Delhi District Court
State vs Udipto Shankar Dass on 30 October, 2012
IN THE COURT OF RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS : DELHI
FIR No: 11/2010
PS: Seemapuri
U.Sec: 498A/304B IPC
Unique ID No.02402R0154382011
State Versus Udipto Shankar Dass
S/o Shiv Shankar Dass
R/o O9/B2, Dilshad Garden, Delhi.
Sessions Case No. : 60/2011
Case assigned to this Court on. : 05.07.2011.
Date of conclusion of arguments. : 25.10.2012.
Date of delivery of Judgment : 30.10.2012.
JUDGMENT:
1. The above named accused was charge sheeted by SHO PS Seemapuri and have faced trial for having committed the offences punishable under Sec.498A/304B IPC.
2. FACTUAL MATRIX: It is the case of the prosecution that on 21.09.2009 on receipt of DD No.31A SI Vipin Kumar reached at the spot i.e. H. No.O9/B2, Dilshad Garden, Delhi where he came to know that patient has been taken to GTB Hospital and accordingly he reached the GTB Hospital where he collected the MLC (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.1 of pages 49 No.A4438/09 of Munmita Dass wherein doctor opined "brought to casualty in non responsive state by husband alleged H/O hanging and patient declared dead after full examination of ECG. On making inquiry, it was transpired that Mumita @ Anushua was married to Udipto on 19.11.2003 and on 24.02.2005 they both got separated by way of consented mutual divorce and they both again got married upon their mutual consent at Arya Samaj Mandir on 01.10.2008. Since the marriage was within seven year, so SDM Seemapuri namely Sh. Vimal Kumar was called at the spot, who got recorded the statements of the brother namely Animesh Malik and father Sh. Heera Lal Malik of deceased Mumita Dass @ Anushua respectively, wherein the father of the deceased namely Heera Lal Malik stated that he is having no suspicion on anyone and he can not say as to why her daughter has taken this step. He does not want action against any person and pray to the god for the peace of the soul of his child. The brother of deceased narrated in his statement that to his knowledge after marriage his jijaji Udipto Dass used to tease (tang karna) her sister and demanded Rs. 25,000/ per month. He raised suspicion that the same became the cause of the death of her sister. All the documents were sent to prosecution branch North East as DD No.31A dated 21.09.2009 was kept pending. From the spot one sari which was cut into two pieces, one was hanging on ceiling fan and other was lying on floor, (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.2 of pages 49 was taken into possession by the SI after converting the same into pullanda by affixing the stamp of VX on it and also got photographed the spot and got deposited the case property with malkhana. After receiving the opinion from the prosecution branch, statement of the brother of deceased namely Animesh was recorded wherein he alleged that around six years ago he got conducted the marriage of Mamta and Udipto and after about one year they got divorced and again they got married one year ago. After marriage, as per his knowledge, his jijaji Udipto used to tease (tang karna) her sister and used to demand Rs.25,000/ per month. He has suspicion that this became the cause of the death of her sister. In this case prosecution opinion was sought and it was opined that a prima facie cognizable offence U/s 498A/304B IPC be registered against the accused and investigation was handed over to Insp. Pramod Kumar. Accordingly, DO recorded the present FIR bearing No.11/2010 U/s 498A/304B IPC and original tehrir, computer copy of FIR and other documents were handed over to the said Inspector, who started investigating the matter and during investigation he collected the relevant documents concerning the instant FIR from SI Vipin Kumar and recorded the statements of witnesses. PM Report No.1303/09 of deceased Momita Das @ Anushua Malik was collected wherein doctor opined the cause of death - ASPHUXIA as a result of antimortem hanging. Police took (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.3 of pages 49 into possession some documents i.e. marriage card dated 19.11.2003, marriage photographs, bill of gold chain dated 28.09.2003, divorce paper HMA No.483/2004, marriage certificate from Arya Samaj, 15 Hanuman Road, Delhi, photocopy of affidavit dated 03.09.2008 and list of gold ornaments, presented by the complainant namely Animesh and on 22.10.2010 accused after formally arresting in the case was released on bail as he was having anticipatory bail order from Hon'ble High Court. On 29.10.2010, on the pointing out of SI Vipin Kumar, site plan of the place of occurrence was prepared, statements of witnesses were recorded, Dr. K.D. Shastri of Arya Samaj Bhawan, Connaught Place, New Delhi was interrogated and his statement was recorded. Thereafter, subsequent opinion in the matter was obtained in which doctor opined that "ligature mark as mentioned in the postmortem report no.1303/09 is possible by the recovered pieces as marked A and B of saree kept in pulanda". Then after completion of investigation, challan was filed in the court for the offence punishable under section 498A/304B IPC.
3. After supply of copies etc, Ld.MM committed the case to the court of Sessions and vide order dated 14.07.2011, charge for the offence punishable under section 498A/304B IPC was framed against the accused Udipto Shankar Dass to which he pleaded not guilty and claimed trial.
(SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.4 of pages 49
4. In support of its case, the prosecution examined as many as eighteen witnesses.
5. PW1 Hira Lal Malik (father of deceased) testified that deceased Mamta Dass was married with Udipto Dass (correctly identified) sometime in year 2001 and thereafter, they got divorced. Sometime in 2007 i.e around two years prior to her death, accused again married his deceased daughter. Accused started harassing his daughter by raising demand of Rs.20,000/ and his daughter told him to give Rs.20,000/ to accused. This incident had taken place after one year of her marriage, may be in the year, 2008. Accused had made demand of Rs.25,000/ per month and lastly he had demanded the money around four or five months back. On 21.01.2009, his daughter expired. She was killed by the accused and was subsequently shown as if she had committed suicide. He was very perturbed on seeing the dead body of his only daughter and that is why he could not give a proper statement before the Executive Magistrate. He had signed statement Ex.PW1/A before the Executive Magistrate but he is not aware as to what were the contents of it and he had simply put his signature at point A. Contents of the said statement were not read over to him and he was not in his senses. He again gave his true statement to the police whatever had taken place in little sense. He was not having any knowledge, if his daughter was having any child at the time of (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.5 of pages 49 her death. Accused used to demand money from them and on non fulfillment of his demand for cash, he used to threaten her and beat her up. After seeking the permission of the court Ld. Addl. PP put some leading questions to the witness wherein he stated that accused and his deceased daughter got married on 01.10.08 and their marriage certificate is Ex.PW1/B. Accused had firstly married to his deceased daughter on 19.11.03 as per Hindu Rites and Rituals and he had given sufficient dowry at the time of marriage. The marriage was settled through advertisement in the newspaper. Whatever articles he had given to his daughter and accused out of his own consent and since she was his only daughter. His daughter was tortured by accused very badly and thereafter divorce had taken place on 24.02.05. Accused had made allegations against his daughter that she is thalisymic, but she was thalisymic to minimum extent. Accused had admitted his guilt and thereafter again married his daughter. Accused had repented for his guilt and assured them that he will not repeat his wrongs in future. The marriage again had taken place at Arya Samaj Mandir on 01.10.2008. Accused used to harass his daughter. She was not even given food in time nor articles of her needs and she was also not allowed to call them on telephone. He did not give him the information regarding her motherhood. He conceded that due to his poor health and age, he could not narrate the things in sequence. (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.6 of pages 49 During cross examination he conceded that his daughter and accused had sought divorce on basis of mutual consent. He could not tell if he had made any application u/s 340 Cr.P.C during that proceeding and objected the proceedings. His wife was a thalisymic and she died due to this disease. He also conceded that this disease is hereditary, so far as he has heard about it. He denied that her daughter had gone to depression after death of his wife (i.e. her mother) or that due to death of his wife, she had left her matrimonial home and had joined them or that the deceased had taken divorce from accused due to death of his wife, out of her own free will and consent. He conceded that at the time of divorce, she had taken back her all stridhan articles, however, at the time of her second marriage at Arya Samaj Mandir, she was again given back all the articles to both of them. He denied that no dowry was given at the time of second marriage. He could not tell if any complaint pertaining to 498A and 406 IPC was filed at CAW Cell, Nanak Pura, New Delhi. He also stated that it is not within his knowledge, if his daughter had given any application to the inquiry officer at CAW Cell stating therein that complaint filed by her against the accused and his family is absolutely false and baseless. He denied that he had made statement Ex.PW1/A in his full sense and had signed the same after going through its contents. He stated that it was not in his knowledge that at the time of her (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.7 of pages 49 death his daughter was having a male child aged about one and half to two months old, so he cannot say if that child was suffering from thalsymia major. He denied that her daughter committed suicide due to the reason that she was thalisymic and her son was also thalisymic major or that his blood transfusion used to be done every month.
PW2 Animesh Mali (brother of deceased) testified that on 19.11.03, his sister got married with accused (correctly identified) and in February, 2005, both got divorced from the Court. They again got married after about three years. Accused used to demand Rs.25,000/ per month and he used to allege that his sister is thalisymic and for taking her care they must pay Rs.25,000/ per month. He used to make call for demands. One day accused had called them to his house and there he demanded money and thereafter he got physical fight with his father. He further testified that the matrimonial house of his sister was situated at Dilshad Garden, and she used to reside there. The marriage of his sister was settled through a matrimonial advertisement in a newspaper. Family of accused and accused himself had made a demand that whatever articles in dowry is to be given has to be purchased in their presence. Further as per choice of accused Santro Car was given. The marriage took place on 19.11.03 and after marriage the things were normal for sometime. After about two months of the (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.8 of pages 49 marriage, accused demanded Rs.20,000/ and he made the payment. Thereafter, accused asked to transfer the ownership of the car in his name. Accused started torturing his deceased sister. During this period, his mother had expired. When they were returning after funeral of his mother, he was carrying earth pot (Asthi Kalash) in his hand, accused started pressurizing his sister that she will have to go back to her matrimonial home. He requested accused since their mother had expired, so his deceased sister should be allowed to remain at their house for sometime, but he did not agree and finally went away with his deceased sister. After sometime may be one or one and half month, Ajay Paul, brotherinlaw of accused, called him over telephone and asked him to reach to the house of accused. Accordingly, he reached there. He saw the entire family of Udipto, the accused, was there and he saw legal papers and some stamp papers which were already prepared and accused said that since your mother had expired due to disease thalisymia and he presume that your sister should also be a thalisymic. He demanded Rs.25,000/ per month for maintaining his deceased sister at her matrimonial home. Accused had asked his father to sign those documents which were already ready. He discussed the matter with his father and then he refused to make the payment as demanded by the accused. He had tried to convince the accused that his sister is having no problem and he had already (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.9 of pages 49 discussed about it with a very renowned doctor, who has been awarded with Padamshree award and he had also assured him that his sister is having no problem and she can lead a normal conjugal life. Despite his efforts to convince the accused, he did not agree, and he insisted that we should pay Rs.25,000/ per month to him. Thereafter, they returned to their house. Subsequently, he came to know that accused had filed a divorce petition in the Court of Ld. ADJ and she was pressurized to do so. Thereafter, divorce took place between accused and his sister in February, 2005 by mutual consent. Then his sister returned to their house. His sister told him that after the meeting which had lasted and in which accused had demanded Rs.25,000/ per month, the behaviour of accused become very cruel. She was not allowed even the basic needs required for leading normal life by a human being. She was not even permitted to go to the balcony nor on roof. Accused used to assault her physically. She was very much depressed at that time due to the behaviour and the divorce. After passage of time, he convinced his sister considering her young age that she should reconsider for remarriage and he along with his full family had gone to Lucknow for the purpose of her remarriage. Accused called to his sister and requested for a meeting as he was feeling and tendered sorry to his acts. One meeting took place at the third place in which accused had come and had literally begged to him (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.10 of pages 49 and his sister by holding our legs. He assured him and his sister that whatever wrong he and his family had committed the same would not be repeated in future and gave guarantee that his sister would be kept happily. Considering the act and feeling of the accused, they discussed the matter and finally on 01.10. 2008 his sister again remarried the accused. For sometime, she was kept peacefully and thereafter again the same thing started taking place. They were not allowed to talk to his sister even on phone. Her pregnancy was concealed from them. He did not inform them when his sister was blessed with a male child. He also stated that in the year 2009, on 21st day (month not remember) accused while saying his sister is not well, called him to reach at GTB Hospital and accordingly he alongwith his family reached at GTB Hospital and they saw police there. He came to know that his sister had expired. SDM recorded his statement Ex.PW2/A bearing his signature at point A. Thereafter, he gave his detailed statement to the IO. On 03.02.2010, he handed over the wedding invitation card of his sister and accused of the year, 2003 Ex.PW2/1, six photographs pertaining to ring ceremony collectively Ex.PW2/2, 24 photographs pertaining to the marriage collectively Ex.PW2/3, original bill of gold chain Ex.PW2/4 which they had purchased for giving the same to the accused, photocopy of the decree of divorce marked Ex.PW2/X, certificate of marriage, which took place on (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.11 of pages 49 01.10.08 Ex.PW1/B, two photocopies of affidavits mark Ex.PW2/Y and Z respectively, list of gold ornaments Ex.PW2/B bearing his signature at point A given at the time of marriage to the deceased and the family of accused. Investigating officer seized all these above referred things vide seizure memo Ex.PW2/C bearing his signature at point A. He further deposed that on 22.09.09 he had identified the dead body of his sister in inquest proceedings conducted by Executive Magistrate. His statement Ex.PW2/D bears his signature at point A. He also proved the dead body identification statement of his father Ex.PW2/E which bears the signature of his father at point A. After postmortem, the dead body of his sister was handed over to them through receipt for last rituals vide Ex.PW2/F bearing his signature at point A. During cross examination he stated that in the year 2009 he was having monthly income of about Rs.35,000/. He denied that at the time of first marriage of his sister no dowry demand was made by the accused and his family members from them or that whatever was given it was given in the kind of gift with their sweet will. At the time when the car was given to the accused it was in the name of his father. He denied that at the time of giving the car it was in the name of his deceased sister or that his sister had purchased the car with her own will or that accused was having no role in demand of the car. He denied that he was having the knowledge that (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.12 of pages 49 deceased was suffering with minor thalysemia at the time of her first marriage or that her sister and her male child were having thalysemia and due to this fact she was under depression and due to this reason she hanged herself. He could not specify the date and month in which accused had demanded Rs.20,000/, however he stated that the said demand was made with his father. He denied that his sister resided in their house after the death of his mother as she was under depression or that she refused to go to her matrimonial house or that she herself wanted to take divorce from the accused. He denied that all the Stridhan was returned after the divorce or that accused did not want to give the divorce to his sister or that he wanted to take back his sister to her matrimonial home. He conceded that his mother was suffering from major thalysemia and in major thalysemia blood has to be transfused every month and neither he nor his father made a complaint against the accused regarding raising of demand for Rs.25,000/ made by the accused. He conceded that in the year 2004 when the divorce petition was running in the court of Ld. ADJ his father had filed a complaint in CAW Cell, Nanakpura in order to defeat the divorce petition but he could not tell if the said complaint was dismissed as his sister had made a statement in CAW cell that the complaint made by his father was false and dismissed. He denied that his sister was never harassed after remarriage, however, he conceded that they did not (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.13 of pages 49 file any complaint against accused after remarriage of his sister.
