Delhi District Court
Sc No. 58055/16; Fir No.51/11; Ps. Aman ... vs . Om Prakash & Ors. Page No. 1 Of 57 on 10 April, 2019
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
SESSIONS CASE No...................58055/16
FIR No. 51/11
PS Aman Vihar
U/s:498A/304B/34 IPC
State
Versus
1. Om Prakash @ Banti
S/o Late Radhey Shyam
R/o. Paith Bazar
New Colony, Kasimpur,
Near Power House, Aligarh, U.P.
2. Premwati Devi
W/o. Late Radhey Shyam
R/o. Paith Bazar
New Colony, Kasimpur,
Near Power House, Aligarh, U.P.
Date of institution: 28.09.2012
Judgment reserved on: 27.03.2019
Judgment delivered on: 10.04.2019
ORDER/JUDGMENT: Both the accused persons namely Om
Prakash @ Banti and Premwati Devi stand
acquitted for the offence(s) u/S. 306/34
IPC, however, both of them stand
convicted for the offence(s) u/S. 498A/34
IPC.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 1 of 57
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JUDGMENT
1. Brief facts, as stated in the chargesheet are that on 26.02.2011 an information was received from SGM Hospital at PS Aman Vihar regarding one lady Kiran Bala W/o. Om Prakash @ Banty, R/o. H74, Prem NagarI, Delhi was admitted after consuming poison vide MLC No. 2771 and declared dead during the course of treatment vide DD No. 25B, dated of the even date, which was marked to SI Sri Bhagwan for action.
During the course of inquiry, it was found that deceased Kiran Bala had married Om Prakash @ Banty, S/o. Radhey Shyam, R/o. Kasimpur, Aligarh, UP on 05.07.2006. Accordingly, SDM concerned was informed. The statement of father of deceased Shivjeet Sonu was recorded by the SDM, which reads as under :
That he was working as a phone mechanic with MTNL. He was having three children including one son and two daughters. His youngest daughter Kiran Bala got married five years ago with one Om Prakash @ Banty, resident of Aligarh, he had given lot of dowry to his daughter and had done marriage with great pomp and show. In the marriage, he had given one Pulser motorcycle, one gold ring, SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 2 of 57 -3- gold chain and cash of Rs. 1,51,000/ to his son in law.
However, immediately after the marriage of her daughter, they started harassing her. Her mother in law Prem Wati, both Nands Rajo and Meetu, jeth Joginder and devers Viresh and Kishore used to harass her.
After one year of the marriage, his son in law demanded Rs. 2 Lakhs from him. He was not in a position to pay the said amount. However, under pressure, he sold his house H 17A, Prem Nagar, Delhi and gave the said amount to him after selling the house.
Thereafter, at the birth of his grand son, he was forced to spend Rs. 1 Lakh on the said occasion. In all these demands, the father in law Radhey Shyam was also involved. The marriage articles which he had given of Rs. 1 Lakh were not to the liking of the family of the inlaws of his daughter, due to which she was constantly harassed and was perturbed due to which they also told him that they should take away their daughter and consequently, he took SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 3 of 57 -4- back his daughter to his house.
The infant son of the daughter was also not allowed to come with her. Kiran Bala was harassed to such an extent by her inlaws that she went into depression after five months and she was also constantly under treatment for the last two years. The small infant child was also not allowed to live with her, which was also one of the reason for depression of his daughter.
His grandson was with the inlaws of his daughter for the last four years. On 25.12.2011, his daughter in law called him telling him that Kiran Bala had locked the door of her room and was not opening the door. He immediately came back to his house and saw that the neighbourers had broke open the door of her room and his daughter was lying in unconscious condition on the floor of the room and besides her, one empty insecticide bottle was also lying. He immediately took Kiran Bala to Sanjay Gandhi Hospital for treatment, where she was treated but on the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 4 of 57 -5- morning of 26.02.2011, the doctors informed him that she had died.
His daughter had killed herself after consuming the insecticide, in which her inlaws were grossly involved and in the entire episode, her saas, sasur, jeth, both devers, both nanads were responsible.
2. On this statement, an endorsement was made by the SDM, Saraswati Vihar with the direction to lodge FIR. Consequently, an FIR bearing no. 51/2011, u/S. 498A/304B IPC was registered at PS Aman Vihar.
3. During the course of investigations, the parents of deceased were examined and they handed over a letter and diary (written by the deceased) as stated by parents of the deceased. Site plan was prepared. During the further course of investigation Ms. Premwati (motherinlaw) of the deceased was arrested on 06.04.2011 and was released on bail on 27.05.2011, the husband of deceased Om Parkash @ Banti was arrested on 17.05.2011 and was granted bail by the court of Ld. District & Sessions Judge on 14.07.2011 and anticipatory bail of the other accused namely Radhey Shyam (fatherinlaw) was granted by the court of Ld. District & Sessions Judge on 31.05.2011.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 5 of 57 -6- During the course of investigation other independent witnesses namely Bhikam Singh S/o Bablu Singh, Lakhan Giri son of Suresh Chand Giri, Samarveer Singh S/o Gitam Singh, Ramotar Singh S/o Kedari Lal all R/o Paith Bazaar, New Colony, Kasimpur were examined, who stated that Radhey Shyam got settled in Aligarh after retirement in 2006 and his sons Viresh and Kishore and daughter Neetu were living there for the purpose of study.
