Delhi District Court
State vs . Kuldeep Mukherjee on 3 January, 2017
FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 58331/16 State Vs. Kuldeep Mukherjee S/o Sh. Raj Kumar Mukherjee R/o Gali no. 7, Rajeev Colony, Narela, Delhi. FIR No. : 178/09 Police Station : Narela Under Sections : 498A/304B IPC Date of committal to Sessions Court : 20.10.2009 Date on which judgment was reserved: 19.12.2016 Date on which Judgment pronounced: 03.01.2017 JUDGMENT
BRIEF FACTS OF THE CASE
1. The above named accused had been sent to face trial in respect of offences punishable U/s 498A/304B IPC on the allegations that he being husband of Bhupender Kaur (since deceased) subjected her to cruelty and harassed her with a view to coerce her to meet his unlawful demands and also subjected her to cruelty or harassment in connection with demand of dowry soon before her death due to which his wife namely Bhupender Kaur died otherwise than under normal circumstances within seven years of her marriage with him.
2. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 19.06.2009 at about 10.12 pm, intimation State V/s. Kuldeep Mukherjee ("Acqutited") Page 1 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 received in PS, was recorded vide DD No. 66B (Ex.PW2/C) and same was marked to SI Suresh Chand (PW12) for necessary action. Accordingly, SI Suresh Chand reached the place of information, where it was revealed that one lady namely Bhupender Kaur had committed suicide by hanging herself from ceiling fan with the help of chunni. He prepared inquest papers and got the said place photographed and inspected through Mobile Crime Team officials. Dead body was removed to BJRM Hospital.
(ii). It is further the case of prosecution that it was revealed on enquiry that accused got married with deceased on 31.07.2006 and one girl child was born out of said wedlock. Executive Magistrate namely Sh. V.K. Chauhan (PW3) was telephonically informed about the occurrence and chunni used for committing suicide was seized by him. On 21.06.2009, Sh. Rajender Singh (PW10), who was father of deceased, gave written complaint (Ex PW3/A) before Executive Magistrate, wherein he alleged harassment caused to his daughter i.e. Bhupender Kaur by accused and his family members in connection with demand of dowry. He also alleged that on 19.06.2009 at about 9.30 am, Bhupender Kaur had visited their house and had asked them to pay a sum of Rs. 2,50,000/ by claiming that said amount was demanded by her inlaws for purchasing the plot and in case the said demand is not fulfilled, then her inlaws would kill her and on 20.06.2009 at about 10 am, he was informed by police official that Bhupender Kaur had committed suicide;
(iii). On the basis of aforesaid complaint, Executive Magistrate State V/s. Kuldeep Mukherjee ("Acqutited") Page 2 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 issued direction for registration of FIR. Accordingly, FIR in question came to be registered and investigation was carried out by SHO namely Inspector Bakshi Ram (PW18) himself. During investigation, he got conducted postmortem examination on the body of deceased and seized viscera as handed over by Autopsy Surgeon. He also prepared rough site plan of the spot and arrested the accused on 22.06.2009. He also recorded statements U/s 161 Cr.P.C. of the relevant witnesses. Relevant exhibits were got deposited in FSL, Rohini. Two letters purportedly written by deceased were produced during investigation and same were sent to FSL for opinion of handwriting expert. After completion of the investigation, chargesheet had been filed before the Court.
3. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED
4. After hearing arguments on the point of charge, Ld. predecessor of this Court framed the charge for the offences punishable U/s 498A/304B IPC against accused Kuldeep Mukherjee vide order dated 08.01.2010, to which he pleaded not guilty and claimed trial.
5. In support of its case, the prosecution has examined nineteen witnesses namely PW1 Dr. V.K. Jha, PW2 HC Virender Kumar, PW3 Sh. V.K. Chauhan, PW4 Ct. Manoj Kumar, PW5 Ct. Pradeep Kumar, PW6 Sh. Ranjit Singh, PW7 Sh. Chander Kumar Mishra, PW8 Sh. Pramod State V/s. Kuldeep Mukherjee ("Acqutited") Page 3 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 Kumar, PW9 Smt. Harcharan Kaur, PW10 Sh. Rajender Singh, PW11 Sardar Mahender Singh, PW12 SI Suresh Chand, PW13 Sh. Praveen Kumar, PW14 Sh. Rohtash Sharma, PW15 Ct. Gunwant, PW16 Sh. Surender Nath Pandey, PW17 HC Satbir, PW18 Inspector Bakshi Ram and PW19 Sh. Devak Ram, during trial.
6. It may be noted here that Ld. Additional PP after discussion with IO Inspector Bakshi Ram, dropped PW namely Manoj Kumar from the list of witnesses as statement of said witness was not relevant for the case of prosecution.
7. It may also be mentioned here that accused made statement during trial on 21.11.2014 that he was not disputing the contents of FSL result no. 2009/C2728 dated 27.04.2011, relied by prosecution in the present case. Accordingly, the said FSL result was exhibited as Ex.PX1 on 21.11.2014. Consequently, Ld. Additional PP dropped PW namely Dr. Adesh Kumar, Sr. Scientific Assistant (Chemistry), FSL Rohini from the list of witnesses in view of the said statement.
