Delhi District Court
State vs . 1. Sanjeev Jain on 26 March, 2012
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ADDITIONAL SESSIONS JUDGE02/SOUTH EAST
SAKET COURT/ NEW DELHI
IN RE: ID No. 02403R0428112009
Sessions Case No. 01/10
FIR No. 342/09
PS: Sangam Vihar
U/s 498A/ 304B/ 34 IPC
State Vs. 1. Sanjeev Jain
S/o Sh. Shyam Sunder Jain,
R/o B1403, Sangam Vihar,
New Delhi.
2. Bimla Jain
W/o Sh. Shyam Sunder Jain,
R/o B1403, Sangam Vihar,
New Delhi.
3. Deepak Jain
S/o Sh. Shyam Sunder Jain,
R/o B1403, Sangam Vihar,
New Delhi.
4. Shyam Sunder Jain
S/o Late Sh. Tara Chand,
R/o B1403, Sangam Vihar,
New Delhi.
SC No. 01/10 1/26
Date of institution : 06.01.2010
Date when arguments were heard. : 19.03.2012
Date of Judgment : 26.03.2012
JUDGMENT
On 17.09.2009 at 1.59 pm, a person (perhaps accused Sanjeev Jain) gave information to PS Sangam Vihar, about his wife having committed suicide, at their house i.e. B1403, Sangam Vihar, New Delhi. ASI Sajjan Kumar alongwith Ct. Hukma Ram reached said house and found dead body of a young woman lying on a sofa. The deceased was known as Monika Jain, wife of Sanjeev Jain. SHO of PS Sangam Vihar also approached there. After some time, family members of deceased reached at spot. As Ms. Monika Jain died within seven years of her marriage, information was given to the Area Executive Magistrate, who reached at spot and recorded statement of Sh. Dharam Chand Goel i.e. father of deceased. The latter narrated the incident, a compendium of which is produced here as under: "My daughter Monika was married to Sanjeev Jain, son of Shyam Sunder on 07.02.2005 at Palwal. Parents in law of Monika demanded a car and also asked to spend at least 12 lacs in that marriage. We gave a Santro car and spent more than 12 lacs. Parents in law, brotherinlaw (devar) and husband (Sanjeev Jain) of Monika started harassing her, after some time of her marriage. She was beaten, for not bringing enough SC No. 01/10 2/26 dowry. Whenever Monika came to our house, I as well as my brother gave her cash and gifts even exceeding our capacity. Even then, she was taunted by her inlaws for bringing less, than their expectation. Maternal uncle of Sanjeev Jain intervened and tried to pacify Sanjeev, his parents and brother. We bore the expenses for delivery of Monika. The latter had come to our house, about six months before her delivery and resided there for about two and a half months after she delivered her baby girl. Monika told that she was harassed for bringingforth a female child. About eight months back, Sanjeev Jain, his brother and parents demanded Rs. 10 lacs to open a new shop. I as well as my brother arranged Rs. 4.5 lacs. Sanjeev Jain, his brother and parents threatened us to kill Monika, if we fail to pay the remaining amount.
We tried our best to pacify them and requested for some time to pay that amount. Today at 12.30 pm, I received telephonic call of Sanjeev Jain, who informed us about death of Monika.
Asserting that the latter was killed by accused as there was injury on her head, the complainant requested for strict action against accused persons."
On the basis of said statement, FIR in this case was registered, for offences punishable U/s 498A/ 304B IPC. After investigation, police filed report U/s 173 Cr.P.C indicting all of accused, for offences punishable U/s 498A/ 304B/ 201/ 34 IPC. The accused were charged by this court for offences punishable U/s 498A IPC read with Section SC No. 01/10 3/26 34 IPC as well as U/s 304B IPC read with Section 34 IPC, vide order dated 25.05.2010.