They further stated that Rajni (daughter of Radhey Shyam) was got married in 1998. They also stated that Davender (elder son of Radhey Shyam) was got married almost 2021 years before and residing separately with his family since last 13 years and does not have any concern with his brother, sister, mother and father.
During further course of investigation other independent witnesses namely Kamlesh Chander Sharma S/o Choke Lal Sharma, Subhash Chand S/o Hardayal Singh & Ashok S/o Ramavtar all R/o Sanjay Gandhi Kuwarshi Bye Pass Road Aligarh were examined who stated that Radhe Shyam is their neighbour and was residing alongwith his sons Viresh and Kishore and daughter Neetu since 2006.
During the course of investigation other alleged persons namely Rajjo (Sister in law), Neetu (Sister in law), Devender (Jaith), Viresh and Kishore (Both Devar) were also interrogated.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 6 of 57 -7- During further course of investigation, notice under Section 91 Cr.P.C. was given to MTNL official regarding call details of telephone no. 25189100, but Sh. Ramesh Chand Kataria, AGM Computer, MTNL, Rajauri Garden Telephone exchange stated that at that stage incoming call details of land line was not available and it could have been only obtained after putting the number in observation in advance. During further course of investigations, the exhibits and viscera were sent to FSL for forensic opinion.
4. The deceased has also left a writing dated 05.07.2006 Ex. P1, the contents of which shall be discussed at the time of analysis of evidence to avoid repetition.
5. After completion of investigations, chargesheet for offence(s) punishable u/s 498A/304B/34 IPC was filed against the accused persons Om Prakash @ Banti, Premwati Devi and Radhey Shyam for offence punishable u/s 498A/304B/34 IPC. Upon collection of FSL result, the same was also filed in court.
6. On committal of the case to the Court of Sessions, vide order dated 20.07.2013, charge(s) for offence(s) u/s 498A/306/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. During trial, vide order dated SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 7 of 57 -8- 26.10.2015, the proceedings against accused Radhey Shyam stood abated due to his death.
7. Thereafter, prosecution in support of its case has examined 26 witnesses :
a) PW1 is Sh. Shivjeet Soni i.e. father of deceased Kiran Bala, who has supported the case of the prosecution and also narrated about the cruelty and harassment committed upon his daughter on the pretext of dowry. He also exhibited his statement Ex. PW1/A recorded by SDM. He also exhibited his statement regarding identification of dead body as Ex. PW1/B and receipt Ex. PW1/C vide which dead body of his daughter was handed over to him.
He also deposed to have handed over the photographs of marriage and marked the same as mark A1 to A6, which IO had seized vide seizure memo Ex. PW1/D He also deposed to have handed over the photocopy of letter containing four pages in the handwriting of his daughter Kiran Bala, which police had seized vide seizure memo Ex. PW1/E. He also handed over the property agreement to IO which IO seized vide seizure memo Ex. PW1/F. He also deposed to have produced one diary belonging to his daughter, which IO had seized vide seizure memo Ex. PW1/G. He also identified the letter as Ex. P1 and the diary as SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 8 of 57 -9- Ex. P2. He also identified the photographs and the handwriting on the account opening form and other related documents in respect of Oriental Bank of Commerce and exhibited the same as Ex. P3 (colly).
b) PW2 is Sh. Jaideep i.e. brother of deceased Kiran Bala, who has supported the case of the prosecution and also narrated about the cruelty and harassment committed upon her sister on the pretext of dowry.
c) PW3 is Smt. Reshma Devi i.e. mother of deceased Kiran Bala, who has supported the case of the prosecution and also narrated about the cruelty committed upon her daughter on the pretext of dowry. She also exhibited statement made before SDM as Ex. PW1/A and identified her signatures at point B, B1 and B2. She also deposed that six photographs were handed over in her presence by her husband to IO which IO had seized vide seizure memo Ex. PW1/D and she exhibited the said photographs as Ex. PW3/A.
d) PW4 is Sh. Umesh Mathur, Senior Managar, OBC Branch, who handed over the account opening form alongwith signature card and form 60 in respect of account of Kiran Bala vide forwarding letter Ex. PW4/A and exhibited the said document as Ex. P3 (colly).
e) PW5 is Sh. Naveen, who deposed to have taken six photographs with digital camera and exhibited the said SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 9 of 57 -10- photographs as Ex. PW5/A1 to Ex. PW5/A6.
f) PW6 is Sh. Phool Chand, who deposed that on 25.02.2011 at about, 5:00 pm, when he was present at his shop, Smt. Reshma Devi came rushing and stated that her daughter Kiran Bala had put latch of her room. He went to her house and broke open the latch with the help of hammer and found Kiran Bala lying on the floor and forth was coming from her mouth and one insecticide bottle was lying nearby.
g) PW7 is Inspector Manohar Lal who deposed to have prepared scaled site plan Ex. PW7/A.
h) PW8 is Sh. Sat Narayan, who deposed that after postmortem, the dead body of Kiran Bala was handed over to Sh. Shivjeet vide receipt Ex. PW1/C.
i) PW9 is Ct. Kiran Pal, who deposed that in his presence, doctor handed over sealed viscera and sample seal to IO which IO seized vide seizure memo Ex. PW9/A.
j) PW10 is Sh. Pradeep Baijal, the then SDM, who had recorded statement Ex. PW1/A of Sh. Shivjeet Soni and made endorsement Ex. PW10/A. He also deposed to have handed over inquest proceedings Ex. PW10/C and moved an application for postmortem Ex. PW10/B. He also recorded the statement of Jaideep Ex. PW10/D and Shivjeet Ex. PW1/B regarding identification of dead body of Kiran Bala.
