased is concerned, she has alleged that her sister was being given beatings and her husband used to demand dowry and was a habitual drinker and had relations with other women and that she herself has given sum of Rs. 1,50,000/- to her sister as husband of her sister intended to open a shop and her sister used to tell her that in case, she dies, her husband will be responsible and that it is not a case of suicide and she had been murdered.
As per postmortem report the cause of death was due to asphyxia from antemortem ligature hanging. It is also to be seen that though chargehseet was filed against Nand Ram father in law and Smt. Kamla mother in law, without arresting them, but since nothing was found against them, they were not even summoned by the Ld. Metropolitan Magistrate and the committal was only for the present accused. The summoning order remained unchallenged.
During investigations by the police, statement of one Khushboo was also recorded, who as per the statement given, was SC No. 2/2011 Page No. 2/17 present at the house of the deceased, at the time, suicide was committed by the deceased and had come to the house in connection with birthday ceremony of son of the deceased.
3. I have heard the Ld. Public Prosecutor, Ld. Counsel for accused and have perused the record.
4. PW1 Smt. Bhavana Rani, during her deposition before the court had given date of marriage as 29.1.2007 and has stated that accused, his father and mother were not happy with dowry articles given to Tina and they used to taunt and insult Tina for not bringing a car.
She had further stated that Hardesh used to beat her sister, after consuming liquor and used to demand more money as she has not brought a car and the parents in law did not try to save her and rather used to take side of the accused.
Her further averment is, whenever her sister Tina used to visit her parental house, her parents used to give money to her sister Tina and accused, and that parents of accused and his brother used to mentally torture Tina.
She has also stated that in July 2010, Tina came to her's matrimonial house and informed her that accused Hardesh was demanding sum of Rs. 1,50,000/- for opening a bakery, which, she handed over to her but still accused used to give beatings to Tina, who had illicit relations with other women and that accused used to visit her with Tina whenever he was in need of money.
She has further stated that on 30.12.2010, at about 1.00 pm, she received a call from her sister Jyoti, who informed that Tina has expired and she reached Khanna hospital, where dead body of Tina SC No. 2/2011 Page No. 3/17 was lying and her statement Ex PW1/A was recorded by the SDM.
In her cross-examination, she has stated that she stays in a joint family and her husband is the head of the joint family. Significant to notice here is that if the husband in the joint family is head of the family, then giving of money by her own, to her sister become doubtful. Secondly, the same was not a demand of dowry conveyed to her by her sister only, but in any case, the same was for opening a bakery. The concept of joint family also throws a doubt on the averments of demand, being conveyed by the deceased to her, at the time of visiting her house, as nobody else, including the husband of the PW1, from the joint family, has been examined as witness, showing that Tina used to visit her sister.
With regard to allegations, that they were not happy with the dowry articles, she has stated that the marriage was done after proper confirmation and verification and her house is 25-30 kms away from the house of accused Hardesh.
So far as allegations of giving beatings, after consuming liquor is concerned, she in her cross-examination has stated that there was no dispute of accused consuming alcohol but the dispute was of demand of dowry.
So this allegation cannot be related or connected to suicide committed by her sister, since it was a non-issue.
Her version with regard to demand of Rs. 1,50,000/- was that accused wanted to have a bakery but in cross-examination she stated that accused wanted to get into a partnership business and she do not know as to where the said business was to be opened and she never visited inauguration of the said business, so the demand, in any case, was not of dowry. She has stated that she has not shown the amount of Rs. 1,50,000/- in her income tax return and she has never SC No. 2/2011 Page No. 4/17 made any complaint to middle man, who was instrumental in arranging the marriage and that she has no personal knowledge whether her parents made complaint to middleman or not. This gains significance as it is not her version at all that she ever told this fact to her parents, which is quite unusual, especially when parents have not levelled any allegations against the accused, in their statement made before the SDM.
So far as beating aspect is concerned, she has admitted in her cross-examination that in her presence, beatings were never given and accused never abused Tina.
It is also significant that though this witness had stated that she went to Khanna hospital, but there is no version that Khushboo also met her at the said hospital. Even Khushboo has not been examined by the SDM, who had reached the spot and had recorded her statement as well as the statement of her parents. There is no version of her that Khushboo had come to the house of the deceased in connection with the birthday celebration and had stayed at the house of the deceased or that she was found at the house of the deceased by her or by her parents or that she or her parents took back Khushboo from the house of the deceased, after the incident.
