Delhi District Court
State vs . 1. Rajbir @ Raju on 7 August, 2010
IN THE COURT OF SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No. 385/09
FIR No.292/08
PS Bawana
U/s 498A/304B/34 IPC
I.D. No. 02404R0004912008
State Vs. 1. Rajbir @ Raju
S/o Late Sh. Hari Singh
2. Surender @ Babloo
S/o Sh. Rajbir Singh.
3. Smt. Kamla
W/o Rajbir @ Raju
All Resident of :
H.No. 922, Panna Ran,
Bawana, Delhi.
Date of Institution in Sessions Court : 24.11.2008
Date of transfer to this Court : 31.08.2009
Date of Judgment : 07.08.2010
JUDGEMENT:
1. In brief, the prosecution story is that on 22.8.08 a DD No. 16A was received at P.S. Bawana, that one Reena W/o Surender @ Babloo R/o H.No. 922, Panna Ran, Bawana had been brought to State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana the hospital in dead condition, some officer be sent.
2. Thereafter, the said information was reduced into writing and the copy of the said DD No. 16A was handed over to constable Sanjeev through ASI Jai Kumar, who on receipt of the said DD reached M.B. Hospital, Pooth Khurd and obtained the MLC of Reena W/o Surender, who has been admitted into the said hospital as brought dead.
3. On enquiries ASI Jai Kumar found that the deceased had been married less than 7 years ago. Accordingly, Sr. Officer and SDM was informed. ASI Jai Kumar prepared the siteplan of the first floor of H.No. 922 Panna Ran, Bawana. In the meanwhile crime team also reached there for inspection of the spot and photographs of the spot were also taken by them.
4. The crime team also seized the Rassi(rope) in a sealed pullanda. The deadbody of deceased was sent to the Mortuary of BJRM Hospital for preservation. The father of the deceased and other relatives were informed. On 23.8.08 Executive Magistrate Virender Kumar reached BJRM Hospital and prepared the inquest State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana papers and recorded the statement of father of the deceased Sh. Deva Nand and his uncle Jagdev. After recording their statements and after getting the postmortem conducted on the deadbody of deceased, the same was handed over to her relatives.
5. The Executive Magistrate recorded the following statement of Deva Nand the father of the deceased, who stated that:
"He was the father of deceased Reena and he had married his daughter Reena with one Surender @ Babloo on 27.11.03, who was resident of Bawana as per Hindu Rights and Rituals and he had given more dowry to his daughter than his status, but despite that her in-laws used to harass her for bringing less dowry.
When his daughter was pregnant, at that time his son in law, mother in law and father in law tried to terminate her pregnancy. At this he told them that in case they would go for termination of pregnancy then they would lodge a complaint against them. In these circumstances a child was born on 11.3.05. At that time all the accused persons demanded a car, but he could not meet the said demand. In the said demand, the younger State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana brother of Surender namely Sandeep @ Sonu was also there. Thereafter, they asked Rs. 2 lacks for purchasing the plot and they some how gave Rs. 1,50,000/ and on the day of Raksha Bandhan, the accused persons sent his daughter Reena to their house for getting Rs. 50,000/-, but he could not pay the said amount and due to this accused Surender, his younger brother Sandeep, his mother Kamla and his father Rajbir in conspiracy with each other had killed his daughter and after killing her, they had not even informed them and they had been informed by the villagers of village Bawana and all of the aforesaid accused persons had always harassed his daughter and whenever his daughter used to come to their house, she always used to take Rs. 5,000/- to Rs. 10,000/- for them and Surender consistently used to demand money.
6. On the said complaint, an endorsement was made by the Executive Magistrate and an FIR U/s 498A/304B/34IPC was registered at P.S. Bawana.
