Delhi District Court
State vs Ajay @ Titu @ Mamchand on 27 November, 2014
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
SESSIONS JUDGE4 (SOUTH DISTRICT), NEW DELHI
Sessions Case No. 18/14 (Original no. 39/12)
Unique ID No.: 02406R0152652012
FIR No. 75/12
Police Station : Fatehpur Beri
In the matter of:
State
VERSUS
1. Ajay @ Titu @ Mamchand
S/o Sh. Hari Ram
2. Smt. Omwati
W/o Sh. Hari Ram
Both residents of
R/o House No. 74, Village Jaunapur
New Delhi ........... Accused
Date of Institution : 09.7.2012
Date of Reserving judgment: 25.11.2014
Date of pronouncement : 27.11.2014
Sessions Case No. 18/14 Page no. 1 of 51
For State : Mr. Inder Kumar, Additional Public
Prosecutor.
For Defence : Mr. S.P. Kaushal, Advocate.
JUDGMENT :
Ajay @ Titu @ Mamchand, age 32 years and his mother Smt. Omwati, age 60 years, have been committed for trial by Ms. Jyoti Kler, Metropolitan MagistrateII, South District, New Delhi; and so, they stand charged with the commission of offences punishable under sections 498A and 304B read with section 34 of the Indian Penal Code, namely, that they both, in furtherance of their common intention, after one year of the marriage of accused Ajay @ Titu @ Mamchand with Babita on 04.3.2008, to meet their unlawful demand for dowry, subjected Smt. Babita, the wife of Ajay @ Titu @ Mamchand to cruelty; and that on 26.3.2008, within seven years of her marriage, the said Smt. Babita, the wife of accused Ajay @ Titu @ Mamchand died otherwise than under normal circumstances and soon before her death she was subjected to cruelty and harassment by both the accused persons for, or in connection with demand for dowry.
2. The circumstances, as per the police report, giving rise to the case and subsequent charge against the accused persons are that on Sessions Case No. 18/14 Page no. 2 of 51 04.3.2008, as per Hindu rites and customs, marriage between accused Ajay @ Titu @ Mamchand and Babita was solemnized at Allahbas, NOIDA, Uttar Pradesh; and on 26.3.2012, the said Babita wife of accused Ajay @ Titu @ Mamchand, in injured condition admitted in Fortis Hospital, Vasant Kunj, New Delhi, where, on the same day, she died and her death was declared as caused under unnatural circumstances. On 27.4.2012, autopsy on the body of the said Babita was performed at the All India Institute of Medical Sciences (AIIMS) by Dr. Rajnikanta Swain (PW3) and inquest proceedings under section 174 of the Code of Criminal Procedure, 1973 (Cr.P.C.) were conducted by Mr. Rajeev Shukla (PW4), Sub Divisional Magistrate (SDM), Hauz Khas, New Delhi, who, during the proceedings, recorded statement Ex. PW1/A of Subhash (PW1), the father of Babita and statement Ex. PW2/DA of Ramavtar (PW2), the uncle of Babita. As per the police report, Subhash, during the inquest proceedings stated before the SDM that about four years ago, the marriage of his daughter Babita was solemnized at Allahbas and sufficient dowry was given; that for a period of about one year, after the marriage, the things were well but thereafter beating started; that Omwati, the mother of the boy and the boy, namely Ajay @ Titu jointly used to harass his daughter; that the Sessions Case No. 18/14 Page no. 3 of 51 mother of the boy and the soninlaw used to demand WagonR car; that on many occasions after giving beatings his daughter was thrown out of the house; that he also made a complaint before Women Cell, Sector39, NOIDA in Uttar Pradesh. During the inquest proceedings before the SDM, Subhash, the father of the deceased, further stated that yesterday, that is, on 26.3.2012 at about 2.00 pm, he received a call from his daughter, who said that her motherinlaw and husband were beating him and so he should reach quickly; that he talked to the motherinlaw of his daughter and told her that he would reach by the evening or the next day in the morning and she should have patience; that at about 9.00 pm he received a call from the police to the effect that his daughter had died. During the inquest proceedings, Subhash further stated to the SDM that he was sure that his daughter was murdered and legal action should be taken against the culprits as she was harassed by both the accused persons. After examining the father and uncle of Babita, the SDM directed the Station House Officer (SHO), Fatehpur Beri to register a case under relevant provision of law and to take further action. In the wake of the directions of the learned SDM, on the basis of statement Ex. PW1/A of the father of the deceased, first information report (FIR) no. 75/12 was registered at Sessions Case No. 18/14 Page no. 4 of 51 Police Station Fatehpur Beri and the matter was investigated by Inspector Gurnam Singh (PW19). After investigation, it was concluded by the investigating officer (IO) that accused Ajay @ Titu @ Mamchand and his mother Smt. Omwati, in furtherance of their common intention, had committed offences punishable under sections 498A and 304B of the Indian Penal Code. And on 23.6.2012, a police report under section 173 of Cr.P.C. was put up before the learned Metropolitan Magistrate with a view to put the accused persons on trial and to punish them. In the police report, besides naming accused Ajay @ Titu @ Mamchand and Smt. Omwati, the names of Hari Ram S/o Bhagwan Dass, Pankaj S/o Hari Ram (DW3), Dharampal S/o Bhagmal and Rekha W/o Bijender were also mentioned in column no. 12.
3. In the light of the police report and the documents filed alongwith the same, the learned Metropolitan Magistrate having taken cognizance of the offences complied with the provisions of section 207 of Cr.P.C. and committed the case to the Court of Session. Hari Ram S/o Bhagwan Dass, Pankaj S/o Hari Ram, Dharampal S/o Bhagmal and Rekha W/o Bijender, whose names were also mentioned in the police report, were not called to face the trial.
Sessions Case No. 18/14 Page no. 5 of 51
4. On 27.8.2012, after hearing the Additional Public Prosecutor and the accused persons charge was framed against the accused persons for their having committed offences punishable under sections 498A and 304B read with section 34 of the Indian Penal Code only. The charge was read over and explained to each of the accused persons to which they did not plead guilty and claimed trial.
5. In support of its case the prosecution got examined PW1 Subhash, PW2 Ramavatar, PW3 Dr. Rajanikanta Swain, Junior Resident, Department of Forensic Medicine and Toxicology, AIIMS, PW4 Rajeev Shukla, Additional District Magistrate, PW5 R.K. Singh, Nodal Officer, Bharti Airtel Limited, PW6 Mehar Chand, PW7 Jagwati, PW8 Amit, PW9 Dr. Pinak Ashok Shrikhande, Additional Director Critical Care, Fortis Hospital, PW10 Israr Babu, PW11 Constable Chander Bhan, PW12 SubInspector (SI) Surekha, PW13 Dr. Prashant Sinha, Head of Department, Emergency, Fortis Hospital, PW14 SI Kuldeep, PW15 Head Constable (HC) Rajneesh Kath, PW16 Assistant SubInspector (ASI) Ashok Kumar, PW17 HC Mahavir Singh, PW18 HC Pradeep Sheoran, PW19 Inspector Gurnam Singh and PW20 HC Vinay Kumar. During the prosecution evidence documents Ex. PW1/A, Ex. PW1/B, Ex. PW2/DA, Ex. PW3/A, Ex.