PW3 Dr. Parmashar Ram, CMO GTB Hospital confirmed that on 21.09.2009 at about 6.45 p.m one lady namely Mumita Dass was brought by her husband to the hospital with the alleged history of hanging, as stated by husband Udipto Dass, and on examination the patient was not responsive and was declared dead. He proved on record the MLC as Ex.PW3/A and identified the signatures of Dr. Karan at point being his senior.
PW4 HC Dharamveer Singh, the Duty Officer, stated that on 10.01.2010 SHO handed over to him one rukka after endorsement for registration of FIR under Section 498A/304B IPC, and on the basis of same he registered the FIR No.11/2010, copy of which is Ex.PW4/A. He also proved his endorsement on rukka, copy of which is Ex.PW4/B. PW5 HC Dinesh Chand, an another Duty Officer, testified that on 10.01.2010 at about 6.15 p.m one information was received in the Duty Officer Room from the caller that his bhahi's health has deteriorated all of a sudden and she is unconscious and the said information was recorded by him in his own hand vide DD No. 31/A, copy of which is Ex.PW5/A, and the same was communicated to SI Vipin Kumar for necessary action.
PW6 HC Bijender Kumar is the MHC(M), who testified that on 21.09.2009 SI Vipin had handed over to him, one parcel (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.14 of pages 49 sealed with the seal of VK and one viscera box sealed with the seal of SG and sample seal along with two copies of seizure memo, to which he deposited in the malkhana while making entry no.4140 in Register No.19 maintained regularly in the Police Station. Further on 01.03.2011, he handed over both the case properties to Ct. Vijay Kumar on the instruction of the IO Insp. Pramod Kumar for depositing the same at FSL through road certificate number 15/21 and after return to the police station, Ct. Vijay handed over to him the acknowledgment issued by the FSL receiving copy of the Road Certificate. He stated that all entries are made in Register No.19. He proved on record the relevant portion as Ex.PW6/A, photocopy of FSL Receipt as Ex.PW6/B and photocopy of RC as Ex.PW6/C. He also testified that on 21.04.2011, he handed over the sealed parcel sealed with the seal of SG stated to be containing ligature i.e Saree to the IO Insp. Pramod through RC No.44/21, photocopy of which is Ex.PW6/D. PW7 SI U. Bala Shankram testified that on 21.09.2009 on receipt of information through control room, North East District, he alongwith photographer Ct. Neeraj and other team members had gone to the spot i.e. D9/B2 Dilshad Garden in government vehicle. He had inspected the scene of crime from 8.00 p.m to 8.45 p.m and prepared his report Ex.PW7/A, which was handed over to the IO. The photographer had taken the photographs of the spot. He has (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.15 of pages 49 seen the six photographs of the scene of crime, it reflect the situation of the scene of crime which he had seen on reaching there. The dead body of the deceased was also got removed to the hospital.
PW8 Ct. Prashant Kumar proved on record the arrest memo Ex.PW8/A of accused Udipto Shankar Dass.
PW9 Ct. Shakti Singh proved on record the certificate Ex.PW9/A issued by him under the provisions of Sec.65 of the Evidence Act bearing his signature at point A. PW10 Ct. Banesh Kumar testified that on 03.02.2010 at about 7.00 p.m complainant namely Animesh Malik had come to the Police Station and IO recorded his statement. Complainant had produced photographs of the marriage between the deceased and the accused Ex.PW2/2 to Ex.PW2/3, one bill Ex.PW2/4, Divorce papers, marriage certificate, photocopy of affidavit and list of gold ornaments and IO seized the said documents vide seizure memo Ex.PW2/C bearing his signatures at point X. PW11 Ct. Vijay Kumar stated that on 01.03.2011 on the instructions of IO, he had collected the viscera box and one envelop from MHC(M) HC Bijender Singh for depositing the same at FSL alongwith RC 15/21 and accordingly he deposited the case property at FSL Rohini. He confirmed that official handed over to him receiving copy of RC and receipt Ex.PW6/C & Ex.PW6/D (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.16 of pages 49 respectively.
PW12 Ct. Sheoveer Singh stated that on 21.09.2009 at about 6.15 p.m on receipt of DD No.31A Ex.PW5/A he alongwith SI Vipin had gone to the spot i.e. H. No.O9/B2, Dilshad Garden where it was revealed that one lady in unconscious position had been removed to GTB Hospital and accordingly they went to GTB Hospital. In the hospital, he came to know that the lady, who was brought to GTB Hospital, was declared brought dead by the doctor. Her MLC Ex.PW3/A was collected. Accused was also present in the hospital. SDM was informed by the IO, who recorded the statements of the relatives of the deceased and he conducted the inquest proceedings. Thereafter, they returned to the spot. IO seized one saree which was found hanging from the ceiling fan. It was seized in two pieces vide seizure memo Ex.PW12/A bearing his signature at point A by converting them into a parcel and was sealed with the seal of VK. Crime Team officials conducted the inspection of the scene of crime and photographer took the photographs. He after seeing the six photographs marked PW12/X1 to PW12/X placed on the case file confirmed that they reflect the situation which he had seen on reaching at the spot. He further confirmed that on 22.09.2009 postmortem on the dead body was conducted and after postmortem Viscera box was taken into police possession in sealed condition through seizure memo Ex.PW12/B (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.17 of pages 49 bearing his signatures at point A. He also proved on record the saree Ex.PW12/P1 (colly.).
