Delhi District Court
State vs (1) Chandan S/O Daulat Prasad on 30 October, 2012
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE03 (NE): KARKARDOOMA COURTS: DELHI.
SC No.42/11
Unique ID NO.02402R0350372011
Date of institution: 7.11.2011
Date of transfer: 28.11.2011
Date on which reserved for orders: 30.10.2012
Date of delivery of order: 30.10.2012
State vs (1) Chandan s/o Daulat Prasad
R/o H.No.529, Gali no.25,
Bhajan Pura, Delhi.
(2) Malti Devi w/o Daulat Prasad
R/o H.No.529, Gali no.25,
Bhajan Pura, Delhi.
(3)Rajesh Kumar s/o Daulat Prasad
R/o H.No.529, Gali no.25,
Bhajan Pura, Delhi.
Permanent Add. of all the accused persons:
Village P.S. Khusropur, Distt. Patna,
Bihar.
FIR No.362/11
PS Bhajan Pura
FIR NO.362/11 PS Bhajan Pura 1/19
U/s 498A/304B/34 IPC.
JUDGMENT:
1. Briefly the prosecution case is that on 6.8.2011,on receipt of DD No.38A, SI Naveen alongwith Const. Anil reached the spot i.e. C529, Gali No.25, Bhajan Pura, Delhi, where he saw dead body of a female lying on the bed in the room and one red colour chunni was also lying on the floor, near the bed. Crime team was summoned at the spot. Photographs were taken. The chunni which was lying at the spot was seized. Dead body of the deceased was sent to GTB Hospital mortuary. Dead body of the deceased was identified by her mother Malti Devi and her brother in law Ajit Kumar as Pooja. They were taken to the office of SDM Seelampur where statement of complainant Malti Devi was recorded. The allegations were made that the deceased Pooja was married to accused Rajesh; that after marriage she was subjected to cruelty and harassment for unlawful demand of Rs.1 lakh due to which on .6.8.02011 she committed suicide by hanging herself. After postmortem the dead body of the deceased was handed over to her relatives. FIR was registered on 10.8.2011. IO prepared FIR NO.362/11 PS Bhajan Pura 2/19 site plan and accused persons were arrested and their disclosure statements were recorded. IO collected marriage card of the deceased. Scaled site plan was got prepared and after completing other necessary formalities, charge sheet was filed against the accused persons i.e. accused Chandan (brother in law of the deceased), Malti Devi (mother in law of the deceased) and Rajesh (husband of the deceased) u/s 498A/304B/34 IPC.
2. The accused persons were charged u/s 498A/304B/34 IPC to which they pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined seven witnesses.
● The material prosecution witnesses are PW1 Malti Devi (mother of the deceased), PW6 Ajit (brother in law of the deceased) and PW4 Shravan (neighbour of the deceased and accused persons).
● PW2 Shri A.K. Sharma, the then SDM Seelampur, recorded statement of Malti Devi (mother of the deceased) vide Ex.PW1/A. He also recorded the statements of PW1 Malti Devi and PW6 Ajit Kumar in respect of identification of dead body of the deceased vide Ex.PW1/B and Ex.PW1/F. FIR NO.362/11 PS Bhajan Pura 3/19 ● The other witnesses examined by the prosecution are police officials. PW5 Const. Anil Kumar joined investigation alongwith the IO on 6.8.2011 at 10 p.m. after receipt of DD No.38A. Chunni of the deceased Ex.PW5/P1 was seized by the IO in his presence vide seizure memo Ex.PW5/A. He also joined investigation on 10.8.2011 when the accused persons were arrested and their disclosure statements were recorded and he was also present when the dead body of the deceased was identified and handed over to her relatives. PW3 Const. Santosh joined investigation alongwith the IO on 10.8.2011 and in her presence accused persons were arrested and their disclosure statements were recorded. PW7 is IO SI Naveen who has deposed about the manner in which the investigation was conducted.