Sessions Case No. 18/14 Page no. 6 of 51 PW4/A, Ex. PW4/B, Ex. PW4/C, Ex. PW5/A, Ex. PW5/B, Ex. PW5/C, Ex. PW5/D, Ex. PW5/E, Ex. PW6/A, Ex. PW6/B, Ex. PW9/A, Ex. PW9/B, Ex. PW9/C, Ex. PW10/A, Ex. PW10/B, Ex. PW10/C, Ex. PW10/D, Ex. PW10/E, Ex. PW10/F, Ex. PW12/A, Ex. PW12/B, Ex. PW14/A, Ex. PW14/A1, Ex. PW14/B, Ex. PW14/C, Ex. PW15/A, Ex. PW16/A, Ex. PW17/A, Ex. PW17/B, Ex. PW19/A, Ex. PW20/A, Ex. PW20/B, Ex. PW20/C, Ex. XA, Ex. PX (Job Certificate), Ex. PX (FSL report), Ex. P1, Ex. P2 (collectively), Ex. P3 and Mark X were also tendered in evidence.
6. On 12.05.2014, prosecution evidence was closed and the case was posted for examination of the accused persons.
7. During his examination under section 313 of Cr.P.C. accused Ajay @ Titu @ Mamchand admitted that on 04.3.2008 marriage between him and Babita, the deceased, was solemnized; and that on 26.3.2012, Babita died. During his examination under section 313 of Cr.P.C. accused Ajay @ Titu @ Mamchand denied the correctness of incriminating circumstances appearing against him during the prosecution evidence and further stated that the prosecution witnesses have deposed falsely against him. During his examination under section 313 of Cr.P.C. accused Ajay @ Titu @ Mamchand Sessions Case No. 18/14 Page no. 7 of 51 further stated that neither he nor any of his family members treated his wife with cruelty and no demand for dowry was made to Babita or her parents. During his examination under section 313 of Cr.P.C. the accused stated that Nirmala, the daughter of the aunt of his wife was also married in his village with Sumit, who was his neighbour; and that after about ten months of his marriage, Sumit committed suicide and thus, the family of his wife became inimical towards his family. During his examination under section 313 of Cr.P.C. accused Ajay @ Titu @ Mamchand further stated that he has been falsely implicated in this case and expressed his desire to lead evidence in his defence.
8. During her examination under section 313 of Cr.P.C. accused Omwati admitted that on 04.3.2008, marriage between her son Ajay @ Titu @ Mamchand and Babita, the deceased, was solemnized; and that on 26.3.2012, Babita died. During her examination under section 313 of Cr.P.C. accused Omwati denied the correctness of the incriminating circumstances appearing against her during the prosecution evidence and further stated that the prosecution witnesses have deposed falsely against her. During her examination under section 313 of Cr.P.C. accused Omwati further stated that neither she nor any of her family members treated Babita with cruelty Sessions Case No. 18/14 Page no. 8 of 51 and no demand for dowry was made to Babita or her parents. During her examination under section 313 of Cr.P.C. accused Omwati stated that Nirmala, the daughter of the aunt of Babita was also married in her village with Sumit, who was her neighbour; and that after about ten months of his marriage, Sumit committed suicide and thus, the family of Babita became inimical towards her family. During her examination under section 313 of Cr.P.C. accused Omwati further stated that she has been falsely implicated in this case and expressed her desire to lead evidence in her defence.
9. In their defence the accused persons got examined DW1 Jairaj, DW2 Sukesh Kumar and DW3 Pankaj. In their defence, the accused persons, with the aid of the Court, also summoned record of complaint from Women Cell, Sector39, NOIDA in Uttar Pradesh, but such record was found not existing. On 16.10.2014, defence evidence was closed.
10. I have heard Mr. Inder Kumar, Additional Public Prosecutor for the state and Mr. S.P. Kaushal, Advocate for the accused persons and have gone through the material on record carefully.
11. Having drawn my attention on the provisions of sections Sessions Case No. 18/14 Page no. 9 of 51 498A and 304B of the Indian Penal Code and sections 113A and 113B of the Indian Evidence Act, 1872 (Act 1 of 1872); testimonies of PW1 Subhash, PW2 Ramavatar, PW3 Dr. Rajanikanta Swain, PW4 Rajeev Shukla, PW5 R.K. Singh, PW6 Mehar Chand, PW7 Jagwati, PW8 Amit, PW9 Dr. Pinak Ashok Shrikhande, PW10 Israr Babu, PW11 Constable Chander Bhan, PW12 SI Surekha, PW13 Dr. Prashant Sinha, PW14 SI Kuldeep, PW15 HC Rajneesh Kath, PW16 ASI Ashok Kumar, PW17 HC Mahavir Singh, PW18 HC Pradeep Sheoran, PW19 Inspector Gurnam Singh and PW20 HC Vinay Kumar and the documents Ex. PW1/A, Ex. PW1/B, Ex. PW2/DA, Ex. PW3/A, Ex. PW4/A, Ex. PW4/B, Ex. PW4/C, Ex. PW5/A, Ex. PW5/B, Ex. PW5/C, Ex. PW5/D, Ex. PW5/E, Ex. PW6/A, Ex. PW6/B, Ex. PW9/A, Ex. PW9/B, Ex. PW9/C, Ex. PW10/A, Ex. PW10/B, Ex. PW10/C, Ex. PW10/D, Ex. PW10/E, Ex. PW10/F, Ex. PW12/A, Ex. PW12/B, Ex. PW14/A, Ex. PW14/A1, Ex. PW14/B, Ex. PW14/C, Ex. PW15/A, Ex. PW16/A, Ex. PW17/A, Ex. PW17/B, Ex. PW19/A, Ex. PW20/A, Ex. PW20/B, Ex. PW20/C, Ex. XA, Ex. XP, Ex. PX, Ex. P1, Ex. P2 (collectively), Ex. P3 and Mark X it is submitted by the learned Additional Public Prosecutor that from the evidence led by the prosecution it has been proved beyond reasonable doubt that on Sessions Case No. 18/14 Page no. 10 of 51 26.3.2012, Smt. Babita, the wife of accused Ajay @ Titu @ Mamchand, died in abnormal circumstance within seven years of her marriage with accused Ajay @ Titu @ Mamchand. It is further submitted by the learned Additional Public Prosecutor that from the testimonies of PW1 Subhash, PW2 Ramavtar, PW7 Jagwati and PW8 Amit it has also been proved that soon before her death the accused persons, in furtherance of their common intention, had been treating deceased Babita with cruelty and had been harassing her for meeting their demand for a WagonR car in dowry. It is further submitted by the learned Additional Public Prosecutor that 26.3.2012 due to the willful acts of the accused persons, deceased Babita was forced to commit suicide. It is further submitted by the learned Additional Public Prosecutor that the prosecution has succeeded in proving the charge against the accused persons therefore, they be convicted and punished for having committed offences punishable under sections 304B and 498A of the Indian Penal Code.