During cross examination he conceded that he was formally examined by the IO but his statement was not recorded U/s 161 Cr.P.C. He confirmed that Ex.PW12/P1 was seized in his presence. Saree was seized from a room which was neither a kitchen nor a drawing room or bed room, however certain articles were kept in the room. SDM recorded the statement of witnesses in his presence.
PW13 Ct. Sukhpal Singh testified that on 10.01.10 at about 10.30 a.m DO handed over to him the original tehrir and copy of FIR to which and he had taken and handed over to IO Inspector Pramod and also joined the investigation along with him and had gone to O/B2 near Suraksha Nursing Home where IO made inquiries and premises was found to be locked. Thereafter, they returned back to the PS. He claimed that he had not given any statement to the police. Ld. Addl. PP cross examined the witness but he did not support the prosecution and denied of having given the statement to the IO on 10.01.10.
PW14 SI Vipin Kumar testified that on 21.09.2009 one DD No.31A Ex.PW5/A was recorded in the Police Station at about 6.15 PM contents of which are that "my bhabi has become ill all of the sudden and is unconscious" and the same was marked to him, upon (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.18 of pages 49 which he alongwith Ct. Sheoveer went to the spot i.e. House of the accused (correctly identified) at O9/B2, Dilshad Garden. On reaching there, the mother of accused met him, who informed him that the lady, who was ill, had been taken to GTB Hospital by accused and his sister and accordingly he reached at GTB Hospital and collected the MLC of Moumita Dass Ex.PW3/A in the hospital. Moumita Dass was declared brought dead by the doctor and alleged history was thereof hanging. He inquired from accused and it was revealed that marriage between accused and the deceased had taken place within 7 years of the period and accordingly, he informed SDM of the area, who recorded the statement of the father of deceased on 21.09.2009 Ex.PW1/A. SDM also recorded the statement of the brother of the deceased namely Animesh Malik and the accused Ex.PW2/A and Ex.PA respectively. Thereafter, they went to the above mentioned spot with SDM. He seized the saree in two pieces, one portion of the saree was tied with a ceiling fan and another portion was lying on the floor was taken into the police possession after photographs, at the instance of SDM. he had converted the saree into a parcel and seal of VK was affixed thereof and seized through seizure memo Ex.PW12/A. The six photographs Mark PW12/X1 to X6 reflects the position/situation of the spot which he had seen on reaching there. Crime Team officials inspected the scene of crime. Since, there was contradictions in the (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.19 of pages 49 statements of brother, father of the deceased and accused, so, DD was kept pending. Prior to it, on 22.09.2009, the inquest proceedings were taken up by SDM and he assisted him in the proceedings. The statements of father and brother of deceased regarding identification of the dead body Ex.PW2/D and Ex.PW2/E respectively were recorded. Inquest form was filled up and than postmortem on the dead body of deceased was got conducted and after postmortem and identification thereof, the body was handed over to the relatives i.e father and brother of the deceased for the last rituals. Ct. Sheoveer handed him viscera box given by doctor after postmortem, to which he seized vide seizure memo Ex.PW12/B. Subsequently matter was sent for legal action. He proved on record the two pieces of saree Ex.PW14/P1 collectively . He also testified that after registration of the FIR, the investigation was taken up by the Inspector Pramod Kumar.
During cross examination, he could not tell the date on which the FIR was registered in this case. He stated that he reached on the spot after about 1520 minutes of receipt of the DD by on his own vehicle. He denied that he was not present at the time of inquest proceedings conducted by SDM or that he had not assisted the SDM in completion of the inquest proceedings or that he was not present when crime team officials had conducted the inspection or he was not present at the time of taking of the photographs of (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.20 of pages 49 the spot.
PW15 Sh. Vimal Kumar, BDO, the than Executive Magistrate, Seema Puri/Shahdara, Delhi confirmed that on 21.09.2009 at about 11.00 p.m on receipt of a message from the police official of PS Seema Puri to reach GTB Hospital, he reached there where he came to know that one lady namely Mamuta Dass W/o Udipto Shankar Dass had expired in an unnatural way, within seven years of her marriage. Dead body was got preserved in the mortuary of GTB Hospital. He recorded the statement of Hira Lal Malik the father of the deceased Ex.PW1/A and also recorded the statement of Animesh Malik brother of deceased Ex.PW2/A and both of them bear his signature and official stamp at point B thereof. Thereafter, he also recorded the statement of Udipto Dass, husband of deceased Ex.PA bearing his signature and official stamp at point B and Udipto Shankar Dass had signed at point A. On the next day he conducted the inquest proceedings after filling up the inquest form 25.35(1)(B) Ex.PW15/A bearing his signature and official seal at point A. He proved his written request Ex.PW15/B made to the doctor for conducting postmortem on the dead body. Postmortem on the dead body was conducted and he directed SI Vipin Kumar to hand over the dead body of deceased to the relatives for her last rituals. After all proceedings, he directed SHO Seema Puri for conducting necessary action as per law. (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.21 of pages 49 PW16 Ct. Neeraj, the photographer, testified that on 21.09.09 on receipt of a call, he alongwith PW7 went to the spot with his official camera where SI Vipin of local police with team was present and there he took six photographs Ex. PW 16/B1 to B6 of the spot with his official camera and were developed in the lab and were handed over to the IO. He also proved on record the negatives of the said photographs Ex. PW 16/A1 to A6.
PW-17 Dr. Rahul, SR, Forensic Science Medicine, GTB Hospital, Delhi testified that he was acquainted with the handwriting and signatures of Dr. Sweta Garg, his senior colleague in GTB Hospital as he had worked with her for sufficient time. He proved the postmortem report no.1303/09 (runs into four pages) Ex.PW17/A which is in the handwriting and signatures of Dr. Shweta Garg. He confirmed that after perusing the inquest report, the PM was got commenced at 12.35 p.m and was concluded by 1.35 p.m. Alleged history was of hanging and consequently she was taken to GTB Hospital and was declared dead. Dead body was of average built. Rapped in white plastic bag wearing red colour cotton sari, mehroon colour blouse and peticoat, light blue colour under wear with a sanitary pad stained with blood, eyes and mouth closed petichial hemorrhage seen over conjunctiva. Regor mortise was well developed. Postmortem straining present over back and fixed. No sign of decomposition was seen. No ligature material was (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.22 of pages 49 present around the neck. Circumference of neck was 34 cm. Radish brown dry hard parchment like ligature mark was present around the neck obliquely and incomplete. Ligature mark was present above thyroid cartilage. The mark was 4.5 cm above chin and was 1.2 cm broad. On left side mark went obliquely downward and backward and was 5 cm below left angle of mandible and was 1.3 cm broad. The mark further went obliquely downward and backward and was 6 cm below left ear lobe and was 1.4 cm broad, the mark then went backward encircling neck posteriorly and was 2 cm below hair line and was 2.2 cm broad horizontally upto the right mastoid process where it was 3.3 cm below right mastoid process and was 1.5 cm broad. The mark was absent for a distance of 8 c.m laterly on right side neck. The mark was 0.5 cm below right ramus of mandible and was 1.3 cm broad.
