Delhi District Court
Others vs . State Of Punjab And Anr. [2009 Scc 633] ... on 10 January, 2014
1
IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL
SESSIONS JUDGE01: NORTH: ROHINI: DELHI
SC NO.13/13.
FIR NO.284/11.
PS : AMAN VIHAR.
U/S 302/498A/304B/34 IPC
STATE
VERSUS
1. RAKESH S/O. SHRI BABU LAL
R/O. Z8, NASRAYAN VIHAR,
PREM NAGARII, DELHI.
2. SANJAY S/O. SH. RANA SINGH.
R/O. Z615, GALI NO.14, PREM NAGARII,
DELHI.
3. SHANTI DEVI W/O. LATER BABU LAL
R/O. Z615, GALI NO.14, PREM NAGARII,
DELHI.
Date of Institution:08.02.2012
Date of Argument:12.12.2013
Date of Decision:10.01.2014
JUDGMENT
1. Brief facts of the case are that on 03.09.2011, on the information received from PCR that, one lady had been killed by burning at 40 futa Road, Gali No.14, near Oil Depot, Aman Vihar, DD No.26A was recorded in PS Aman Vihar. The said DD was assigned to SI Prem Singh. SI Prem Singh reached at the house no.14Z block, Gali No.8, Prem Nagar, Delhi, where accused Rakesh From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.1 of p 33 2 met him and told that, his wife was got burnt while cooking food on 01.09.2011 and she had expired on 02.09.2011 and he had sent the information about the death to the parents of his wife. The information of death of victim Seema was given to SDM.
On 04.09.2011 parents of the Seema (since deceased) namely Raj Kumar (father of deceased) appeared before SDM and SDM had recorded his statement. Raj Kumar in his statement had stated that his daughter was married with accused Rakesh Kumar (accused no.1) in the year 2009 and his daughter was kept well for about one year and thereafter his son in law accused Rakesh asked his daughter to bring Rs.30,000/ for constructing the upper portion of the house and when his daughter had refused to do so, he used to give beating to his daughter.
He further stated that, one day, he alongwith his brother in law Babu had come to meet his daughter Seema and at that time his son in law (accused Rakesh ) and brother in law of accused Rakesh namely Sanjay abused them and also beaten them. The mother in law of his daughter beaten his daughter by pulling her hairs. Thereafter, they went back to their village.
On 02.09.2011 they received telephone call from the neighbourer that his daughter had died due to burning, therefore, he alongwith his wife came to Delhi and found that dead body of his daughter was found at mortuary of SGM Hospital. He suspected that his daughter has been killed by accused Rakesh and Sanjay (Accused No.1 & 2).
From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.2 of p 33 3 SDM made endorsement on the said statement and gave recommendation for registration of the case and accordingly on 18.09.2011 case was registered u/s. 304B/498A/34 IPC. SDM got conducted the postmortem examination on the dead body of deceased/victim Seema.
On 18.09.2011 case was registered u/s. 498A/304B/34 IPC and investigation was assigned to Inspector Vijay Kumar, who prepared the site plan and recorded statement of witnesses. He wrote a letter for the documents of the prosecutrix regarding bringing her to SGM Hospital on 01.09.2011 and doctor gave information that the Seema (since deceased) was brought to the hospital in minor O.T. and after dressing she was not shown to any other doctor and she was taken back by the attendant of the patient. He arrested the accused Rakesh and Sanjay on 09.02.2011 and did not arrest accused Shanti because as per his opinion there was no sufficient evidence against the accused Shanti. Thereafter, he filed challan u/s. 304B/498A/34 IPC.
2. Ld. MM had taken cognizance against all the three accused persons including accused Shanti and after compliance of provision of Section 207 Cr.P.C. the case was committed to the court of Session. Thereafter, same was assigned to this court for trial in accordance with the law.
3. The charges u/s 304B/498A/302/34 IPC was framed against all the accused persons vide order dated 16.04.12 by my ld. Predecessor, to which all accused pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 11 witnesses. From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.3 of p 33 4 PW1 HC Surender Kumar, PW2 Ct. Om Prakash, PW3 Raj Kumar is the complainant and father of the deceased/victim, PW4 HC Hardev Singh is the duty officer, PW5 Dr. Manoj Dhingra had conducted the postmortem examination on the dead body of deceased/victim alongwith Dr. Deepak Sharma, PW6 Ajay Kumar (ADM) who was posted as SDM at that time, PW7 Sangeeta from whose mobile phone a call was made to 100 number, PW8 Sia Kumari (mother of the deceased), PW9 Dr. Rajesh who was posted at st Emergency Casualty department at that time, PW10 SI Prem Singh is the 1 nd IO of the case, PW11 Inspector Vijay Kataria is 2 IO of the case.