● The defence did not dispute the genuinity of documents i.e. 7 photographs (Ex.C1 collectively), SOC visitation report Ex.C2, PCR report Ex.C3, Scaled site plan Ex.C4, Postmortem Report Ex.C5, FIR Ex.C6 and DD NO.38A dated 6.8.2011 Ex.C7 and the corresponding witnesses i.e. Const. Sanjay, SI U.Balashankaran, Const. Sangeeta, SI Mukesh Kumar (draftsman), Dr. Ashok Jain and H.C. Sandeep were dropped at the request of the prosecution.
FIR NO.362/11 PS Bhajan Pura 4/19
4. Statements of accused persons were recorded u/s 313 Cr.P.C. in which they denied the prosecution case and pleaded innocence. Accused Malti Devi and Chandan took the plea that they were living separately and they did not know why deceased Pooja committed suicide. Accused Rajesh claimed that they were living happily as husband and wife and he did not know as to why deceased committed suicide.
5. I have heard Mr. Mukul Kumar, Addl. PP for the State and Mr. Tarun Gautam, Amicus Curiae for the accused persons and gone through the entire record.
6. PW2 Shri A.K. Sharma, SDM Seelam Pur, deposed that on 6.8.2011, when he was working as SDM Seelampur, at about 10.30 p.m., he received a message on his mobile from SHO PS Bhajan Pura that one lady named Pooja had died due to hanging at her home in Bhajan Pura area. He was further informed that the dead body had been removed and sent to GTB Hospital by the husband and neighbours of deceased. He asked about the relatives of deceased from SHO Bhajan Pura who informed him that the parents of deceased were residing in Bihar and they were conveying the message to them. The parents of the deceased FIR NO.362/11 PS Bhajan Pura 5/19 arrived on 8.8.2011 and were brought to his office on 9.8.2011 at about 11 a.m. He recorded statement of Mrs. Malti Devi (mother of the deceased) in his office which is Ex.PW1/A. He recorded statement of Malti Devi directly and whatever was told by her before him. After recording her statement the same was read over to her and only then she signed the statement. He also made a request for postmortem on the dead body of deceased vide request letter Ex.PW2/A. He also carried out the inquest proceedings of the dead body vide Ex.PW2/B. He also recorded statements of Malti and Ajit Kumar Ex.PW1/B and Ex.PW1/F regarding identification of dead body.
7. The postmortem report furnished by Dr. Ashok Jain, Jr. Demonstrator, has not been disputed by the defence and the same is Ex.C5. As per postmortem report the cause of death was asphyxia as a result of antemortem hanging. The following antemortem injuries were found present on the body of the deceased:
(i)Reddish scratched abrasion measuring 3 cm x 0.5 cm present obliquely over left cheek, 6.5 cm orbital ridge and 7.5 cm from midline, directed downwards and outwards.
FIR NO.362/11 PS Bhajan Pura 6/19
(ii)Reddish scratched abrasion measuring 0.5 cm x 0.3 cm present obliquely over left cheek 8 cm below from midline, directed downwards and outwards.
(iii)Reddish scratched abrasion measuring 0.2 cm x 0.2 cm present 0.2 cm lateral to above mentioned injury No.2 directed.
(iv)Bluish contusion measuring 1.5 cm x 1 cm in size is present over inner surface of upper lip, in midline, underlying right upper central incisor tooth is missing, margins of gum are irregular, reddish and bluish contused bony alveolar margins are feathered and sharp, blood clots are seen in the socket.
(v)Bluish contusion measuring 1.5 cm x 1 cm is present over inner surface and lower lip, over midline.
(vi)Reddish abrasion measuring 1.5 cm x 0.5 cm is present over dorsum of right hand 1 cm below wrist joint.
(vii)Reddish abrasion measuring 1.5 cm x 0.1 cm is present over front of left forearm, 8 cm below cubital fossa.
(viii)Reddish, brown, abraded ligature mark is present obliquely incompletely over the thyroid cartilage. Neck circumference is 31 cm.
The viscera was also preserved and was sent to CFSL.
FIR NO.362/11 PS Bhajan Pura 7/19 Therefore, it is not disputed that the death of the deceased was caused by hanging on 6.8.2011 within seven years of her marriage i.e. after 5 years, 2 months 24 days and in circumstances other than normal.
