Delhi District Court
State vs . 1. Rakesh Kumar S/O Late Sh. Phool on 19 March, 2011
IN THE COURT OF SH. RAMESH KUMAR - II, LD.
ADDITIONAL SESSIONS JUDGE - 0I : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0314522007
Sessions Case No. 14/2009
Assigned to Sessions. 09.05.2007
Arguments heard on 11.03.2011
Date of order. 19.03.2011
FIR No. 483/2006
State Vs. 1. Rakesh Kumar s/o Late Sh. Phool
Singh, r/o 205 Tej Ram Gali,
North Ghonda, Bhajanpura,
Delhi.
2. Smt. Maya w/o Late Sh. Phool
Singh, r/o 205 Tej Ram Gali,
North Ghonda, Bhajanpura,
Delhi.
3. Sh. Bhagwat Prasad s/o Sh. Sai
Singh.
4. Smt. Dayawati w/o Bhagwat
Both are r/o B33/1A, Madhu
Kunj Gali, North Ghonda, Delhi.
(Since accused No.2 to 4 has been
discharged vide order dated
27.08.2007)
Police Station Bhajanpura
Under Section 498A/304B/34 IPC
SC No.14/2009
State Vs. Rakesh and others 1/27
JUDGEMENT
1. Station House Officer of Police Station Bhajanpura had filed a challan vide FIR no. 483/2006 dated 22.10.2006 u/s 498A/304B/34 IPC for the prosecution of accused persons namely Rakesh Kumar, Smt. Maya, Bhagwat Parsad and Smt. Dayawati in the court of Ld. MM as deceased was married with accused Rakesh Kumar on 05.03.2001 and her death had taken place within seven years of her marriage. Accordingly, Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court. Accused persons namely Smt. Maya, Bhagwat Parsad and Smt. Dayawati were discharged by my ld. Predecessor court vide order dated 27.08.2007.
2. In brief, facts of the case are that on 21.10.2006 a DD No.4A Ex.PW13/A was recorded at Police Station Bhajanpura on information of duty constable Sherpal that one lady namely Poonam has been admitted by her motherinlaw in GTB Hospital as she had consumed something. This DD was marked to SI Dinesh Kumar for investigation. On receipt of this DD, SI reached at reached at GTB Hospital and collected MLC of patient Poonam. On 22.10.2006 copy of DD No.5 Ex.PW13/B regarding death of Poonam at GTB Hospital SC No.14/2009 State Vs. Rakesh and others 2/27 was assigned to IO. Since the period of marriage was less than seven years, SDM of the area was informed by IO. Sh. A.K. Pasi, Executive Magistrate reached at GTB Hospital, conducted inquest proceedings and recorded statements of Sh. Tej Pal Singh, father of deceased Ex.PW1/A, of Smt. Virmati, mother of deceased Ex.PW2/A and of Sh. Pawan Kumar, brother of deceased Ex.PW3/A and after making endorsement Ex.PW13/C upon statement of Sh. Tej Pal Singh, he directed SHO Bhajanpura to take necessary action as per law. On the basis of statement of Sh. Tej Pal Singh, FIR u/s 498A/304B/34 IPC was recorded at police station Bhajanpura against the accused persons. After postmortem the dead body was handed over to the relatives of deceased. IO had seized marriage photographs of deceased Poonam with accused Rakesh Ex.P1 to P4 vide seizure memo Ex.PW8/D. Accordingly, accused persons were arrested and booked for the offences u/s 498A/ 304B/ 34 IPC.
3. On the basis of material available on record ld. predecessor of this court framed a charges vide order dated 27.08.2007 against accused Rakesh for the offences punishable u/s 498A/304 IPC to which accused did not plead guilty and claimed trial and accused persons namely Smt. Maya, Bhagwat Parsad and Smt. Dayawati were SC No.14/2009 State Vs. Rakesh and others 3/27 discharged.
4. In order to prove its case prosecution has examined 13 witnesses namely PW1 Tejpal Singh - father of deceased, PW2 Veermati - mother of deceased, PW3 Pawan Kumar - brother of deceased, PW4 HC Ravinder, PW5 Sh. A.K. Pasi SDM, PW6 Dr. Sumit Tellewar - who conducted postmortem of deceased, PW7 Ct. Jagbir Singh, PW8 HC Lalit Kumar, PW9 Kalu Ram, PW10 Neeraj, PW11 Dr. P. Ram, PW12 Mithlesh, PW13 SI Dinesh Kumar.