5. Besides this prosecution proved copy of FIR as Ex.PW4/A & Ex.PW2/C and certificate u/s. 65(B) Evidence Act as Ex.PW2/A, Complaint made by Raj Kumar father of deceased as Ex.PW3/B, Rough site plan of spot as Ex.PW11/A, Post Mortem Report as PW5/A, Inquest proceedings as Ex.PW6/E, Death Report as Ex.PW6/C, Brief facts as Ex.PW6/D, DD No.26A Ex.PW1/A, disclosure statement of accused Rakesh Kumar as Ex.PW6/A, statement of Rakesh regarding identification of dead body as Ex.PW6/B and that of Raj Kumar as Ex.PW3/A, Letter seeking information in respect of treatment of deceased Seema as Ex.PW11/B and reply to the said letter as Ex.PW9/A, Arrest memo of accused Sanjay Ex.PW11/C and that of accused Rakesh as Ex.PW11/D, personal search memo of accused persons Sanjay as Ex.PW11/E and that of accused Rakesh as Ex.PW11/F, Statement u/s. 161 Cr.P.C. of Sia Kumari as Ex. PW8/A, From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.4 of p 33 5
6. The statement of all accused were recorded U/s 313 Cr.P.C. and all the incriminating evidence are put to them and they denied the same and submitted that they have been falsely implicated by complainant party in this case and they they did not prefer to lead any evidence in their defence.
7. I have heard the arguments from Shri A.K. Gupta, Ld. APP for the State and Shri Chander Mohan Sanan, ld. Counsel for all the accused persons, and gone through the record.
8. Ld. Addl. PP Shri A.K. Gupta for the State argued that from the testimony of PW3 Raj Kumar and PW8 Sia Kumari that accused persons used to harass the victim Phool Kali @ Seema for demand of dowry and they have burnt her. He further argued that, accused persons have first taken the victim to the SGM Hospital but they had brought her back without giving treatment, which shows that, their incriminating conduct that they were apprehending that, victim might give statement against them. He further argued that victim had died within seven years of her marriage and she had died in her matrimonial house and her death is in other than normal circumstances, hence, it is a dowry death. Therefore, accused persons are liable to be convicted either for murder or for dowry death.
9. On the other hand, Ld. Defence counsel for accused persons has argued that, all the allegations of demand of dowry levelled by PW3 & PW8 are afterthought, as there is no previous complaint filed either by them or by the victim. He further argued that, victim was burnt accidentally while cooking food From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.5 of p 33 6 and she was immediately taken to the hospital by the accused Rakesh, but doctors of the SGM Hospital discharged her after giving her first aid. Hence, victim had died due to negligence of the doctor and police should have taken action against the doctor instead of accused persons. He further argued that, there is unexplained delay of days in recording the FIR. He further argued that, police did not interrogate any of the neighbourer to inquire whether the accused persons have any strained relationship with victim. He further argued that, even as per the testimony of PW3 Raj Kumar and PW8 Sia Kumar there is no demand of dowry by the accused persons soon before the death. Hence, the most vital ingredients of Section 304 B IPC is missing. In view of the said all the accused persons are entitled for acquittal.
10. I have considered the argument and gone through the record. The case of the prosecution is that deceased Seema was harrassed by the accused persons for demand of dowry due to which death of victim was caused. Prosecution examined 11 witnesses to prove the case.
11. PW1 HC Surender Singh is the duty officer and he had recorded an information regarding murder of a lady by burning at Aman Vihar, 40 ft. road, gali no.14, near Oil depot no.1 and this information was recorded by him in DD No.26A and thereafter the inquired was handed over to SI Prem Singh through telephone and proved copy of DD26A as Ex.PW1/A. In his cross examination he had stated that the information was given to him by wireless operator of the PS, but he does not remember his name, but he was from PCR From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.6 of p 33 7 HQ. He denied the suggestion that there was no such information and a false DD was recorded.
12. PW2 Ct. Omprakash Yadav had deposed that on 18.09.2011 he was posted at PS Aman Vihar and working as computer operator and at about 6.10pm, he was given a complaint by duty officer HC Hardev Singh and he typed the said complaint on computer and generated the print out of FIR. He had also given the certificate u/s. 65 B of the Evidence Act to that effect same is Ex.PW2/A and tehrir is Ex.PW2/B and computer print out is Ex.PW2/C. He was not cross examined by ld. Defence counsel.
