Delhi District Court
State vs . 1. Mahesh on 3 June, 2017
IN THE COURT OF PRAVEEN KUMAR,
SPECIAL JUDGE (NDPS), NORTH,
ROHINI COURTS, DELHI.
SC No. 65/2015
FIR No. 155/2015 (58553/16)
U/s. 498A/304B/34 IPC
P.S. Bhalaswa Dairy
State Vs. 1. Mahesh
S/o Raju
2. Mukesh
S/o Raju
3. Raju
S/o Maiku
4. Kanti Devi
W/o Raju .....Accused persons
All R/o Khasra No. 159, Gali No.5/7, Samta Vihar
Mukund Pur, Delhi.
Date of Institution : 04.07.2015
Date of reserving judgment : 03.06.2017
Date of pronouncement : 03.06.2017
JUDGMENT : (Oral)
1.Accused were arrested by the Police of Police Station Bhalaswa Dairy, Delhi and were challaned to the court for trial for commission of the offences punishable under Sections 498A/304B/34 of the Indian Penal Code, 1860 (in short 'IPC').
State vs. Mahesh & others Page 14 of 14FIR No.155/15, P.S.Bhalswa Dairy
2. The case of the prosecution, in brief, is that on 12.03.2015, on receipt of DD No.31B, Inspector Begaram along with Constable Samandar and Constable Vijay reached the spot i.e Gali no.5/7, Samta Vihar, Mukund Pur, Delhi where they found ASI Narender Singh and Incharge, PCR HC Devender Singh present there. In a room on the first floor of the house, a lady, whose name later on was transpired as Sonia wife of Mahesh, was found hanging from a ceiling fan with a saari. A plastic chair was lying nearby and the main gate of the room was found lying opened. As the deceased had expired within seven years of marriage, SDM, Civil Lines was informed whereupon Executive Magistrate Sh. Amrender Kumar reached the spot. Crime Team was also called. SDM recorded the statements of the parents of the deceased. Sh. Kailash Nath, the father of the deceased, made a statement before the SDM to the effect that his daughter Sonia was married to Mahesh in November 2013. There was a demand of motorcycle which they could not fulfill at that time. The deceased was harassed and maltreated for not bringing the motorcycle. About six months back the deceased was given beatings by her inlaws and she was thrown out of her matrimonial house. However, the matter was settled. On 12.3.2015 in the evening it was transpired that Sonia has died. On this statement of Sh. Kailash Nath, FIR was got registered. The spot was inspected by the Crime Team and the dead body was sent to BJRM Hospital Mortuary. Inspector Begaram inspected the spot and prepared the site plan. The accused were arrested and their disclosure statements were recorded. On 13.03.2015, after the State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy postmortem, the dead body of the deceased was handed over to the parents of the deceased.
3. The matter was investigated by the police. During investigation, statements of the witnesses were recorded. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court for commission of offences punishable u/ss 498A/304B/34 IPC.
4. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions.
5. Charge u/ss.498A/304B/34 IPC against the accused was framed to which they pleaded not guilty and claimed trial. They were accordingly put to trial.
6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined 21 witnesses in all. PW1 HC Devender Pal was posted in PCR, North West on 12.3.2015 and had received the wireless message regarding suicide by a lady. PW2 HC Vinod is a formal witness who deposited the articles in the Malkhana and pullandas to FSL, Rohini. PW3 Ct. Sandeep is the photographer who has proved the photographs of the spot as Ex.PW3/A. PW4 Kailash Nath is the father of the deceased who has narrated the facts as stated by him before the SDM during the investigation. PW5 HC Mohar Singh has proved the FIR as Ex.PW5/A. PW6 Ct. Pawan has proved the PCR form as Ex.PW6/1. PW7 HC Om Prakash has proved the DD No.29 as Ex.PW7/1. PW8 State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy Smt. Raj Rani and PW10 Raj Karan being the mother and brother respectively of the deceased have corroborated the testimony of PW4. PW9 Chander Shekhar has proved the call details for the date 12.3.2015 with respect to mobile no.92681xxxxx as Ex.PW9/2; with respect to mobile no.92132xxxxx as Ex.PW9/4 and with respect to mobile no.82577xxxxx as Ex.PW9/6. PW11 Constable Samandar Singh reached the spot with Inspector Bega Ram on receiving telephonic call. PW12 Pawan has proved the call detail record with respect to mobile no.85276xxxxx in the name of Raj Rani for the date 12.3.2015 as Ex.PW12/1A. PW13 HC Anil Bhatti has proved the PCR form as Ex.PW13/1. PW14 Ct. Meenakshi is a formal witness who had received a message regarding quarrel on 9.10.2014. PW15 Lady Ct. Shikha Dahiya and PW16 Ct. Vijay joined the investigation with the IO. PW17 ASI Narender reached the spot on receiving DD No.31B and joined the investigation. PW18 Armender Kumar Singh is the Executive Magistrate who recorded the statements of Kailash Nath and Raj Rani and has proved his endorsement on the same as Ex.PW18/1 and Ex.PW18/2 respectively. PW19 SI Rajender Singh has proved the Crime Team report as Ex.PW19/1. PW20 Dr. Jatin Bodwal has proved the postmortem report of deceased as Ex.PW20/1. PW21 Inspector Bega Ram is the IO of the case.