8. Thereafter, statement U/s 313 Cr.P.C. of accused Kuldeep Mukherjee was recorded during which all the incriminating evidence were put to him. However, he denied the same and claimed that he is innocent and has been falsely implicated in this case. He claimed that deceased Bhupender Kaur was having love marriage with him and due to that reason, after her death, the family members of deceased falsely implicated him in the present case. He further claimed that he alongwith his wife Bhupender Kaur were residing in his parental house alongwith his parents and elder sister at Gali no. 9, Gautam Colony, Narela. After the birth of their daughter Naina on 26.07.2007, they both alongwith their daughter shifted to rented accommodation situated at Rajiv Colony, Narela due to State V/s. Kuldeep Mukherjee ("Acqutited") Page 4 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 insistence of deceased Bhupender Kaur herself. There was no dispute as such between him and his wife Bhupender Kaur during her life time and both of them were residing happily till she committed suicide. Bhupender Kaur committed suicide on the rebuking of PW10 Rajender Singh when she visited his house on 19.06.2009 in order to meet her mother, whereby PW10 Rajender Singh had claimed that bhabhi of deceased Bhupender Kaur i.e. wife of her brother namely Bhupinder Singh had also left her matrimonial house and the same practice was started by deceased Bhupender Kaur as well. However, the accused opted not to lead evidence towards his defence.
9. I have already heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Counsel Sh. Anuj Arya, Adv. on behalf of accused. I have also gone through the material available on record as well as the authorities cited at the bar.
10. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES:
11. PW6 Sh. Ranjit Singh: He is the brother of deceased Bhupender Kaur. He deposed that after seven days of marriage of his sister with accused, the accused and his family members started demanding dowry and harassing his sister. They had demanded cash, double bed, cooler, etc. on different occasions from his sister and they had fulfilled their said demands. His sister used to complain about her torture State V/s. Kuldeep Mukherjee ("Acqutited") Page 5 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 at the hands of her inlaws as and when she used to visit parental house. She had visited their house in the morning of 19.06.2009 and told that her inlaws were demanding a sum of Rs. 2,50,000/ for purchasing a plot and in case said demand will not be fulfilled then her inlaws would kill her. They showed their inability to pay that much amount, on which she went to her matrimonial house in depressed mood. On 20.06.2009, they came to know about the death of his sister. On 21.06.2009, he had visited the house of his sister and found letters Ex. PW6/A and Ex. PW6/B from under the bed. He handed over both the said letters to the police.
During cross examination, he deposed that it was a love marriage of his sister Bhupender Kaur with accused on 30.07.2006. Neither he nor any of his family members attended the said marriage as they wanted that Bhupender Kaur should marry with boy from the same community. Initially, his parents were against the marriage but after about two months or so, they were having visiting terms with deceased Bhupender Kaur. During further cross examination conducted on 30.09.2013, he turned hostile and took Uturn from whatever was deposed by him during chief examination. However, during his reexamination on behalf of State held on the same day i.e. 30.09.2013, he testified to have deposed correctly during chief examination recorded on 18.08.2011 and 12.04.2013 and admitted the suggestion put to him that deceased used to tell about the harassment and demand of dowry to her family members.
12. PW7 Sh. Chander Kumar Mishra: He deposed that accused had purchased their old TV make Sansui for Rs. 6,000/ in installments on the occasion of birth of his daughter.
13. PW8 Sh. Pramod Kumar: He was running Photo Studio at State V/s. Kuldeep Mukherjee ("Acqutited") Page 6 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 Narela. He deposed that on 19.06.2009, on the direction of SI Suresh Chand, he had taken six photographs Ex. PW8/B1 to Ex. PW8/B6 of the dead body as well as of the place where one lady Bhupender Kaur had committed suicide.
14. PW9 Smt. Harcharan Kaur : She is the mother of deceased Bhupender Kaur. She deposed on identical lines of the PW6 whose testimony has already been discussed above. She testified that immediately after her marriage with accused, Bhupender Kaur used to remain tense and was not happy with the marriage. Her daughter used to tell her that accused used to beat her on petty issues and was not earning anything and when she wanted to do some job, accused did not approve the same. Parents of accused were also not happy with the marriage as accused and her daughter had performed marriage against their wishes. Her daughter and accused used to reside in separate house. On 19.06.2009, her daughter visited their house and asked to pay a sum of Rs. 2,50,000/ for purchase of plot and told that in case they would not give money, accused would quarrel with her and would torture her for not bringing the money. Elder sister of accused also used to harass her daughter.
During cross examination, she turned hostile and took U turn from the contents of her chief examination. She testified that accused was tutor at the time of incident and neither accused nor any of his family members demanded anything from her or from any of her family members. She was again reexamined on behalf of State, during which she admitted to have deposed correctly and truly during her chief examination recorded on 12.04.2013.