13. PW3 Raj Kumar is the complainant and he had testified that, his daughter Phool Kumar @ Seema was married with accused Rakesh three years back and he further deposed that about one year after the marriage her daughter was kept well and thereafter, accused persons Rakesh (her husband), Shanti (mother in law) and Sanjay (Nandoi) of her daughter started harassing his daughter on account of bringing money. Initially accused Rakesh demanded Rs.3,000/ from him just to test that, he could give the money or not and he gave the said money to him. Accused Rakesh thereafter asked his daughter to bring Rs.30,000/ to construct upper floor of his house. But her daughter said to Rakesh that, her father is poor and cannot meet his demand, on which Rakesh gave beatings to her. He further testified that two months prior to the incident, he alongwith his brother in law Ram Babu visited the matrimonial house of his daughter and on seeing them accused Shanti called accused Sanjay, who was From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.7 of p 33 8 residing in the nearby area and both the accused persons Sanjay And Rakesh started abusing them and gave beating to them. His daughter also told them that, accused Shanti gave beating to her by holding her hair and through her in drain. He further testified that, accused Rakesh and his daughter visited to his house at Allahabad seven days prior to Raksha Bandan and accused took back her two days prior to Raksha Bandhan. On 20.09.2011 he was informed by someone that his daughter had died due to burn injuries. He and his wife Sia Kumar reached at the matrimonial home of his daughter on 3.09.2011 and found all the accused persons there. Accused earlier started abusing him. He further stated that, on 04.09.2011, he identified the dead body of his daughter in the SGM Hospital and SDM also recorded his statement Ex.PW3/B. In his cross examination, he stated that he did not note down the date, month or time of giving Rs.3000/ to accused Rakesh, hence, he cannot tell the same. He further stated that, he did not state to the SDM or police that, accused Rakesh demanded Rs.3000/ from him just to test him. He further stated that he did not tell the police that, accused Shanti called her son in law i.e. accused Sanjay. He further stated that, a son of her daughter was born in Delhi and he visited at that time and they all were happy. He admitted that, his daughter had visited 6/7 times at Allahabad after marriage with her husband Rakesh. They remained in their house for four/five days prior to Raksha Bandhan. He further stated that his daughter was taken by the accused by cheating that his mother was ill. He admitted the suggestion that, his daughter From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.8 of p 33 9 went to Allahabad in Mundan ceremony of their son. He further stated that the telephone call received by his sister. In the meanwhile some neighbourer of her daughter Seema informed that, "the death of your niece (bhatiji) had taken place due to burn on 02.09.2011".
14. PW4 Hardev Singh had stated that on 18.09.2011 he was posted as duty officer at PS Aman Vihar from 4pm to 12 night and on that day at about 6.10pm, he received a rukka from SI Prem Singh in the PS and on the basis of same he recorded the FIR No.284/11 u/s. 498A/304B/34 IPC and same is Ex.PW4/A and he has also made endorsement on the rukka as Ex.PW4/B and after registration of FIR, he handed over copy of FIR and original rukka to Inspector Vijay Kumar as per directions of the SHO, he was not cross examined by accused persons.
15. PW5 Dr. Manoj Dhingra, had stated that on 05.09.2011 he alongwith Dr. Deepak had conducted a postmortem on the dead body of Seema W/o. Rakesh, 21 years old age and the said body was sent by SDM Ajay from PS Aman Vihar with alleged history of death due to burn injury on 02.09.2011 at about 11am and alleged history of burn on 01.09.2011 at 9.30pm and taken to some doctor and papers of which were not given with inquest papers. His detailed PM Report is Ex.PW5/A. He further opined that death is due to septicemia and shock consequent upon burn injuries. His detailed PM Report alongwith Inquest were handed over to the IO by him. He was not cross examined by ld. Defence counsel.
From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.9 of p 33 10
16. PW6 Shri Ajay Kumar, ADM, South East, M.B. Road, Saket, Delhi and he deposed that on 03.09.11, he received an information at about 10 pm that a lady namely Phoolkali @ Seema Devi had died due to allegedly burn injuries in SGM Hospital and he went to SGM Hospital on 4.9.11 at around 12 noon and inspected the dead body of the deceased and she had sustained burn injuries all over her body. Since death was taken place within seven years of her marriage which was taken place in the year 2009, therefore, he directed the IO to bring the relatives of deceased at his office. The IO of the case brought the father of the deceased to his office at about 3/3.30 pm. He recorded the statement of father of the deceased Seema Devi namely Raj Kumar which is already ExPW3/B. Since deceased was harassed by her husband and other relatives in lieu of dowry, so he ordered to register the case as per the statement of Raj Kumar and his endorsement is at point C bearing his signature at point D on statement ExPW3/B. He also recorded the statement of Rakesh Kumar husband of deceased ExPW6/A. In his cross examination by ld. Defence counsel deposed that, the inquest proceedings was conducted by him. He further stated that IO had written down the statements of the witnesses on his dictation.