k) PW11 is Dr. Manoj Dhingra, who deposed that Dr. Shalini SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 10 of 57 -11- Girdhar had conduced postmortem on the body of deceased Kiran Bala. He exhibited the PM report as Ex. PW11/A and identified the signatures of Dr. Shalini Girdhar. He also deposed that after going through the FSL report Ex. PW11/B, the cause of death was organo phosphorus poisoning.
l) PW12 is Ct. Om Prakash Yadav i.e. computer operator, who recorded FIR Ex. PW12/A. He also exhibited the certificate Ex. PW12/B u/s 65B of Indian Evidence Act.
m) PW13 is Ct. Jitender Yadav, who lodged DD No. 25B in roznamacha and exhibited its attested copy as Ex. PW13/A.
n) PW14 is Ct. Jagbir Singh, who deposed to have deposited the exhibits at FSL vide RC No. 67/21/11.
o) PW15 is Ct. Balbir Singh, who deposed that on 17.05.2011 accused Om Prakash was arrested in his presence vide arrest memo Ex. PW15/A and IO conduced his personal search vide memo Ex. PW15/B and recorded the disclosure statement Ex. PW15/C of accused Om Prakash.
p) PW16 is HC Mahesh Kumar, who deposed to have recorded DD No. 38A dated 25.02.2011 and exhibited its copy as Ex. PW16/A. He also deposed that on 28.02.2011, he registered the FIR Ex. PW16/B and made endorsement Ex. PW16/C on rukka and computer operator Ct. Om Prakash issued certificate Ex. PW12/B u/s 65B of Indian Evidence Act.
q) PW17 is Sh. Sanjeev Narang, who had brought the call SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 11 of 57 -12- details of landline phone no. 25189100 and exhibited the same as Ex. PW17/A. He also exhibited certificate u/s 65B of Indian Evidence Act as Ex. PW17/B.
r) PW18 is Ms. Baljeet Kaur, but this witness has partly supported the case of the prosecution and has turned hostile with regard to certain aspects.
s) PW19 is SI Shri Bhagwan, who on receipt of DD No. 38A Ex. PW16/A went to SGM Hospital and collected the MLC of Smt. Kiran Bala. On 26.02.2011, he received an information regarding the death of Kiran Bala vide DD No. 25B Ex. PW13/A and accordingly informed the concerned SDM.
The concerned SDM had recorded the statement of Sh. Shivjeet and got conduced postmortem on the body of deceased. He also deposed to have seized the exhibits of deceased after postmortem vide seizure memo Ex. PW9/A.
t) PW20 is SI Rajesh Kumar, who deposed that on 05.04.2011 further investigations were marked to him. During investigations, he effected the arrest of accused Premwati vide arrest memo Ex. PW20/A and prepared her personal search memo Ex. PW20/B and recorded her disclosure statement Ex. PW20/C. u) PW21 is W/Ct. Dinesh, who had accompanied SI Rajesh Kumar and in her presence the arrest of accused Premwati Devi was effected.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 12 of 57 -13-
v) PW22 is Ct. Satyavir in whose presence SI Virender effected the arrest of accused Radhey Shyam Verma vide arrest memo Ex. PW22/A. w) PW23 is Dr. Vijay Mohan Aggarwal who had identified the handwriting and signatures of Dr. Dheeraj on MLC Ex. PW23/A as well as on death summary of Kiran Bala Ex. PW23/B.
x) PW24 is SI Virender, who deposed to have effected the arrest of accused Radhey Shyam Verma on 27.07.2011 vide arrest memo Ex. PW22/A. y) PW25 is Sh. Vijender Singh, Assistant Director (Documents), FSL, Rohini, who had examined the questioned documents alongwith admitted writings / signatures and prepared FSL report Ex. PW25/A. z) PW26 is Inspector Anil Kumar, who deposed to have conduced investigation and made endorsement Ex. PW26/A on rukka and got the FIR registered, prepared site plan Ex. PW26/B, seized photographs vide seizure memo Ex. PW1/D. He also exhibited one suicide note and one diary which were taken into possession vide seizure memo Ex. PW1/E and Ex. PW1/G respectively. He also deposed to have arrested accused Om Prakash vide arrest memo Ex. PW15/A. HE also deposed to have sent the exhibits at FSL, Rohini and collected the FSL results Ex. PW11/B and Ex. PW25/A. SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 13 of 57 -14-
8. Vide order dated 14.05.2018, the prosecution evidence was closed.
9. Thereafter, statement of accused persons u/s 313 Cr.P.C.
were recorded separately, in which the entire incriminating evidence appearing against the accused persons was put to them, in which the defence of the accused persons was that the witnesses were interested and had deposed falsely for the success of their case on their refusal to give them money. However, they chose to lead evidence in their defence.
10. In support of their defence, the accused persons have examined DW1 Sh. Mukesh Chander Gupta and DW2 Sh. Chetan Prakash Varshney. Thereafter, vide statement dated 12.09.2018, Ld. Defence Counsel for the accused persons closed defence evidence.
11. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP for the State and Sh. J. P. Singh, Ld. Counsel for both the accused persons and also gone through the record.