5. PW1 Tejpal Singh, father of deceased Poonam is a material witness being complainant. This witness deposed that marriage of his deceased daughter Poonam was solemnized on 05.03.2001 with accused Rakesh as per Hindu Rites and Customs. This witness further deposed that after about 56 months of marriage, accused Rakesh started demanding motorcycle and cash amount from him and accused Rakesh came to his house and asked him to accompany him to an agency and get purchased a motorcycle for him or to take his daughter back. This witness further deposed that mother of accused namely Smt. Maya, the sister of accused namely Smt. Dayawati and his brotherinlaw used to instigate the accused to demand motorcycle and SC No.14/2009 State Vs. Rakesh and others 4/27 cash amount from him. This witness further deposed that on 20.10.2006 he had celebrated birth day of his grand daughter Vidhi at his resident and Poonam along with Bobby, son of her 'Nanad' had come to attend the birthday party at his house, at about 3:00 p.m. This witness further deposed that accused Rakesh made a telephone call to deceased Poonam asking her to come back immediately to her house before cutting the cake of the birth day party otherwise he would beat her. This witness further deposed that her daughter returned to her matrimonial house due to fear even before the cake ceremony.
6. This witness further deposed that on 22.10.2006 his son Pawan received a telephone call from Smt. Dayawati, sister of accused Rakesh informing him that the condition of deceased Poonam is very serious. This witness further deposed that on receipt of this information he reached at GTB Hospital and found his daughter Poonam dead in the hospital. This witness further deposed that accused Rakesh had given some poison to his daughter as he was unable to fulfill his illegal demand of dowry. This witness further deposed that executive magistrate recorded his statement Ex.PW1/A and postmortem of the dead body of deceased was conducted. This witness has identified the dead body of deceased at GTB Hospital vide SC No.14/2009 State Vs. Rakesh and others 5/27 Ex.PW1/B and dead body of deceased was handed over to him vide handing over memo Ex.PW1/C. This witness has been cross examined by Ld. Defence counsel in length. In his cross examination this witness admits that accused and his parents did not demand any dowry at the time of marriage, also no demand of dowry was made. This witness also admits in his cross examination that he did not make any written complaint to any authority including police regarding harassment of his daughter on point of dowry before her death. This witness was satisfied with the job of accused as he was in screen printing work.
7. PW2 Smt. Veermati is the mother of deceased Poonam and PW3 Pawan, brother of deceased has also deposed as on the same footing of PW1. PW2 in her cross examination accept that she had not filed any claim for custody of children of deceased. Further, police had obtained her signature on some blank papers. On the question of specific amount of money, this witness deposed that she has not remembered about the quantum of money. This witness admits that deceased was admitted in the hospital by accused and his family members. This witness in her cross examination states that accused had made his demand only once after six months of marriage of her SC No.14/2009 State Vs. Rakesh and others 6/27 daughter. Further states that present case was registered due to death of her daughter otherwise no case would have been registered.
8. PW3 in his cross examination states that conduct of accused was not good as he used to drink liquor and beat to his sister and this was the only bad habit of accused. This witness further admits that accused has fixed deposit in his joint name with deceased, fixed deposit in the name of his two children and both these children are studying in public school and both the children are in the custody of accused.
9. PW4 HC Ravinder is a formal witness. This witness had recorded FIR No.483/06 on the basis of rukka brought by Ct. Lalit. After registration of case, copy of FIR as well as rukka was handed over to Ct. Lalit.