17. PW7 Sangeeta deposed that on 03.09.11 she came to know that a girl had burn. Somebody made call to police on 100 from her mobile phone number 9211491772. In her cross examination she had stated that, she does not that the person who made the call at number 100. She does not know From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.10 of p 33 11 whether accused had given information to his in laws about the death from her mobile phone. She was called by police at PS on 24.12.2011 for inquiry. She admitted that she does not know how the victim had burn.
18. PW8 Sia Kumari had deposed that, her daughter was married with accused Rakesh in the year June 2009 and accused was residing , gali no. 14, 80 futa Road, Prem Nagar. Her daughter in her matrimonial house peacefully for one year and after one year her husband Rakesh started quarreling with her daughter on small household matters. She was cross examined by ld. Addl. PP and in her cross examination, she admitted that she gave her statement Ex.PW8/A to the police. She stated that she might have stated to the police that accused Rakesh demanded Rs.30,000/ for constructing upper portion of his house and her daughter stated to them that, her parents were unable to pay the said amount, on which accused gave her beating. She admitted that mundan ceremony of her daughter's son was performed at Allahabad and at that time, her daughter and accused Rakesh went from their house happily. She further stated that, her statement was recorded at Police post and subsequent statement at PS Aman Vihar. She denied the suggestion that, accused Rakesh never demanded Rs.30,000/ from her.
19. PW9 Dr. Rajesh, CMO, SGM Hospital had stated that, as per record on 01.09.2011 at about 10.48pm a casualty/emergency card was prepared of patient Seema at the said hospital and as per his knowledge the said patient was not examined in the hospital and he had submitted his detailed From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.11 of p 33 12 reply to the police on their asking, which is Ex.PW9/A. In his cross examination he admitted that, if patient is in sever condition, patient's MLC is prepared. Since the patient was not admitted in the hospital, therefore, no question of discharge of the patient. He cannot say if the patient was given any treatment or not. He further stated that it is impossible if a patient is 90% burn, the patient would be discharged just after dressing.
20. PW10 SI Prem Singh had deposed that, on 3.9.11, he was posted at PS Aman Vihar and on that day, DD no.26 was entrusted to him by the DO copy of same is already ExPW1/A. He went to the spot i.e H.No.8, Gali no. 14, Prem Nagar, Aman Vihar. The dead body of a lady was also found in the said house. He sent the dead body to SGM Hospital Mortuary and also moved an application to preserve the dead body for 72 hours or till postmortem was conducted through Ct. Mughalaia. He has also sent the information about the burning of a lady to the concerned SDM PS Kanjhawala. He has also given information to parents of deceased Seema. On next day, father of the deceased Raj Kumar came at Delhi and produced before SDM who recorded the statement ExPW3/B of Raj Kumar. SDM also recorded statement of accused as ExPW6/A and ordered to hand over the dead body of deceased after postmortem to the relatives. SDM made order on the statement of father of deceased to register the case as per law, thereafter case was registered vide FIR no.284/11 u/s 304B/498A/34 IPC. After registration of case, the case file was transferred to Inspector Vijay Kumar on 18.9.11. On 22.10.11 Inspector From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.12 of p 33 13 prepared the site plan at his instance.
In his cross examination he had stated that, he did not prepare the site plan of the place of occurrence on 03.09.2011. He did not get the place of occurrence photographed. He did not call crime team at the spot for the purpose of inspection. He did not receive the report of the Crime Team. He denied the suggestion that, Raj Kumar father of the deceased had come 03.09.2011 at the spot or that Raj Kumar had come as a result of telephone which he had given to his father in law or that he does not record the statement on 03.09.2011 as he wanted to introduce him as a false witness. He further stated that, place of occurrence is populated area. He had inquired from nearby people about the death of the deceased but they did not tell anything in this regard. He did not inquire the name of the persons who were asked to join the investigations. They expressed their inability to describe as to how the incident had taken place. He denied the suggestion that he had not sent the information about the burning of deceased to the SDM Kanjhawala or that he has also given information to the parents of the deceased Seema or that they had come on the information given by Rakesh. He admitted that the brief facts of the inquest report were written by me. He had volunteered that, same was written in the presence of the SDM, who attested the same. He also admitted that statement of Raj Kumar was written by him and same was attested by the SDM and SDM has not written the statement of Raj Kumar himself and he has only attested the From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.13 of p 33 14 same. He has not sent the special report about this occurrence to concerned MM. It was, however, sent by the SHO. He denied the suggestion that no report u/s. 157 Cr.P.C. was sent to the Ilaka MM. He admitted that, inquest proceedings were recorded in the office of SDM. He denied the suggestion that he has not properly investigated the case till the investigation remained with him or that he never reached at the spot on 03.09.2011 or that he was deposing falsely.