5. Janki Dass, father of the deceased has stated that on 28.12.2010, on the occasion of birthday of son of the deceased, in the presence of Khushboo, who had gone to attend such celebration, the deceased was beaten by the accused and still in examination in chief, he has stated that at the time of death of his daughter, accused and his parents were present at the house and he do not know how death of his daughter occurred in their house. If Khushboo was there and as per Khushboo, (whose statement will be discussed lateron) she knew SC No. 2/2011 Page No. 5/17 the circumstances, in which suicide was committed, still this witness would not have made a statement that he do not know how the death had occurred.
This witness has proved his statement recorded by the SDM as Ex PW2/A. He was confronted from the statement and he had admitted that he never stated before the SDM about dowry harassment given to her daughter or that accused represented that he was and Inspector which, lateron, was found to be incorrect. In cross-examination, he categorically made an averment that he had not stated to the SDM or before the police that accused and his family members used to give beatings or used to torture his daughter for dowry or that her daughter and accused were having strained relations and that he never made statement that he made accused understand 3-4 times not to harass his daughter and rather has gone to the extent of saying that till date, they have not made any complaint to the police or other department. Not only he has proved the statement, made before the SDM, but also he admitted that he had stated before the SDM that he had no complaint against anyone for the death of his daughter, that he is not aware of the cause of death, that he never received any notice by the police for joining investigations. He also admitted that deceased was never harassed in his presence and that no demand were ever made to him personally, by the accused or his family. He has also stated that deceased came to their house 1 ½ months back, from the time of her death and that she had not made any complaint to them about accused or his family members.
Ld. Counsel for the accused has argued and rightly so, that this witness has admitted that son of the deceased is still in custody of grandfather, who is taking care of him. Handing over the custody of minor son and not taking any steps to remove the son from the SC No. 2/2011 Page No. 6/17 custody, by the legal methods or on the day of death itself, it goes to reflect that they have nothing against the accused or inlaws and were happy with the arrangement.
This witness has also not stated that they met Khushboo on the date of incident or that they brought back Khushboo to their house and that PW1 ever made complaint to them regarding handing over of Rs. 1,50,000/- or demand of dowry or giving of beatings or taunting for lack of dowry or demanding a car. Rather, his version is that his daughter 1 and 1 ½ months back did not made complaint against the accused or his family members, at the time of her visit at their house. So not only the statement lacks everments which falls within the bracket of section 304B or 498A IPC but still, at least, it can be said, in any case, that the alleged demands were not so raised to come within the definition of soon before the death.
6. Contrary, to the version of PW2, PW3 the mother of the deceased has stated that after marriage, her daughter used to tell that accused along with his parents used to beat her for insufficient dowry and used to taunt her for not giving a car in the marriage. She has come up with a new version that the deceased told her that accused and his mother had been demanding Rs. 50,000/- and that it was given by Ravinder (brother of the deceased and son of this PW) and Bhavana had also given sum of Rs. 1,50,000/-. Though, she has admitted that she made a statement Ex PW3/A and identified the signature so made before the SDM, but she stated that she was shocked, and she do not know what was written in the statement. Another new twist which has been given by this witness is that a suicide note of her daughter was recovered by the police from the room and police handed over the same to them, which, she has SC No. 2/2011 Page No. 7/17 brought today. This is the extent, a person can go and which make the very veracity of a witness doubtful. Not only IO had denied that any suicide note was recovered but the very concept of it being handed over to PW3, will not arise at all. No such thing has been stated by PW2. Bare perusal of her statement in chief shows that its an improvement over her version given to the SDM and had these facts been proved, they would have stated in very first statement. No doubt the inquiry by SDM is limited for the purposes to ascertain the cause of death, but the fact remains that this witness has not attributed anything against the accused, leading to the cause of death of her daughter.
In her cross-examination, she has stated that she went unconscious and regained consciousness on the next day and thereafter, had never gone to police or SDM. This shows that the witness has tendency to hide the real facts as PW1 and PW2 both have stated that the statement of PW3 was recorded in their presence and, such is the statement of SDM also. So this witness is conscious enough to know that she is making improvements in her statement only to implicate the accused, on one ground or other and had come up with a false version, and she has also admitted in cross-examination that she had not made any complaint against accused or his family members before any person or department.