12. It was contended by Ld. Counsel for the accused persons that from the testimonies of PW1 Shivjeet Soni, PW2 Jaideep, PW3 Reshma Devi, the prosecution has failed to prove that the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 14 of 57 -15- accused Om Prakash @ Banty and Prem Wati had ever demanded dowry from the deceased Kiran Bala or subjected her to mental or physical cruelty or thereby abetted her suicide. It is stated that there are number of material contradictions in the testimonies of above prosecution witnesses, which makes their veracity highly doubtful.
It is also stated that investigations in this case have not been done fairly. The IO PW26 in his crossexamination has also admitted that no complaint was lodged by the parents of the deceased prior to her death on 25.02.2011, which shows that the deceased was treated well at her matrimonial house. It is also stated that the contents of diary Ex. P1 have been written in Hindi, whereas the comparison documents regarding the handwriting of the deceased were in English, which shows that this diary has been fabricated by the prosecution.
He has also argued that the prosecution version has been negated by the defence by examining DW1 Mukesh Chander Gupta, DW2 Cheatn Prakash Varshney, whose testimonies totally rebut the prosecution story.
It is also stated that there is no evidence whatsoever on the record that the accused persons abetted the commission of suicide by the deceased. Therefore, he has argued that the accused persons are liable to be acquitted for the charge(s) u/S. 306/498A/34 IPC.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 15 of 57 -16-
13. On the other hand, Ld. Addl. PP for the State strongly controverted the above contentions and has argued that all the material prosecution witnesses i.e. PW1 Shivjeet Soni, PW2 Jaideep, PW3 Reshma Devi have totally supported the prosecution version that all the accused persons immediately after the marriage of the deceased with the accused started harassing her for the demands of dowry of Rs. 2 Lakhs and thereafter on the birthday of the child of deceased of Rs. 1 Lakh and lastly on 23.02.2011 when deceased made a phone call to the house of her inlaws asking permission to meet her male child. However, the accused persons demanded Rs. 1 Lakh from her, which was the demand of dowry or cruelty in relation to demand of dowry soon before her death, which took place on 25.02.2011, which was ultimately responsible for the death of the deceased.
It is stated that the version of the defence is not trustworthy, as all the defence witnesses are witnesses of hearsay and neighbourers of the accused, therefore not much weight can be given to their testimonies. He has further argued that from perusal of writing of the deceased Ex. P1 authored by her on 05.07.2006 it is proved that continuous cruelties were meted out to her by the accused persons. It is an encyclopedia of the cruelties, torments and harassment meted out to the deceased, the same has been proved to be in the handwriting of the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 16 of 57 -17- deceased as per FSL report Ex. PW25/A, which clearly corroborates the version of above material prosecution witnesses.
He has further argued that on 23.02.2011, when the deceased called the accused persons asking them to allow her to meet her male child, they not only refused but instead asked for dowry of Rs. 1 Lakh, which triggered or abetted the suicide of the deceased, which was the direct and proximate cause of her death. Therefore, it is stated that both the accused persons are liable to be convicted u/S. 306/498A/34 IPC.
14. I have gone through the rival contentions.
15. Regarding the offence U/s 306 IPC, the law is well settled, as laid down in various judgments, including the judgment 2007(3) SCC (Cri)701, in which it has been laid down:
Section 107 IPC defines abetment of a thing. The offence of abatement is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when(1) he instigates any person to do that thing; or(2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 17 of 57 -18- incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107.
Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.
In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See Mahendra Singh v. State of M.P) Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable.
13. Further in a judgment II(2006)DMC 382, the Hon'ble Delhi High Court relied upon the judgment of the Hon'ble Supreme Court in Mahendra Singh Vs. State of M.P. 1995 Supp. (3)SCC 731, in which it has been held that :
"The appellant was charged for an offence under Sec. 306 IPC basically based upon the dying declaration of the deceased, which reads as under:
"My mother in law and husband and sister in law(husband's elder brother's wife) harassed me. They beat me and abused me.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 18 of 57 -19- My husband Mahendra wants to marry a second time. He has illicit connections with my sisterinlaw. Because of these reasons and being harassed I want to die by burning. This court, considering the definition of `abetment' under Section 107, IPC, found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This court further held that neither of the ingredients of abetment are attracted on the statement of the deceased".
The Supreme Court further observed in paragraph 12 of the said decision that the word `instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in the spur of the moment can not be taken to be uttered with mens rea. It is in a fit of anger and emotional.
The words expressed in the case before
the Supreme Court were `to go and die'.
As a result of such an utterance, the deceased went and committed suicide. Yet, the Supreme Court was of the view that an offence under Section 306, IPC was not made out because there was no element of mens rea.
18. Coming now to the facts of the present case, I find that the case of Mahendra Singh v. Stated of M.P., 1995 Supp.(3) SCC 731, referred to in Sanju @ Sanjay Singh Sengar (supra), is quite apposite. A similar allegation of SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 19 of 57 -20- harassment was made against the inlaws, but that was not considered to fall within the four corners of Section 306 IPC. In that case, there were allegations of beating as well which are absent in the present case. Apart from all this, in the present case, I find that there is no element of mens rea, which is an essential ingredient, even if the allegations, as per the case of the prosecution, were to be taken to be true and correct. In my view, the learned Additional Sessions Judge was entirely wrong in coming to the conclusion that a charge under Section 306 IPC could be framed against the present petitioners. The deceased(Shobha) may have been treated harshly and unfairly, if the allegations were to be believed, but, it can not be said that the petitioners instigated, goaded or incited her to commit suicide. There is nothing on record to suggest that the petitioners had the mens rea to drive the deceased (Shobha) to commit suicide.