7. Statement of accused was recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against them. Accused pleaded that they are innocent and have been falsely implicated in this. Accused did not examine any witness in State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy their defence.
8. I have heard Sh. J S Malik, Ld. APP for the State and Sh. Roshant Santhalia, Ld. Counsel for all the accused. Ld. Counsel for the accused has contended that Sonia committed suicide on 12.3.2015 and no complaint whatsoever was lodged with the police or any other authority prior to the said date regarding there being any dowry demand or harassment at the hands of the accused. It is contended that false allegations have been made. As a matter of act, Sonia was suffering from fits and insanity and a complaint in this regard was made by accused Raju to Police authority on 9.10.2014. According to him, under such one fit Sonia committed suicide. Next, it is contended that no physical injury was found on the body of Sonia during the course of her postmortem examination. Lastly, it is contended that there are contradictions and omissions in the testimonies of the witnesses. The prosecution witnesses have made several improvements during their testimonies before the court. According to him, accused are liable to be acquitted in the present case. In support of his contention, he has relied upon judgments - State vs. Sandeep Kumar, MANU/DE/0691/2016; A Nagrajan vs. State, MANU/DE/0040/2014; Ramesh Chander vs. State, MANU/DE/3419/2016 and Baijnath vs. State, MANU/SC/1501/2016.
9. On the other hand, Ld. APP has contended that the prosecution has proved its case against the accused beyond reasonable doubt. It is contended that even earlier Sonia was beaten in her matrimonial house and had been turned out of the said house about six State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy months prior to her death. It is contended that the demand and harassment continued even thereafter which led to commission of suicide by Sonia.
10. PW1 HC Devender Pal has deposed that on 12.03.2015 on receiving message regarding suicide by some lady, he reached the spot. He found one lady hanging from the ceiling fan. He informed the Police Control Room and called the local police.
11. PW4 Kailash Nath has deposed that his daughter Sonia was married to Mahesh on 13.11.2013. After six months of marriage, her daughter was given beatings and was turned out of her matrimonial house by the accused persons. She remained at her parental house for some time and, later on, she was taken back by the accused persons. She used to be beaten in her matrimonial house. He has further deposed that there was no demand of dowry at the time of marriage but soon after the marriage accused Raju (father in law of deceased ) demanded a motorcycle from them. He has further deposed that her daughter used to inform them on telephone that she was being harassed in her matrimonial house and was also not allowed to visit their house. He has proved his statement given to the Executive Magistrate as Ex.PW4/1; arrest memos of accused Raju, Mahesh, Mukesh and Kansi Devi; identification of the dead body of the deceased as Ex.PW4/6 and the memo regarding handing over the dead body to him after post mortem as Ex.PW4/7.
12. During his crossexamination, PW4 has admitted that there was no demand from the side of the accused person before State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy marriage. He has further admitted that he did not lodge any complaint to the police when his daughter used to telephonically informed him about her being beaten and harassed in her matrimonial home. He has further admitted that none of the accused ever gave beatings to her daughter or taunted her in respect of motorcycle in his presence.
13. PW8 Raj Rani (mother of the deceased) has corroborated the testimony of PW4. During her crossexamination, she has admitted that no report was lodged with the police when her daughter was allegedly beaten and turned out of her matrimonial house. She has deposed that accused had even demanded a motorcycle before marriage. She has denied the suggestion that her daughter was suffering from mental disease.
14. PW10 Raj Karan (brother of the deceased) has corroborated the testimony of PW4. During his crossexamination, he has admitted that no report/complaint was lodged with the police regarding alleged harassment of his sister. He has admitted that he did not mention in his statement dated 24.04.2015 given to the police that a demand of 'umbrella machine' was made by the accused. He has denied the suggestion that his sister was having any mental illness. He has admitted that he had not told the police about having made any telephonic call at the house of his sister Sonia on 11.3.2015.
15. PW11 Ct. Samandar Singh joined the investigation with the IO. He has deposed that on receipt of telephonic call on 12.3.2015 he along with Inspector Begaram reached the spot. They found one lady hanging from a fan in a room on the first floor of the house. The State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy SDM was called and the post mortem of the dead body was conducted at BJRM Hospital Mortuary. He has proved the seizure memos as Ex.PW11/1, Ex.PW10/1 and PW11/2.