7. The crime team also took photographs of the scene of crime.
Postmortem report was obtained in which the doctor opined the State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana cause of death was due to Asphyxia due to antemortem hanging. The doctor also gave a subsequent opinion that the hanging in this case was possible by the jute rope or similar such type of rope. He further opined that definite opinion regarding the manner of death, whether suicidal or homicidal cannot be given, however in the absence of any struggle mark, manner of death was consistent with suicide. Thereafter, all the accused persons were searched. Accused Surender @ Babloo was arrested on 23.8.08. Though, accused Kamla and accused Sandeep @ Sonu was thoroughly searched but they could not be arrested and the accused Sandeep @ Sonu was lateron released on anticipatory bail by the Hon'ble High Court. Accused Rajbir was also arrested. NBWs were obtained against the accused Kamla and it was stated that after the arrest of accused Kamla W/o Rajbir and Sandeep @ Sonu a supplementary charge-sheet U/s 173 Cr.P.C would be filed in the court.
8. After completion of investigation(s) a Charge sheet U/s498A/304B/34 IPC was filed in the court.
State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana
9. A separate supplementary charge-sheet against the accused person Sandeep@Sonu was filed. However, vide detailed order dt. 3.2.09 on the point of charge passed by my Ld.Predecessor,the accused Sandeep was discharged, whereas vide same order a charge U/s 498A/304B/34IPC was ordered tobe framed against all the accused persons. Consequently, charge under the aforesaid section(s) was framed against the accused persons on 8.4.09, to which all of them pleaded not guilty and claimed trial.
10. Thereafter, the prosecution in support of its case has examined 12 witnesses.
PW1 is Sh. Deva Nand, the father of the deceased, who has turned hostile.
PW2 is Sh. Jagdev Singh, the uncle of the deceased, who has also turned hostile.
PW3 is Smt. Sheela Devi, who has given contradictory version, as while appearing in her examination in chief on 26.10.09, she had supported the prosecution story, whereas, while appearing for cross-examination on 22.1.10, she had turned hostile. State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana PW4 is Jasmair, the brother of the deceased, who has also turned hostile.
PW5 Abhimanyu, PW6 Rohtash, and PW7 Ms. Yashwanti are the neighbours.
PW8 is Satbir, friend of PW1 Deva Nand.
PW9 is Dr. Rishi Prakash Singh, the Autopsy Surgeon , who has proved his postmortem report Ex.PW9/A. PW10 is ASI Jai Kumar, the initial IO of the case. PW11 is Inspector Ram Avtar, the IO of this case, who has deposed regarding the investigation(s) as were carried out by him during the course of the present case.
PW12 is Sh. Virender Kumar, then SDM, who had recorded the statement of relatives of deceased including her father and who had endorsed and directed the police officials of P.S. Bawana to register an FIR U/s 498A/304B/34 IPC.
11. Thereafter, the statement of the accused persons U/s 313 Cr.PC, was recorded separately, in which all the incriminating evidence which had come on the record against the accused State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana persons was put to the accused persons. The defence of the accused persons was that they had been falsely implicated in this case and they had never demanded any dowry or harassed the deceased and the relations of their son with his wife were cordial and that is why the father of the deceased PW1 Deva Nand, PW2 Jagdev Singh, the uncle of the deceased and PW4 Jasmair, the brother of the deceased had not deposed anything against them. However, all of them chose not to lead any defence evidence.
12. I have heard the Ld. Defence counsel for the accused persons Sh. Sunil Kumar and Sh. G.S. Guraya, Ld. Addl. PP for the state.
13. The Ld. Defence counsel has argued that in the present case, the complainant PW1 Deva Nand, the father of the deceased Reena, her uncle Jagdev Singh PW2 and her brother Jasmair PW4 have all turned hostile and have not supported the prosecution story regarding the harassment and alleged cruelty meted out to the deceased in relation to demand of dowry soon before her death. He has argued that the testimony of PW3 Smt. Sheela was of waivering nature as PW3 has given two different versions, once State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana when her examination in chief was recorded on 26.10.09 and another version when her cross-examination was carried on 22.1.2010, and both the versions are totally contradictory to each other and both can not be sustained at the same time and no reliance can be placed on the testimony of such a waivering witness, who has given two different versions which are diametrical on two different dates. He has argued that all the material witnesses i.e. father, uncle and brother of the deceased have not corroborated the version of PW3 Smt. Sheela and therefore, the accused persons can not be convicted on the basis of such unreliable testimony of PW3.