12. Percontra, having drawn my attention on the testimonies of PW1 Subhash, PW2 Ramavatar, PW3 Dr. Rajanikanta Swain, PW4 Rajeev Shukla, PW5 R.K. Singh, PW6 Mehar Chand, PW7 Jagwati, PW8 Amit, PW9 Dr. Pinak Ashok Shrikhande, PW10 Israr Sessions Case No. 18/14 Page no. 11 of 51 Babu, PW11 Constable Chander Bhan, PW12 SI Surekha, PW13 Dr. Prashant Sinha, PW14 SI Kuldeep, PW15 HC Rajneesh Kath, PW16 ASI Ashok Kumar, PW17 HC Mahavir Singh, PW18 HC Pradeep Sheoran, PW19 Inspector Gurnam Singh, PW20 HC Vinay Kumar, DW1 Jairaj, DW2 Sukesh Kumar and DW3 Pankaj ; documents Ex. PW1/A, Ex. PW2/DA, Ex. PW8/DA, Ex. PW5/A and Ex. PW10/C; and the law laid down in Narender Singh Arora v. State (Govt. of NCT Delhi) & Ors., 173 (2010) Delhi Law Times 244, copy of judgment dated 08.7.2014 passed by the Hon'ble Delhi High Court in Crl. A. 555/2011 entitled Umed Singh & Ors. v. The State, NCT of Delhi, Manohar Lal v. State of Haryana, 2014 VII AD (S.C.) 689, copy of judgment dated 21.8.2013 passed by the Hon'ble Delhi High Court in Crl.L.P. 38/2012 entitled State v. Paramjeet Singh & Ors., copy of judgment dated 27.8.2014 passed by the Hon'ble Delhi High Court in Crl. A. 598/2012 entitled Naveen v. The State (GNCT of Delhi), State v. Sohan Lal & Ors., 2011 [3] JCC 1966, Nilesh Dinkar Paradkar v. State of Maharashtra, 2011 [3] JCC 1972, Indrajit Sureshprasad Bind & Ors. v. State of Gujarat, 2013 IV AD (S.C.) 605. it is submitted by counsel for the accused persons that the prosecution has failed to prove the charge against the accused persons and it has been proved that they Sessions Case No. 18/14 Page no. 12 of 51 have been falsely implicated in this case and therefore, the accused persons are entitled to be acquitted. It is further submitted by counsel for the accused persons that the prosecution has failed to prove that any of the accused persons had treated the deceased with cruelty; or soon before her death, treated her with cruelty or harassed her on account of demand for dowry.
13. I have given my thoughtful consideration to the submissions made on behalf of the parties.
14. Section 304B of the Indian Penal Code, which defines the offence of dowry death and prescribes punishment for the said offence, reads as under:
304B. Dowry death.-- (1) Where the death of a woman is caused by any 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 relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. -- For the purpose of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
15. Explanation appended to section 304B of the Indian Penal Code defines dowry to have the same meaning as contained in section Sessions Case No. 18/14 Page no. 13 of 51 2 of the Dowry Prohibition Act, 1961, which reads as under:
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 mahr in the case of persons to whom the Muslim Personal Law (Shariat) applied.
16. Further section 498A of the Indian Penal Code, which makes it punishable if husband or relative of such husband of a woman subject her to cruelty, reads as under:
498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
17. Section 113B of Act 1 of 1872, which is also noteworthy in connection with a trial of offence punishable under sections 304B of the Indian Penal Code, reads as under:
113B. 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 Sessions Case No. 18/14 Page no. 14 of 51 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 304B of the Indian Penal Code (45 of 1860).
18. As per the definition of "dowry death" in section 304B of the Indian Penal Code and the wording in the presumptive provision of section 113B of Act 1 of 1872, one of the essential ingredient, amongst others, is that the `woman' must have been "soon before her death"
subjected to cruelty or harassment "for, or in connection with, the demand for dowry".
19. In the present case to bring home the guilt of the accused persons, the prosecution has examined as many as twenty witnesses.
20. PW16 ASI Ashok Kumar during his examination deposed that on 26.3.2012 at about 8.25 pm, copy of Daily Diary (DD) No. 30A, Ex. PW16/A was assigned to him and thereafter, he reached Fortis Hospital and collected Medico Legal case (MLC) report Ex. PW9/A pertaining to Babita. PW16 ASI Ashok Kumar further deposed that it came to his notice that the patient was declared "expired" and hence he passed on the information to the police station, which was recorded as DD entry No. 33A, copy of which is Ex. PW14/A. PW16 ASI Ashok Kumar further deposed that doctor handed Sessions Case No. 18/14 Page no. 15 of 51 over him one sealed parcel containing gastric lavage alongwith sample seal and subsequently he handed over MLC report, sealed parcel alongwith sample seal and copy of DD No. 30A to SI Kuldeep, who came to Fortis Hospital and seized the same by way of seizure memo Ex. PW14/A1.
21. PW9 Dr. Pinak Ashok Shrikhande, during his examination identified the signatures of Dr. Rashmi Mishra on MLC report Ex. PW9/A dated 26.3.2012 regarding deceased Babita. PW9 Dr. Pinak Ashok Shrikhande during his examination also tendered death summary Ex. PW9/B prepared by Dr. Sanchay Roy and death certificate of Babita Ex. PW9/C prepared by Dr. Sanchay Roy. PW13 Dr. Prashant Sinha also during his examination deposed about the MLC report Ex. PW9/A dated 26.3.2012 prepared by Dr. Rashmi Mishra and identified her writing and signature.
22. PW14 SI Kuldeep during his examination deposed that on 26.3.2012 at about 9.35 pm, copy of DD No. 33A, Ex. PW14/A, in connection with the death of one lady Babita at Fortis Hospital, was assigned to him and thereafter, he reached Fortis Hospital, Vasant Kunj, New Delhi and got shifted the dead body to mortuary of AIIMS for post mortem. PW14 SI Kuldeep further deposed that he informed Sessions Case No. 18/14 Page no. 16 of 51 the SDM concerned about the incident and the parents of the deceased were also informed by HC Ashok, who alongwith HC Pradeep was present at the Fortis Hospital. PW14 SI Kuldeep further deposed that on the next day, the parents of the deceased came to the police station and they were taken to the mortuary of AIIMS, where the SDM, Hauz Khas was also present. PW14 SI Kuldeep further deposed that he had also collected sealed parcel containing gastric lavage alongwith sample seal from HC Ashok Kumar and prepared memo Ex. PW14/A1. PW14 SI Kuldeep further deposed that the SDM recorded the statements of Subhash and Ramavtar and their statements were delivered to him for legal action. PW14 SI Kuldeep further deposed that he made endorsement Ex. PW14/B for registration of FIR and after handing over the dead body to the legal heirs reached police station and presented rukka before duty officer, on the basis of which the FIR was registered and the investigation was assigned to Inspector Gurnam Singh. PW14 SI Kuldeep further deposed that by way of seizure memo Ex. PW14/C he had seized three sealed parcels containing clothes of the deceased, blood as sample and viscera material alongwith three sample seals which were produced by HC Pradeep and subsequently deposited the same with the MHC (M).
Sessions Case No. 18/14 Page no. 17 of 51
23. PW4 Dr. Rajeev Shukla during his examination deposed that on 26.3.2012, he was posted as SDM, Hauz Khas, New Delhi and on that day, he received information from police station Fatehpur Beri regarding death of a lady in unnatural circumstances at Fortis Hospital. PW4 Dr. Rajeev Shukla further deposed that he directed the SHO to inform the parents of the deceased and the dead body was sent to the mortuary of AIIMS. PW4 Dr. Rajeev Shukla further deposed that on 27.3.2012 at about 12.00 o' clock he reached the mortuary for the purpose of inquest proceedings and conducted the inquest proceedings. PW4 Dr. Rajeev Shukla further deposed that he recorded statements Ex. PW1/A and Ex. PW2/A (Ex. PW2/DA) of Subhash and Ramavtar respectively and got filled up the inquest form Ex. PW4/A. PW4 Dr. Rajeev Shukla further deposed that he got filled up request for post mortem Ex. PW4/B and prepared inquest report Ex. PW4/C. PW4 Dr. Rajeev Shukla further deposed that he had directed the SHO to register a case under relevant provisions of law. During his cross examination PW4 Dr. Rajeev Shukla deposed that police official had filled up the inquest paper Ex. PW4/D.