21. PW11 Inspector Vijay Kataria had stated that, on 18.03.2011 he was working as Inspector investigation PS Aman Vihar. After registration of this case investigation was handed over to him. He recorded the statement of complainant Raj Kumar and his wife Shiya kumari u/s 161 CrPC. He prepared the site plan at the instance of SI Prem Singh. The site plan is ExPW11/A( previously mark'A'.).He has written a letter in respect of treatment of deceased Seema vide registration no 97822 dated 01.09.2011 and in response to letter he received a letter from CMO dated 13.12.2011 and the letter also enclosed the reply of CMO Dr. Rajesh Kumar who was on duty on 01.09.2011 stating specifically that the patient had been taken of from the hospital without the MLC getting registered and without information to the doctor on duty. Letter from CMO is ExPW11/B and the enclosure letter form CMO Rajesh Kumar is already ExPW9/A. He has arrested both the accused Sanjay and Rakesh as there are incriminating evidence against them, from their houses which is situated at Prem NagarII Delhi. The arrest memo of Sanjay and Rakesh is ExPW11/C and PW11/D'. their personal search was also conducted vide memo From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.14 of p 33 15 is already ExPW11/E and PW11/F. At the time of arrest, constable Ravinder and HC Anil was also with him. He also recorded the statement of Sangeeta from whose mobile bearing number 9211491772 a call was made to the police on 03.09.2011 at the time of incident. There after completion of investigation he filed the Charge Sheet in the concerned court through SHO as per procedure.
In his cross examination, he had stated that, he himself had prepared the site plan Ex.PW11/A. He had not shown the position of the accused Rakesh in the site plan, as he was not there. He does not remember that whether He had mentioned in the Case Diary that accused Rakesh was not present at the house. He does not want to see the case diary. He admitted that,0 there is a road outside the house of the accused Rakesh. He denied the suggestion that accused Rakesh was sitting on the cot outside of the house or that Rakesh had come on the spot after victim got fired or that accused Rakesh after seeing the victim on fire, he tried to extinguish the fire by putting cloth on her. He admitted that accused persons Sanjay and Rakesh had taken the victim to the hospital. Accused persons Sanjay and Rakesh have taken back the victim from the hospital without treatment and that as per PM Report victim was 100 % burn. He had not gone to the SGM Hospital. He had volunteered that at that time, he was not the IO. He cannot say whether staff and doctor always remained in the Minor Operation Theater. He admitted that in the hospital duty constable is posted from concerned PS. Duty Constable had not informed him about bringing of victim to the Hospital. He had volunteered that as accused From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.15 of p 33 16 persons have brought back the victim without any treatment. He had gone to the hospital later on, after registration of the case. He had not taken any action against the doctor and other staff, who allowed the accused to take back victim without any treatment. He had not arrested Shanti Devi in this case. He denied the suggestion that accused persons were arrested without any evidence. He had not joined any public persons at the time of arrest of the accused persons. He has got the accused persons medically examined after their arrest. He further admitted that, medical documents of the accused persons are not filed in the judicial record. He had volunteered that he has not placed the said medical documents, as there was no injury on them. He denied the suggestion that he has arrested the accused persons illegally. He had recorded the statement of Raj Kumar and Siya in the PS. He further denied the suggestion that he had fabricated their statement. The special report had been sent to the concerned MM. He does not remember through whom the said report was sent. He denied the suggestion that, he had not sent any special report to concerned MM, that is why he does not remember the name of person who took the said report to concerned MM. He recorded the statement of Siya Kumari on 05.10.2011. He had recorded statement of Sangita at her house. He does not remember whether he had recorded the statement of Sangita after objection raised by the prosecution at the time of filing of chargesheet. He denied the suggestion that, he has not properly investigated the case or that he was deposing falsely.
22. The accused persons have been charged u/s 498A & 304B From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.16 of p 33 17 IPC or in Alternatively 302 IPC. Before appreciating the evidence, it would be appropriate to go through the provisions of law relevant to dowry death.
23. Section 304B IPC 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 purposes of this subsection, "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 terms which shall not be less than seven years but which may extent to imprisonment for life.
24. A legal fiction has been created as per Section 304B IPC. If it is established that soon before the death, the deceased was 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 113B in the Evidence Act, 1972 which reads as From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.17 of p 33 18 under : 113B Presumption as to dowry death When the question is whether a person has committed the dowry demand 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.
ExplanationFor the purposes of this section, "dowry death", shall have the same meaning as in Section 304B of the Indian Penal Code.
In the combined reading of Section 304B IPC and Section 113B, Evidence Act, 1872 reflects a presumption if the prosecution establishes the following circumstances as set out in Section 304B IPC:
i) 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 marriage;
iii) The victim was subjected to cruelty or harassment by her husband or relatives of her husband;
iv) Such cruelty or harassment should be for or in connection with demand of dowry; and
v) Such cruelty and harassment was made soon before her death.