In order to prove its case, prosecution examined Sh. Gaurav Naagar as PW1, Dr. Mahender Kumar Gupta as PW2, Sh. Kamal Singh as PW3, Dr. Subodh Sharma as PW4, Sh. Alok Sharma (Deputy Secretary) as PW5, SI Om Prakash as PW6, Sh. Dharam Chand Goel as PW7, Ct. Sandeep Singh as PW8, Inspector Satya Pal Singh as PW9, Ct. Hari Om as PW10, Dr. Anil Vij as PW11, SI Mahesh Kumar as PW12, Ct. Hukam Chand as PW13, ASI Sajjan Kumar as PW14, Neelam Goel as PW15, Ct. Hukma Ram as PW16, Prateek Goel as PW17, Prem Chand Goel as PW18, Sh. Om Prakash Sharma as PW19, Kapil Goel as PW20, Dr. Sunay Mahesh as PW21, Lady Ct. Sunita as PW22, Dr. Shashank Pooniya as PW23, Inspector J.D. Meena as PW24 and Inspector Dalip Singh as PW25.
In their statements recorded U/s 313 Cr.P.C, it is admitted by the accused that accused Sanjeev Jain was married with deceased Monika on 07.02.2005 at Palwal, Monika resided with the accused at House No. B1403, Sangam Vihar, New Delhi, Monika died at their house i.e. B1403, Sangam Vihar and that accused Sanjeev Jain and Bimla Jain were present in that house at the time of death of Ms. Monika. Rest of evidence put to the accused was alleged to be incorrect/ wrong. None of accused opted to lead any evidence in defence.
SC No. 01/10 4/26
Complainant Sh. Dharam Chand Goel (PW7) verified facts of his statement Ex. PW5/C. Smt. Neelam Goel (PW15) was mother of deceased, who also stated about Rs. 12 lacs, having been spent by them in the marriage of their daughter Monika and accused Sanjeev Jain, apart from Rs. 5,50,000/ spent at the time of engagement including Rs. 1,50,000/ given in cash. PW15 alleged that prior to said marriage, accused Deepak Jain called them on phone and demanded a Santro car, which they purchased. This witness also reminded the deceased, having informed her (PW15) on phone that her inlaws were not happy with the marriage or that they were not allowing her to use phone. In the year 2007, deceased visited their house and remained there for six months. On being inquired, she i.e. deceased disclosed that her motherinlaw had given her some medicine, which caused abortion on two occasions. Deceased was also stated to have told to this witness that accused Sanjeev Jain and her motherinlaw used to beat her on the instigation of her fatherinlaw and brotherinlaw. They are also stated to have threatened that if she disclosed the incident of her abortions to her parents, she will be killed. As per this witness, after remaining at their house for two and a half months, Ms. Monika refused to return to her matrimonial home, apprehending that her motherinlaw may not serve her with same medicine, which had caused abortion twice. This witness further stated about her visit to matrimonial home of Monika, in March 2009. Accused Deepak Jain asked for Rs. 10 lacs as they were SC No. 01/10 5/26 constructing a new shop. She talked to the parents of Deepak and accused Sanjeev Jain, who also supported that demand. In March 2009, during festival of Holi, all accused were stated to have gone to Nagina to attend some marriage. On the way, they dropped Monika at their house at Palwal. Inlaws of deceased asked the latter to convey to her parents, to make arrangement for Rs. 10 lacs. On next day, when accused were coming back from Nagina, she (PW15) alongwith her husband went to Minar Gate and handed over Rs. 4.5 lacs to inlaws of Monika. The money was arranged by her husband from his brother namely Sh. Prem Chand. PW15 went to matrimonial house of Monika to know what problem she was facing. Accused quarreled with her also and she was pushed out of house. On 16.09.2009, Monika called her (PW15) on phone, but accused Deepak Jain did not allow her to talk. As per this witness, on 17.09.2009, she called Monika at about 9.3010.00 am. Phone was pickedup by some servant, who brought the instrument upstairs. She heard sound of crying her daughter (Monika) and grand daughter (daughter of Monika). Thereafter, phone was disconnected. After about two hours, her husband received a call from Sanjeev Jain informing about death of Monika. PW15 further stated on oath that when she came to house of accused, she found sofa smeared with blood. Her husband tried to lift dead body of their daughter and noticed a wound on back side of her head. Blood was oozing out of that wound. There were bruises over the body of Monika. Her blouse was torn and SC No. 01/10 6/26 one of ear rings was broken.