24. PW15 HC Rajnish Kath during his examination deposed that on 27.3.2012, being posted as duty officer at police station Sessions Case No. 18/14 Page no. 18 of 51 Fatehpur Beri he had registered FIR, the copy of which is Ex. PW15/A and handed over the rukka alongwith the copy of the FIR to Inspector Gurnam Singh, who was appointed as the investigating officer. PW15 HC Rajnish Kath further deposed that he also recorded DD No. 24A regarding the FIR.
25. PW6 Mehar Chand, uncle of PW1 Subhash, during his examination deposed that on 27.3.2012 he had identified the dead body of Babita at the mortuary and his statement Ex. PW6/A and the statement of his nephew Subhash Ex. PW6/B were recorded.
26. PW3 Dr. Rajanikanta Swain during his examination deposed that on 27.3.2012 he conducted post mortem examination on the body of Babita, which was sent by SDM Rajeev Shukla and SHO concerned in custody of HC Ashok and HC Pradeep. PW3 Dr. Rajanikanta Swain further deposed that the dead body was identified by Subhash and Mehar Chand. PW3 Dr. Rajanikanta Swain further deposed that on 27.3.2012 at about 2.15 pm, he started the post mortem examination and during the examination of the dead body found rigor mortis present all over the body of deceased Babita. PW3 Dr. Rajanikanta Swain further deposed that post mortem lividity was present over back and dependent parts of the body except pressure area Sessions Case No. 18/14 Page no. 19 of 51 and no sign of decomposition was seen. PW3 Dr. Rajanikanta Swain further deposed that during the post mortem examination he observed following ante mortem injuries, namely, (1) Radish colour abrasion of size 2 x 1 cm was present over middle 1/3 of the right side of mandible; (2) The injection mark was present over dorso lateral aspects of left forearm, 5 cm below the wrist; (3) The injection mark was present over ventral aspects of right elbow joint; (4) A radish colour swelling of size 5 x 2 cm was present over antero lateral aspect of lower part of the left side of the neck with one prick mark; (5) Blood was coming out through the prick mark (suggestive of central line) and on dissection of neck, defuse clotted haematoma was present over anterior and lateral aspect of the neck. PW3 Dr. Rajanikanta Swain further deposed that on internal examination of the body brain, lungs, liver, spleen and kidney were congested and lungs showed nutmeg appearance; 500 ml of straw colour fluid was present in the thoracic cavity; 500 ml of straw colour fluid was present in the peritoneal cavity; 100 ml of radish brown liquid was present in the stomach with mucousa congested; uterus was empty and the time since death was consistence with the hospital records. PW3 Dr. Rajanikanta Swain further deposed that after conducting post mortem examination Sessions Case No. 18/14 Page no. 20 of 51 he prepared post mortem report Ex. PW3/A and in his opinion the cause of death was poisoning by consumption of Aluminium Phosphide by the deceased.
27. PW18 HC Pradeep Sheoran during his examination deposed that on 27.3.2012 being posted at police station Fatehpur Beri, he joined the investigation and on that day SI Kuldeep had seized one sealed parcel containing gastric lavage alongwith sample seal by memo Ex. PW14/A1.
28. PW17 HC Mahavir Singh during his examination deposed that on 27.3.2012, being posted at police station Fatehpur Beri he joined the investigation of the case and on that day at the instance of one Dharam Pal, the IO Inspector Gurnam Singh prepared the site plan and thereafter, arrested accused Ajay @ Titu from his house and prepared arrest memo Ex. PW17/A. PW17 HC Mahavir Singh further deposed that personal search of accused Ajay @ Titu was also conducted.
29. PW11 Constable Chandra Bhan during his examination deposed that on 03.05.2012 being posted at police station Fatehpur Beri, he had taken sealed parcel containing viscera material alongwith sample seal and forwarding letter to the Forensic Science Laboratory Sessions Case No. 18/14 Page no. 21 of 51 (FSL), Rohini, Delhi and deposited the same at the FSL and thereafter, having returned to the police station handed over the receipt to the MHC (M).
30. PW12 SI Surekha during her examination deposed that on 01.06.2012, the investigation of the case was assigned to her and on that day with the permission of the learned Metropolitan Magistrate he arrested accused Omwati and formally searched her by way of arrest memo Ex. PW12/A and search memo Ex. PW12/B respectively.
31. PW5 R. K. Singh, Nodal Officer, Bharti Airtel Limited during his examination tendered Call Detail Records (CDR) Ex. PW5/A for the period 25.3.2012 to 27.3.2012 pertaining to mobile phone number 9871499787 in the name of Subhash. PW5 R. K. Singh during his examination also tendered Ex. PW5/B, the record regarding the ownership of the said mobile number. He also tendered Cell ID chart Ex. PW5/C and Customer Application Form Ex. PW5/D.
32. PW10 Israr Babu, Nodal Officer, Vodafone Mobile Services Pvt. Ltd. during his examination tendered, inter alia, CDR Ex. PW10/C for the period 25.3.2012 to 27.3.2012 pertaining to mobile phone number 9899230469 in the name of Pankaj. During his examination he also tendered copy of Customer Account Form Ex.
Sessions Case No. 18/14 Page no. 22 of 51 PW10/D regarding the said mobile phone.
33. PW19 Inspector Gurnam Singh during his examination deposed that on 27.3.2012, being entrusted with the investigation of the case, he arrested accused Ajay @ Titu. PW19 Inspector Gurnam Singh further deposed that on 31.03.2012, he examined the witnesses and seized invitation card Ex. P1, photographs Ex. P2, Compact Disk (CD) Ex. P3 and service certificate of the deceased Ex. PX. PW19 Inspector Gurnam Singh further deposed that despite efforts having been made by him, accused Omwati could not be arrested and subsequently on 01.06.2012, she surrendered before the court and was arrested by SI Surekha. PW19 Inspector Gurnam Singh further deposed that he collected the post mortem report of the deceased and sent viscera and stomach wash to the FSL for analysis. PW19 Inspector Gurnam Singh further deposed that he had also obtained certified copies of CDRs pertaining to mobile telephone numbers 9899230469 and 9871499787 issued in the name of Pankaj and Subhash respectively.
34. During his crossexamination PW19 Inspector Gurnam Singh deposed that in connection with the investigation of the case he never visited the house of the father of the deceased. PW19 Inspector Sessions Case No. 18/14 Page no. 23 of 51 Gurnam Singh further deposed that document Ex. PX (job certificate) was handed over to him by the father of the deceased and he had not got verified the said document. During his crossexamination PW19 Inspector Gurnam Singh also deposed that during the investigation he came to know that by using the mobile phone of Pankaj, the deceased talked to her father. During his crossexamination PW19 Inspector Gurnam Singh also deposed that during the investigation he came to know that no written complaint was made by the father of the deceased at the Crime against Women Cell, Sector39, NOIDA and only verbal statement was made.
35. During his examination PW20 HC Vinay Kumar proved relevant entries Ex. PW20/A, Ex. PW20/B and Ex. PW20/C from the registers no. 19 and 21 maintained at police station Fatehpur Beri.