14. He has further argued that PW12 Sh. Virender Kumar, the Executive Magistrate has admitted that he had not recorded the statement(s) of relatives of the deceased including his father and he had only put his counter signatures on those statements which were recorded by policeman on his dictation. Ld. Defence counsel has argued that in view of the said statement of Executive Magistrate Sh. Virender Kumar PW12, it was clear that the IO of State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana this case had concocted a false story against the accused persons by falsely implicating them in this case and an Executive Magistrate is introduced in the investigations to lead impartiality to the investigation(s) and instead of recording the statement of relatives of the deceased himself, he dictated those statement(s) to the police official, who recorded them in his own handwriting and he only counter signed the same, which shows that the said statement had only been recorded by the IO and the concerned Executive Magistrate had only put his counter signatures on the same as per the wishes of the IO. Consequently, he prays that accused persons deserves acquittal.
15. On the other hand, Ld. Addl. PP for the State has argued that no doubt PW1 Deva Nand, the father , PW2 Sh. Jagdev Singh, the uncle and PW4 Sh. Jasmair the brother of the deceased were hostile and have not supported the prosecution story, yet, he has argued that in view of the testimony of PW3 Smt. Sheela Devi, the mother of the deceased, who in her examination in chief recorded on 26.10.09. has totally supported the prosecution story, therefore, State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana the prosecution has been able to make out a case against the accused persons U/s 498A/304B/34 IPC beyond all sort of reasonable doubt and from the said testimony, the prosecution has been able to prove that soon before her death, the deceased Reena was subjected to cruelty and harassment in relation to the demand of dowry by all the accused persons and it is also admitted case of the accused persons that the death of the deceased had taken place within seven years of her marriage.
16. Ld. Addl. PP for the State also argued that the very fact that PW3 Smt. Seela Devi had turned hostile after her cross- examination was deferred on 26.10.09 on the request of the Ld. Defence counsel shows that in between the said interval, she had been won over by the Ld. Defence Counsel and there was no other reason why she would take a somer sault and would give a totally conflicting version while appearing in her cross-examination.
17. Regarding the recording of statements on the dictation of the SDM, he has argued that same is only a procedural lapse, the benefit of which can not go to the accused persons as per settled State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana law.
18. I have gone through the rival contentions.
19. To make out a case U/s 304 B IPC, the prosecution has to prove the following ingredients:
(i) That death of the deceased was caused by burns or bodily injury or occurred otherwise than under normal circumstances within 7 years of her marriage.
(ii) That soon before her death, she was subjected to cruelty or harassment by the accused in connection with the demand for dowry.
20. It is admitted case of the prosecution as well as defence that the deceased Reena was married with the accused Rajbir @ Raju on 27.11.03 and she had died on 22.8.08. Consequently, the deceased had expired within 7 years of her marriage. There is no doubt about the same.
21. Regarding the second ingredient, whether the deceased was subjected to cruelty or harassment in relation to demand of dowry soon before her death, all the material prosecution witnesses i.e. PW1 Sh. Deva Nand father of the deceased, PW2 Jagdev Singh, State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana uncle of the deceased and PW4 Jasmair brother of the deceased have turned hostile and have not supported the prosecution story regarding the cruelty and harassment meted out to the deceased Reena soon before her death, despite being subjected to lengthy cross-examination by the Ld. Addl. PP for the State.
22. In this regard, the mother of the deceased Reena, in her deposition recorded on 26.10.09 has stated that after the marriage of her daughter, accused persons harassed her and demanded dowry from her daughter and after her marriage, whenever she used to meet her, she used to tell that her husband, her mother-in- law, father-in-law used to harass her and demanding dowry. She also told her that all the three accused persons were demanded motorcycle and at one occasion, the accused persons had demanded Rs. 2 lacs and they had given Rs. 1.5 lacs.