Sh. Prateek Goel (PW17) and Kapil Goel (PW20) are brothers of deceased, who stated about the marriage of latter with accused Sanjeev Jain, Rs. 12 lacs spent in that marriage and also dowry articles including a Santro car having been given on the demand of accused. Prem Chand Goel (PW18) is younger brother of Dharam Chand Goel (complainant) and apart from marriage of Ms. Monika and accused Sanjeev Jain, this witness stated about complainant Sh. Dharam Chand Goel having borrowed a sum of Rs. 2.25 lacs from him in May 2009, to be given to accused Sh. Deepak Jain and Sh. Sanjeev Jain. PW18 also stated to have witnessed handing over of said amount to accused Deepak Jain at Minar Gate, Jain Dosa House, Main Market, Palwal. Sh. Om Prakash Sharma (PW19) is resident of Sangam Vihar, New Delhi and stated about recovery of Santro car from the house of accused, during investigation of this case.
Dr. Mahender Kumar Gupta (PW2) is a doctor by profession and deposed about accused Deepak Jain having told to him on 17.09.2009 about an emergency, having something happened to wife of Sanjeev Jain. PW2 went there and found no pulse, heart beat or respiration in Monika. The latter was taken to Dr. Anil Vij in Sunder Lal Hospital, where she was declared as dead. Dr. Anil Vij was examined as PW11 and verified having medically Ms. Monika and found her brought dead.
SC No. 01/10 7/26
SI Om Prakash (PW6) was Duty Officer in PS Sangam Vihar on 17.09.2009 and stated about FIR No. 342/09, having been recorded in this case, on the basis of a rukka given to him by SHO of police station. Copy of FIR is Ex. PW6/A. ASI Sajjan Kumar (PW14) deposed that on 07.09.2009, he was on emergency duty. On receipt of DD No. 45, he alongwith Ct. Hukma Ram reached at spot i.e. House No. B1403, BBlock, Sangam Vihar, New Delhi. He found dead body of a lady lying on a sofa on the first floor of said house. He inspected the dead body and found ligature mark on the neck of it. As the lady was known to have died within seven years of marriage, he informed SHO. 1015 public persons gathered there. They started beating Smt. Bimla Jain and Sh. Sanjeev Jain. This fact is also verified from statement of Ct. Hukma Ram, who was examined as PW16.
Sh. Alok Sharma (PW5) was Executive Magistrate, Kalkaji, New Delhi on 17.09.2009 and stated about having received a call from PS Sangam Vihar, about unnatural death of Ms. Monika. He went at spot. Dead body was sent to AIIMS Hospital for postmortem. He prepared death report (Ex. PW5/A), recorded statement of Sh. Dharam Chand Goel i.e. father of deceased (Ex. PW5/C), made endorsement and directed SHO for taking action under relevant sections of IPC. The report is Ex. PW5/D. Sh. Gaurav Naagar (PW1) stated to have taken four SC No. 01/10 8/26 photographs of dead body, with his camera. The photographs are Ex. PW1/A1 to Ex. PW1/A4. Kamal Singh (PW3) was also a photographer and stated about photos taken by him, at spot in Sangam Vihar. Photos are Ex. PW3/A1 to Ex. PW3/A8. Dr. Subodh Sharma (PW4) stated about medical examination of accused Sanjeev Jain vide MLC Ex. PW4/A. Blood sample of said accused was also taken and handed over to Ct. Hari Om. This witness also told about accused Bimla Jain having been brought to their hospital. She was also medically examined vide MLC Ex. PW4/B. Blood sample of same was taken by PW4.