16. First of all, it will be relevant to reproduce the writing of the deceased dated 05.07.2006 Ex. P1 for the sake of clarity.
"That she Kiran Bala D/o. Shivjeet got married on 05.07.2006 with Banty @ Om Prakash S/o. Radhey Shyam as per Hindu Rites and Rituals. On the first night of the marriage, her husband started torturing and misbehaving with her and made her life hell by doing anal and oral sex, due to which SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 20 of 57 -21- she faced severe pain while going to toilet.
Due to shame, she could not tell this fact to anyone and went into depression. However, she kept on tolerating the harassments and became more depressed. Despite depression and not having fit mental condition, she kept on doing her all house hold work and in case of mistake, her saas, nanad, dever, jeth all started beating and abusing her on every day basis. She was living a life under humiliation and tolerated every torture and torment.
The accused persons also got done jhada (black magic) from Pandits and Molvis and she was made to smell the cow dung, which was burn by tying her hands and legs and when she used to cry, she was beaten up with dandas until she became unconscious.
She started writing in letters regarding her plight to her husband, so that he could leave her to her father's residence, but she was sent on the condition that she will not tell anyone about her plight there. Her husband also threatened her that she was having only one brother, who will be killed.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 21 of 57 -22- In the meanwhile, she got pregnant.
Thereafter, she was made to sign on plain paper and after calling her father, she was sent to Delhi and it was also said to her father that she had been under the spell of bad spirits and she should not be treated and she should be seen by some Ojha.
Thereafter, for her routine medical checkup, her father took her to Maya Medical, Avantika where she was referred to psychiatrist Dr. Inderjeet Sharma, where her treatment started and she became almost normal within 2 months. Then she gave birth to male child on 05.05.2007. On hearing birth of a male child, her husband and motherin law came running and told her parents that she should be treated properly and they took away the minor son on the incident of Chatti and they said that they will rear the child on the milk of cow and goat. Due to the separation of her minor child, she became more depressed.
On this, her father told them that they should take the child as well as mother with them. On this, her motherinlaw said that her future medicine should be got delivered to Kasimpur and her father SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 22 of 57 -23- started doing so.
After 40 days her harassment again started. Her motherinlaw used to keep the minor child away from her.
During this time, on 11.07.2007, the marriage of her brother was fixed. 15 days prior thereto, her father came for taking her to join the said marriage, but she was sent without child and was asked not to talk with anyone. In the marriage, her entire family joined despite good bedai by her father, her inlaws were not happy and started ruing that they were not given proper food and water and thereafter they left without taking meals.
After nine days of the marriage of her brother on the rasam of chautha, her father called her husband and her father gave them all the necessary gifts, as per status and both of them went to Kasimpur.
Thereafter, her husband started asking Rs. 1 Lakh for opening a shop at Kasimpur, which he would return very soon. Her father gave the said amount. After one year, the birthday of her son was celebrated in Aligarh, four months prior to the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 23 of 57 -24- same her motherinlaw used to say that there was a chuchak ceremony held only once and they, therefore, wanted a good chuchak. If the chuchak would be less than Rs. 50,000/ she would not spare her.
Her father arranged chuchak of Rs. 50,000/, but her motherinlaw started yelling that "mere bhagya phoot gaye, hum kin kangalon mein phas gaye, apni nahi to meri izzat ka khayal rakhete. Baarbaar bataney ke baad mein bhi apni marzi ka hi kiya." Due to this, her father became very upset and after finishing of the said programme, he went back.
Thereafter, her bad days started and every member of her family used to look down upon her. Thereafter, about 10 days their mama - mami came along with the family and all of them started saying bad things against her to them. She was being called bachchalan, vaishya, chudel, daayan and they also gave abuses to her in front of them.
On the same day, her husband sexually abused her and started beating her, on the said night she became totally depressed. Her father was called and after warning that in case she would told to SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 24 of 57 -25- anyone, her child would be killed. Thereafter she was sent back along with her father. Her father straightaway took her to the clinic of Dr. Inderjeet, where her medical treatment again started. She could not tell the doctor about the cause nor he understood the same.
Thereafter, her father after every 15 days used to ask about her condition and also used to run after sorcerers for treatment, but when he became confident that she was suffering from some psychiatrist problem, her treatment was again started with Dr. Inderjeet and she started becoming normal, but this time also, her child was not sent with her.
On 08.12.2008, she received information regarding the illness of her child, therefore, she could not stop her. She along with her father reached Aligarh Nursing Home, where her nanad and husband were started abusing her and were saying that she was responsible for everything. On reaching back to her house, when her father was going to Delhi, they created trouble and said that since she had seen the child, now she can go back.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 25 of 57 -26- She under the love of child told her father that she was staying back and he should go back and her father went back.
This time, everything went against her, as thought by her. Her husband totally forsaken her. She was abused regularly and beaten up. Her mother and father were abused that they will take care of her child. Her father used to come to meet her every 10 days.
On 08.03.2009, on the day of Holi, her father came and he wanted to play Holi with her and wanted to put colour on her husband, but he refused. Thereafter, her father disappointed and left. Thereafter, their acts became devilish and all of them started harassing her with full force. She started feeling pain in her abdomen and also doing vomiting. She cried in pain, but nobody listened to her.