16. PW15 Lady Ct. Shikha Dahiya joined the investigation in this case with the IO. In her presence accused Kanti Devi was arrested vide memo Ex.PW4/5. She has proved the disclosure statement of accused Kanti Devi as Ex.PW15/1.
17. PW16 Ct. Vijay has corroborated the testimony of PW11. During his crossexamination by Ld. APP, he denied the suggestion that after completing the proceedings at the spot, accused Mahesh, Mukesh and Raju were brought to the police station where they were formally arrested. He has categorically deposed that these accused were formally arrested at the spot itself.
18. PW20 Dr. Jatin Bodhwal has proved the postmortem report as Ex.PW20/1. As per PW20, the deceased Sonia died due to asphysia consequent upon ante mortem hanging.
19. PW17 SI Narender Singh is the part IO of this case while PW21 Inspector Bega Ram is the IO of this case who filed the charge sheet after completion of investigation. During his crossexamination, PW21 has deposed that he did not find any record of any complaint having been made by the deceased or her family members during subsistence of marriage. He has further admitted that he neither made local inquiries around the house of accused nor recorded the statement of any neighbour u/s 161 Cr.PC. He denied the suggestion that he did not investigate the matter properly or no disclosure statements were State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy made by the accused persons.
20. I have gone through the record. The material witnesses in this case are PW4 Kailash Nath, PW8 Smt. Raj Rani, PW10 Raj Karan, PW17 ASI Narender, PW20 Dr. Jatin Bodwal and PW21 Inspector Begaram on whose testimonies the prosecution case rests.
21. PW4 in his examination in chief has deposed that there was no demand of dowry at the time of marriage but soon after the marriage accused Raju demanded a motorcycle from them. However, in his statement (Ex.PW4/1) recorded by the SDM it is mentioned that the demand of motorcycle was made by the accused persons at the time of marriage. Thus, it is a material contradiction in the testimony of PW4. Similarly, there is a contradiction in the testimony of PW8 regarding the demand of motorcycle by the accused persons. In her testimony before the Court, she has deposed that accused had even demanded a motorcycle before the marriage while in her statement (Ex.PW8/1) it is mentioned that after few days of the marriage accused persons started demanding motorcycle.
22. PW10 has made improvements in his testimony before the court. He has deposed about the demand of 'umbrella machine' by the accused persons and calling Sonia on telephone on 11.3.2015. However, it was admitted by him during his crossexamination that these facts were not mentioned by him in his statement given to the police. Thus, in these circumstances the testimonies of PW4, PW8 and PW10 do not inspire confidence with regard to demand of motorcycle by the accused persons.
State vs. Mahesh & others Page 14 of 14FIR No.155/15, P.S.Bhalswa Dairy
23. It is the settled law that documents filed by a party can be read against him even if they are not proved on record. It has been admitted by PW4, PW8, PW10 and PW21 that no criminal complaint was lodged by them or the deceased prior to the incident. During investigation, statement of HC Vinod was recorded u/s 161 Cr.PC on 9.5.2014. As per this witness, accused Raju had made a PCR call complaining about the fits and insanity of her daughter in law Sonia. The translated version of the said statement is reproduced herein below for reference :
"I am posted as Head Constable at PS Bhalaswa Dairy. On 9.10.2014 I received a PCR call. I reached house No.3017, Gali No.5/7, Samta Vihar, Mukund Pur around 10.30 p.m where the person who had made the call from mobile no.9213299732 met me and told that her daughter in law Sonia wife of Mahesh was behaving like an insane person and was insisting to leave her matrimonial house in the middle of the night. Sonia's brother Rakesh and her husband Mahesh were also present there. They all compromised the matter and, as such, no complaint was lodged with the police." (Emphasis mine)
24. No complaint was lodged by the deceased or her brother on 9.10.2014.
25. There is a direct and clear contradiction between the call record made from the mobile phone No.85276xxxxx belonging to son of PW8 to the house of the accused on mobile phone no. 92681xxxxx. As per PW8, she made a telephonic call at 8 a.m in the morning of 12.3.2015. Her son Raj Karan (PW10) had a talk with accused Raju who told that Sonia (deceased) was having a headache and was sleeping. PW4 has corroborated the version of PW8 in this State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy regard. PW4 has further deposed that when he called up again no one picked up the phone. However, a bare perusal of the call record (Ex.PW9/2) shows that only one call of zero second was made on 12.3.2015 at 8.14 a.m and no other call whatsoever was made from 85276xxxxx to 92681xxxxx on 12.3.2015. It shows that false averments have been made by the witnesses against the accused persons. In Sandeep Kumar (supra) it has been held by our High Court of Delhi as under :
"14....From the testimonies of PW3, PW7 and PW9, it is clear that these witnesses have contradicted each other and given different timing as to when the phone call was received or made. According to PW3, the call was made by him to the deceased on 1.04.2008 but had to be disconnected as he could not talk to her, there being a lot of noise in the background. PW7 remained silent on the call having been made to the deceased on 09.04.2008 and PW9 denied that there was any telephonic conversation with the deceased. The contradiction in the testimonies of PW3, PW7 and PW9 cannot be regarded as minor, rather they are major for the reason that at the same time, it is also noticed that the Call Details Record Ex.PW18/A in fact depicts that no such call was either made or received by the deceased on 09.04.2008 as deposed by PW3, PW7 and PW9 and the testimonies are unreliable."