8. Now, to prove its case the prosecution has to show that soon before her death the deceased was subjected to cruelty or harassment by her husband or relatives of husband and such cruelty or harassment was in connection with demand for dowry and it was meted out to her soon before her death. The prosecution has examined three witnesses to prove that deceased was harassed and tortured in connection with dowry demand soon before her death. However, all the material prosecution witnesses have turned hostile and have not supported the prosecution case.
9. PW1 Malti Devi (mother of the deceased) deposed that she married her daughter Pooja to accused Rajesh on 12.5.2006. Her daughter was blessed with two sons. She had given about Rs. 1 lakh at the time of marriage of her daughter Pooja to her mother inlaw Malti Devi. Nothing else was demanded by the accused persons at the time of marriage. She received the information regarding death of her daughter Pooja through police on FIR NO.362/11 PS Bhajan Pura 8/19 07.08.2011 at about 4 PM. She had received the said information only through the police and she was not informed by the accused persons regarding death of her daughter Pooja. She learnt that her deceased daughter Pooja expired one day earlier i.e. on 06.08.2011. In the matrimonial home of her daughter Pooja, her husband, motherinlaw, jeth Kapur Gupta, jhethani Seema and dever Chandan were also residing. The deceased Pooja never informed her anything about the behaviour or conduct of the accused persons. Her deceased daughter Pooja was residing in Bhajanpura. Her daughter Pooja had visited them at Patna and returned back in January, 2012. She further stated that after receipt of the information about her death, she along with her damad (son in law) Ajit Kumar and her nephew Shyam Babu came to Delhi on 08.08.2011. They went to Police Station Bhajanpura first. The police made enquires from her in the police station. She had also gone to S.P. Office and her statement was recorded vide Ex.PW1/A signed by her. She went to hospital. She identified the dead body of her daughter Pooja and her statement in this regard was recorded vide Ex.PW1/B. After postmortem the dead body was handed over to them vide handing over memo Ex.PW1/C. FIR NO.362/11 PS Bhajan Pura 9/19 She handed over the marriage card Ex.P1 in respect of her daughter to the IO which was seized vide seizure memo Ex.PW1/D. She had also given the photographs Ex.P1/A, B, C, D of her daughter along with the members of her matrimonial family and the same were taken into possession by the IO vide seizure memo Ex.PW1/E. Since she was trying to suppress the truth, she was cross examined by the prosecution. In her cross examination she stated that whatever she stated before the Magistrate was a true statement and nothing was false. An amount of Rs.1,00,000/ was given out of her own wishes and will and the same was not demanded by the accused persons at the time of 'Tilak Ceremony'. She had not stated to the Magistrate in her statement that the accused persons had demanded Rs. 1,00,000/ at the time of 'Tilak Ceremony' during the course of marriage of her daughter. She was confronted with portion A to A1 of Ex.PW1/A where it was so recorded. She also stated that she had not stated in her statement before the Magistrate that the mother in law and devar Chandan of her daughter Pooja used to harass her on petty matters. She was confronted with portion B to B1 of her statement Ex.PW1/A where it was so recorded. She further stated that she FIR NO.362/11 PS Bhajan Pura 10/19 had not stated in her statement before the Magistrate that Chandan had purchased a plot few days back out of the common funds of the family and that he was demanding Rs.1,00,000/ from her daughter Pooja to transfer the plot in the name of her deceased daughter Pooja. She was confronted with portion C to C1 of statement Ex.PW1/A where it was so recorded. She further stated that she had not stated in her statement before the Magistrate that about 15 days prior to the incident, accused Chandan had beaten her deceased daughter Pooja and the said fact was informed to her by her daughter Pooja on telephone. She was confronted with portion D to D1 of her statement Ex.PW1/A where it was so recorded. She also deposed that she had not stated in her statement before the Magistrate that on the date of the incident i.e. 6.8.2011 accused Chandan, his mother accused Malti and husband accused Rajesh had beaten her daughter and she had not stated that she had suspicion that all three of them had killed her daughter Pooja as her deceased daughter was