10.PW5 Sh. A.K. Passi, Executive Magistrate is material witness. This witness on a call received from ASI Dinesh Kumar on 22.10.2006 reached at mortuary of GTB Hospital and he recorded statement of Tejpal Ex.PW1/A, father of deceased Poonam and made endorsement upon the same for SHO Bhajanpura to take necessary action as per law. This witness had also recorded statement of Birmati, mother of SC No.14/2009 State Vs. Rakesh and others 7/27 deceased Ex.PW2/A and Pawan Kumar, brother of deceased Ex.PW3/A. This witness had also recorded statement of Pawan Kumar Ex.PW3/B and Tej Pal Singh Ex.PW1/B regarding identification of dead body of deceased Poonam. This witness had made request for postmortem Ex.PW5/A and filled up form No.25.35 Ex.PW5/B. This witness was cross examined by Ld. Defence counsel in length. This witness in his cross examination states that parents of deceased told him that bua and fufa of accused Rakesh has been residing in neighbourhood. This witness further states that IO had not informed him that deceased had told him that she had taken brocomite chemical due to mistake. This witness further states that IO did not give him papers even after recording statements of family members of deceased. This witness further admits that statement of PW Tejpal and Virmati are in different pen writing. This witness further admits that time of recording is not mentioned on the statement of Virmati. This witness further admits that point x it is not mentioned whether it was right thumb impression or left thumb impression on the statement of PW Virmati. This witness further admits that date of demand and harassment has not been mentioned in the statements recorded by him. This witness further admits that statements recorded by him had not been attested by him. This witness further states that he had SC No.14/2009 State Vs. Rakesh and others 8/27 written only the statements of parents and brother of deceased and no other documents he had prepared. This witness further states that in Ex.PW5/A IO has not mentioned that deceased had taken brocomite chemical due to mistake on account of electricity failure.
11.PW6 Dr. Sumit Tellewar, Sr. Resident, Department of Forensic Medicines, Safdarjung Hospital, Delhi. This witness had conducted postmortem of dead body of deceased Poonam. This witness has proved his postmortem report Ex.PW6/A.
12.PW7 Ct. Jagbir Singh. This is witness took the three sealed pullandas from police station Bhajanpura for deposit at FSL, Rohini vide RC No.133/21.
13.PW8 HC Lalit Kumar. This witness accompanied with the IO during the investigation.
14.PW9 Kalu Ram is the neighbour of deceased Poonam. This witness has been declared hostile by Ld. APP for the state. This witness has deposed that accused took the deceased to clinic for medical treatment. This witness has further deposed that deceased had told to SC No.14/2009 State Vs. Rakesh and others 9/27 doctor in his presence that she had consumed the colour of printing material instead of medicine. In his cross examination, he admits that deceased had told the police that she had taken printing material by mistake presuming to be medicine and police had aldo recorded statement to this effect. This witness further states that relation of accused with deceases was sweet and he had never seen accused in drunken position.
15.PW10 Neeraj. This witness has also been declared hostile by Ld. APP for the state. IN his cross examination by counsel for defence he had stated that his bhabhi, deceased, had told him that she had taken poisonous substance presuming to be medicine and same was told to the police and doctors in his presence.
16.PW11 Dr. P. Ram, CMO, GTB Hospital, Delhi. This witness has proved the attested photocopy of MLC Ex.PW11/A of deceased on behalf of Dr. Zotham Lua.
17.PW12 Smt. Mithlesh is the neighbour of accused and deceased. This witness has also been declared hostile by Ld. APP for the state. IN his examination in chief, this witness states that deceased Poonam never SC No.14/2009 State Vs. Rakesh and others 10/27 made any complaint against her in laws at any point of time. This witness further states that in year 2006 Poonam had gone at her parental house to attend birth day party and she returned on the same day along with her children and no incidnet took place on that night. This witness further states that there was no electricity at that time. This witness did not support the case of prosecution even in her cross examination.
18.PW13 SI Dinesh Kumar is material witness being Investigating Officer and he had collected the MLC Ex.PW11/A of injured Poonam and informed to executive magistrate about the death of Poonam. This witness had assisted Executive Magistrate in inquest proceedings. In his presence PW5 has recorded the statements of parents and brother of deceased and on his direction he got registered FIR on the basis of statement of PW Tej Pal Singh. This witness states that deceased Poonam was fit to make statment and he had made enquiry from her. This witness admits that it was told to him by deceased Poonam that she had consumed some poisonous substance (brokomite) by mistake which was being used in printing work at her house. This witness had arrested accused persons in the present case. This witness has also seized gastric lavage tube along with sample seal vide seizre memo SC No.14/2009 State Vs. Rakesh and others 11/27 Ex.PW13/D. This witness had inspected the place where accused Poonam had consumed poisonous substance and prepared site plan at the instance of accused Rakesh. This witness had seized one small bottle containing brocomite chemical vide seizure memo Ex.PW8/C. In his presence the dead body deceased was handed over to the parents of deceased. This witness had recorded the statements of two neighbours namely Mithlesh and one Kalu Ram. This witness had also seized viscera box with sample seal vide seizure memo Ex.Pw8/F. In his cross examination, this witness admits that he reached in GTB Hospital on call of DD No.33B on 21.10.2006 and recorded separate statement of deceased Poonam dated 21.10.2006. this witness admits that the fact of consuming some poisonous substance consumed by deceased Poonam had not been pointed out anywhere in his investigation. This witness on showing document Ex.PW13/DA admits that this is the statement of deceased recorded by him. This witness further admits that contents of DD Ex.PW13/DB are correct and in his handwriting.