Ct. Sandeep Singh (PW8) stated about eight pulandas having taken by him to FSL, Rohini on 29.10.2009 and again two sealed pulandas alongwith sample seal having deposited in FSL Rohini on 16.11.2009. Ct. Hari Om (PW10) stated about arrest of accused Sanjeev on 18.09.2009 and also the fact that wearing clothes of said accused were seized by IO vide seizure memo Ex. PW10/B. SI Mahesh Kumar (PW12) stated about rough notes taken by him on 06.12.2009 and a scaled site plan (Ex. PW12/A) prepared by him, on the basis of those rough notes. Ct. Hukam Chand (PW13) told about a box containing viscera of deceased and specimen seal having taken from MHC (M) and deposited the same in FSL, Rohini, on 30.10.2009. Lady Ct. Sunita (PW22) stated about arrest of accused Bimla Jain and seizure of a scissor from a sewing machine in latter's house, at the SC No. 01/10 9/26 instance of accused vide seizure memo Ex. PW22/C. As per this witness, a saari which was worn by accused Sm,t. Bimla Jain at the time of her arrest was blood stained, which was also seized by the IO vide seizure memo Ex. PW22/D. Dr. Sunay Mahesh (PW21) stated to have conducted postmortem on the dead body of deceased Monika Jain. As per this witness, the dead body was wrapped in a green bed sheet and sofa cover, both soaked with blood. During postmortem, following injuries were noticed on the dead body of Ms. Monika:
1. A ligature mark of width 1.2 x 1.5 cm was noticed over upper part of neck. It was dark brown and parchmentized on right side of the neck and was red in colour.
2. Laceration of size 3 x 2 cm bone deep was present on the scalp, subscalp haemorrhage in the area of 3 x 3 present beneath the laceration.
3. Grayzed abrasion with scab present on right side of abdomen.
4. Contusion abrasion 2 x 1 cm present on left scapular region of back.
In the opinion of doctors conducting postmortem, the cause of death was asphyxia due to ligature around the neck and all the injuries found on the dead body, were antemortem in nature. Dr. Shashank Poonia (PW23) was also a member of Board of doctors who conducted postmortem and verified Ex. PW21/A i.e. postmortem SC No. 01/10 10/26 report, having been signed by him at point B. Inspector Dalip Singh (PW25) was IO of the case and stated to have reached at spot, on receipt of information in that regard. The dead body of Monika was found on road side. This witness stated about Executive Magistrate having recorded statements of parents of deceased, postmortem over dead body having been conducted on 18.09.2009, belongings of the deceased which were seized vide seizure memo Ex. PW25/A, seizure/ picking of blood from the spot vide seizure memo Ex. PW25/B, seizure of three pieces of sofa which were blood stained vide seizure memo Ex. PW25/C and arrest of accused Sanjeev Jain. Inspector J.D. Meena (PW24) stated about further investigation of the case, when he arrested accused Deepak Jain, Shyam Sunder Jain as well as seizure of Santro car No. HR51R6344 vide memo Ex. PW19/A. This witness also stated having collected FSL report Ex. PW24/D and Ex. PW24/E. Subsequent opinion of the doctor (Ex. PW24/F) was also obtained by this witness.
At the outset, Ld. Defence Counsel pointed out that it was for the prosecution to prove that the deceased was subjected to cruelty soon before her death, which as per him, prosecution has failed to prove. As per Ld. Counsel, the complainant as well as his wife disclosed about incidents particularly of Holi in year 2009, when the accused had gone to Nagina to attend a marriage, they were given Rs. 4.5 lacs on the demand of accused, when same had asked for Rs. 10 SC No. 01/10 11/26 lacs. The other incidents i.e. demand of Santro car as well as other incidents also happened much before 17.09.2009, when Ms. Monika died. Ld. Counsel relied upon a case in this regard titled as Tirath Kumar @ Rajrani vs. State of Haryana 2005 (3) JCC 174. In this case, after weighing the evidence of PW4 (Om Prakash), PW5 (Shyam Lal Dutta), PW7 (Rajrani) and PW10 (Baldev Raj), Hon'ble Judges of Apex Court were of opinion that after going through the evidence threadbare, we (Hon'ble Judges) do not find any evidence to show that soon before her death, the deceased was subjected to cruelty by her husband or inlaws in connection with a demand of dowry. The accused are given benefit of doubt.
In a case titled as Raman Mahajan vs. State 2011 (185) DLT 501, holding that there were discrepancies in the evidence, witnesses did not corroborate each other, about allegation of dowry related harassment soon before the death of deceased, no case was made out for offence punishable U/s 304B IPC and appellants were acquitted by our own High Court.