She admitted in her cross-examination that no demands were made by accused Hardesh to her directly and that she did not tell the police or SDM that her elder daughter Bhavana had given Rs. 1,50,000/- to Tina and after extensive cross-examination, she had stated that she has made statement before the SDM, which is Ex PW3/A. So it is absolutely clear that this witness is totally unreliable.
In cross-examination, she has also stated that she cannot SC No. 2/2011 Page No. 8/17 say as to when she talked to Bhavana, before death of Tina and with regard to suicide note, she stated that it was handed over to Bhavana, which fact has not been stated by PW2 Bhavana. She admitted that at no point of time, amount was ever given to Tina, in her presence.
7. PW3 has stated that Tina used to talk to her and not with her father. While, PW4 Ravinder Kumar has stated that after few months of marriage, accused Hardesh demanded a car from his father, which is not a version given by PW2.
He has also stated that Tina used to tell him that accused used to consume liquor and come back late in night and used to beat her and demand money from her, and in February 2010, Tina informed him that she was beaten by accused for demand of money and that he went to the house of inlaws of Tina and handed over Rs. 50,000/- to the parents of the accused. This is absolutely contrary to the statement made by the mother, who had stated that amount was handed over by Ravinder i.e PW4 to deceased that too at parental house of deceased. This witness has further stated that thereafter accused again demanded money from them for opening of bakery shop and since he was not having any money the amount was given by Bhavana to Hardesh. This is again in contradiction to the statement made by PW1, as discussed above, and contradiction so made, which otherwise are without any particulars, for the same are not true facts. He had stated that Tina told him that if she dies, her husband and his parents would be responsible for the same, though, PW1 had stated that such fact was told to her.
With regard to Khushboo, he had stated that Khushboo had gone to the house of her sister Tina and it was only after sometime of the incident, she informed that accused used to beat Tina. It is only SC No. 2/2011 Page No. 9/17 regarding beatings and that too, after many days of the incident. Though, as per case of the prosecution, Khushboo was present at the very house, at the very time when Tina committed suicide.
The veracity and falsity of this witness, of giving money, is apparent, as he has stated in his cross-examination that it is his parents, who runs the shop of grocery and if that is so, he was not in position to pay any amount, and parents i.e PW2 and PW3 have stated that they themselves have not paid any amount, either to Tina or accused or that any amount, was paid to either of them, in their presence.
In cross examination, this witness has gone to the extent of saying that in his presence, there was a quarrel between the deceased and the accused in August, 2008.
First of all the particulars and place of such quarrel is not given. The reason for the quarrel is not given. The words exchanged during the quarrel is not given and it is a bare statement only. Further he himself has admitted that he has not registered any complaint in this regard and he has not even stated to anybody regarding this quarrel.
In cross examination, he admitted that he has not stated in statement to the police that he has given Rs.50,000/- to his sister. He has also stated, in his cross examination, that except of his, police has not recorded statement of any witness and that his statement was recorded on 31.12.2010.
8. PW-5 Khushboo who, as per the prosecution, was present at the house, who was nine years in age at the time of incident, has stated that on 28.12.2010 it was the birthday of son of her deceased sister and that on that day accused and his parents asked Teena to SC No. 2/2011 Page No. 10/17 bring Rs.1,00,000/- and all of them gave beating to Teena.
She has also stated that on next date quarrel took place on this issue and on 30.12.2010 accused gave beating to her sister and thereafter went to his office while her sister went inside the room and closed the door from inside. She told this fact to the parents of the accused who stated that "Marti hain to Marne De, accha hain hamara peecha chuta hain". Thereafter she went to upper floor where elder brother of the accused used to reside who came to the room of Teena and opened the door after breaking the latch and found that deceased was hanging with ceiling fan with the help of chunni.
Bare perusal of statement under Section 161 Cr.P.C. reveals that her statement was recorded on 6.2.2011 i.e. one and half month after the incident. PW-5 is a child of nine years and as per her version she was present at the house at the time her sister committed suicide.
First of all, in all probabilities, she would have been at the place of incident at the time when PW-1 to 4 reached at the place of incident on being informed by the parents in law of the deceased, but none of them has stated about the presence of Khushboo at the place of incident. There is even no statement from PW-1 to 4 that Khushboo was disturbed and they brought her back to the parental house of the deceased which has to be a natural course of events. Further had PW-5 been present at the spot, PW-1 to 4 would have definitely made inquiries from her and would have come to know about the demand and giving of beatings by all and then on 30.12.2013 by the accused, even she had enough time to inform so to PW-1 to PW-4 even on telephone as the demand and beatings were given on 28.12.2010. She would have informed the SDM at the house and then he would have definitely recorded her statement on the day of incident itself, being SC No. 2/2011 Page No. 11/17 the only available witness at the house where suicide was committed. Fact also remains that in their deposition before the court none of PW-1 to 4 have made a statement that a demand of Rs.1,00,000/- was raised on 28.12.2010 or that beating was given on 28.12.2013 and on 30.12.2013.