There was darkness in front of her eyes, due to which they were afraid that she may die. They took her to nursing home, on one night, doctor said that she was having deficiency of blood. Since she had said that she was suffering from stomach ache, she SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 26 of 57 -27- was given medicine. After having the medicine, she was daily forced to undergo oral sex. She started vomiting and hated her life and 24 hours started thinking negative things in her mind, due to which she again depressed.
Her motherinlaw called her father and said to him that they had sent their mad daughter to their family and they should get her medically treated. Thereafter, her father brought her to their house at Delhi. Thereafter, at the insistence of the neighbours she was shown at different places, but her condition was not changed. Thereafter, Dr. Inderjeet again started her medical treatment, and she was feeling normal for the last three months.
Whenever, she came to her parental house, no one from her inlaws house inquired about her. However, whenever her father called her from Delhi, usually the phone got disconnected and sometimes, when it was pickedup, they made lots of complaint of hers.
During this period, her father brought some relatives for talking with them and to leave her, but her fear and harassment used to come in her mind, SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 27 of 57 -28- due to which she started feeling anxiety, fear and sweating. On seeing her condition, her father asked her whether something bad had happened with her, which she was not telling to them. She should talk to her bhabhi, mother and elder sister, who used to visit her. When all the limits crossed, she narrated everything, but she refused that her brother and child would be killed.
On Rakhi fesitval, her younger mami came Delhi, who was also her mousi and was the mediator in her marriage. On the trust being given by everyone and looking into her dark future, she with great difficulty and strength came to make complaint. She had hope from them. She needs their help and her child and brother, who have been given threats, be given protection.
Helpless Victim Sd Kiran Bala H74, PremNagarI Kirari Chowk, Nangloi Delhi86"
17. In this regard, the testimony of PW1 Shivjeet Soni is relevant who had stated that he had handed over four pages containing SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 28 of 57 -29- the handwriting of the deceased to the police, which they seized vide seizure memo Ex. PW1/E. In his crossexamination he reiterated that the said letter was in the writing of her daughter in which she had narrated the torture and harassment meted out by the accused persons to her prior to her death. He had identified the said letter containing four pages as Ex.P1 from point Q1 to Q7 and diary as Ex. P2 (A1 to A11).
18. PW25 Sh. Vijender Singh, Assistant Director documents, FSL also examined the said document and opined in his report Ex. PW25/A that after examination of the aforesaid questioned documents Q1 to Q7 and admitted writings / signatures marked A1 to A10 of deceased Kiran Bala he came to the conclusion that all were written by one and the same person.
No crossexamination has been carried out of the said witness. Therefore, his version duly corroborates the testimony of PW1 regarding the handwriting of the deceased. Even otherwise With regard to this, Section 47 of the Evidence Act is relevant, which reads as under :
47. Opinion as to handwriting, when relevant.
When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 29 of 57 -30- by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
19. In the present case, especially PW1 Shivjeet Soni, father of the deceased would have seen deceased writing during her formation years of studies and growing up and would have taught her how to read and write even the simple alphabets in Hindi and English language. Therefore, he was the best person who would have been acquainted with handwriting and signatures and his testimony in this regard cannot be doubted and nothing has come in his crossexamination, which could show that his testimony was not correct with regard to this aspect.
In view of the above discussion the prosecution has been able to prove that the said handwriting Ex. P1 was written by the deceased.
20. Further it appears that though the said writing Ex. P1 is dated 05.07.2006, however, it appears that it a memoir of the entire agony undergone by the deceased after her marriage till about 08.03.2009 and thereafter when she was brought back to Delhi and it appears that the said letter / writing was authored by the deceased in state of great pain and suffering and probably it was to be addressed to some police authority for taking appropriate legal action, however, it appears that somehow she could not SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 30 of 57 -31- gather muster courage to put the letter before the appropriate forum, where it was to be put and the said letter / writing could not reach the destination where it was meant for. However, it chronologically contains the entire story of pain, agony, torments and sufferings undergone by her.
21. Now adverting to the testimonies of the prosecution witnesses. PW1 Shivjeet Soni has deposed in his examination in chief recorded on 11.09.2013 as under :
"I am residing at the above mentioned address with my family and is working as Mechanic in MTNL. Kiran Bala (since deceased) was my daughter and she was married with accused Om Prakash @ Bunty, present in the court today about five years prior to the death of Kiran Bala, as per Hindu rites and customs. I had given sufficient dowry articles i.e. one motorcycle make Pulsar, gold chain, gold ring and cash amounting to Rs.1.51 Lacs to my son in law at the time of marriage. After the marriage, my daughter Kiran Bala started residing at her inlaws house.
After two three days of marriage, all the accused persons present in the court today i.e. Om Prakash @ Bunty, Smt. Prem Wati and accused Radhey Shyam, father in law and other family members started harassing my daughter Kiran Bala and they were demanding cash amount. After about one year of marriage, my son in law accused Om Prakash @ Bunty started demanding Rs. 2 Lacs from me. However, I was not in a position to arrange such huge amount.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 31 of 57 -32- However, under pressure of the accused I had sold my H.No. H17A, Prem Nagar, Delhi and gave cash amount Rs. 2 Lacs to Om Prakash @ Bunty. Thereafter, one male child was born to my daughter from the said wedlock. On the first birthday of my grand son (Naati), accused persons raised a demand of Rs. 1 Lac from me and I fulfill their demand in form of giving clothes and jewellary to accused persons on birthday function. However, all the accused persons were not satisfied with clothes and jewellary given on the occasion of birthday of my grand son (Naati) and they started harassing my daughter Kiran Bala.