Ld. Counsel for accused pointed out contradictions appearing in the statements of witnesses, recorded during investigation of the case and depositions given in the court. As per Ld. Counsel, the witnesses particularly the complainant (PW7) and his wife (PW15) were confronted with most of their averments, made in their statements SC No. 01/10 12/26 recorded U/s 161 Cr.P.C. Alleging that neither complainant nor his wife nor sons nor brothers of same, who are examined in this case, were reliable witnesses, Ld. Counsel referred following cases in this regard:
(i) Brij Mohan vs. State 2011 (2) JCC 1509. Finding that there was no evidence of demand of dowry in the complaint, moreover, the allegations as set out in the complaint were more against motherin law, who had already been acquitted, it was only PW6 who had stated about the allegations of dowry against the appellant, no prior complaint or any contemporaneous document had been placed on record, to elicit the demand of dowry and harassment by the appellant, the version of PW6 was full of improvements and embellishments, version of PW2 and PW5 were based on hearsay evidence, PW1 in his testimony had leveled no allegation against the appellant, our own High Court set aside impugned order and acquitted the appellant.
(ii) Preet Singh vs. NCT of Delhi 2011 (7) AD (Delhi)
582. It was a case for offence punishable U/s 304B/498A/34 IPC. Discrepancies and contradictions in the statements of witnesses were substantial and serious. Plea of appellant that cause of death was something other than result of electrocution, was found not acceptable. The Appeal against order of acquittal was dismissed holding that contradictions in the statements of the witnesses undermine the prosecution story about dowry demand and cruelty to the deceased.
As per Ld. Defence Counsel, the accused are falsely SC No. 01/10 13/26 implicated in this case being inlaws. It is prevalent in the society to implicate all of the family members of groom due to vengeance. As per him, even if the accused had demanded Rs. 10 lacs to start a business or to construct a shop, said amount was to be repaid as a loan and hence, same cannot be treated as a demand of dowry. Ld. Counsel referred a case in this regard titled as Hansraj Sharma vs. State (Govt. of NCT of Delhi) 2010 (175) DLT 446, where our own High Court referred Supreme Court of India, which did not accept the demand made from the girl and her husband for money to meet domestic expenses and purchase of manure, as demand of dowry.
Ld. Defence Counsel cursed the parents of deceased Monika for causing injury on the head of dead body, by throwing the same on road, merely to create an evidence against the accused. Ld. Counsel took me through deposition given by Inspector Dalip Singh (PW25), who stated on oath that when he reached at spot, the dead body was lying on road side, ASI Sajjan Kumar (PW14) who also verified that when he i.e. PW14 reached at spot, 1015 public persons had gathered there, who started beating Smt. Bimla Jain and Sh. Sanjeev Jain. He (PW14) did not notice any blood on sofa, on which dead body of Monika was lying. PW14 also admitted in his cross examination, having disclosed to IO in his statement recorded U/s 161 Cr.P.C that while saving accused persons, they were also assaulted by the people from girls side, who had come from Palwal. SC No. 01/10 14/26
Ld. Defence Counsel challenged credibility of Smt. Neelam Goel (PW15) whose statement was recorded several days after the incident, alleging that statement given by her was afterthought and manipulated.
Apart from offence punishable U/s 498A IPC, the accused have been facing trial for the offence of dowry death. Following are ingredients of an offence punishable U/s 304B IPC, called 'Dowry Death'.
(a) Death of a woman should have occurred within seven years of her marriage.
(b) The death should be caused by burns or bodily injury or otherwise than under a normal circumstances.
(c) Such woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(d) Such cruelty or harassment should be for or in connection with demand of dowry.
(e) Such cruelty or harassment is shown to have been meeted out to the woman 'soon before her death'.
As described above, it is not denied by the accused that deceased Monika was married to accused Sanjeev Jain on 07.02.2005. Ms. Monika died on 17.09.2009 i.e. within seven years of her marriage with said accused. As per doctors, who conducted postmortem on the dead body of Ms. Monika, which is proved by Dr. Sunay Mahesh SC No. 01/10 15/26 (PW21), the cause of her death was asphyxia due to ligature around the neck. It is case of none that Ms. Monika was suffering with any severe disease or died natural death. Even as per prosecution, the information about death of Ms. Monika was given to the police by her husband stating that she i.e. Ms. Monika committed suicide. In this way, death of Monika occurred in abnormal circumstances. Apart from ligature mark found over the upper part of neck, Board of doctors who conducted postmortem, noted following three other injuries:
(i) Laceration of size 3 x 2 cm bone deep was present on the scalp, subscalp haemorrhage in the area of 3 x 3 present beneath the laceration.