36. The main prosecution witnesses are PW1 Subhash, PW2 Ramavtar, PW7 Smt. Jagwati and PW8 Amit.
37. PW1 Subhash, the father of deceased Babita, during his examination deposed that the marriage between her daughter Babita and accused Ajay @ Titu was solemnized on 04.03.2008 and after marriage, for about one year, his daughter was well in her matrimonial home and then his younger brother Ram Kumar got married his two Sessions Case No. 18/14 Page no. 24 of 51 daughters, namely, Narmada and Pushpa at village Jaunapur, Delhi and had given a car as a gift in their marriages. PW1 Subhash further deposed that thereafter, accused Ajay @ Titu and his mother Dhauli (accused Omwati) started demanding car from them and the said demand was made by them after about one and half year of the marriage of his daughter. PW1 Subhash further deposed that thereafter, for one year his daughter Babita stayed at his house at Allahbas as he was not able to fulfill the demand of car made by her husband and motherinlaw. PW1 Subhash further deposed that his son Amit had brought his daughter to his house after she was beaten up by her husband for the demand of dowry. PW1 Subhash further deposed that his 1012 relatives, residing at Jaunapur, had apprised him about the beatings given to his daughter Babita by her husband. PW1 Subhash further deposed that his daughter had gone to the Women Cell at NOIDA to report about the activities of her husband and in laws but her report was not lodged over there and rather the Women Cell officials had a compromise effected and thereafter, his daughter came to her matrimonial home at village Jaunapur. PW1 Subhash further deposed that for about two or three months his daughter was well in her matrimonial home but thereafter, she was again harassed Sessions Case No. 18/14 Page no. 25 of 51 by her husband and her motherinlaw as the demand for car could not be fulfilled by him. During his examination, PW1 Subhash further deposed that he had talked to his daughter last time on 25th or 26th in the month of chaitra. PW1 Subhash further deposed that he had talked to his daughter on phone and she called him up on his mobile phone number 9871499787. PW1 Subhash further deposed that his daughter asked him if foofa of accused Ajay had visited village Allahbas in Noida and he told her that he had not met him in village Allahabas. PW1 Subhash further deposed that he had told his daughter that in case the presence of Ajay was needed he could bring him in Jaunapur. PW1 Subhash further deposed that on that day at about 9.00 pm the police called him up on mobile phone and apprised that the dead body of his daughter was lying in the hospital. PW1 Subhash further deposed that he went to the hospital, where post mortem was done and thereafter, he had got the cremation of his daughter done. PW1 Subhash further deposed that at the police station his statement Ex. PW1/A was recorded.
38. With the permission of the court, PW1 Subhash was crossexamined by the Additional Public Prosecutor and during the crossexamination by the Additional Public Prosecutor, PW1 Subhash Sessions Case No. 18/14 Page no. 26 of 51 affirmed that his daughter called him up on his mobile phone in the day time. During his crossexamination by the Additional Public Prosecution, PW1 Subhash further affirmed that on that day his daughter had apprised him that her motherinlaw Omwati, her devar Pankaj and his maternal uncle Dharam Pal were doing khichatani with her and they were threatening to kill her. During his cross examination by the Additional Public Prosecutor PW1 Subhash further affirmed that on that day itself the police called him up in the night and his statement was recorded by the SDM. During his cross examination by the Additional Public Prosecutor PW1 Subhash also tendered marriage card Ex. P1, photographs Ex. P2, CD Ex. P3 and certificate Ex. PX and further deposed that the Woman Cell at Noida did not prepare any compromise deed.
39. During his crossexamination by counsel for the accused persons, PW1 Subhash admitted that Dharam Pal was not the real maternal uncle of accused Ajay @ Titu. During his crossexamination PW1 Subhash further deposed that his brother had brought certificate Ex. PX from the competent authority and he did not remember the name of the said brother who brought Ex. PX. During his cross examination PW1 Subhash further deposed that he was agriculturist Sessions Case No. 18/14 Page no. 27 of 51 and his annual income was about Rs.1,00,000/.
40. PW2 Ramavtar, the uncle of deceased Babita, during his examination deposed that the marriage between his niece Babita and accused Ajay @ Titu was solemnized on 04.03.2008 and for about one year the matrimonial life of Babita was normal. PW2 Ramavtar further deposed that after about one year of the marriage of Babita, his brother Ram Kumar had married his daughter Nirmala to one Amit resident of village Jaunapur and had given top model of WagonR car in the marriage. PW2 Ramavtar further deposed that after the marriage of Nirmala, Babita was being harassed in her matrimonial home by accused Ajay and his mother by saying that they were not less than the status of Amit and his family then why they should not be given WagonR car? PW2 Ramavtar further deposed that thereafter, the accused deserted Babita and left her at her parental home, where she stayed for about one year. PW2 Ramavtar further deposed that a complaint was made in the Women Cell at NOIDA, Sector39 for harassment and demand of dowry by the inlaws of Babita and the Women Cell officials advised Ajay @ Titu and thereupon Ajay @ Titu agreed that he will not harass Babita any more and thereafter, Babita was sent to her matrimonial home. PW2 Ramavtar further deposed Sessions Case No. 18/14 Page no. 28 of 51 that after about one or two months, when Babita wished to visit to her parental home, Ajay @ Titu used to leave her on road outside the house and did not enter in his house. PW2 Ramavtar further deposed that on the occasions when Babita used to visit, she used to tell her aunt (the wife of PW2 Ramavtar) that she was still being harassed by her inlaws. PW2 Ramavtar further deposed that Babita was being harassed for not fulfillment of the demand of dowry of WagonR car. PW2 Ramavtar further deposed that on 26.3.2012 at 9.30 pm after receiving a call from police, his brother apprised him that Babita had expired and was lying at Fortis Hospital. PW2 Ramavtar further deposed that thereafter, he went to the hospital.
41. During his crossexamination PW2 Ramavtar deposed that his statement was recorded after fourfive days of the incident. PW2 Ramavtar further deposed that he and his three brothers were present in Women Cell at Sector39, police station NOIDA when they lodged the complaint. During his crossexamination PW2 Ramavtar denied that his bhabhi went under treatment for a long time and to look after her, Babita went to her parental home.
42. PW7 Jagwati, the mother of deceased Babita, during her examination deposed that she was illiterate. PW7 Jagwati further Sessions Case No. 18/14 Page no. 29 of 51 deposed that her daughter Babita was married to accused Ajay @ Titu and on a number of occasions her daughter told her that her husband, brotherinlaw Pankaj and motherinlaw Omwati used to harass her and demanded dowry in the shape of cash and car. PW7 Jagwati further deposed that he gave sometimes Rs.10,000/ and sometimes Rs.20,000/ to her daughter by concealing from her husband so that her daughter was not harassed. PW7 Jagwati further deposed that on the day of the incident at about 2.00 pm, she talked to her daughter on phone and her daughter told her that her husband, motherinlaw and brotherinlaw were quarreling with her on the demand of cash and WagonR car. PW7 Jagwati further deposed that she told her daughter that she was sending her father to her. PW7 Jagwati further deposed that in the evening at about 8.00 pm it came to her notice that her daughter had died and immediately thereafter, her husband and other relatives went to the house of her daughter.
43. During her crossexamination PW7 Jagwati deposed that her daughter Babita used to visit her about seveneight times a year and she used to come on motorcycle alongwith her brother, and her soninlaw never brought her to her house. During her cross examination PW7 Jagwati admitted that her daughter had not done any Sessions Case No. 18/14 Page no. 30 of 51 teaching course and she never done the job of teaching at NOIDA. During her crossexamination PW7 Jagwati also deposed that on 26.3.2012 she talked to Babita in the evening time and sun was not set by that time. During her crossexamination PW7 Jagwati further deposed that on the same day her husband also talked to Babita but she did not know the time when the talks took place between her husband and Babita on phone. During her crossexamination PW7 Jagwati further deposed that the demand for WagonR car was made for the first time after twothree months of the marriage of her daughter with accused Ajay.