As per the statement, the latch was broke open but there is no mention by the IO of taking into possession of such a latch or that broken latch was lying at the spot.
Police has recorded statement of brother of Hardesh but was not examined as the prosecution witness. He has been examined as DW-2 and he has only stated that door was opened with force and that on 28.12.2010 none from the family of Teena had come on the function and Teena was never tortured or harassed and no demand was raised at any point of time.
Similarly DW-1 has stated that Khushboo was not present at the celebration.
So the testimony of PW-5 do not inspire any confidence as her presence is negated not only by the conduct of PW-1 to 4, PW-5 as well as delay in recording her statement. The testimony of this child witness is further demolished as she has stated that she even do not remember the birthday of her brother Yuvraj and brother Lakshay as she usually live with her uncle Janki Dass. If that is so, there is all the more reason for Janki Dass to state about her presence or sending her to the house of the deceased on 28.12.2010 but there is no such statement of PW-2. There is no averment as to who took Khushboo to the house of the sister and came after leaving her, as she could not have reached there of her own.
PW-5 in her cross examination has stated that PW-4 and PW-1 had accompanied her to the court before she made the SC No. 2/2011 Page No. 12/17 deposition and she had heard discussion about manner of death of her sister Teen amongst Janki Dass and Ravinder. She herself has stated that she has not stated the incident to PW-2 and PW-1 on the same day. She did not talk to the police officials about the incident and even to her sister Bhavana, on the day of incident and she narrated the same on a subsequent date. Even PW-1 had not stated so. During the cross examination she has stated that she had not given any gift to the son of the deceased meaning thereby that even no gift was sent on the birthday of deceased's son by the parents, brother or sister of the deceased, which will be unusual. This also negates the presence of PW-5 at the house of deceased on 28.12.2010 to date of her death.
On one hand she has stated that beatings were given, demand was made on the day of birthday, but in cross examination she has stated that all of them enjoyed the birthday party. Ld. Counsel for the accused has argued that if such an incident happens before a child of tender age, the question of enjoyment could not arise at all. She has failed to give any particulars regarding the celebration on being asked in cross examination. As per the version of PW-2 Khushboo had gone on 28.12.2010 to attend the birthday celebration but Khushboo has stated that it is the deceased who took her to her matrimonial house on 22.12.2010 so this version is also contradictory.
PW-5 could not even tell the date on which she appeared for examination and has stated that no quarrel took place in the presence of the guests and guests remained in the house till late night. As per her version the party started around 6.00-7.00 p.m. In cross examination, she has stated that deceased and accused not only used to love her but both were having good terms and love each other also. She has been confronted on the aspect that she went to upper floor to call elder brother. So testimony of this witness is totally planted and SC No. 2/2011 Page No. 13/17 can not be relied.
9. It has come in the testimony of PW-10 Dr. S.C.Khanna Hospital that it is the brother of the accused who took Teena to the hospital. It is also in the testimony of the witnesses that they were informed by family members of the accused. It is also not the case that accused was absconding after the incident. It is also a fact that dead body was handed over to the husband.
10. PW-13 Ct. Parveen who had taken the photographs of the spot and even the IO and PW-14 who was with the IO has not stated about any broken latch. IO has only stated about iron screw which coincided the statement of PW-2 that door was forcibly opened, IO Inspector Anil Kumar has stated that he interrogated Ashok Kumar and Nand Ram, DW-1 and DW-2 respectively. Though PW-16 has stated that at the place of occurrence, one iron screw was lying near the door but in cross examination he admitted that it was simply a nail and has stated that the witness did not tell him the date when Rs.1,00,000/- was handed over and he had not inquired about the source from where PW-1 got Rs.1,00,000/-. He has admitted that there is no averment in the statement of PW-2 and 3 made before Executive Magistrate which attracts Section 304-B IPC. He has admitted that he recorded statement of Ashok Kumar, brother of the accused and Nand Ram, father of the accused under Section 161 Cr.P.C. but were not cited as witness. This fact was even not mentioned by him in the report under Section 173 Cr.P.C. He admitted that he did not make any investigation regarding party organized on 28.12.2010. This gains significance as PW-5 had stated that many persons were present in the party and one or two may it enable to throw light about the beatings SC No. 2/2011 Page No. 14/17 given by family members of accused to Teena on that day. IO has stated that he did not conduct any local inquiry about the present case and the fact remains that no neighbour had been examined.