Section 498 A IPC reads as under : Husband or relative of husband of a woman From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.18 of p 33 19 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.
Explanation--for the purpose of this section, "cruelty" means--
a)any willful 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; or
b)harassment of the woman where such harassment is with a view to coercing her or 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.
25. Now reverting back to the present case. Testimony of PW3 proved that his daughter Phoolkali@Seema (since deceased) married with the accused Rakesh in the year 2009. No crossexamination has done by the accused to deny the said fact. Hence the said fact remained undisputed. It is undisputed fact that victim has died on 02.09.2011. Hence it is proved that the Sheela had died within seven years of her marriage. Hence first ingredient of Section 304B is fully proved.
26. PW5 Dr. Manoj Dhingra, had testified that on 05.09.2011 he alongwith Dr. Deepak had conducted a postmortem on the dead body of Seema From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.19 of p 33 20 W/o. Rakesh. His further opined that death is due to septicemia and shock consequent upon burn injuries. He was not crossexamined by accused. Hence it is proved that victim has died other than normal circumstance.
27. Now the next and most important ingredient of Section 304B IPC is whether deceased was treated with cruelty for demand of dowry by her husband or relative of the husband and whether soon before death, deceased was subjected to such cruelty or harassment then presumption u/s. 113 B of the Indian Evidence Act shall be raised against the accused persons that they had caused dowry death then onus should shifted upon them. But initial burden to prove that she was subjected to cruelty is on prosecution.
28. The cruelty has not been defined u/s 304B IPC. But same has been defined u/s 498A IPC.
Section 498 A IPC reads as under : 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.
Explanation--for the purpose of this section, "cruelty" means--
a)any willful 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; or From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.20 of p 33 21
b)harassment of the woman where such harassment is with a view to coercing her or 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.
29. On combined reading of section 304B IPC and 498A IPC cruelty which falls in explanation (b) of section 498A i.e. cruelty committed for demand of dowry only comes with in the ambit of section 304B.
30. The word 'dowry' in Section 304B IPC has to be understood, as it is defined in Section 2 of the Dowry Prohibition Act, 1961, 'the word dowry means any property or valuable security given or agreed to be given either directly or indirectly ; (i) by one party of the marriage to the other party of the marriage, (ii) by the parents of either party to a marriage or by any other persons but either party to the marriage or to any other person. In Satvir Singh & Others Vs. State of Punjab and Anr. [2009 SCC 633] it is held that, 'there are three occasions related to the dowry, one is before the marriage, second is at the time of marriage and third is at any time after the marriage. The third occasion may appear to be a unending period. But the crucial words are that, "in connection with the marriage of the said party". This means that giving or agreeing to give any property or valuable security or any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment or giving property as between the spouses. For example customary payments in connection with birth of a child or From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.21 of p 33 22 other like ceremonies are proceeded in different societies. Such payments are not enveloped within the ambit of dowry.
31. Now reverting back to the case prime witness rely upon by prosecution are PW3 Raj Kumar and PW8 Sia Kumar who are parents of the victim. PW3 Raj Kumar is the father of the victim Seema. He had testified that for about one year his daughter was kept well but thereafter accused persons started harassing her daughter for demand of dowry. He further testified that initially accused Rakesh demanded Rs.3,000/ from him just to test that, he could give the money or not and he gave the said money to him. Accused Rakesh thereafter asked his daughter to bring Rs.30,000/ to construct upper floor of his house but he has not mentioned any date, month or year when his daughter told him the said fact or when accused has made the said demand from victim. However PW8 Sia Kumari the mother of the victim had not stated in her examination in chief that her daughter told them that accused Rakesh is demanding Rs 3000/ or Rs. 30,000/ and only in the crossexamination by Ld. Addl. PP for the State she stated that she might have stated to the police that accused demanded Rs.30,000/ from her daughter.
PW3 further testified that two months prior to the incident, he alongwith his brother in law Ram Babu visited the matrimonial house of his daughter and on seeing them accused Shanti called accused Sanjay, who was residing in the nearby area and both the accused persons Sanjay and Rakesh started abusing them and gave beating to them and his daughter also told them From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.22 of p 33 23 that, accused Shanti gave beating to her by holding her hair and through her in drain. But PW8 in her testimony had not deposed about the said incident. Hence she has not corroborated the testimony of PW3. IO has not examined the Ram Babu who accompanied with PW3 at that time to corroborate the testimony of PW3. There is no previous complaint about the harassment of victim. Hence in these circumstances I do not find his testimony much trustworthy. I am agree with the Ld. Counsel for accused persons that since his daughter has died under suspicious circumstances therefor PW3 might have think accused persons are responsible for her death and to take revenge he might have levelled these allegation of harassment of her daughter.