15. PW10 Sh. Rajender Singh: He is the father of deceased. He State V/s. Kuldeep Mukherjee ("Acqutited") Page 7 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 has also deposed on similar lines as deposed by PW6 and PW9 whose testimonies have already been discussed hereinabove. He deposed that on 19.06.2009, Bhupender Kaur had visited their house and asked to pay a sum of Rs. 2,50,000/ for purchase of plot by claiming that accused and his family members were demanding said money as dowry in order to purchase the plot. After assuring his daughter that he would speak to her inlaws, she was sent back to her matrimonial house. On 20.06.2009 in the morning, they came to know that Bhupender Kaur had died due to hanging. He had identified dead body of Bhupender Kaur in the mortuary of BJRM hospital, vide statement Ex. PW3/E. He had given written complaint Ex. PW3/A, on the basis of which FIR was registered in this case. He further deposed that on previous occasions also, accused used to harass and torture his daughter for not bringing sufficient dowry articles as per his desire and demand.
During cross examination, he also turned hostile. During re examination on behalf of State, he admitted to have alleged in complaint Ex. PW3/A filed before Tehsildar, complaining about the harassment caused to his daughter Bhupender Kaur by accused for dowry. He admitted that he used to supply articles like fridge, TV, etc. to accused and his father.
16. PW11 Sardar Mahender Singh: He had identified dead body of deceased in the Mortuary of BJRM hospital, vide identification statement Ex. PW3/D. He has not been cross examined by accused despite grant of opportunity.
17. PW13 Sh. Praveen Kumar: He is the son of landlord/owner of premises, wherein accused alongwith deceased State V/s. Kuldeep Mukherjee ("Acqutited") Page 8 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 Bhupender Kaur were residing as tenant. He deposed that accused was home tutor and his parents never visited their rented accommodation as they were against the marriage of accused with deceased Bhupender Kaur. Similarly, the parents of Bhupender Kaur also did not visit their house as they were also against the love marriage. On 19.06.2009 at about 10.00 pm, he went to the rented room of accused on hearing the noise. Accused managed to open the door by opening the bolt through window. When they entered inside the room, Bhupender Kaur was found hanging on ceiling fan. Accused removed deceased from ceiling fan and put her body on the bed and also made PCR call, on which police came and got the said place photographed and removed the dead body to hospital for postmortem.
During cross examination, he deposed that as and when deceased used to visit her parental house, her father and other family members used to pressurize her to leave accused Kuldeep on the pretext that they would marry her again. Deceased was not ready to do so. There was no demand of dowry from the side of accused and they used to live happily.
18. PW14 Sh. Rohtash Sharma: He was residing in the neighbourhood of the premises wherein family members of accused were residing as tenant. He deposed that accused and his family were living in separate accommodation in Rajiv Colony. He never saw accused and his wife living in the tenanted premises of father of accused in Narela.
19. PW16 Sh. Surender Nath Pandey: He got the marriage between accused and Bhupender Kaur performed at Arya Samaj Mandir, District Bandi, U.P on 31.07.2006. He had issued Marriage Certificate Ex.
State V/s. Kuldeep Mukherjee ("Acqutited") Page 9 of 29FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 PW16/A concerning the said marriage.
During cross examination, he deposed that marriage was witnessed by 13 persons. He produced Marriage Register containing relevant entry of the marriage. The copy of relevant page was taken on record and was exhibited as Ex. PW16/DA.
POLICE WITNESSES
20. PW2 HC Virender Kumar: He is the Duty Officer who proved factum regarding recording of FIR No. 178/09 in PS Narela. He proved copy of said FIR as Ex.PW2/A and his endorsement as Ex.PW2/B made on the rukka. He deposed that he had handed over copy of FIR and rukka to the SHO. He also proved copy of DD No. 66B dated 19.06.2009 as Ex.PW2/C. On 19.06.2009, he was also working as MHC(M) in PS Narela. He deposed that on that day, SI Suresh Chand had deposited one sealed parcel duly sealed with the seal of SC, containing chunni and one plastic stool, in the Malkhana vide DD No. 66B. He made entry at serial no. 179 in register no. 19 in this regard and proved the said entry as Ex.PW2/D. He further deposed that on 21.06.2009, SI Suresh Chand had deposited one wooden box containing viscera sealed with the seal of FMT, BJRM Hospital and sample seal of BJRM Hospital, in the Malkhana. He made entry at serial no. 182 in register no. 19 in this regard and proved the said entry as Ex.PW2/E. He further deposed that on 13.07.2009, he had handed over the wooden box and sample seal to Ct. Gunwant vide RC no. 88/21/09 for being deposited in FSL Rohini. He proved copy of said entry against State V/s. Kuldeep Mukherjee ("Acqutited") Page 10 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 column no. 5 to 8 on Ex.PW2/E. He also proved copy of said RC as Ex.PW2/F and copy of receipt issued by FSL as Ex.PW2/G.
21. PW4 Ct. Manoj Kumar: He had accompanied SI Suresh Chand to the rented room of accused on 19.06.2009 after receipt of PCR call. He deposed that dead body of one lady was lying on bed and one chunni was hanging with the ceiling fan. Accused met them at the spot. After the spot was got inspected and photographed through Mobile Team officials, SI Suresh Chand prepared sealed pullanda of chunni and seized the same vide memo Ex. PW4/A and informed SHO and concerned Tehsildar. He removed dead body to Mortuary of BJRM hospital and got the same preserved over there. He identified the said chunni as Ex. P4/1 during trial.