harassed by her mother in law and devar Chandan. She was confronted with portion E to E1 of her statement Ex.PW1/A where it was so recorded. She denied the suggestion that she was deposing falsely FIR NO.362/11 PS Bhajan Pura 11/19 as she had compromised the matter with the accused persons. She also stated that she had not stated in her statement to the police that accused persons had demanded Rs.1,00,000/ during the 'Tilak Ceremony' and that they had fulfilled that demand as the money was saved by them for the purpose of marriage of her deceased daughter Pooja. She was confronted with statement Ex.P1/A from portion A to A1 where it was so recorded. She had not stated in her statement to the police that the money of Rs. 1,00,000/ was paid to the accused in the presence of her son in law Ajit Kumar. She was confronted with statement Ex.P1/A from portion B to B1 where it was so recorded. She further testified that she had not stated in her statement to the police that at the time of purchasing the plot by the accused, Rs.1,00,000/ was demanded by accused Chandan and Malti and they told them that they were not in a position to pay so much money and to give dowry repeatedly and despite that accused Chandan and Rajesh still pressed her daughter Pooja for bringing Rs.1,00,000/. She was confronted with statement Ex.P1/A from portion C to C1 where it was so recorded. She also denied that she had stated in her statement to the police that a plot was purchased in the name FIR NO.362/11 PS Bhajan Pura 12/19 of accused Chandan and Rs.1,00,000/ was demanded from them so that the plot could be transferred in the name of her deceased daughter Pooja and she came to know that all the accused persons had beaten her daughter about 15 days back on this issue. She was confronted with statement Ex.P1/A from portion D to D1 where it was so recorded. She further testified that she had not stated in her statement to the police that all the accused persons who were the inlaws of her deceased daughter Pooja used to demand dowry from her and also used to beat her and this fact was told to her by her deceased daughter Pooja. She also deposed that she had not stated that due to the behavior of the accused persons her daughter Pooja committed suicide. She was confronted with statement Ex.P1/A from portion E to E1 where it was so recorded. She further stated that she had not given any statement to the police on 2.9.2011. She denied the suggestion that she had given statement to the police on 2.9.2011. In her cross examination by the defence she admitted that police had obtained her signatures on some blank papers and today she was deposing out of her free will, at her own instance and without any pressure from the side of accused persons. She admitted that her deceased daughter was FIR NO.362/11 PS Bhajan Pura 13/19 residing happily at her matrimonial home and her statement Ex.PW1/A was not read over to her when she signed the same.
10. Another relative of the deceased is PW6 Ajit Kumar (her brother in law) who also did not support the prosecution case. He testified that on 10.8.11 he had identified the dead body of Pooja in mortuary of GTB hospital. Deceased Pooja was his sister in law (sali). Police recorded his statement in respect of identification of dead body vide Ex. Pw1/F. He had attended the marriage ceremony of accused Rajesh and deceased Pooja. Malti Devi, his mother in law had on her own, given Rs. 1 lakh to the accused family at the time of 'teeka' ceremony. There was no dispute between the family members of accused persons and deceased Pooja. Pooja had never told him anything about the happening in the matrimonial house and as far as he knew Pooja was happy in her matrimonial house. He had given statement to the police on 02.09.11. He had not stated that after marriage the members of the matrimonial house of deceased Pooja used to beat and harass her on account of dowry and this fact was told to him by Pooja and her mother many times. He was confronted with statement mark P6/A from portion A to A1 where it was so recorded. He further FIR NO.362/11 PS Bhajan Pura 14/19 testified that he had not stated that he had told Rajesh many times that he should not behave badly with Pooja and he had not stated that Pooja had committed suicide due to the beatings and harassment given by her husband Rajesh, her mother in law and Dewar or that she was compelled to do so. He was confronted with statement mark P6/A from portion B to B1 where it was so recorded. In his cross examination by the defence he admitted that deceased Pooja was living happily in her matrimonial home.