About two years prior to death of my daughter Kiran Bala, accused persons had made a phone call to me and they asked me to take my daughter with me to Delhi. I reached at the matrimonial house of my daughter and brought my daughter Kiran Bala to Delhi. However, accused persons had not allowed my grand son (Naati) to accompany me and my daughter and due to this fact my daughter Kiran Bala become depressed. I took my daughter to doctors for the treatment of depression. On 25.02.11 at about 5.00 p.m. I was on duty and I received a phone call of my wife and she told me that Kiran Bala had locked herself inside the room in our house and she is not opening the door. After receiving information, I reached at my house and I found some neighbours were present there and they had already broken the door of my house. I found my daughter Kiran Bala in unconscious condition lying on the floor inside the said room. One empty shishi (small bottle) of some pesticide SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 32 of 57 -33- (Keeth Nashak) lying inside the room. Thereafter, my daughter Kiran Bala removed to SGM Hospital and my wife also accompanied us and I got her admitted there. My daughter Kiran Bala died in the hospital due to said poison on 26.02.11 in the morning. Some of my family members had informed the PCR and they reached at the spot.
Local police from PS Aman Vihar also reached in the hospital. Two days prior to the incident, my daughter Kiran Bala had made a phone call at the house of accused persons and she requested them to take her back to her matrimonial house. But accused persons had refused to take her stating that they can only take her if we arrange Rs. 1 Lac for them as demanded by them on that day. I also talked with accused persons on that day but accused persons were demanding Rs. 1 Lac in lieu of taking my daughter to their house. SDM recorded my statement on 28.02.11 and same is Ex.PW1/A which bears my signatures at point A, B and C. My wife also signed the said statement. My statement was also recorded by the IO in this case. After death of my daughter, the post mortem on her dead body was conducted. SDM recorded my statement regarding identification of the dead body. Same is Ex.PW1/B bearing my signatures at point A. After post mortem, the dead body was handed over to me vide receipt Ex.PW1/C bearing my signatures at point A. During the course of investigation, I handed over six photographs of the marriage of my daughter with accused Om Prakash and the same are Mark A1 to Mark A6. These photographs were taken by the IO into possession vide memo Ex.PW1/D bearing my SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 33 of 57 -34- signatures at point A. I had handed over the photocopy of written letter containing four pages which was in the handwriting of my daughter Kiran Bala to police and the same was taken into possession vide memo Ex.PW1/E which bears my signatures at point A. I had handed over my property agreement to IO who took the same into possession vide memo Ex.PW1/F bearing my signatures at point A. I produced one diary to the IO belonging to my daughter Kiran Bala who gave notings in the same when she was learning beauty parlour course. Same was taken into possession vide memo Ex.PW1/G which bears my signature at point A. All the demands made by the accused persons. Accused Rahdey Shyam was also having active involvement. Accused persons had not allowed my daughter to meet her son because of the non fulfillment demand of dowry as a result of which she depressed. I could not give my detailed statement to SDM because at that time I was in shocked condition. The letter which I had given to the IO was in the handwriting of my daughter Kiran Bala in which she had narrated the torture and harassment given by accused persons to her before her death. I can identify the diary and the letter if shown to me.
At this stage, MHC(M) has produced one sealed pullanda sealed with the seal of FSL. Same is opened and out of it one diary and one letter is taken out and shown to the witness who correctly identifies the letter and stated that it is the same original letter which he had given to the IO. Letter is Ex.P1 (colly.) from page Q1 to Q7. Witness has also identified the diary used by his SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 34 of 57 -35- daughter Kiran while learning beauty parlour course. Diary is Ex.P2 (A1 to A11).
At this stage, witness has identified the photographs and the handwriting on the account opening form and other related documents in this respect of Oriental Bank of Commerce. Same are Ex.P3 (colly.) pages from A12 to A14 and also identified his signatures on the said document as Introducer at point A and B."
22. The crux of the testimony of PW1 is that he had given sufficient dowry articles at the time of marriage i.e. motorcycle, gold chain, gold ring and cash amounting to Rs. 1,51,000/ and after one year of marriage, the accused Om Prakash @ Banty (son in law) started demanding Rs. 2 Lakhs from him, which he gave him by selling his house No. H17A, Prem Nagar, Delhi and thereafter Rs. 1 Lakh was demanded by him on the first birthday of his grandson and two years prior to death, she was taken to Delhi on the request of the accused persons and PW1 took her to Delhi, however, her infant child was not allowed to accompanied with her to Delhi, due to which she became depressed and ultimately died due to the cruelties and harassment of the accused persons.
In his crossexamination, he stated that he sold the house D 84, Sector1, Avantika around six years ago. One Kanwar Pal and his wife Sushila Devi were mediators in the marriage. When they had gone to see accused Om Prakash, there was no SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 35 of 57 -36- demand, however, during the ceremony of godbharai, accused Radhey Shyam (deceased) had demanded Rs. 1 Lakh and he had brought back his daughter after four days of marriage. He was teated well by the accused persons. His daughter remained with him for about one month. His daughter did not complain to him regarding accused persons during her stay, however, she was not looking happy.
Thereafter, accused Om Prakash along with 45 persons had taken back her daughter to her matrimonial house, where she stayed for three months and his daughter did not complain about the conduct of accused persons after three months.