During cross examination, he testified that IO had searched the said room where dead body was found lying in his presence but no suicide note was recovered.
22. PW5 Ct. Pradeep Kumar : He deposed that on 19.01.2009, he was on duty from 8 pm to 8 am at CPCR, PHQ. On that day, he had filled up PCR form on the basis of information received from telephone no. 9268441924 regarding quarrel and transmitted the same. He proved copy of said PCR form as Ex.PW5/A. He has not been cross examined by accused despite grant of opportunity.
23. PW12 SI Suresh Chand : On receipt of DD no. 66B Ex. PW2/C, he alongwith Ct. Manoj had visited the place of information i.e. rented room of accused, where Bhupender Kaur had committed suicide. He deposed on identical lines as deposed by PW4 Ct. Manoj in this regard. He also testified that apart from accused, one Parveen who was son of State V/s. Kuldeep Mukherjee ("Acqutited") Page 11 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 landlord Sh. Om Parkash was also present there. He had prepared sealed pullanda of chunni and seized the same vide memo Ex. PW4/A and also got the said place photographed and inspected through Crime Team officials. Dead body was got removed to mortuary of BJRM hospital through Ct. Manoj. He had also informed Executive Magistrate about the occurrence.
He also deposed that on 21.06.2009, he had joined investigation with IO Inspector Bakshi Ram and visited the spot, where IO prepared site plan Ex. PW12/A at his instance. Thereafter, they went to mortuary of BJRM hospital, where identification statements Ex. PW3/D and Ex. PW3/E were recorded by Executive Magistrate who carried out inquest proceedings and got the postmortem examination conducted on the body of deceased. Box containing viscera and sample seal handed over by autopsy surgeon, were seized by IO vide seizure memo Ex. PW12/C. During cross examination, he admitted that accused used to reside separately from his parents. He had carried out search of the bed, under the bed as well as the room before removing dead body to Mortuary but room was not sealed.
24. PW15 Ct. Gunwant : He was posted at PS Narela on 13.07.2009. He deposed that on the instructions of SHO, he took one sealed pullanda containing viscera of deceased Bhupender Kaur alongwith sample seal and FSL form from MHC(M) and deposited the same at FSL, Rohini vide R.C. No. 88/21. He further deposed that after depositing the same, he had handed over acknowledgement to MHC(M). He has not been cross examined by accused despite grant of opportunity.
25. PW17 HC Satbir : He had joined the investigation with IO State V/s. Kuldeep Mukherjee ("Acqutited") Page 12 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 on 22.06.2009 when accused was arrested, vide memo Ex. PW17/A from his rented accommodation. He deposed that accused had produced one identity card ( Ex. PW6/E) bearing signature of deceased Bhupender Kaur, Registration Card of CBSE ( Ex. PW6/F), one blank cheque ( Ex. PW6/G) of Bank of India, Affidavit ( Ex. PW6/H) bearing signature of deceased Bhupender Kaur and some photographs of marriage to IO, who seized the same vide memo Ex. PW17/C. Accused had also produced Marriage Certificate ( Ex. PW6/J) of Arya Samaj Mandir before IO, who seized the same vide memo Ex. PW17/D. During cross examination, he admitted that during investigation, it was revealed that parents of accused were not on visiting terms with him since after his marriage and same was the position with regard to the parents of deceased Bhupender Kaur. Accused did not try to escape at the time of his arrest.
26. PW18 Inspector Bakshi Ram : He is the IO in this case. He has deposed about the relevant investigation carried out by him. He testified that after recording statement of Rajender Singh, who was father of deceased Bhupender Kaur, Executive Magistrate namely Sh. V.K Chauhan had issued direction for registration of case. Accordingly, he made endorsement on statement Ex. PW3/A of Sh. Rajender Singh and got the FIR registered in this case On 21.06.2009, he alongwith SI Suresh Chand went to the spot, where he had prepared site plan Ex. PW12/A at the instance of SI Suresh Chand. Thereafter, they went to BJRM hospital, where inquest proceedings were carried out by Executive Magistrate and postmortem was got conducted on the body of deceased Bhupender Kaur. Thereafter, dead body was handed over to the relatives. The viscera and sample seal handed over by Autopsy Surgeon were seized, vide memo Ex.
State V/s. Kuldeep Mukherjee ("Acqutited") Page 13 of 29FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 PW12/C. On 21.06.2009, HC Rampal had produced two pages Ex. PW6/A and Ex. PW6/B written by deceased in her handwriting. He kept both the said pages in the police file. On 22.06.2009, Ct. Satbir had joined investigation with him, when accused was arrested vide memo Ex. PW17/A. Accused had produced relevant documents before him. He deposed on identical lines of PW17 HC Satbir in this regard. The relevant exhibits were got deposited in FSL, Rohini and after completion of investigation, charge sheet was filed.
During cross examination, he deposed that statement of Sh. Rajender Singh was not recorded by Executive Magistrate in his presence. SI Suresh Chand had already conducted search of the tenanted room of accused. HC Ramphal had informed him that so called dying declarations of deceased were handed over to him by brother of deceased in the evening hours of 20.06.2009 but he did not prepare any seizure memo in that regard. The accused did not try to escape at the time of his arrest. He admitted that during investigation, it was revealed to them that parents of accused were not on visiting terms with accused and the parents of deceased were also against her marriage with accused and were not on visiting terms due to said reason.