19.After prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded, accused denied all the allegations, circumstances and evidences put to him. In his statement u/s 313 Cr. P.C. He has deposed that his wife Poonam had expired due to consuming some poisoning substance (brokomite) by mistake. He had further deposed that he had never harassed or maltreated his wife and did not make any dowry demand at any point of SC No.14/2009 State Vs. Rakesh and others 12/27 time.
20.Thereafter, case was fixed for final arguments. ARGUMENTS:
21.Ld. APP for state, Sh. Zenual Abedeen argued that it is a dowry case and charges under section 498A/304B IPC were framed against accused. Deceased Poonam was married on 05.03.2001 with accused and date of death of deceased is 22.10.2006. On the statement of PW1 Tej Pal Singh present case was registered under section 498A/304B IPC against accused Rakesh Kumar. Ld. APP for the state further argued that it is explained by the PW1, 2 and 3 that under what circumstances deceased took poison. Ld. APP for the state further argued that deceased consumed poison on instigation of accused. Ld. APP further argued that deceased remained in the hospital for two days and there is no dying declaration of deceased Poonam on record. DD entry of statement of deceased had been proved by defence counsel vide Ex.PW13/DA. Ld. APP for state submits that statement of PW1, 2 and 3 are sufficient to prove the case of proseuction. Ld. APP for state further argued that circumstance of death of deceased under suspicion as accused had been habitual drunker and due to this SC No.14/2009 State Vs. Rakesh and others 13/27 habit deceased was not happy and due to demand of dowry deceased was forced to commit suicide by the accused. Ld. APP further states that there is sufficient material on record to convict the accused under section 498A/304B IPC.
22.On the other hand, Ld. counsel for the accused persons argued and submitted that deceased was admitted in the hospital by the family members of accused and if there was any demand of dowry there is no complaint to this effect neither any of the witnesses has stated this fact in their deposition. Ld. Counsel further states that no circumstances has been shown by the prosecution creating doubt upon the conduct of accused or his any of family members regarding demand of dowry or harassment or torture of deceased. Ld. Counsel pointed out towards the statement of PW5 Sh. A.K. Pasi, Executive Magistrate who had stated that fact of consuming poisonous substance brokomite by deceased by mistake has not been disclosed to him by the IO. Ld. Counsel further pointed out that Ld. APP has not disclosed the statement of PW9, 10 and 12 who are the public witnesses and does not support the case of prosecution and have been declared hostile. Ld. Counsel further pointed out towards the cross examination of PW3 Pawan Kumar, who is brother of deceased. In his cross examination SC No.14/2009 State Vs. Rakesh and others 14/27 this witness had stated that accused had fixed deposit in his joint name with deceased and fixed deposits in the name of his two children who are studying in public school and are in the custody of accused. ld. Counsel has pressed his arguments that if accused had raised any demand then why the parents of deceased had not claimed for the custody of children of deceased and accused. He further pressed his arguments that if any thing was doubtful then why family member of the accused brought the deceased to the hospital even MLC of the deceased shows that deceased was admitted in hospital by PW Neeraj who is brother in law of deceased. Ld. Counsel further pointed out towards the over action of IO. Ld. Counsel states taht duty of IO is that to collect evidence and to bring the fact before the court as PW5 Sh. A.K. Pasi has stated in his statement that IO had not disclosed him about taking of poisonous substance by deceased and further IO had admitted in his deposition before the court that deceased had made statement Ex.PW13/DA and PW13/DB in which deceased Poonam had stated that she had consumed something by mistake which has caused reaction and no one is responsible for this and she does not want any police action. Ld. Counsel states that IO had concealed this material document and even in his examination he did not bring this document on record. He prayed for action against IO and acquittal of SC No.14/2009 State Vs. Rakesh and others 15/27 accused.