44. PW8 Amit, the brother of deceased Babita, during his examination deposed that his elder sister Babita was married to Ajay @ Titu on 04.03.2008. PW8 Amit further deposed that Ajay @ Titu, Omwati and Pankaj used to harass his sister Babita on account of demand of dowry and they had demanded WagonR car from her sister. PW8 Amit further deposed that he used to visit matrimonial home of his sister Babita to take back her to his house and to drop her in her matrimonial house and once he had noticed injury on the person of Babita and Babita told him that she was given beatings by Ajay @ Titu and Omwati. PW8 Amit further deposed that it was also told to Sessions Case No. 18/14 Page no. 31 of 51 him that Pankaj, the devar of his sister Babita, had abused his sister. PW8 Amit further deposed that he alongwith his father and sister approached the police officials at Sector39, Noida and there a complaint was made by Babita against her husband and inlaws and thereafter due to the intervention of the police official, a panchayat was organized and a compromise was effected and Babita was sent to her inlaws next day from his house and at that time a sum of Rs. 20,000/ was given by her father to Babita to fulfill the demands of her inlaws. PW8 Amit further deposed that on 26.3.2012, at her matrimonial home, Babita expired and thereafter, he alongwith his parents and relatives went to Fortis Hospital.
45. During his crossexamination PW8 Amit deposed that his annual income was Rs.30,000/ to Rs.40,000/ and the income of his father was also added in the said amount. He further deposed that he spent Rs.12,000/ per annum on the study of his daughter. During his crossexamination PW8 Amit also deposed that his sister was a teacher in a private school in Sector186, NOIDA but he did not know the name of the school where she was teaching. During his cross examination PW8 Amit also deposed that he did not remember the date and year as to when the demand of WagonR car was made by the Sessions Case No. 18/14 Page no. 32 of 51 accused persons. During his crossexamination PW8 Amit was also confronted with his statement Ex. PW8/DA recorded under section 161 of Cr.P.C.
46. Here it may also be noticed as to what the defence witnesses have deposed during their respective examination.
47. DW1 Jai Raj during his examination deposed that he knew the family of accused Ajay @ Titu being his neighbour. DW1 Jai Raj further deposed that after the marriage of Ajay @ Titu he used to visit his house frequently and the atmosphere in his family was cordial and whenever he used to visit the house of accused Ajay @ Titu, his wife used to serve water and refreshment to him and they were very nice.
48. DW2 Sukesh Kumar during his examination deposed that accused Omwati is wife of his elder brother and accused Ajay @ Titu is his nephew. DW2 Sukesh Kumar also deposed that he had attended the marriage of accused Ajay and it was very good. DW2 Sukesh Kumar further deposed that he used to visit the house of the accused persons frequently and the atmosphere in the family was cordial. DW2 Sukesh Kumar further deposed that after the marriage of Babita with accused Ajay a daughter was born to them in the year 2009. DW2 Sessions Case No. 18/14 Page no. 33 of 51 Sukesh Kumar also deposed that in the year 2010, the mother of Babita had fallen ill and she was operated upon; and in the year 2010, a child was born to the wife of the brotherinlaw of accused Ajay and to attend her ailing mother and subsequently to attend the wife of her brother, Babita had gone to her parental house. DW2 Sukesh Kumar also deposed that accused Ajay had gone to bring her wife back but he was beaten up by Subhash, Ram Kumar and the brotherinlaw of accused Ajay. DW2 Sukesh Kumar further deposed that he is having relation with the parents of Babita and he is invited by them in their family functions and they never made any complaint to him with regard to demand of dowry.
49. DW3 Pankaj, the brother of accused Ajay, during his examination deposed that the marriage of his brother with Babita was solemnized on 04.03.2008 and after marriage everything was normal. DW3 Pankaj further deposed that in the month of March, 2010, Amit, the brother of Babita, came to take her to her parental house as her mother was to undergo a surgery of her breast and a child was likely to be born to the wife of Amit. DW3 Pankaj further deposed that in the last week of the month of May, 2010 his brother Ajay had gone to the parents of his wife to bring her back to her matrimonial house but he Sessions Case No. 18/14 Page no. 34 of 51 was beaten up by his fatherinlaw, his brother and his son and therefore, his brother Ajay returned without his wife. DW3 Pankaj further deposed that Babita remained at her parental house for a period of about ten months and thereafter, Subhash, Ram Kumar, Ramavtar and Amit came to his house and apologized for their acts and conduct and thereafter, he alongwith his brother brought Babita back to her matrimonial home and everything became normal. DW3 Pankaj further deposed that on 15.02.2012, Nisha @ Nirmala, the cousin of Babita, who was also married in the same village and used to live in the neighbourhood, left her matrimonial house without informing her husband and the police was informed in that connection. DW3 Pankaj further deposed that after the incident of 15.02.2012, regarding Nisha @ Nirmala leaving her matrimonial house without informing her husband, the fatherinlaw of his brother and his family members started harassing his relatives, who were residing at Dalel Garh, near Kasna as they thought Nisha @ Nirmala was forced to leave her matrimonial house by his family. DW3 Pankaj further deposed that on 26.3.2012, Babita asked him to give his mobile phone to her after connecting a call to her father and at that time his brother was not at home as due to some work he had gone outside and his Sessions Case No. 18/14 Page no. 35 of 51 mother was also outside. DW3 Pankaj further deposed that on 26.3.2012 on the telephone Babita told her father that since Nirmala had left her matrimonial house therefore, the family of her husband should not be harassed by the family of her father and in this regard some hot words were also exchanged between Babita and her father and thereafter, father of Babita had disconnected the call. DW3 Pankaj further deposed that after disconnection of call by her father, Babita became disappointed and asked him again to connect a call to her father on his mobile phone. DW3 Pankaj further deposed that thereafter, Babita remained disappointed and had been crying and he consoled her. DW3 Pankaj further deposed that thereafter, he and Babita took milkshake as both of them were on fast. DW3 Pankaj further deposed that on 26.3.2012 at about 5.45 pm, his sisterinlaw Babita had started vomiting and appeared unconscious. DW3 Pankaj further deposed that since he did not know how to drive a vehicle, therefore, he called his neighbour Dharam Pal and taken Babita to Fortis Hospital and informed his brother about the incident. DW3 Pankaj further deposed that at the hospital Babita expired. DW3 Pankaj further deposed that in the month of March, 2012, and prior to that, his family had three motor vehicles, namely, WagonR car Sessions Case No. 18/14 Page no. 36 of 51 bearing registration no. DL9CW4004, Mahindra Xylo bearing registration no. HR55KT5209 and Scorpio bearing no. 4888. DW3 Pankaj further deposed that at the time of the incident his family also had a motorcycle worth Rs.1,00,000/.
50. In the present case in the light of the provisions of sections 304B and 498A of the Indian Penal Code and the submissions made on behalf of the parties, first point for determination is: whether on 04.3.2008 marriage was solemnized between accused Ajay @ Titu @ Mamchand and deceased Babita?
51. From the testimonies of PW1 Subhash, the father of deceased Babita, PW2 Ramavtar, the uncle of Babita, PW7 Jagwati, the mother of Babita, PW8 Amit, the brother of Babita, DW2 Sukesh Kumar, DW3 Pankaj, the brother of accused Ajay @ Titu, photographs Ex. P2, contents of CD Ex. P3 and the statements of accused Ajay @ Titu and Omwati, made under section 313 of Cr.P.C., it has been proved that on 04.3.2008, the marriage between accused Ajay @ Titu @ Mamchand and Smt. Babita was solemnized at Allahbas.