Internal examination:
Scalp, skull were NAD. Brain 1260 gm congested. Neck on fine dissection the subcutaneous tissues below the mark was pale and glistening extravasation of blood seen in soft tissues and muscles of neck, more on left side, thyroid and hyoid cartilages are intact. Rib Cage - NAD Lungs - right 400 gm left 350 gm. Petichial hemorrhage seen over anterior surface of upper lobes of both the lungs, base and interlobar fissures. On cut section all the lobes of both the lungs are congested. (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.23 of pages 49 Heart - 240 gm, NAD Stomach - contain semi digested food,walls NAD. Intestine - contain semi digested food,walls NAD. Liver - 1500 gm, congested.
Spleen - 140 gm, congested.
Kidneys - right 90 gm and left 90 gm, both congested. Uterus contain blood, walls NAD Urinary bladder - empty, walls NAD Pelvis & vertebrae - NAD Viscera was preserved under the seal of SG to rule out intoxication and it was handed over to the police official.
Preservative used are saturated solution of common salt.
Time since Death about 3/4th of a day Cause of death-Asphyxia as a result of antemortem hanging.
He also testified that again on 08.04.2011, the police officials handed one application with request for giving subsequent opinion in the matter and one sealed parcel with the seal of VK was also produced. Dr. Shweta Garg opined the subsequent opinion Ex.PW17/B on 21.04.2011. As per opinion, the ligature mark as mentioned in the postmortem report Ex.PW17/A was possible by both the recovered pieces of the sari.
(SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.24 of pages 49 During cross examination he stated that he has no personal knowledge of this case. He himself had not seen the ligature material i.e. two pieces of saris. He has been working in GTB hospital since 20th June, 2009 and presently, he is having the degree of M.B.B.S, M.D (Forensic Medicine). In 2009, he was doing post graduation from GTB Hospital and was in first year of post graduation. He confirmed that Dr. Shweta had left the services of GTB hospital in the year 2010. She was also doing post graduation and in the year 2009 Dr. Shweta was junior demonstrator M.D (Forensic Medicine).
PW-18 Inspector Pramod testified that on 10.01.2010 the present case was marked to him for investigation. After receiving the documents pertaining to inquest conducted earlier by SDM, Seema Puri, he went to the spot i.e O9/B2 Dilshad Garden, Delhi and the same was found locked. On making inquiry, it was revealed that house was locked since the incident. He again visited that place on 15.01.10 but the visit was of the same fate. He recorded the statement of SI Vipin in this case u/s 161 Cr. P.C. On 25.01.10, he collected the SOC visitation report Ex.PW7/A from the Incharge of Mobile Crime team and the photographs Ex.PW16/B1 to B6 and recorded their statements. On 03.02.10 he recorded the statement of complainant namely Animesh Malik correctly, who handed over him the marriage card of accused and deceased (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.25 of pages 49 Ex.PW2/1, the total 30 photographs pertaining to the marriage Ex.PW2/3, bill of the gold chain Ex.PW2/4, decree of divorce mark PW2/X and objection filed on behalf of Heera Lal Malik mark PX, marriage certificate (which has taken place between accused and deceased on 01.10.08) Ex.PW1/B, photocopy of affidavit of deceased Ex.PW2/Y and of accused Ex.PW2/Z and list of gold ornaments Ex.PW2/B through seizure memo Ex.PW2/C. On 09.02.10 he recorded the statement of the father of deceased namely Heera Lal Malik. Than he made search for the accused but of no avail. In the meantime accused was granted anticipatory bail by the Hon'ble High Court. Finally accused was arrested in this case on 22.10.08 vide arrest memo Ex.PW8/A and he was released on bail in terms of order of anticipatory bail. He also testified that on 29.10.10 he visited the spot along with SI Vipin and prepared the site plan Ex.PW18/A. He obtained the subsequent opinion from the doctor regarding death Ex.PW17/B. He had got verified the marriage certificate of accused and deceased from the temple where it had taken place vide application Ex.PW 18/B bearing his signatures at point A. On the basis of material collected during investigation challan was prepared and got filed through SHO/ACP.
During cross examination he conceded that photographs and the wedding invitation card pertains to first marriage between accused and deceased. The accused had earlier marriage with (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.26 of pages 49 deceased but got divorced and again they remarried with each other in October, 2008. The gold chain bill dated 28.09.03 pertains to the first marriage between accused and deceased. The list Ex.PW 2/B also pertains to the first marriage. He did not obtain the certified copies of the divorce petition of whose decree is placed on the file. He could not tell if the divorce between the accused and deceased had taken place by their mutual consent. He denied that he had purposefully not obtained the petition of divorce otherwise he would have come to know the real fact that they had got divorce on mutual consent. He stated that he is not aware about any disease known as Thalassemia. He could not tell if the deceased was suffering with the disease Thalassemia. He denied that he purposefully did not investigate the matter on this point. He came to know during course of investigation that deceased was blessed with one male baby and he was around one and a half months at the time of incident. He is not aware if that baby was also Thalassemic. He conceded that the date of occurrence is 21.09.09 and date of FIR is 10.01.10. He denied that deceased did not commit suicide due to any cruelty or harassment in connection with demand of dowry but due to her own medical reason or that he did not allow these facts to come on record in order to make out the false case.
6. Statement of accused Udipto Shankar Dass was recorded (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.27 of pages 49 under section under section 313 Cr.P.C wherein he stated that he is innocent and he has been falsely implicated in this case. He also stated that his wife committed suicide because she herself was thelessemic minor and their new born child, who was one and a half months old at the time of incident, is thelessemic major and mother of his wife was also thelessemic major and she expired due to that disease.
7. In his defence, accused examined Sh. Ajay Paul (brotherin law of accused) as DW1, who proved on record the certified copies of Hindu Marriage Petition, which was filed by accused and his wife for dissolution of marriage by mutual consent in the year 2004 in Tis Hazari Courts, Delhi as Ex.DW1/A. He also proved on record the discharge summary from the Ganga Ram Hospital of the son of accused as Ex.DW1/B. During cross examination he stated that the incident of the present case was occurred on 21.09.2009. He conceded that there is no document (medical record) filed by him in record, which shows that deceased was suffering from any disease. He also conceded that accused Udipto Shankar Das again married the deceased after decree of the divorce dated 24.02.2005. He denied that after re marrying with the deceased, accused again started cruelty and demanding cash amount of Rs.25,000/ per month and when the deceased could not fulfill the above said illegal demand, he (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.28 of pages 49 maltreated the deceased.