(ii) Grayzed abrasion with scab present on right side of abdomen.
(iii) Contusion abrasion 2 x 1 cm present on left scapular region of back.
Injury mentioned at serial No. (ii) stated above i.e. abrasion was with scab, which implies that it was in healing process and hence, not a fresh abrasion. From their description, other two injuries shown at serial No. (i) and (iii) appear to be fresh. It is contended by Ld. Defence Counsel that the family members of deceased rushed to the house of accused, snatched forcibly the dead body of Monika and hit the head forcibly on the ground, causing said two injuries, in order to create evidence against the accused.
SC No. 01/10 16/26
I do not find much substance in this plea. Inspector Dalip Singh (PW25) who was SHO of PS Sangam Vihar, deposed that when he reached at spot, he noticed some blood on the sofa at spot. Some blood was also lying on the floor, near the doors of house. During investigation, some pieces of said sofa were seized, which were found soaked with human blood. As per postmortem report, all the injuries found on the dead body were antemortem in nature. All this negates the fact that injuries found on the dead body (except injury by ligature) were caused by family members of deceased, to implicate the accused.
Ld. Defence Counsel harped on the plea that prosecution has failed to prove that deceased was treated with cruelty "soon before her death".
The term "soon before death" is not synonymous with the term "immediately before death". This expression connotes that the interval should not be much between the time of cruelty/ harassment and time of death of victim. It is to be established that there is a proximate link between the harassment/ cruelty meeted to the victim and death of latter having occurred not in normal circumstances. The Apex Court in case State vs. Raj Gopal Asawa 2004 Crl.LJ 1791 (SC), has warned that it would be hazardous to indicate any fixed period.
In case State vs. Kansraj AIR 2000 SC 2324, it was held by the Supreme Court that the expression "soon before" is a relative SC No. 01/10 17/26 term which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down, by fixing any time limit. The expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the terms "immediately before". It contemplates the reasonable time to be understood and determined from the peculiar circumstances of each case.
As per writer of "Ratan Lal and Dhiraj Lal's Law of Crimes, 26th Edition", in relation to dowry death, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance, but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand of dowry is shown to have been persisted, it shall be deemed to be "soon before death". If any other intervening circumstances showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death.
Coming to case in hands, as per Sh. Dharam Chand Goel (PW7), father of deceased, after some days of latter's marriage, all the accused started harassing Monika Jain. The motherinlaw of deceased (accused Bimla Jain) used to say that she (deceased) will give birth to six daughters. Deceased was got aborted twice and at her third pregnancy, she delivered a girl child. Whenever she (deceased) used to SC No. 01/10 18/26 visit her parental house or they visited her at her matrimonial home, she used to ask to give more money. 56 months prior to delivery of baby, the inlaws of Monika asked her to convey us to make arrangement of Rs. 10 lacs. At the time of Holi festival in year 2009, he arranged and paid Rs. 4.5 lacs. The inlaws of deceased asked his wife, as why they had given only 4.5 lacs. They demanded remaining amount. When his wife and other children went to matrimonial home of Monika, the accused insulted them. Deepak and Bimla Jain pushed away his wife from their house.
The mother of deceased namely Smt. Neelam Goel (PW15) in her statement referred the deceased having disclosed to her (PW15) that her inlaws were not happy with the marriage. They were not allowing her (deceased) to make a phone call. The deceased used to tell her that her motherinlaw had given her some medicine, which caused abortions on two occasions. At the time of third conceivement, the deceased refused to return to her matrimonial house, fearing that her motherinlaw may not serve her same medicine, which caused abortion two times earlier.