11. Ld. Counsel for the accused has argued that in absence of family members of the deceased on the occasion of birthday of her son itself could have been a cause of annoyance and for committal of suicide by the deceased. The possibility of the same cannot be ruled out.
The version of giving of Rs.1,50,000/- by PW-1 to her deceased sister do not inspire any confidence as she has not told this fact to any of the other family members, secondly she has admitted that she is living in a joint family and as such could not have taken a unilateral decision to hand over the sum of Rs.1,50,000/- to her sister, thirdly she herself has admitted that she has not reflected the said sum in income tax return and IO has stated that he has not collected any evidence as to from where she arranged the said sum, fourthly there is a contradiction in this regard between the statement of PW-1 and PW-4 and fifthly the amount was not a dowry but given to sister and not to accused for the purpose of opening a bakery, regarding which no further inquiries were made and do not amount to a dowry demand and lastly the parents of the deceased have categorically stated before SDM that they have nothing against the accused and they do not even tell as to what was the cause of suicide.
Similarly the statement of PW-4 that he gave a sum of Rs. 50,000/- as dowry demand to his sister is not deposed so by other witnesses, secondly he has also admitted that the business was not conducted by him but by his parents and thirdly there is a vast contradiction as to whether the amount so handed over at one place it SC No. 2/2011 Page No. 15/17 is stated that it was handed over at the parental house of the deceased to the deceased while at another place it is stated it was handed over at the matrimonial house of the deceased to the deceased and her mother in law. The said allegation is also without any particulars as no date, time and place of giving such amount. It is also borne out from the testimony of all the prosecution witnesses that at no point of time any complaint was made to middleman or any authority and rather PW-2, father of deceased had categorically stated that about 1½ years back his daughter had come to the house and she had not made any complaint against anybody to them. So far as Khushboo, PW-5 is concerned, her presence at the house is negated in totality and the fact also remains that her statement was recorded much after the incident and none of the prosecution witness has stated that Khushboo ever disclosed to them the facts which she has deposed in the court. IO has admitted that no local inquiries were conducted and it is clear that Khushboo is a planted and tutored witness as discussed above.
Ld. APP has argued that a presumption is to be raised against the accused. However, the said argument is devoid of any force. The presumption is to be raised only when there is enough evidence on record to show that the deceased was treated with cruelty for dowry demand and that soon before her death dowry demand was raised and only in case the ingredients are established so as to bring the facts becoming punishable under Section 498A or 304B IPC, only then the presumption can be raised and only then the accused can be asked to rebut the same.
In case of Indrajit Suresh Prasad Bind & Ors. Vs. State of Gujarat 2013 IV AD (S.C.) 605 it was held that burden to prove dowry death beyond reasonable doubt that the husband or relative has subjected the deceased to cruelty or harassment in connection SC No. 2/2011 Page No. 16/17 with demand of dowry soon before her death.
In case of Appasaheb & Anr. Vs. State of Maharashtra (2007) 9 SCC 721 it was held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure can not be termed as demand of dowry.
Again, in case of Bachni Devi Vs. State of Maharashtra (2011) 4 SCC 427 it was held that if a demand for property or valuable security, directly or indirectly, has nexus with marriage, such demand would constitute demand for dowry. The cause of raising such demand remains immaterial.
12. So, the prosecution has miserably failed to prove or to establish any cogent reason that deceased was maltreated or that demand of dowry was raised or that a sum of Rs.1,50,000/- was paid by PW-1 for business purposes or that Rs.50,000/- was paid by PW-5 towards dowry or that accused used to give beatings after taking liquor as PW-3 had categorically stated that consumption of liquor was not at all usual, an issue, and the testimony of Khushboo is planted one only in order to create some evidence which otherwise is high unbelievable. As a result, no case is made out against the accused. He is acquitted.
File be consigned to record room.
Announced in open court on 14th October, 2013 (Neeraj Kumar Gupta) District & Sessions Judge:
South West District Dwarka Courts/New Delhi.SC No. 2/2011 Page No. 17/17