8. I have carefully heard the submissions of both the sides. I have also carefully perused the entire material placed on record.
9. As per Ld. Addl. PP for the State the prosecution has been successfully able to connect the accused with the offence punishable U/s 498A IPC & 304B IPC. During his three folds arguments, Ld. Addl. PP for the state has contended that by way of consisted and trustworthy evidence of the material witnesses i.e. PW1 & PW2, the father and brother of deceased coupled with the testimonies of official witnesses and the scientific evidence brought on record, the prosecution besides proving its case against the accused U/s 498A IPC has also been able to establish its case against the accused. Even for the sake of arguments, if it is conceded that the ingredients of offence U/s 304B IC is not made out than certainly the conviction of accused U/s 306 IPC, for abetment of suicide is made out. Both PW1 & PW2 have clearly deposed that the accused used to harass the deceased by raising demand of Rs.25,000/ per month. PW2 further testified that the accused used to allege that his sister was thalassimic and for taking her care they must pay Rs.25,000/ per month. PW2 further stated that accused used to make call for demands and one day accused had called them to his house and there he demanded money and thereafter, he got physical fight with his father. It is not (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.29 of pages 49 a disputed fact that the death of the wife of accused i.e. deceased was an unnatural death and soon before her death, the deceased was subjected to cruelty or harassment by the accused by raising of demand of Rs.25,000/ per month towards dowry. Ld. Addl. Public Prosecutor has also added that in this case as suicide was committed by a young woman within seven years of her marriage and she was subjected to mental cruelty by accused, offence under section 306/498A IPC against him are amply proved with aid of section 113 A Evidence Act .
Per contra, according to Ld. Counsel for accused, the prosecution has been miserably failed to prove its case under any of the sections, for which he has been charged. Further the plea of Ld. Addl. PP that the accused can be convicted for the offence punishable U/s 306 IPC is also liable to fail in the absence of necessary material/evidence on record.
10. In the instant case, the charge U/s 498A & 304B IPC has been framed against the accused.
The provisions of Sec.498A IPC provides as under: "498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
(SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.30 of pages 49 Explanation. For the purposes of this section 'cruelty' means -
(a). any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
(b). harassment of the woman whether such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Cruelty has been defined by the explanation added to the Section itself. The basic ingredients of Section 498A IPC are cruelty and harassment.
In Mohd. Hoshan Vs. State of A.P (2002) 7 SCC 414, Hon'ble Apex court held that "mental or physical torture should be 'continuously' practiced by the accused on the life.......... Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.31 of pages 49 its own facts to decide whether the mental cruelty was established or not."
In Smt. Raj Rani Vs. State (Delhi Administration) AIR 2000 SC 3559, the Hon'ble Supreme Court held that "while considering the case of cruelty in the context to the provisions of Section 498A IPC, the Court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt."
In Sushil Kumar Sharma Vs. Union of India AIR 2005 SC 3100 Hon'ble Apex court while explaining the distinction of cruelty as provided under Section 306 and 498A observed that "under Section 498A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306 IPC, suicide is abated and intended. Therefore, there is a basic difference of the intention in application of the said provisions."
In Girdhar Shankar Tawade Vs. State of Maharashtra AIR 2002 SC 2078 Hon'ble Apex court held that "cruelty has to be understood having a specific statutory meaning provided in Section 498A IPC and there should be a case of continuous state of affairs of torture by one to another."
"Cruelty" for the purpose of Section 498A IPC is to be established in the context of Section 498A IPC as it may be a (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.32 of pages 49 different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty".
It is clear from the above settled law laid down by the Hon'ble Supreme Court in catena of decisions that for cruelty to come U/s 498A, mental or physical torture has to be continuously practiced by the accused on his wife. Allegations must be of a very grave nature and should be proved beyond reasonable doubt. Cruelty has to be understood having a specific statutory meaning provided U/s 498A IPC and there should be a continuous state of affairs of torture by one to another. For proving cruelty, it is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint.
11. To establish charge under Sec.304B IPC, it is incumbent upon prosecution to prove the ingredients of section 304 B. (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.33 of pages 49 Sec.304B of the Indian Penal Code reads as under: 304B. Dowry death. - (1). Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose of this sub section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death, the deceased as subjected to cruelty or harassment by her husband or any of his relative; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The parliament has also inserted Section 113 B of the Indian Evidence Act by Act No. 43 of 1986 with effect from 1.5.1986 which reads as under: (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.34 of pages 49 "113 B Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
Explanation. For the purposes of this section, "dowry death", shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)". From a conjoint reading of Section 304B of the Indian Penal Code and Section 113B of the Indian Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304B of the Indian Penal Code.
The ingredients of the aforementioned provisions are:
(i). That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;
(ii). Such death occurs within 7 years from the date of her marriage;
(iii). That the victim was subjected or cruelty or harassment by her husband or any relative of her husband;
(iv). Such cruelty or harassment should be for or in connection with demand of dowry; and
(v). It is established that such cruelty and harassment was made soon before her death.
The essential ingredient of Section 304B is that soon before (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.35 of pages 49 her death woman was subjected to cruelty or harassment by her husband or his family in connection with demand of dowry.
12. Section 306 IPC reads as under: "If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years , and shall also be liable to fine".
Abetment means to instigate, to compel or to intentionally aid, by any act or illegal commission, the doing of some thing. It has come on record in dying declaration of the deceased that she had committed suicide because she was tired of on frequent quarrels between her and her mother in law wherein her husband never supported her and favoured her mother in law. Section 113(A) of Indian Evidence Act provides " in such a situation if it is shown that her husband or any relative of her husband had subjected the woman to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband". The explanation annexed to section 113 (A) provides that the cruelty for the purpose of this section has the same meaning as section 498A of IPC.
In case reported as 2008(3) R.C.R. (Criminal) 890 Rajbabu (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.36 of pages 49 & Anr. Vs. State of M.P., the girl had committed suicide. Prior to suicide she wrote a letter to her parents that she was unable to tolerate the atmosphere in the family in matrimonial home and would prefer to live in hell because inlaws have done such acts with her which are of no use to mention. She further wrote that she was treated like an enemy and that her mother told that if she (bride) is kept in their house then nothing will remain. Hon'ble Apex Court held that "In the letter there was no reference of any act or incident whereby the accused were alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to commit suicide. Evidence showed that deceased was unhappy because her husband was illiterate and family was poor and she was asked to do certain household jobs which she was not accustomed to do. In the circumstances Section 113A of Evidence Act was not attracted . Conviction was set aside".