From the deposition of PWs particularly PW7 and PW15 as discussed above, it is well established that the deceased was meeted to cruelty at the hands of accused in the course of their conduct, which started after some time of her marriage. As per Smt. Neelam Goel (PW15), on 16.09.2009 in the evening, she called Monika on phone, but SC No. 01/10 19/26 accused Deepak Jain did not allow her to talk. On 17.09.2009, she again called Monika at around 9.3010.00 am. The phone was pickedup by a servant. Disclosing that family members were upstairs, servant brought the telephone instrument there. She (PW15) heard sound of crying of her daughter i.e. Monika and granddaughter (daughter of Monika). Thereafter, phone was disconnected. It was the time, when the deceased is stated to have committed suicide. The injuries found on the person of dead body remained unexplained. Death occurred at the house of accused persons and that in the presence of at least accused Bimla Jain. All this makes it clear that the maltreatment continued till movements before death of Monika.
So far as the plea raised by Ld. Defence Counsel that even if the accused asked for Rs. 10 lacs and were given Rs. 4.5 lacs to start a new business by accused Sanjeev Jain or to construct a shop, it could be termed as a loan and not demand of dowry. True, if an amount is borrowed from the parents of bride as a loan, it is not a subject matter of dowry. As deposed by Smt. Neelam Goel (PW15), in March 2009 when she visited matrimonial home of Monika, accused Deepak Jain asked for Rs. 10 lacs, as they were constructing a shop. This demand of Deepak Jain was supported by accused Shyam Sunder Jain, Bimla Jain and Sanjeev Jain. Even if it is admitted by Dharam Chand Goel (PW7) that his daughter (deceased Monika) had told that her inlaws will return this amount after the Diwali festival, the circumstances show that it may SC No. 01/10 20/26 be a hollow promise, the accused had no intention to repay the amount. As per parents of deceased i.e. PW7 and PW15, the inlaws of Monika conveyed to them to make arrangement for the payment of Rs. 10 lacs. They could arrange only a sum of Rs. 4.5 lacs and that after borrowing it from Sh. Prem Chand Goel, the brother of PW7. This fact is verified from the statement of Sh. Prem Chand Goel also, who was examined as PW18. A person cannot be expected to lend money after borrowing it from someone else. After that payment of Rs. 4.5 lacs, PW15 went to see Monika at her matrimonial home, about a month thereafter. Accused persons quarreled with her, demanding balance amount. She was pushed aside by the accused. There could not be any quarrel, if the accused wanted said amount as a loan or had any intention to repay the same. The parents of deceased had no ready cash, rather they could arrange a part of this amount i.e. Rs. 4.5 lacs after taking loan though from a close relative i.e. brother of PW7. It also shows that parents of deceased felt constrained to pay this amount. Even if the accused had conveyed for the repayment of amount, it was only in the namesake and implies that they had no intention to repay the amount.
During deliberations, Ld. Defence Counsel found fault with the complainant for not providing sample handwriting of deceased during investigation of the case. As per him, the deceased had written a suicide notice on her own palm, but same could not be proved, as the complainant did not provide any admitted handwriting of deceased. SC No. 01/10 21/26
For the sake of arguments, even if the complainant did not provide any sample handwriting of deceased for its comparison with the writing of deceased allegedly found on her palm, the accused are supposed to have known already and it came to the knowledge of police, during investigation that the deceased was a post graduate, she had studied in a college as well as in school. It was disclosed by PW7 during his crossexamination that deceased Monika did her matriculation and graduation from Saraswati College, Palwal. She had also done M.A. from Mathura. Even if the complainant failed to provide any sample handwriting of deceased, the IO could have procured her handwriting from any of institutions, where late Ms. Monika pursued her studies. Whatsoever it may be, the accused cannot claim acquittal, if there remained any lacunae in the investigation of the case, on the part of the police.
There is no evidence on record enough to prove that some suicide note was written on the palm of deceased or if something was scribed on her palm, same was handwriting of deceased herself.
So far as the fact that PWs particularly complainant (PW7) and Smt. Neelam Goel, mother of deceased (PW15) improved upon their statements given to police, during investigation is concerned, true, human mind stores data in its memory, but it cannot reproduce the information verbatim in exact same sequence, as it was received, like a tape recorder. It can simply describe the facts by interpreting the same, SC No. 01/10 22/26 as is retained in memory. Memory is overshadowed by subsequent events and then washed of, by the time, unless refreshed.