52. Second point for determination is: whether within seven years of her marriage, Babita, the wife of accused Ajay @ Titu @ Mamchand and daughterinlaw of accused Omwati, died otherwise Sessions Case No. 18/14 Page no. 37 of 51 than under normal circumstances?
53. From the testimonies of PW1 Subhash, PW2 Ramavtar, PW7 Jagwati, PW8 Amit, DW3 Pankaj, MLC report Ex. PW9/A, record of inquest proceedings Ex. PW4/C, post mortem reports Ex. PW3/A, FSL report Ex. PX and the statement of the accused persons made under section 313 of Cr.P.C. it has also been proved that on 26.3.2012, within seven years of her marriage, Smt. Babita, the wife of accused Ajay @ Titu @ Mamchand died. Regarding the cause of death of Babita, PW3 Dr. Rajnikanta Swain, who on 27.3.2012, conducted post mortem examination on the body of deceased Babita and proved post mortem examination report Ex. PW3/A, during his examination deposed that on 27.3.2012 he conducted post mortem examination of Babita W/o Ajay Kumar @ Titu. PW3 Dr. Rajnikanta Swain, during his examination, also opined that the cause of death of Babita was consumption of Aluminium Phosphide. There is no evidence on record to prove that Aluminium Phosphide was administered to Babita by some person other than Babita herself. Thus, in the light of the evidence led by the prosecution and the statement of the accused persons it has been proved that on 26.3.2012, within seven years of her marriage, Babita, the wife of accused Ajay @ Titu @ Mamchand, died Sessions Case No. 18/14 Page no. 38 of 51 otherwise than under normal circumstances due to hanging.
54. The third point for determination is: whether soon before her death, or otherwise, Babita, the wife of accused Ajay @ Titu @ Mamchand and daughterinlaw of accused Omwati, was subjected to cruelty or harassment by the accused persons for, or in connection with, any demand for dowry or otherwise?
55. For the purpose of sections 304B and 498A of the Indian Penal Code and section 113B of Act 1 of 1872, the term "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
56. From the evidence led by the prosecution it can be discerned that there are four main prosecution witnesses and they are PW1 Subhash, the father of the deceased, PW2 Ramavtar, the uncle of Sessions Case No. 18/14 Page no. 39 of 51 the deceased, PW7 Smt. Jagwati, the mother of the deceased and PW8 Amit, the brother of the deceased. Their testimonies require detail analysis, but prior to that documents Ex. PW5/A and Ex. PW10/C are required to be discussed.
57. Ex. PW5/A is the call detail record for the period 25.3.2012 to 27.3.2012 pertaining to mobile phone number 9871499787 in the name of PW1 Subhash, the father of the deceased. Ex. PW10/C is the call detail record for the period 25.3.2012 to 27.3.2012 pertaining to mobile phone number 9899230469 belonging to DW3 Pankaj, the brother of accused Ajay @ Titu. Here it is also noteworthy that initially DW3 Pankaj was also named in the police report as a suspect but he was neither summoned as such nor put on trial.
58. A reading of documents Ex. PW5/A and Ex. PW10/C reveals that on 26.3.2012, the day Babita died, at 12:42:02, a call was made from the mobile phone of DW3 Pankaj to the mobile phone of PW1 Subhash and the call lasted for a period of 325 seconds. Further, as per documents Ex. PW5/A and Ex. PW10/C another call was made from the mobile phone of DW3 Pankaj to the mobile phone of PW1 Subhash at 12:50:20 and the said call lasted for 138 seconds. It is Sessions Case No. 18/14 Page no. 40 of 51 obvious from a reading of Ex. PW5/A and Ex. PW10/C that at 2.00 pm or 2.30 pm or thereafter, as deposed by PW1 Subhash and PW7 Jagwati, no call was made from the mobile phone of DW3 Pankaj to the mobile phone of Subhash or vice versa.
59. No evidence has been led by the prosecution to prove that deceased Babita, before or at the time of her death, possessed a separate mobile phone or had any mobile connection in her name. The contents of Ex. PW5/A and Ex. PW10/C, if read in the light of the testimonies of PW1 Subhash, PW7 Jagwati and DW3 Pankaj, lead to only one inference that on 26.3.2012, deceased Babita, through the mobile phone no.9899230469, belonging to DW3 Pankaj, talked on the mobile phone no. 9871499787, belonging to her father PW1 Subhash.
60. To prove the acts of cruelty or harassment stated to have been suffered by Babita, there could be three modes, namely, (1) any witness who by his own senses perceived such acts of cruelty or harassment; (2) any complaint etc. made by Babita before her death; and (3) the statements of Babita admissible under section 32 of Act 1 of 1872.
61. In so far as PW1 Subhash is concerned, he has no where Sessions Case No. 18/14 Page no. 41 of 51 deposed that at any occasion he observed the acts of cruelty being committed by any of the accused against her daughter. During his examination PW1 Subhash deposed that his 1012 relatives, who had been residing at Jaunapur, had apprised him about beatings given to her daughter by accused Ajay @ Titu. But neither of the said relatives has been examined as a witness in this case. Further during his examination PW1 Subhash has not deposed that at any point of time, before her death, Babita told her that the accused persons harassed her or treated her with cruelty. PW1 Subhash, during his examination, did not depose about any conversation with her daughter Babita, except the conversation that took place on 26.3.2012. As per the testimony of PW1 Subhash, on 26.03.2014, his daughter made a call on his mobile phone and in the words of PW1 Subhash, following happened, namely: My daughter asked me if Foofa of accused Ajay had visited village Allahabas in Noida. I told my daughter that I had not met him in village Allahabas. I told my daughter that in case the presence of Ajay is needed, I can bring him in Jaunapur.
62. It is clear from the testimony of PW1 Subhash that the conversation that took place between him and his daughter on 26.3.2012 there was no discussion regarding any ill treatment meted by Babita at the hands of the accused persons or any family member Sessions Case No. 18/14 Page no. 42 of 51 of her husband.
63. During his crossexamination by the Additional Public Prosecutor, on being led through the questions in leading form, PW1 Subhash affirmed that her daughter apprised him that her motherin law Omwati, devar Pankaj and maternal uncle Dharam Pal were doing khichatani with her and threatening her to kill. Such examination of a witness on the facts in issue of a case, as per the law laid down by the Hon'ble Supreme Court in Varkey Joseph v. State, AIR 1993 SC 1892 is not permissible; and the facts affirmed by the witness during such examination cannot be given any credit.
64. It is also noteworthy that PW1 Subhash during his cross examination deposed that on mobile phone her daughter told that her motherinlaw and brotherinlaw were doing khichatani, implying that they were using criminal force against her and were threatening to kill her. But in the light of the evidence before the court, it appears highly improbable. As already observed, on the day of the incident twice Babita called her father by using the mobile phone of her devar Pankaj, who as per the testimony of PW1 Subhash was also doing khichatani and was intimidating her daughter. If that was the case, then it was highly improbable that he or any of the accused while Sessions Case No. 18/14 Page no. 43 of 51 beating up Babita or quarreling with her, would let her or allow her to talk to her parents so that she could tell them about the conduct of the accused persons or any of their family members. Thus from the testimony of PW1 Subhash it has not been established that any of the accused persons treated Babita with cruelty.