26. It has been admitted by PW21 during his cross examination that he did not find any record of any complaint having been made by the deceased or his family members during subsistence of marriage. No external injuries were found by the doctor PW20 on the body of the deceased. PW4, PW8 and PW10 are interested witnesses. PW21 SI Inspector Bega Ram neither made local inquiries from the neighbourers of the accused nor recorded the statements of any such neighbour u/s 161 Cr.PC during the investigation of the case.
State vs. Mahesh & others Page 14 of 14FIR No.155/15, P.S.Bhalswa Dairy The accused persons did not try to run away after the incident. As per PW21, inlaws of the deceased and her parents were found at the spot when he reached there.
27. In judgment A Nagrajan (supra) it has been held by our High Court of Delhi as under :
"Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. There is no evidence that Meena was harassed, tortured, assaulted or there was continuous and incessant harassment driving her to commit suicide. The cruelty established has to be of such a gravity as is likely to drive a woman to commit suicide. The mere fact that Meena committed suicide within 7 years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband.
28. In judgment Ramesh Chander (supra) it has been held by our High Court of Delhi as under :
20. The last ingredient is based upon the commission of offence under Section 498A IPC and while committing the offence under Section 498A IPC, if it connects with the death, then it would be an offence punishable under Section 304B IPC.
The prosecution has failed miserably to establish beyond rasonable doubt that any cruelty or harassment was meted out to the deceased by the appellant, let alone soon before her death. The testimony of above mentioned prosecution witnesses to the effect that TV or fridge was demanded per se does not establish the cruelty and harassment towards the deceased. Evidently, the death of the deceased had taken place on 02.08.1987 I.e within one year of marriage. The prosecution has failed to establish that after the marriage of the deceased, there were circumstances of harassment or cruelty that took place on account of demand of dowry which could connect with the death of the deceased."
29. In judgment Baijnath (supra) it has been held by the Apex Court as under :
State vs. Mahesh & others Page 14 of 14FIR No.155/15, P.S.Bhalswa Dairy "36. Tested on the judicially adumbrated parameters as above, we are of the unhesitant opinion that the prosecution has failed to prove beyond reasonable doubt, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the accused persons had been charged. Noticeably, the alleged demand centers around a motorcycle, which as the evidence of the prosecution witnesses would evince, admittedly did not surface at the time of finalization of the marriage. PW5, the mother of the deceased has even conceded that there was no dowry demand at that stage.
According to her, when the husband (who is dead) had insisted for a motorcycle thereafter he was assured that he would be provided with the same, finances permitting. Noticeably again, the demand, as sought to be projected by the prosecution, if accepted to be true had lingered for almost two years. Yet admittedly, no complaint was made thereof to anyone, far less the police. Apart from the general allegations in the same tone ingeminated with parrot like similarity by the prosecution witnesses, the allegation of cruelty and harassment to the deceased is founded on the confidential communications by her to her parents in particular and is not supported by any other quarter."
30. From the perusal of the facts on record the offence u/s 498A IPC is also not proved against the accused as the prosecution has failed to prove that the deceased was subjected to cruelty by the accused as defined in the Explanation to S.498A IPC.
31. In view of the above I do not find it safe to rely upon testimonies of prosecution witnesses. Thus, I find that the prosecution has failed to prove beyond doubt that the accused demanded dowry or subjected the deceased to cruelty or harassment because of non fulfillment of demand. Thus, an essential ingredient to constitute the offence u/s498A IPC as well as S.304B IPC is lacking in this case. Hence, the accused are acquitted in this case. They be released from jail, if not required in any other case. In terms of Section 437(A) State vs. Mahesh & others Page 14 of 14 FIR No.155/15, P.S.Bhalswa Dairy Cr.P.C., all the accused are directed to furnish personal bonds in the sum of Rs.25,000/ each with one surety in the like amount within one week from today for a period of six months for their appearances before the High Court of Delhi in the event the State wishes to file an appeal challenging the present judgment. File be consigned to Record Room.
Announced in the open Court (PRAVEEN KUMAR) today i.e on 03.06.2017. Special Judge (NDPS): North, Rohini Courts, Delhi.
State vs. Mahesh & others Page 14 of 14FIR No.155/15, P.S.Bhalswa Dairy