In another case reported as Randhir
Singh & Anr. v.
State of Punjab, 2004(4) RCR(Criminal) 740 : 2004(3) Apex t was observed that "more Criminal 683 : 2004(13) SCC 129 , i active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence U/Sec.306 IPC."
In another case reported as State of West Bengal v. Orilal (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.37 of pages 49 Jaiswal, 1994(3) RCR(Criminal) 186 : 1994(1) SCC 73 it was held that "the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her inlaws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC. However, in our opinion mere harassment of wife by husband due to differences per section does not attract Sec.306 read with Sec.107 IPC, if the wife commits suicide".
In yet another case reported as 2007(3) R.C.R.(Criminal) 87 (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.38 of pages 49 Bhagwan Das Vs. Kartar Singh & Ors, where wife was harassed as she could not give birth to child for 7 years, and when she gave birth to a female child, she was taunted for bringing bad luck, suicide was committed by bride, Hon'ble Apex Court held that abetment under Section 306 IPC read with Section 107 IPC was not made out.
In case reported as 2007(2) R.C.R.(Criminal) 678, Sanjay Versus State of Maharashtra , both husband and wife used to quarrel with each other and husband used to come late in drunkard condition. Wife committed suicide. Husband was acquitted by Hon'ble Supreme Court.
13. In the instant case, the specific case of the prosecution is that deceased Momita Dass @ Anushuia ended her life because of harassment caused to her by the accused for or in connection with demand of Rs.25,000/ per month. It is, therefore, necessary to briefly examine the main evidence of prosecution witnesses regarding the alleged demand of Rs.25,000/ and harassment to the deceased at the hand of accused and also regarding the conduct of accused which subjected the deceased to the cruelty and compel her to commit suicide and they are PW1 & PW2, who are father and brother of deceased respectively.
In this case statement of the father of deceased Ex.PW1/A was recorded by the Executive Magistrate on 21.09.2009 i.e. the (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.39 of pages 49 day of incident and mere perusal of the said statement reveals that not a single allegation has been levelled against the accused or anyone else. Even in the said statement, witness has unequivocally stated that he has given the said statement after thoughtful consideration and full understanding. However, in the statement of PW1 recorded U/s 161 Cr.P.C by the IO on 09.02.2010 i.e. after 4½ months of the date of incident, Ex.PW1/DA the said witness has taken somersault and while completely resiling from his earlier statement recorded by Executive Magistrate, he levelled the allegations against the accused, which resulted into the present FIR. Thus the said depositions made by the father of deceased are not free from doubt. Further in his testimony recorded on oath before the court, PW1 has made further improvements but his testimony can not be relied upon for the reasons of material contradictions and improvements. Firstly, he was not sure about the dates of marriage, remarriage and divorce of her daughter with accused. He also stated that accused married his daughter sometimes in the year 2001, whereas first marriage took place on 19.11.2003. He further stated that sometime in the year 2007 i.e. around two years prior to her death accused remarried his daughter, whereas remarriage took place on 01.10.2008. He further testified that this incident had taken place after one year of her marriage may be in the year 2008. It is pertinent to mention here (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.40 of pages 49 that accused and deceased were divorced from 24.02.2005 till 30.09.2008. The witness was asked in his cross examination whether he stated this fact to the police and he said yes and when confronted with statement recorded U/s 161 Cr.P.C Ex.PW1/DA, it was revealed that in the said statement the said allegation in the year 2007 is not mentioned whereas it is in continuation of the year 2003. This fact does not find mention at all in the first statement before Executive Magistrate i.e. Ex.PW1/A. Thus, this allegation of the witness stands falsified. Witness further stated that accused has been making demand of Rs.25,000/ per month and lastly he demanded the money four or five months back but this fact was not found mentioned in his statement Ex.PW1/DA. Further the witness stated that his daughter was expired on 21.01.2009 whereas she had expired on 21.09.2009. Witness further stated that his daughter was killed by the accused and subsequently shown as if she had committed suicide but this fact too does not find mention in the statement Ex.PW1/DA. He further stated that he was very perturbed on seeing the dead body of his daughter and hence he could not give a proper statement before the Executive Magistrate. He though admitted his signature on Ex.PW1/A but denied the contents thereof while saying that the same was not read over to him and he was not in full senses. These facts are in contradictions to the fact recorded by Executive Magistrate in Ex.PW1/A that he (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.41 of pages 49 has given the said statement after thoughtful consideration and full understanding. Further in his cross examination, he has simply denied the suggestion that he had given the statement Ex.PW1/A in full sense and had signed the same after going through its contents. It is pertinent to mention here that no protest letter or complaint was ever lodged by the witness to the effect that his statement Ex.PW1/A was not a voluntary statement. Thus, this version of PW1 is not at all trustworthy and can not be believed. PW1 further stated that he gave his true statement to the police whatever had taken place in little sense and then again said in full sense. Thus, as per his own version he was not sure whether before the police also he gave his statement in full sense or not. His claim that he was not having any knowledge if his daughter was having any child at the time of her death is not believable. He further made bald allegation that accused used to demand money from us and on non fulfillment of his demand for cash, he used to threaten her and beat her up specially in the circumstances when he did not make any complaint to that regard. Further he did not give any dates or mentioned any specific incidents to prove beyond reasonable doubt his allegations of dowry or harassment. These allegations does not find mention at all in the first statement before Executive Magistrate i.e. Ex.PW1/A. Hence the allegation can not be believed upon. Further he admitted that the articles he (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.42 of pages 49 had given to his daughter and accused at the time of first marriage was of his own consent and since she was his only daughter. Thus witness admitted that accused did not demand any dowry during the first marriage. Witness admitted that his daughter suffered from minor thalassemia. He stated that remarriage took place on 01.10.2008. Moreover, after grant of decree of divorce by the competent court, on joint petition moved on the ground of mutual consent, any allegation pertaining to the first marriage are not legally tenable.
The perusal of records shows that the following allegations have been levelled, pertaining to the remarriage, by the witness in his examination in chief recorded U/s 141 of the Evidence Act:
(i). Accused used to harass his daughter. She was not given food in time or articles of her needs.
(ii).Deceased was not allowed to call us on telephone.
(iii).Accused did not give him information regarding her motherhood.
In the cross examination specific suggestions to the effect that the deceased was not harassed, she was given food in time and articles of her needs and she was also allowed to call them on telephone, were put to the witness. He simply denied the said suggestions. He did not give any dates or any specific incidents to prove beyond reasonable doubt, the said allegations. Further said allegations even if assumed to be true, do not constitute any offence (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.43 of pages 49 U/s 498A, 304B or 306 IPC.