OFFICIAL WITNESS
27. PW3 Sh. V.K. Chauhan: This witness was posted as Tehsildar, Narela. He deposed that on 20.06.2009, Rajinder Singh alongwith 23 persons came to him. Some police officials from PS Narela also accompanied them. Those police officials told him that daughter namely Bhupinder Kaur of Rajinder Singh had died and Rajinder Singh wanted to make statement in this regard. Accordingly, he had recorded his State V/s. Kuldeep Mukherjee ("Acqutited") Page 14 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 statement Ex.PW3/A. He further deposed that on 21.06.2009, he had visited BJRM Hospital and prepared inquest papers of the dead body in form no. 25.35. He exhibited the said inquest proceedings as Ex.PW3/B. He had also recorded statements Ex.PW3/D and Ex.PW3/E of Mahender Singh and Rajender Singh respectively regarding identification of dead body. He had moved an application Ex.PW3/F to concerned doctor for conducting postmortem. He had issued direction to SHO PS Narela to register the case against the accused in accordance with law, vide his direction Ex.PW3/A1. He had also directed the IO to hand over the dead body to its relative after the postmortem.
In his cross examination, he deposed that in the morning of 20.06.2009, he had received the information from PS Narela that one lady namely Bhupinder Kaur had expired and her father wanted to make statement in that regard. On the same day in the afternoon, he had called father of deceased alongwith police to his office. He did not ask Rajinder Singh if any complaint was made by him to the police in this regard or not. He did not record the statement of Rajinder but Rajinder had delivered his handwritten statement to him. On that day, he had received the complaint of Rajinder. He did not record statement of any other relative of the deceased. He had forwarded the complaint of Rajinder to concerned SHO for registration of case, after making his endorsement. He denied the suggestion that he had forwarded the complaint of Rajinder to concerned SHO without application of mind or at the instance of complainant.
28. PW19 Sh. Devak Ram : He is the handwriting expert who had examined the handwriting appearing on letters Ex. PW6/A and Ex. PW6/B on the basis of admitted writing and signatures of deceased State V/s. Kuldeep Mukherjee ("Acqutited") Page 15 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 appearing on documents Ex. PW6/C to Ex. PW6/H. After examining the relevant exhibits, he had prepared his report Ex. PW19/A, wherein he gave opinion that the person who wrote the red enclosed writing Mark A1 to A18, had written the questioned documents Ex. PW6/A and Ex. PW6/B. He has not been cross examined by accused despite grant of opportunity. MEDICAL EVIDENCE:
29. PW1 Dr. V.K. Jha: He had conducted postmortem examination on the dead body of deceased Bhupender Kaur in BJRM Hospital Mortuary on 21.06.2009. He testified that the dead body was sent by Sh. V.K. Chauhan, Executive Magistrate, Narela and said dead body was identified by Ct. Dinesh. He exhibited his postmortem report as Ex.PW1/A. He deposed that during postmortem examination, it was found that the deceased had sustained external injuries i.e. obliquely placed ligature mark present on front and sides of neck, going upwards and backwards towards posterior hair line, length of ligature mark was 24 cm and breadth was 2 cm. The skin over the ligature mark was hard and parchementised. The ligature mark on front was placed 8 cm below chin on front and 6 cm to 7 cm below right and left ear lobules in sides respectively. The cause of death was reserved till receipt of viscera report.
He further deposed that after receipt of vicera result Ex. PX, he had given his opinion regarding the cause of death of victim Bhupender Kaur to the effect that her cause of death was due to Asphyxia as a result of ligature pressure over neck structure used by ante mortem ligature hanging, as no common posion could be detected in the viscera result. He has not been cross examined by accused despite grant of opportunity.
State V/s. Kuldeep Mukherjee ("Acqutited") Page 16 of 29FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 ARGUMENTS ADVANCED AND CASE LAW CITED
30. After referring to the case of prosecution as mentioned in the charge sheet and the testimonies of prosecution witnesses examined during trial, Ld. Additional PP assisted by counsel of complainant vehemently argued that prosecution has been able to bring home the guilt of accused in respect of offences punishable U/s 498A/304B IPC beyond shadow of doubt. For the said purpose, Ld. Additional PP heavily relied upon the testimonies of all the three family members of deceased, who have been examined as PW6, PW9 and PW10. He argued that all the said three public witnesses have categorically deposed regarding the harassment and torture of deceased at the hands of accused before her death. He further submitted that on 19.06.2009 i.e. one day prior to committing suicide by deceased Bhupender Kaur, deceased had visited her parental house and informed them regarding demand of Rs. 2,50,000/ for purchase of plot made by accused and his family members. He further argued that no adverse inference should be drawn against prosecution by relying upon cross examination part of the said witnesses as accused had cross examined them after a considerable gap during which he had sufficient time to win over the witnesses. In alternative, he submitted that the witnesses have again supported the case of prosecution during their respective reexamination conducted on behalf of State. In this regard, he has also relied upon the judgment of Hon'ble Apex Court in "Bhajju Vs. State of M.P" reported at (2012) 4 SCC 327. He has also relied upon the presumption contained in Section 113B of Indian Evidence Act, in order to bring home his point that accused failed to rebut the said presumption. It is therefore, urged on behalf of State that accused is liable to be State V/s. Kuldeep Mukherjee ("Acqutited") Page 17 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 convicted in this case.