23. She further deposed that when their daughter was in a family way accused persons had demanded dowry from them and they harassed and tortured her daughter and they had even threatened to abort the pregnancy if their illegal demands were not fulfilled and State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana having no other option, they had given Rs. 50,000/- to accused Surender. She further stated that when her daughter delivered a male child, they fulfilled all the customary obligations, but the accused persons were not satisfied and they tortured her daughter and on their demand they had given another gold chain to the husband of her daughter. After the birth of a male child for a short period, their daughter Reena stayed happily, but again accused persons started harassing her and demanded dowry.
24. On the occasion of Raksha Bandhan, the accused persons had harassed tortured her daughter and she was forced to bring money from them and at that time she was away to her parental house to meet her mother and a sum of Rs. 50,000/- was given to the accused persons by her husband and one of the neighbour thereafter had informed them that the accused persons had killed their daughter and they went to the hospital.
25. The cross-examination of this witness was deferred on 26.10.09. Thereafter, when she appeared on 3.12.09 for her further cross-examination, the same was deferred on the request of Ld. State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana Defence counsel, as at that time it was observed, the witness was not giving proper answers to the questions being put by the Ld. Defence counsel and she was only nodding her head.
26. Thereafter, she was again recalled for further cross- examination on 22.1.10, when she took complete sumer sault from the stand, she had taken in her examination in chief recorded on 26.10.09 and she stated that she had no personal knowledge about the harassment and it was only on the information of her husband she came to know that her daughter was harassed by her in-laws and on 26.10.09, she had deposed wrongly as she was not in her proper senses and she had given statement under some confusion and her statement recorded today be considered as correct and she admitted that accused persons never harassed her daughter for demand of dowry at any time, after her marriage or before that and her daughter was residing happily in her matrimonial home and that she had no grudge against the accused persons, as they used to keep her daughter in a good way, and accused persons were not responsible for the death of her daughter.
State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana
27. Thereafter, Ld. Addl. PP for State re-examined the said witness, but despite re-examination she struck to the same stand which she had taken on 22.1.10. Thereafter, in re-examination nothing has come which could help the case of the prosecution. PW3 Smt. Sheela Devi is not a reliable witness, as she has taken diametrically opposite stand in her examination in chief recorded on 26.10.09 and in her cross-examination recorded on 22.1.10.
28. Whilst in her examination in chief, she has clearly spelt out the dates and details of the dowry demands and cruelty meted out to her daughter, whereas, in her cross-examination recorded on 22.1.10, she stated that she had deposed wrongly on 26.10.09, as she was not in proper senses and her statement recorded on that date be considered as incorrect and as accused persons had never harassed her daughter or demanded any dowry before or after marriage and they used to keep her daughter in a good way and she had no grudge against the accused persons.
29. In these circumstances, it is totally unsafe to convict the accused persons on the testimony of such a waivering and shifting State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana witness, who was shifting her stand on each passing date and even otherwise, there is no independent corroboration to the testimony of PW3 Smt. Sheela Devi in the nature of testimony of her husband PW1 Deva Nand, PW2 Sh. Jagdev Singh, and her son PW4 Jasmair, who have all turned hostile and have not supported the prosecution story regarding the cruelty and harassment meted out to the deceased Reena soon before her death in relation to the demands of dowry.
30. PW3 has also stated in her cross-examination that only on the information of her husband, she came to know that her daughter was harassed by her in-laws, meaning thereby that she had no first hand information regarding the harassment meted out to her daughter and her evidence was of hearsay nature, whereas, her husband PW1 Deva Nand has totally hostile regarding the harassment and cruelty part. Therefore, in these circumstances the testimony of PW3 is not found out to be satisfactory and credible to base conviction of the accused persons on the same.