Further PW1 has admitted in his cross examination that his wife was thalessamic and died due to the said disease. He further admitted that the said disease is hereditary. He although denied the suggestion that his daughter committed suicide due to the reason that she was thalyssimic and her son was thalyssimic and blood transfusion used to be done very month. However, the perusal of the documents Ex.DW1/A, which is the affidavit of the deceased, proves the above noted said facts, put to the PW1 by way of suggestion, by the counsel for the accused. Ex.DW1/B, which is the discharge summary from Ganga Ram Hospital proves the fact that son born out of the wedlock of the accused deceased was thalessamic major and requires regular blood transfusions every month. Thus the testimony of PW1 is not trustworthy and credible as he has given three different versions before three different authorities. Witness has not withstood the test of cross examination. He has made substantial & material improvements in his deposition. Further it is highly unbelievable and improbable that a father would agree to remarry his only daughter with the same person against whom he had levelled allegations of harassment and dowry during the first marriage. It is pertinent to mention here that no allegation of dowry or harassment find mention anywhere in the entire divorce proceedings i.e. Ex.DW1/A. (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.44 of pages 49 The said document contains duly sworn affidavit of the deceased, where she has lucidly & cogently mentioned the reasons for divorce.
Similarly, the testimony of PW2 is not trustworthy. Firstly, from the perusal of the statement of PW2 recorded by Executive Magistrate on 21.09.2009 Ex.PW2/A, it is revealed that only single allegation which has been levelled against the accused is that as per the knowledge of the witness, the accused used to demand Rs. 20,000/ per month but the said allegation being hearsay is not admissible in evidence. Further it is vague and devoid of material particulars. No date, time or particular or specific incident has been mentioned by the witness. Further these allegations do not find mention in the entire divorce proceedings proved as Ex.DW1/A. Moreover, it does not appear to be plausible that a family will agree to remarry their only daughter with the same person, who during the first marriage harassed their daughter for dowry. PW2 also stated that accused used to demand Rs.25,000/ per month and he used to allege that his sister was thalassimic and for taking her care they must pay Rs.25,000/ per month and accused used to make call for demands and one day accused had called them to his house and there he demanded money and thereafter, he got physical fight with his father but these facts were neither found mentioned in Ex.PW2/A nor in his statement (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.45 of pages 49 recorded U/s 161 Cr.P.C Ex.PW2/X. PW2 further stated that after about 2 months of marriage accused demanded Rs.20,000/. During cross examination he failed to tell the date or month in which accused had demanded Rs.20,000/. Further in Ex.PW2/X, it is mentioned that due to only one sister the said demand was fulfilled. However, this allegation is contrary to statement of PW1, who in his cross examination stated that it is correct that he did not make payments of the demands ever made by the accused. Further in Ex.PW2/X it is mentioned that as per my knowledge accused to harass/torture my sister. This is a bald assertion as it does not find mention in his first statement Ex.PW2/A. Further it is mentioned in Ex.PW2/A that as per his knowledge accused used to demand Rs.20,000/ per month and in Ex.PW2/X, it is mentioned that there plan was to get Rs.20,000/ to Rs.25,000/ per month from my father. The allegation in Ex.PW2/A is hearsay evidence and the allegation in Ex.PW2/X is opinion of the witness and that too by making material improvements in his first statement and the allegations in both the statements are inadmissible in evidence. Further during cross examination, witness has simply denied the suggestion put to him that accused had not demanded Rs.25,000/ per month for maintenance of deceased. Witness rather has admitted that they never made any complaint against the accused regarding demand of Rs.25,000/ made by the accused. Further (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.46 of pages 49 PW2 has levelled allegations that when his sister returned home after divorce my mutual consent in February 2005, she told him that after the meeting in which the accused had demanded Rs.25,000/ per month, the behaviour of the accused had become very cruel. Accused used to physically assault her. She was very much depressed at that time due to the behaviour and the divorce. These allegations are not believable due to the fact that as per deceased herself she had left her matrimonial home in January 2004 much prior to the alleged meeting (para 6 of her affidavit as running page no.9 of Ex.DW1/A). Secondly, these allegations are false as these do not find mention anywhere in the divorce proceedings Ex.DW1/A. Thirdly, the said allegations are false as when the witness was confronted with his earlier statements Ex.PW2/A and PW2/X, the said allegations are not found so recorded over there. The witness conceded that his mother suffered from major thalassemia and in major thalassemia blood has to be transfused every month.
As regard to remarriage, it has been added by PW2 that (a). for sometime my sister was kept peacefully and thereafter again same thing started taking place, (b). we were not allowed to talk to my sister (deceased) on telephone, (c). pregnancy of my sister was concealed from us and accused did not inform us when my sister was blessed with male child.
(SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.47 of pages 49 These allegations do not find mention in the first statement of the witness i.e. Ex.PW2/A. Witness had admitted that he was present during the marriage. He has proved two documents which are photocopies of two affidavit as mark Ex.PW2/Y and PW2/Z respectively. In para 8 of both the documents it has been stated on oath by the accused as well as the deceased that they have neither brought any cash nor any kind of goods valuable jewellery, ornaments etc. from my parents/nearest relation. Thus remarriage was free from dowry. Further the witness has admitted that they never filed any complaint against the accused. Thus the testimony of PW2 is also not trustworthy and credible as he has made substantial and material improvements in his deposition. Witness has not withstood the test of cross examination. Further it is highly unbelievable and improbable that a brother would agree to remarry his only sister with the same person against whom he has levelled allegations of harassment and dowry during the first marriage.
The testimonies of both the material witnesses do not inspire confidence whereas the defence put forth by the accused that the deceased could not cope up with the fact that her mother expired due to thalassemic major, she herself suffered from minor thalassemia and was thus carrier of the defective gene which was transmitted by her to her new born son and thus she committed suicide being depressed about the said fact, appears to be plausible. (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.48 of pages 49 The disease of thalassemia is a life threatening and debilitating disease like AIDS. The disease is a blood disorder passed down through families i.e. it is inherited. Treatment for thalassemia major often involves regular blood transfusions and folate supplements. Severe thalassemia can cause early death due to heart failure, usually between ages 20 and 30. The new born baby of the deceased suffers from thalassemia major which requires blood transfusions every month. This fact has been proved by the defence by proving document Ex.DW1/B, which is the discharge summary of the son of deceased from Ganga Ram Hospital.
Thus the accused has cogently explained the reasons for the committal of suicide by his wife. Moreover there is a considerable delay of around 4½ months in lodging the instant FIR and no explanation in that regard has been tendered by the prosecution.
14. In the light of aforesaid, accused is entitled for an order of acquittal in his favour. Accordingly, he is acquitted of the charges levelled against him. His Bail Bond & surety bond stand discharged.
(Announced in the open Court today on 30.10.2012) (RAKESH KUMAR) Addl. Sessions Judge (North East) Karkardooma Courts, Delhi (SC No:60/2011) (State Vs. Udipto Shankar Dass) Page No.49 of pages 49