65. In so far as the testimony of PW2 Ramavtar is concerned, it appears that his whole version is based on hearsay. It has no where been deposed by him that he observed Babita being beaten up or otherwise being treated with cruelty by any of the accused persons. PW2 Ramavtar has also not deposed that Babita ever told him that she was being harassed by her husband or his family members. As per the testimony of PW2 Ramavtar, Babita used to tell about her harassment to his wife, implying that she never told him about such harassment or cruelty. The wife of PW2 Ramavtar has not been examined as a witness in this case and PW2 Ramavtar cannot depose about the statements made before his wife. Being evidence of hearsay nature and not admissible under section 32 of Act 1 of 1872, the testimony of PW2 Ramavtar cannot be relied upon in proof of the facts that Babita was being treated with cruelty by the accused persons or Pankaj, her devar. From the testimony of PW2 Ramavtar also it has not been Sessions Case No. 18/14 Page no. 44 of 51 established that any of the accused persons treated Babita with cruelty.
66. During her testimony PW7 Jagwati has also not deposed about any specific instance when her daughter was harassed and demand of WagonR car was made from her. During her examination inchief she deposed that on the day of incident, that is, on 26.3.2012, at 2.00 pm she talked to her daughter. During her crossexamination, she slightly changed her version and deposed that her daughter Babita talked to her in the evening but before setting of sun. No evidence has been led by the prosecution regarding the phone number that was used by PW7 Jagwati in talking to her daughter and the number of the phone from which Babita made call to her mother. From the evidence led by the prosecution and the accused persons, it appears to the court that on 26.3.2014, either PW7 Jagwati had no conversation with her daughter or she talked to her on one of the occasions when at 12:42:02 and subsequently at 12:50:20 by using mobile phone of her devar, Babita talked on the mobile phone of her father. As I have already observed, had the accused persons or Pankaj were harassing Babita on 26.3.2014, Pankaj, the brother of accused Ajay would not have allowed Babita to make a call to her parents so that she might complain to them about the conduct of the accused persons. It appears Sessions Case No. 18/14 Page no. 45 of 51 to the court that telephone calls were made by Babita on some different subject, as deposed by PW1 Subhash and DW3 Pankaj during their examinationinchief than deposed about by PW1 Subhash and PW7 Jagwati during their crossexamination and examination in chief respectively by the Additional Public Prosecutor. On the point of cruelty, from the testimony of PW7 Jagwati also it has not been proved that the accused persons or any of them treated Babita with cruelty.
67. In so far as testimony of PW8 Amit is concerned on one occasion he deposed that the accused demanded WagonR car from his sister but during his crossexamination he failed to disclose as to when such demand was made. He during his examination or cross examination no where deposed that the accused persons or any of them demanded WagonR car from him or his parents. PW8 Amit, during his examination, also made a general statement regarding harassment meted out to her sister but has given no specific particulars of such incident. PW8 Amit also deposed that on one occasion he noticed injury on the body of his sister, but again did not give any specific particulars as to when such injury was observed and on which part of her body. In the absence of deposition regarding the specific instances of the acts of cruelty and the occasions on which such Sessions Case No. 18/14 Page no. 46 of 51 cruelty was met, merely on the basis of general statements, in the light of the law laid down in Umed Singh's case (supra) it cannot be held that the acts of cruelty on the part of the accused persons has been proved.
68. During their testimonies PW1 Subhash, PW2 Ramavtar and PW8 Amit deposed that for a period of about eleven months, when Babita remained at her parental house, she took a teaching job at school at NOIDA and in support of this fact document Ex. PX, purporting to be an employment certificate issued by one Active People Academy was tendered in evidence. In proof of the said certificate Ex. PX, no official from the said Academy was called. During his examination PW1 Subhash deposed that certificate Ex. PX was brought by his brother; but on further questioning, he could not tell as to what was the name of his brother who brought Ex. PX, and answered evasively. During her crossexamination PW7 Jagwati, when questioned about the job of her daughter, categorically stated that her daughter Babita never took any job of teaching at any school. It is obvious that Ex. PX is a forged document and PW1 Subhash, PW2 Ramavtar and PW8 Amit have deposed falsely about the same.
69. During their examination the main prosecution witnesses Sessions Case No. 18/14 Page no. 47 of 51 deposed about a complaint made by Babita before Crime Against Women Cell at NOIDA, but the prosecution has failed to prove as to what was the nature and contents of the said complaint. From the testimony of PW19 Inspector Gurnam Singh, though it has been proved that an oral complaint was made, but the contents of the complaint have not been proved. In these circumstances, on the point in hand, the prosecution has failed to prove that before her death on 26.3.2012, Babita was treated with cruelty by the accused persons or any of them.
70. The fourth point for consideration is whether the accused persons have committed the offence of dowry death in respect of Babita?
71. As already indicated, the essential ingredients of the offence of "dowry death" are: (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have been occurred within seven years of marriage (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand for dowry; and (v) such cruelty is shown to have been meted out to the Sessions Case No. 18/14 Page no. 48 of 51 woman soon before her death.
72. Regarding the demand of dowry by the accused persons, the prosecution version is that after the marriage, for a period of about one year, deceased Babita was well in her matrimonial home, but thereafter, the solemnization of the marriages of her two cousins, the accused started demanding a WagonR car in dowry. On this point, PW2 Ramavtar, whose testimony is based on hearsay, does not prove such demand of dowry. PW8 Amit during his examination deposed that the car was demanded from his sister, but on further questioning during his crossexamination, he could not tell as to when such demand was made to his sister. Regarding the demand of dowry, PW7 Jagwati has a version different from the other prosecution witnesses. Contrary to the testimonies of PW1 Subhash and PW2 Ramavtar, who during their respective examination deposed that after passing of about one and a half year from the marriage of Babita, in the wake of the marriages of the daughters of their brother Ram Kumar, the accused demanded WagonR car, PW7 Jagwati deposed that the demand for the car started within three months of the marriage of Babita. Thus, testimony of PW7 Jagwati is also not reliable.
73. During his examination PW1 Subhash also deposed that Sessions Case No. 18/14 Page no. 49 of 51 the accused demanded a WagonR car from him in dowry. But he could not give any further details as to when and by whom such demand was made. In the face of conflicting versions given by the other witnesses and in the absence of corroboration of the testimony of PW1 Subhash, a serious doubt has been created regarding the truth of his testimony on the point of the demand of dowry.
74. In the present case although it has been proved that within seven years of her marriage with accused Ajay @ Titu, his wife Babita died under abnormal circumstances, but the prosecution has failed to prove, by leading credible evidence, that soon before her death, Babita was being treated with cruelty. In these circumstances, the prosecution has failed to prove that the accused persons or any of them have committed the offence of dowry death. The point in issue is decided accordingly.
75. To sum up, in the light of the evidence produced before the Court, it is found that the prosecution has failed to prove, by leading cogent evidence, that soon before her death, or on other occasion, Babita, the wife of accused Ajay @ Titu, was subjected to cruelty or harassment by the accused persons, or any of them, for, or in connection with, any demand for dowry or otherwise. Therefore, Sessions Case No. 18/14 Page no. 50 of 51 accused Ajay @ Titu @ Mamchand and Omwati are not found guilty and they are acquitted of the offences punishable under section 304B and 498A of the Indian Penal Code. They be set at their liberty, unless required to be detained in connection with some other case. The bonds and surety bonds furnished by the accused persons and their sureties under section 437A of Cr.P.C. shall, however, remain in force till their expiry as per section 437A of Cr.P.C.
76. File be sent to records.
Pronounced in the open court (Manoj Kumar)
th
on 27 November, 2014. Additional Sessions Judge4 South District:Saket Courts:
New Delhi Sessions Case No. 18/14 Page no. 51 of 51