31. Even otherwise, three other prosecution witnesses PW5 State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana Abhimanyu, PW6 Rohtash and PW7 Ms. Yashwanti, who were all neighbours of the accused persons and who were residing near the matrimonial house of the deceased, have in their cross-examination stated that they had not seen any quarrel between the accused persons and deceased and both were living in a cordial manner. The aforesaid witnesses who were the witnesses of prosecution, themselves have deposed against the prosecution and in favour of the accused persons that the accused and the deceased were living in a cordial manner and they had not seen any quarrel between accused persons and deceased.
32. Further PW8 Satbir has also not supported the prosecution version that PW1 Deva Nand had borrowed Rs. 2 lacs from him for giving to the accused persons. In any case, PW1 has already turned hostile regarding the said fact.
33. As per PW9 Dr. Rishi Prakash Singh, Autopsy Surgeon, the cause of death was Asphyxia due to antemortem hanging. Therefore, ruling out any strangulation or other foul play. Further in the present case, the conduct of the Executive Magistrate, who had State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana ! recorded the statement of the father and relatives of the deceased on the basis of which the present FIR was lodged is not above board, as he had stated in his cross-examination that the statements were recorded on his dictation by the policeman as per enquiries from the father and Chacha of the deceased. And he had only signed on the statement of uncle/chacha of the deceased and he had put his counter signatures on some other documents and he had not recorded those statements.
34. PW10 ASI Jai Kumar has also admitted in his cross- examination that he had recorded the statement of family members of the deceased on 22.8.08 and he had recorded the statement of father of the deceased, mother of the deceased and relatives of the deceased on 22.8.08. This conduct of the initial IO in recording the statement of the relatives of the deceased including her father and uncle himself can not be justified under any circumstances, as the Executive Magistrate was under a legal obligation to record those statements himself and instead of recording those statements himself, he had just put his counter signatures on the same, which State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana "$# were recorded by the police officials on his dictation.
35. The very purpose of introducing a Executive Magistrate in dowry death cases, during the initial investigation is to introduce a neutral person in the investigation(s) carried out by the police, which has serious ramifications for both the parties i.e. the accused as well as the complainant and it casts a serious duty upon the Executive Magistrate to carry out the said inquest proceedings as well as recording the statement of the parents/ relatives of the deceased diligently instead of going through the motions in a purfunct manner. This conduct of the SDM as well as of the initial IO ASI Jai Kumar in recording the statement on the dictation of the Executive Magistrate can not be justified under any circumstances, as the introduction of Executive Magistrate in dowry death's cases is not an ornamental requirement, but it is a serious duty cast upon him by law.
36. It has been observed in almost all dowry death cases. dealt by this court so far, that the Executive Magistrate(s) instead of recording the statement of parents/relatives of the deceased State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana % & themselves, dictate their statement to the initial IO or the police officers who record the said statements, this strange procedure has to be stopped immediately in these circumstances, copy of this judgment be sent to the Chief Secretary NCT of Delhi for issuing the necessary directions to the concerned Executive Magistrate(s) dealing with dowry death cases or the cases where the person has died under mysterious circumstances, to carry out the inquest proceedings including the recording of the statement of relatives of the deceased themselves in their own handwriting, after examining the relatives of the deceased and they should not just complete a mere empty formality in a ritualistic way, as is, at present. In view of the aforesaid discussion, the investigation(s) carried out by the police officials in this case can not be also said to be a fair one.
37. In view of the aforesaid discussion, it would be highly unsafe to base the conviction of the accused persons on the basis of such a waivering and shifting witness, whose testimony has remained uncorroborated, as all the other material witnesses of the prosecution including the father, uncle and brother of the deceased State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana ' ' have not corroborated her version.
38. The net result of the aforesaid discussion is that, all the accused persons are hereby acquitted of the charge(s) U/s 498A 304B/34 IPC by extending them benefit of doubt. Their Bail bonds are cancelled. Surety(s) stand discharged. Endorsement(s), if any, made on the original documents of the accused persons and surety(s) be cancelled. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
on 07.08.2010 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Rajbir etc. FIR No. 292/08 P.S. Bawana