31. Per contra, Ld. Defence counsel vehemently argued that the prosecution has failed to establish the charges levelled against accused beyond pales of reasonable doubt. He vehemently argued that even if chief examination of all the aforesaid three public witnesses are taken into consideration, same are not sufficient to prove that accused had subjected Bhupender Kaur to cruelty or harassment in connection with demand of dowry. He argued that it was a love marriage between the parties and family members of accused were against the said marriage. He also pointed out that for that reason only, accused was residing in a tenanted room separately from his parents and other family members. He also argued that considerable improvements have been made by the aforesaid public witnesses during trial visavis their previous statements made before the police and thus, their testimonies are not believable under the law.
32. As already discussed above, the accused had been sent to face trial for offences punishable U/s 498A/304B IPC on the allegations that he had harassed deceased and subjected her to cruelty in connection with demand of dowry and deceased was subjected to cruelty by accused soon before her death in connection with demand of dowry.
33. The term 'dowry' has not been defined in Section 304B of IPC, but since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of Section 304B IPC as held by Hon'ble Supreme Court in the matter titled as " Satvir Singh Vs. State of Punjab" reported at 2001 (4) Crimes 45.
State V/s. Kuldeep Mukherjee ("Acqutited") Page 18 of 29FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 Section 2 of Dowry Prohibition Act defines dowry 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 parent 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 mehar in the case or persons to whom the Muslim Personal Law (Shariat) applies."
34. A careful analysis of the abovereferred definition would show that dowry would include property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. But, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agreed to give some cash, valuable security or property to her husband or inlaws after marriage, that would also be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry.
35. If the husband or any other person related or connected to him, demands something from the girl or her parents or any other person State V/s. Kuldeep Mukherjee ("Acqutited") Page 19 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 related to or connected with her, saying that the article being demanded by them was expected to be given or ought to have been given in marriage, that also, to my mind, would constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized.
36. The prosecution was enjoined to prove the following ingredients for proving its case in respect of offence punishable U/s 304B IPC:
(i) That death of deceased Bhupender Kaur had been caused by burn or bodily injury or otherwise than under natural circumstances;
(ii) The death of deceased Bhupender Kaur occurred within seven years of her marriage;
(iii) That deceased Bhupender Kaur had been subjected to cruelty or harassment by accused in connection with demand of dowry; and
(iv) That such cruelty or harassment was caused by accused to the deceased soon before her death.
37. Hon'ble Apex Court in the matter titled as "Kanwar Pal Vs. Shakuntala And Ors." reported at 2015 IV AD (Delhi) 450, has held that the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. In that State V/s. Kuldeep Mukherjee ("Acqutited") Page 20 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 case, it was observed from the evidence of the prosecution witness and in particular PW1 and PW4 that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased. The onus was also on the prosecution to prove beyond reasonable doubt the ingredients of Section 489A IPC. Relevant portions from the judgment read as under: "xxxxxxxx In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific appellant on the deceased........
In our considered opinion, the evidence of DW1 (the appellant) and Ext.
D19 cast a reasonable doubt on the prosecution story that the deceased was subjected to harassment or cruelty in connection with demand of dowry. In our view, onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 498A, IPC and the essential ingredient of offence under Section 498A is that the accused, as the husband of the deceased, has subjected her to cruelty as defined in the Explanation to Section 498A IPC. Similarly, for the Court to draw the presumption under Section 113B of the Evidence Act that the appellant had caused State V/s. Kuldeep Mukherjee ("Acqutited") Page 21 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 dowry death as defined in Section 304B, IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment of cruelty, neither of the offences under Sections 498A and 304B, IPC has been made out by the prosecution.
xxxxxxx"
38. Now adverting back to the facts of the present case. It is the admitted case of prosecution that it was a love marriage between accused and deceased Bhupender Kaur and families of both them were against the said marriage. Infact, PW6, PW9 and PW10 have admitted this fact during their chief examination itself. It is also an admitted case on record that accused was residing in rented accommodation forming part of house situated at Gali No. 7, Rajeev Colony, Delhi, separately from his family members, Same is duly established from the testimony of PW13 Parveen Kumar who has so deposed in this regard.
39. Although, the prosecution has heavily relied upon the letters Ex. PW6/A and Ex. PW6/B purportedly written by deceased Bhupender Kaur, in order to show that accused used to torture her during her life time. The said letters are claimed to have been recovered by PW6 from under the bed of the tenanted room where deceased had committed suicide on 20.06.2009. However, the said two letters are not of much relevance and significance so far as the charges are levelled against the accused in this case for several reasons. Firstly, the recovery of said two letters from the said place on the alleged date i.e. 21.06.2009 is found to be doubtful.