23.Arguments heard. Record perused. On perusal of record it is revealed that a DD No.4A Ex.PW13/A was recorded at Police Station Bhajanpura on information of duty constable Sherpal that one lady namely Poonam has been admitted by her motherinlaw in GTB Hospital as she had consumed something. On receipt of this DD, SI reached at reached at GTB Hospital and collected MLC of patient Poonam. On 22.10.2006 DD No.5 Ex.PW13/B regarding death of Poonam at GTB Hospital was assigned to IO. Since the period of marriage was less than seven years, SDM of the area was informed by IO. Sh. A.K. Pasi, Executive Magistrate reached at GTB Hospital, conducted inquest proceedings and recorded statements of Sh. Tej Pal Singh, father of deceased Ex.PW1/A, of Smt. Virmati, mother of deceased Ex.PW2/A and of Sh. Pawan Kumar, brother of deceased Ex.PW3/A and after making endorsement Ex.PW13/C upon statement of Sh. Tej Pal Singh, he directed SHO Bhajanpura to take necessary action as per law. On the basis of statement of Sh. Tej Pal Singh, FIR u/s 498A/304B/34 IPC was recorded at police station Bhajanpura against the accused persons.
SC No.14/2009
State Vs. Rakesh and others 16/27
24.On further perusal of record, it is revealed that PW1, 2 and 3 did not make any written complaint to any authority including police regarding harassment of his daughter on point of demand dowry before her death. Further on perusal of record it is revealed that PW2 in her cross examination accept that she had not filed any claim for custody of children of deceased. Further, police had obtained her signature on some blank papers. On the question of specific amount of money, this witness deposed that she has not remembered about the quantum of money. PW2 further admits that deceased was admitted in the hospital by accused and his family members. PW2 further states that present case was registered due to death of her daughter otherwise no case would have been registered.
25.On perusal of record, it is further revealed that PW3 in his cross examination states that conduct of accused was not good as he used to drink liquor and beat to his sister and this was the only bad habit of accused. This witness further admits that accused has fixed deposit in his joint name with deceased, fixed deposit in the name of his two children and both these children are studying in public school and both the children are in the custody of accused.
SC No.14/2009
State Vs. Rakesh and others 17/27
26.On perusal of record, it is further revealed that IO had seized one small bottle containing brokomite chemical vide seizure memo Ex.PW8/C and FSL report.
27.On further perusal, it is revealed that there is statement/dying declaration of deceased Poonam Ex.PW13/DA. Further, IO admits that contents of DD Ex. PW13/DB are correct and in his handwriting.
28.On further perusal of record, it is revealed that MLC Ex.PW11/A shows history of unknown poisoning. Further on perusal of record, seizure memo Ex.PW8/C shows that bottle of brokomite chemical which used in printing work was seized by the police.
29.On perusal, it is further revealed that PW5 Sh. A.K. Pasi has stated in his statement that IO had not disclosed him about taking of poisonous substance by deceased.
30.Further perusal of record it is revealed that PW6 Dr. Sumit Tellewar, Sr. Resident, Department of Forensic Medicines, Safdarjung Hospital, Delhi had conducted postmortem of dead body of deceased Poonam and had proved his postmortem report Ex.PW6/A and opined that cause of death due to potassium dichromate poisoning. SC No.14/2009
State Vs. Rakesh and others 18/27
31.Before reaching at any conclusion the Section 113 B of the Evidence Act is also relevant for the case in hand. Both Sections 304 B IPC and Section 113 B of the Evidence Act were inserted as noted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B which reads as follows : "113 B : Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation For the purposes of this section `dowry death' shall have the same meaning as in Section 304 B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 B in the Evidence Act has been inserted. As per the definition of `dowry SC No.14/2009 State Vs. Rakesh and others 19/27 death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". Presumption under Section 113 B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B IPC ).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
A conjoint reading of Section 113 B of the Evidence Act and Section 304 B IPC shows that there must be material to show that soon before her death the victim was subjected cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental SC No.14/2009 State Vs. Rakesh and others 20/27 death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113 B of the Evidence Act and Section 304 B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
The expression `soon before her death' used in the substantive Section 304B IPC and Section 113 B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after the theft, is either SC No.14/2009 State Vs. Rakesh and others 21/27 the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
The presumption u/s 113B of the Evidence Act for the purpose of section 304B can only be used when the death of deceased must have been "soon before her death subjected to cruelty or harassment" "for or in connection with the demand of dowry". Presumption u/s 113 B is a presumption of law. The Hon'ble Apex Court in 'Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, (SC)' reiterating and elaborating the similar principles defining section 498A IPC and 304B IPC observed that:
SC No.14/2009
State Vs. Rakesh and others 22/27 "12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred with seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh, 1991(3) RCR(Crl.) 97 (SC) : AIR 1991 SC 1142). Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage." "13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 2. Definition of `dowry' In this Act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.
Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be SC No.14/2009 State Vs. Rakesh and others 23/27 dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
"14. The word "dowry" in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) : 2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."
32.Supreme Court in case titled as "Munnu Raja and another Vs. State of M.P.", wherein it has held that :
"Where after making the statement before the police, the victim succumbs to his injuries the statement can be treated as a dying declaration and is admissible under Section 32 (1) of the Act."
33.Supreme Court in case titled as "Machhi Singh and others Vs. State of Punjab, AIR 1983 957 (1)", wherein it has held that :
"Where the dying declaration was not recorded by the magistrate but was faithfully recorded by the police, the evidence showed that the declarant was in fit condition to make the statement, the dying declaration was believed."
34.In order to bring home conviction under section 304B it will not be SC No.14/2009 State Vs. Rakesh and others 24/27 sufficient to only lead evidence showing that cruelty and harassment had been meted out to the victim,but that such treatment was in connection with demand of dowry.
35.Hon'ble Supreme Court in case titled as "Durga Prasad and Another Vs. State of M.P., Criminal Appeal No.1081 of 2010", wherein it has been held that :
"CriminalconvictionSections 498A and 304B of Indian Penal Code, 1860 (IPC) - Present appeal filed against order of conviction to appellants under section 498A and 304B of IPC - Held, in Court of view, prosecution in this case has failed to fully satisfy requirements of both Section 113B of Evidence Act, and Section 304B of IPC
- Accordingly, Court is unable to agree with views expressed both by trial Court, as well as High Court, and that no case can be made out on ground of insufficient evidence against appellants for conviction under Sections 498A and 304B IPC - There is no material to presume that offence under section 304B IPC has been committed Hence, appeal is allowed."
36.After arguments and careful perusal of record, observations, preceding discussions and testimonies and perusal of record, it is clear that case was registered on the statement of PW Tej Pal Singh. Further the statements of deceased is corroborated with medical evidence with effect to that she had consumed something mistakely. It is SC No.14/2009 State Vs. Rakesh and others 25/27 relevant to mention here the dying declaration of deceased Ex.PW13/DA and PW13/DB wherein she had stated that she had consumed something by mistake which has caused reaction and no one is responsible for this and she does not want any police action. This document was recorded vide DD entry No.4A but same had not brought by IO even the IO did not disclose this fact to Executive Magistrate during the course of investigation. Since dying declaration is very material document in such cases but same has not been disclosed by IO.
37.As in the present case, there is no existence of proximate and livelink between the fact of cruelty based on dowry demand and concerned death. Even in her statement to the IO deceased did not name any person responsible for her death. Even, no circumstances have been proved by the prosecution connecting the accused with demand of dowry from deceased. In terms of section 113B Evidence Act the term 'soon before death' lead to presumption that accused had caused dowry death. Since in the present case ingredients of section 304B IPC have not been fulfilled. Accordingly, this court comes to the conclusion that case of prosecution does not inspire the confidence of this court and failed to prove the guilt of accused beyond reasonable SC No.14/2009 State Vs. Rakesh and others 26/27 doubt. On the basis of dying declaration which does not support the case of prosecution, hence, no conviction can be awarded. Accordingly, in the absence of sufficient evidence against the accused, this court acquit accused Rakesh Kumar from the charges u/s 498A/304B IPC. In terms of Section 437 (A) Cr. P.C. accused Rakesh Kumar is directed to execute bail bond in sum of Rs.25,000/ each with one surety in the like amount for the period of six months. Order accordingly, file be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 19.03.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.14/2009 State Vs. Rakesh and others 27/27 SC No.14/2009 State Vs. Rakesh and others 28/27