11. Another important prosecution witness is PW4 Shravan (a neighbour of the deceased and the accused persons) who also turned hostile. He stated that he did not remember the exact date, he was away on work. He was interrogated by the police. He had nothing else to say. He had not seen any incident. Since the witness was trying to suppress the truth, he was cross examined by the prosecution. In his cross examination he deposed that Rajesh, Chandan, Malti and deceased Pooja were his neighbours since about six months back. He had not seen any of the accused persons doing maarpeet with Pooja or harassing her or demanding dowry from Pooja and he had never stated so before the police. He was confronted with portion A to A1 of his FIR NO.362/11 PS Bhajan Pura 15/19 statement mark P4/A where it was so recorded. He further testified that he had never stated before the police that on 6.8.2011 at about 4 p.m., accused Rajesh, Chandan and Malti had beaten Pooja and that at about 6 p.m. accused Rajesh had come to him and told him that Pooja had hanged herself in the room. He was confronted with portion B to B1 of his statement mark P4/A where it was so recorded. He deposed that he had never stated before the police that he had gone running to the room of Pooja and it was found to be locked from inside and when he peeped through the window deceased Pooja was found hanging from a hook in the room. He was confronted with portion C to C1 of his statement mark P4/A where it was so recorded. He further deposed that he had never stated before the police that he with the assistance of accused opened the door of the room of Pooja by pushing it; that with the assistance of Rajesh he had taken out the red coloured dupatta from the neck of the deceased by opening the knot or that he had brought Pooja down with the assistance of Rajesh and she was laid on the bed by accused Rajesh and that by that time she was already dead. He was confronted with portion D to D1 of his statement mark P4/A where it was so recorded. He denied the FIR NO.362/11 PS Bhajan Pura 16/19 suggestion that he was deposing falsely as he had been won over by the accused persons. He denied the suggestion that he had given statement to the police on 9.8.2011. He admitted that he was deposing before the court out of his own free will and without any pressure. He also admitted that deceased Pooja was living very happily with the accused persons.
12. All the material witnesses have turned hostile. There is a lack of evidence to prove the demand of dowry and any cruel treatment or harassment to the deceased. On the basis of the evidence adduced, I am of the view that the prosecution has miserably failed to prove that the accused persons made a demand of dowry and that was made soon before the death and due to this, the deceased was harassed. In the instant case the witnesses have resiled from their previous statement. No doubt it is settled law that the evidence of a hostile witness would not be totally rejected but it should be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. However, in the instant case there is no corroborating evidence. All the witnesses are completely hostile.
13. In John Vasant Khandagal Vs State of Maharashtra 2011 FIR NO.362/11 PS Bhajan Pura 17/19 (4) LRC 424 (Bom) it was held that merely because a woman dies unnatural death within seven years after marriage, it cannot be said to be dowry death unless death can be related to demand of dowry. To establish it as a dowry death, it must be established that death was connected with ill treatment or harassment on account of or in connection with demand of money. Prosecution failed to establish that accused committed her murder and there is no material to connect the death with alleged demand or harassment on that count. With these observations, Hon'ble High Court set aside the conviction of the accused.
14. One of the cardinal principles of administration of criminal justice system is that an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by producing evidence as may show him to be guilty of the offence with which he is charged. This initial burden of proving the guilt is on the prosecution and unless it discharge that burden, the court cannot record a finding of guilt against accused persons.
15. In the instant case prosecution witnesses despite being relatives of the deceased have not supported the prosecution case. In view of the testimony of the witnesses on record I hold that the FIR NO.362/11 PS Bhajan Pura 18/19 prosecution has miserably failed to prove that deceased Pooja was subjected to cruelty, harassment or was forced to bring dowry due to which she committed suicide by hanging herself. Accordingly, all the accused persons i.e. Chandan, Malti Devi and Rajesh are acquitted of the charge u/s 498A/304B/34 IPC. Their bail bond cancelled. Sureties discharged. File be consigned to record room.
Announced in the open court (Nisha Saxena)
Dated: 30.10.2012 Addl.Sessions Judge03(NE),
KKD Courts, Delhi.
FIR NO.362/11 PS Bhajan Pura 19/19