State V/s. Kuldeep Mukherjee ("Acqutited") Page 22 of 29FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 PW6 who allegedly found said two letters (Ex. PW6/A and Ex. PW6/B) testified during chief examination that he had found those letters on 21.06.2009 at about 9.00 am when he had visited the house of his sister where she had committed suicide. However, PW18 Inspector Bakshi Ram, (who is IO of the case) has testified during cross examination that said two letters were handed over to him by HC Ramphal and at the time of handing over those letters to him, HC Ramphal had told him that said two letters were handed over to him by brother of deceased in the evening hours of 20.06.2009. Moreover, PW4 Ct. Manoj Kumar and PW12 SI Suresh Chand were the police officials who had visited the spot for the first time on 20.06.2009 on receipt of DD no. 66B ( Ex. PW2/C) and had seized ligature material i.e. Chunni ( Ex. P2) used for committing suicide by deceased from said place. Both the said police witnesses have testified during their respective testimonies that the room where deceased had committed suicide, was thoroughly searched on 20.06.2009 itself but no such letters were found by them at that time. Further, PW12 has also testified that he had not sealed the said room on 20.06.2009. In other words, the possibility of planting of said two letters after removal of dead body of deceased to Mortuary of BJRM Hospital till its alleged recovery by PW6 Ranjit Singh on 21.06.2009 cannot be ruled out.
40. Secondly, even if it be presumed for the sake of arguments that the said letters were genuinely recovered from the said place in the manner as mentioned in the charge sheet, still, the said letters do not indict the accused so far as the charges framed against him are concerned. The perusal of both the said letters would show that deceased has mentioned therein that accused had been asking her to leave the matrimonial house and also claiming that he would bring up the child with the help of his State V/s. Kuldeep Mukherjee ("Acqutited") Page 23 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 sister and there had been frequent quarrels between them over the said issue. In other words, there is no allegation regarding harassment or cruelty meted out to deceased at the hands of accused in connection with demand of dowry in any of said two letters.
41. Now, I shall come to the ocular testimonies of the PW6, PW9 and PW10 on which heavy reliance has been placed from the side of prosecution. Ld. defence counsel heavily relied upon the cross examination of all the said three public witnesses, in support of his contention that none of them has supported the prosecution story during their cross examination and turned hostile. On the other hand, Ld Additional PP on behalf of State and counsel of complainant have vehementlty argued that since all the said three witnesses were cross examined after a gap of considerable period, they were won over by the accused and thus, their cross examination part should not be looked into. It has been further argued on their behalf that the relevant portions of the testimonies of aforesaid public witnesses to the extent they have supported the case of prosecution, should be relied upon by the Court.
42. Even if, the cross examination part of the aforesaid three public witnesses are not looked into by the Court, still, it cannot be said that the prosecution has been successful in establishing the guilt of accused for offences punishable U/s 498A/304B IPC beyond reasonable doubt. So far as PW6 Ranjit Singh is concerned, he is found to have made considerable improvements during chief examination visavis his previous statement U/s 161 Cr.PC. On the one hand, PW6 has deposed that his parents were against the marriage of his sister with accused as accused was Bengali and they wanted her to marry with a boy belonging to their community but after two months of her marriage, visits started State V/s. Kuldeep Mukherjee ("Acqutited") Page 24 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 taking place between them. On the other hand, he deposed that after seven days of marriage of her sister, her inlaws started demanding more and more dowry and harassing his sister physically as well as mentally in case of non fulfillment of their demands. At this juncture, it would not be out of place to mention here that even the parents of accused were against his marriage with deceased. Thus, the said part of the testimony of PW6 whereby he claimed that inlaws of deceased had been demanding more and more dowry just after seven days of marriage of deceased with accused and were harassing his sister physically as well as mentally, does not appeal to reasoning.
43. Apart from that, the allegations regarding harassment and demand of dowry levelled against accused by these three public witnesses are quite vague and general in nature. None of them has disclosed any specific date, month or year when accused had demanded dowry or committed any cruelty upon deceased or harassed her in connection with demand of dowry before her death. The nature of harassment & sort of cruelty has also not been described by any of them. All the these three witnesses have testified that the accused and other inlaws of deceased used to demand double bed, cooler, etc. on different occasions and same were actually handed over by them to her inlaws but no document regarding purchase of any of those articles has been produced on record in this regard. Again, no specific date or instance has been disclosed when accused had raised demand for those articles. This is more so when PW7 Sh. Chander Kumar Mishra has testified during trial that accused had purchased old TV make Sansui from him for Rs. 6000/ in installments on the occasion of birth of his daughter. Same demolishes the case setup by prosecution that accused used to demand for any such article from State V/s. Kuldeep Mukherjee ("Acqutited") Page 25 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 deceased or from her family members. Had it been the situation where accused would have been raising any demand for any such type of articles, he would not have purchased old TV from PW7 in installments. There is no reason to disbelieve the testimony of PW7 in this regard. Moreover, PW7 is the witness of prosecution itself and not the witness produced from the side of defence. Likewise, the testimony of PW13, who is again prosecution witness examined during trial, also creates reasonable doubt in the case of prosecution and also makes the testimonies of PW6, PW9 and PW10 unworthy of reliance inasmuch as he categorically deposed that deceased was residing happily with accused and there was no demand of dowry from the side of accused. Rather, it was the family members of deceased who had been pressurizing her to leave the accused so that they could marry her again but deceased was not ready to do so.