Further I am agree with the contention of Ld. Counsel that even if the said incident is taken as gospel truth since PW3 has not stated that at that time any demand of money or other dowry article was made by accused persons from him or his daughter told him that accused persons gave beating to her for non fulfillment of demand of Rs.30,000/ hence it cannot be said that accused abused them or victim was beaten for non fulfillment of demand of dowry.
I am further agree with the contention of Ld. Counsel that PW3 has admitted that, accused Rakesh and his daughter visited to his house at Allahabad seven days prior to Raksha Bandan and accused took back her two days prior to Raksha Bandhan and he has not testified that during her stay at Allahabad victim told him that accused is still harassing her for fulfillment of demand of Rs. 30,000/ or that accused Rakesh had made any demand from From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.23 of p 33 24 him. Hence even if demand of Rs. 30000/ was made that one off demand probably as loan or as financial assistance for constructing the house which cannot be considered as dowry demand.
32. PW8 Sia Kumari in her examination in chief had not deposed that accused persons demanded any dowry article and only testified that, after one year her husband Rakesh started quarreling with her daughter on small household matters. She was cross examined by ld. Addl. PP and in her cross examination, she admitted that she gave her statement Ex.PW8/A to the police. She stated that she might have stated to the police that accused Rakesh demanded Rs.30,000/ for constructing upper portion of his house and her daughter stated to them that, her parents were unable to pay the said amount, on which accused gave her beating but that is not much inspiring as she had not stated that accused persons made the said demand either from her or that her daughter told her that accused Rakesh demanded Rs.30,000/ from her. Nor she has given any date month or year when said demand were made. She admitted that mundan ceremony of her daughter's son was performed at Allahabad and at that time, her daughter and accused Rakesh went from their house happily. Hence from her testimony it is evident that relation between accused Rakesh and victim were normal and if any quarrel was between them that was over small household matter and not over demand of dowry. Hence from her testimony it is evident that accused persons have not committed cruelty toward victim Seema much less for demand of dowry.
From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.24 of p 33 25
33. Further from the aforesaid testimony of PW3 Raj Kumar and PW8 Sia Kumari it is evident that their daughter Phool Kumar @ Seema was kept well for one year and they have not deposed that accused persons demanded any dowry prior to marriage or at the time of marriage. More ever even if it is presume that Rs. 30,000 was demanded by accused Rakesh for construction of upper floor of the house said demand was not related with the marriage, hence, said demand from victim and cannot be considered as dowry demand. In this regard I rely upon judgment in case of Appa Saheb and Another Vs. State of Maharashtra (2007) (1) RCR (Criminal) 747 it was held that "In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody coversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.25 of p 33 26 Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."
34. Further the most important ingredient of section 304B IPC is cruelty soon before death for demand of dowry. There is no fixed period provided in the statue in which if demand is made it could be considered as demand of dowry made soon before death. In Hira Lal & Others V State (Govt of NCT) Delhi, (2003) 8 SCC 80, the Supreme Court of India observed that the expression "soon before her death" used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.26 of p 33 27 between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. if Section 304 IPC is to be invoked. But it should have happened "soon before her death". The said phrase no doubt is an elastic expression and can refer to a period either emotionally before her death or within few days or few weeks before it. But proximity to her death. No definite period has been indicated and expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.27 of p 33 28 consequence."
35. The same opinion was expressed by Apex Court in Kaliya Perumal and Another V. State of Tamil Nadu, [(2004) 9 SCC 388, 157 Para 4] and Kamlesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar. [(2005) 2SCC 388, Para 10] also in State of A.P. v. Raj Gopal Asawa and Another, [(2004) 4
36. Reverting back to the case though PW3 deposed that accused Rakesh demanded 30,000/ for construction of the upper floor of the house. But he has not deposed when last time said demand was made. Hence prosecution has failed to prove soon before death accused persons committed cruelty for demand of dowry. In view of the aforesaid fact and circumstances I held that prosecution has failed to proved beyond that accused persons committed cruelty for demanded dowry from the victim much less soon before death.
37. In these circumstances I held that prosecution failed to proved that accused persons committed cruelty at all toward victim much less for demand of dowry. Hence,I acquit him for offence u/s 498A/304B IPC.
38. The accused persons have been charged for murder punishable u/s 302 IPC. Section 300 IPC deals with murder. It reads as under :
300. Murder : Except in the cases hereinafter excepted, culpable From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.28 of p 33 29 homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
39. In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done: I) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii) with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.29 of p 33 30
40.. Section 302 IPC deals with punishment for murder. It reads as under :
302. Punishment for Murder : Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
41. PW5 Dr. Manoj Dhingra, had stated that on 05.09.2011 he alongwith Dr. Deepak had conducted a postmortem on the dead body of Seema W/o. Rakesh, 21 years old age and the said body was sent by SDM Ajay from PS Aman Vihar with alleged history of death due to burn injury on 02.09.2011 at about 11am and alleged history of burn on 01.09.2011 at 9.30pm and taken to some doctor and papers of which were not given with inquest papers. His detailed PM Report is Ex.PW5/A. He further opined that death is due to septicemia and shock consequent upon burn injuries. His detailed PM Report alongwith Inquest were handed over to the IO by him. He was not cross examined by ld. Defence counsel. Hence in these circumstance it is proved that victim either died homicidal death or she had committed suicide.