If the complainant in his statement recorded by IO described that whenever his daughter (deceased) used to visit them on an occasions, he as well as his brother used to give her (money etc.) more than their capacity, but her inlaws taunted her for bringing less money. It is not contradiction with said statement if same witness deposed before the court that whenever deceased visited her paternal home or and they visited her at her matrimonial home, she used to ask them to give more money. Similarly, as per complainant, the accused Sanjeev Jain, his brother and parents demanded Rs. 10 lacs for a shop and he alongwith his brother gave Rs. 4.5 lacs to the accused. It is no confrontation, if the witness explained in his deposition before the court that said amount of Rs. 4.5 lacs was handed over to the accused before Holi festival. Same is simply an explanation. Trite it to say that a complaint or statement of complainant on the basis of which, FIR is recorded, is not an encyclopedia of prosecution case. It does not amount improvement over earlier statement, if on being cross examined, the witness expatiated a fact.
In case titled as State of Karnataka vs. M.V. Manjunathegowda AIR 2003 SC 209, which was a case about demand of dowry, prosecution witnesses were rustic villagers i.e. brother and father of deceased, who were examined in court, more than SC No. 01/10 23/26 two years of solemnization of the marriage, in such a situation, it was held by the Apex Court that certain discrepancies were bound to occur in the form of omission. These cannot be considered as fatal to their evidentiary value, otherwise trustworthy. If brother of deceased referred the amount of dowry given to accused but the amount was not mentioned by her father, Hon'ble Judges were of the opinion that same can be termed as omission, due to passage of time, but it does not amount a major contradiction which would form the basis for impeaching the credibility of witnesses.
There is no denial that statement of Smt. Neelam Goel i.e. mother of deceased was recorded after many days of incident. It is explained by Sh. Dharam Chand Goel (husband of said witness) during his cross examination as PW7 that he produced his wife before the SHO on the next day, but her statement was not recorded. She was not produced before the SDM. After the death of their daughter, for 23 days, they were coming to Delhi to meet SHO, but the SHO was not available. In such a circumstance, if the IO/ SHO did not prefer to examine said witness, testimony of latter cannot be thrown away, like a waif.
If motherinlaw of deceased (Bimla Jain) forced the latter i.e. Monika to abort after serving some medicine or was teasing the latter in the name that she will give birth to six daughters or was maltreated in the name of not bringing enough dowry, the facts which SC No. 01/10 24/26 are well proved on record, all these were instances of cruelty. Similarly, it is well established from the evidence that accused Sanjeev Jain (husband) and Deepak Jain (brotherinlaw) forced Monika Jain and her father to pay Rs. 4.5 lacs, demanding Rs. 10 lacs in the name of a new shop and that the deceased was harassed/ maltreated in the name of bringing less dowry. All these were instances of cruelty, within the meaning of Section 498A IPC. From the material on record, it is clear that all these accused had developed common intention, in demanding Rs. 10 lacs from the deceased in the name of a new shop. The accused Bimla Jain, Deepak Jain and Sanjeev Jain are thus convicted for offence punishable U/s 498A/ 34 IPC. Allegations against accused Shyam Sunder Jain are vague in nature. Offence against this accused is not proved beyond reasonable doubt. Same is thus, acquitted for this offence i.e. offence punishable U/s 498A IPC.
As per section 304B IPC, where death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that "soon before her death", she was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand of dowry, such death is called as "Dowry Death" and the husband or relatives, as the case may be, of the deceased are deemed to have caused her death.
As discussed above, it is well proved on record that late SC No. 01/10 25/26 Monika Jain was subjected to cruelty by accused Bimla Jain, Sanjeev Jain and Deepak Jain, till former's death. It can be presumed that it was a case of dowry death and said accused are deemed to have caused her death. Said three accused i.e. Bimla Jain, Sanjeev Jain and Deepak Jain are also convicted for offence punishable U/s 304B/ 34 IPC. On the reason mentioned above, no case is made out against accused Shyam Sunder Jain, for offence punishable U/s 304B IPC. Same is acquitted for this offence also. His bail bonds are cancelled and surety discharged.
Announced in the open court (RAJENDER KUMAR SHASTRI) today i.e. 26th March 2012 ASJ02/SE/ SAKET COURT NEW DELHI SC No. 01/10 26/26