44. According to the case of prosecution as propounded in the charge sheet, accused and his family members were pressurizing deceased to bring a sum of Rs. 2,50,000/ from her family members for the purpose of purchasing the plot. Out of public witnesses i.e. PW6, PW9 and PW1 named above, PW6 and PW9 have not testified during their respective testimonies that said demand of Rs. 2,50,000/ was in connection with demand of dowry. They simply testified that deceased visited her parental house and told them to pay a sum of Rs. 2,50,000/ as her inlaws were purchasing a plot. Thus, the said demand cannot be connected with demand of dowry within the meaning of Section 304B IPC. PW10 deposed during chief examination that deceased had claimed that payment of Rs. 2,50,000/ was demand of dowry in order to purchase the plot. Firstly, his testimony is contradictory to the testimonies of other two public witnesses i.e. PW6 and PW9 who have not so deposed during trial.
State V/s. Kuldeep Mukherjee ("Acqutited") Page 26 of 29FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 Secondly, his statement (Ex. PW3/A) filed before Executive Magistrate is silent in this regard. In the said statement, he has simply claimed that deceased had asked to pay sum of Rs. 2,50,000/ as per demand raised by her inlaws for purchasing the plot. Thus, same shows that PW10 has made improvement during trial visavis his previous statement Ex. PW3/A made before Executive Magistrate.
45. Moreover, the testimony of PW10 Rajender Singh is not free from doubt. He testified during cross examination that police had recorded his statement U/s 161 Cr.PC during investigation on 20.06.2009 but no such statement is relied by prosecution alongwith the charge sheet. The prosecution has filed on his statement/complaint dated 21.06.2009 which is Ex. PW3/A.
46. The conduct of the accused as brought on record during trial, also points out towards his innocence. He is the person who had made PCR call at 100 number. Same is proved from the testimony of PW5 Ct. Pardeep Kumar who had filled up the intimation in PCR form Ex. PW5/A. The mobile number of the caller as mentioned in the said PCR Form is 9268441924 which belongs to accused herein. PW13 Praveen Kumar has corroborated the said fact by testifying that it was accused who had made PCR call at 100 number. Not only this, even as per the admitted case of prosecution, the accused was arrested from his rented accommodation by the police on 22.06.2009. This fact has been proved during the testimony of PW17 HC Satbir as well as in the testimony of PW18 Inspector Bakshi Ram. Both the said witnesses have testified during their respective cross examination that accused did not try to escape when he was arrested in this case. The conduct of the accused in not fleeing away or in not absconding State V/s. Kuldeep Mukherjee ("Acqutited") Page 27 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 after the deceased committed suicide by hanging herself from ceiling fan of the tenanted accommodation, goes to show that he had nothing to do with the commission of offence.
47. There is one more reason for arriving at the conclusion that prosecution has failed to establish the charges levelled against the accused beyond shadow of doubt. During the course of investigation, IO had recorded statement U/s 161 Cr.PC (Ex. PW18/DA) of public witness namely Sh. Manoj Kumar. PW18 Inspector Bakshi Ram, who is IO of the case, has admitted this fact during his cross examination. However, the prosecution dropped the said witness during trial and preferred not to examine him in this case. However, cat came out of the bag when defence asked the relevant questions during cross examination of IO i.e. PW18 who admitted that he had recorded statement Ex. PW18/DA of Manoj Kumar during investigation. The perusal of said statement Ex. PW18/DA would show that PW Manoj Kumar has categorically stated therein that there was absolutely no demand of dowry whatsoever from the side of accused and his family members either from deceased or from family members of deceased prior to the incident in question. He has rather stated on the lines of defence raised by accused during trial. Thus, the said statement of PW Manoj Kumar clearly puts serious dent on the prosecution story as propounded in the charge sheet.
48. Moreover, HC Ramphal who had purportedly produced letters Ex. PW6/A and Ex. PW6/B before IO i.e. PW18 Inspector Bakshi Ram, has neither been joined during investigation nor produced during the course of trial. According to the testimony of PW18, the said two letters were handed over to HC Ramphal by PW6 during evening hours of State V/s. Kuldeep Mukherjee ("Acqutited") Page 28 of 29 FIR No. 178/09; U/s 498A/304B IPC; P.S. Narela DOD: 03.01.2017 20.06.2009. Thus, PW HC Ramphal was material witness in this case. However, no explanation is forth coming from the side of prosecution for not examining the said witness during investigation and for not producing him during the course of trial.
49. In the light of aforesaid discussion, Court is of the opinion that the prosecution has failed to bring home the guilt of accused beyond pales of reasonable doubt. Accordingly, the accused namely Kuldeep Mukherjee S/o Sh. Raj Kumar Mukherjee is hereby acquitted of the offences charged against him, by giving him benefit of doubt. File be consigned to Record Room after compliance of Section 437A Cr.PC.
Announced in open Court today
On 03.01.2017 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s. Kuldeep Mukherjee ("Acqutited") Page 29 of 29