42. There is no eye witness of the incident, therefore, we have to rely upon circumstantial evidence to reached at the conclusion whether deceased has been murdered or she has burnt accidentally.
43. Ld. Addl. PP for the State has contended that the conduct of the accused for not providing proper medical treatment to the victim Seema From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.30 of p 33 31 despite the fact that she was 100% burn shows that accused Rakesh had burnt the victim and in order to avoid the detection of his crime, he had taken her back from the hospital without providing her proper medical treatment. But, I do not find much force in the said contentions. The accused Rakesh in his statement u/s 313 Cr.P.C. stated that victim was burned accidentally on 01.09.2011 as he heard the noise from kitchen and found that his wife was burnt. He took a quilt and put on her wife. He brought his wife to SGM hospital and she was dressed of her wound and send her back and on next day her wife condition deteriorated and he took her to hospital and she was declared dead I find substance in the said defence taken by accused because PW9 Dr. Rajesh in his testimony had admi9tted that on 01.09.2011 at about 10.45am and casualty/emergency card of patient Seema was prepared by SGM Hospital. But he deposed that patient was not examined in the hospital and in this regard he submitted detailed reply to the police, which is Ex.PW9/A. On perusal of reply Ex.PW9/A, it is evident that patient was taken to casualty/minor OT, where she had been given dressing. Had the doctor not examined her then who had given her dressing. Therefore, it appears that he has filed the reply to the police in vague manner to save the doctors, who were present on the Minor OT and have discharged the victim Seema just after giving her dressing and without giving her proper medical treatment. Further, it looks very unlikely that the accused will be able to take the victim back without the consent of the concerned doctors and once he has brought her to the hospital From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.31 of p 33 32 and taken her in the Minor OT/Casualty, therefore, the explanation given by the accused in his statement u/s. 313 Cr.PC looks probable that victim was discharged after dressing, probably because accused was a poor man and which was neither time and doctor present at the casualty do not want to waste their night time in treating a poor patient. It was the duty of the doctors or the hospital staff when a 100% burn patient is brought to them to the hospital to inform the police, but instead of performing their duties though allowed the relative of the patient to take her back after dressing which is sheer negligency and dereliction of duties on their part. Hence, in my view merely because accused had taken the victim back from the hospital after dressing, it cannot be said beyond reasonable doubt that he has taken her back merely because has has apprehension that victim will depose against him. If he had such apprehension then he would not have taken the victim to the hospital at the first instance itself.
44. Therefore, I do not find the conduct of the accused Rakesh such incriminating that it could be presumed that he has burnt the victim Seema. Prosecution has not collected any evidence to proved victim was burned. No effort has been made by the IO to collect the evidence how and in what manner victim was burned. No evidence like kerosene oil Kan or other material includung cloth of victim were seized. Nor any neighbourer has been examined by the IO to established that victim has been burned by accused persons. As stated above, the testimony of the witness PMW3 Raj Kumar and PW8 Sia From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.32 of p 33 33 Kumari does not inspire much confidence that relationship between the victim and accused were strained, therefore, their appear to be no reason for the accused for committing the murder of the victim Seema.
45. Hence, in these circumstances, considering the explanation given by the accused in his statement u/s. 313 Cr.P.C. that victim was burned accidentally while cooking food cannot be absolutely ruled out. Hence, I given benefit of doubt to the accused persons and held that prosecution has failed to prove beyond reasonable doubt that accused Rakesh has committed murder of victim Seema and acquitted him for offence u/s. 302 IPC also.
46. In view of the aforesaid facts and circumstances, all the accused persons stand acquitted from all the charges in which they have charged. Accused Rakesh is in JC, he be released from JC forthwith, if not required in any other case. However, they are directed to furnishing personal bond in the sum of Rs.10,000/ with one surety of lime amount in compliance of provisions of Section 437A Cr.P.C. Documents, if any, retained on the judicial record of the sureties be returned to them after cancelling endorsement. File be consigned to record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR)
ON 10.01.2014. ADDL. SESSIONS JUDGE 01
(NORTH):ROHINI:DELHI.
From State V Rakesh & ors. SC No.13/13 FIR no.284/11 PS - Aman Vihar u/s302/498A/304B/34 IPC P NO.33 of p 33