After three months, he brought his daughter to Delhi and got her treated for depression from Dr. Inderjeet Sharma, Jaipur Golden Hospital, which was started after four months of marriage. He further deposed as under :
".....It is correct that whenever my daughter was not well I was called by the accused persons and they used to ask me to take my daughter with me. My daughter was not in depression therefore there was no question of disclosing this fact to anybody from the side of accused at the time of marriage.
After six days of the birth of son of my daughter, they both went to Aligarh to live with the accused persons. I brought my daughter to my house after three four months when she had fallen ill in her matrimonial home. Then I got her treated from Dr. Inderjit. First birthday of child SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 36 of 57 -37- was celebrated at Aligarh by the accused persons. It is correct that on that day, accused persons had also inaugurated their new house at Aligarh.
Myself, my wife, my elder daughter, her husband, my sister in law, brother in law of my son had gone to Aligarh to attend birthday. We all were treated well at Aligarh. At that time, Kiran was in Aligarh. No complaint was made by my daughter against any of the accused persons at that time. Vol. : On the next day a dispute arose as accused persons did not like the articles given by us in Chuchak. Accused Premwati had told me that the Chuchak should not be less than Rs. 1 Lac. I had not lodged any complaint with the police."
23. PW2 Jaideep in his examination in chief recorded on 20.12.2013 has deposed as under :
"I am residing at the above mentioned address with my family. Kiran Bala (since deceased) was my sister and she was married with accused Om Prakash @ Bunty, present in the court today in the year 2006 as per Hindu rites and customs. We had given sufficient dowry articles i.e. cash amount of Rs. 1,51,000/, one motorcycle make Pulsar as well as gold and silver jewellary in the marriage as per our financial position. After the marriage, my sister started residing at her inlaws house. Immediately after the marriage, however, exact period I do not remember now, accused persons present in the court today i.e. Om Prakash @ Bunty, Prem Wati, mother in law, Radhey Shyam, SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 37 of 57 -38- father in laws were harassing her and they are demanding a cash amount of RS. 2 Lacs from her. This fact was told by my sister to me and my parents as and when she met us. My father arranged Rs. 2 Lacs and fulfilled the demand of accused persons after selling the property i.e. H.No. 17A, Prem Nagar, Delhi as we were not in a position to fulfill the unlawful demand of Rs. 2 Lacs of accused persons. My sister gave birth to a male child out of the said wedlock. On the first birthday of nephew (Bhanja), all the accused persons raised a demand of Rs. 1 Lac through my sister from us. However, we fulfilled their demands to some extent in the form of clothes and jewellary of accused persons on birthday of my Bhanja. Despite receiving the said articles, accused persons were not satisfied and they continued harassing my sister. Thereafter, we brought our sister Kiran Bala to our house. However, accused persons had kept the male child of my daughter with them. Thereafter, my sister started residing at our house since two years prior to her death. My sister was not allowed to meet her male child by the accused persons and due to this fact she became depressed.
On 23.02.11, my sister had made a phone call at her inlaws house to allow her to meet her male child. However, accused persons again demanded Rs. 1 Lac as dowry and this fact was told me and my family members by my sister Kiran Bala.
On 25.02.11 at about 5.00 p.m. I was present on my duty in my office at Rohini. I received a phone call of my father that Kiran Bala had been admitted SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 38 of 57 -39- in SGM Hospital. Thereafter, I immediately reached in SGM Hospital, Mangol Puri. I found my sister Kiran Bala admitted there and she had expired in the hospital on 26.02.11. I came to know that my sister had consumed some poison on 25.02.11 to commit suicide. IO had recorded my statement in this case."
24. The crux of the testimony of PW2 is that they had given sufficient dowry articles at the time of marriage i.e. motorcycle make Pulsar, gold and silver jewellery and cash amounting to Rs. 1,51,000/ as per their financial position and after few days of the marriage, the accused persons started harassing his sister and also started demanding Rs. 2 Lakhs, which his father gave to them by selling his house No. H17A, Prem Nagar, Delhi.
Further on the birthday of his nephew (bhanja), they demanded Rs. 1 Lakh through their sister from them. They fulfill their demand to some extent by way of clothes and jewellery but they were not satisfied and kept on harassing her sister. Thereafter, they brought his sister to their house, however, the accused persons kept the male child of his sister with them. His sister started residing their house two years prior to her death. His sister was not allowed to meet her male child, due to which she became depressed On 23.02.2011, her sister made a phone call at her inlaws house to allow her to meet her male child, but they declined, SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 39 of 57 -40- rather demanded Rs. 1 Lakh as dowry.
25. The relevant crossexamination of this witness is as under :
"I had not gone for fixing the marriage of my sister to the house of accused, so I cannot tell what transpired at that time. My parents had gone there. Mediator Sushila was related to us as well as accused persons...... The first child was born to my sister after 11 months of marriage. I used to visit my sister's matrimonial house on Raksha Bandhan and Bhaiya Dooj only. I must have gone to the matrimonial house of my sister for three four years on the above said two occasions. I never visited overnight my sister's home. My sister and her in laws used to treat me properly during my visit to said house......
Lastly my father had brought my sister to our house and on the next day itself my father had taken her to psychiatrist. It is incorrect to suggest that Aligarh's water never suited my sister or that my parents used to suggest accused Om Prakash to take drinking water from Delhi for her. Till her death the treatment of my sister continued.
My sister never disclosed about any demand when I used to visit her on Raksha Bandan and Bhaiya Dooj. I came to know about the harassment to my sister and demands made from her by accused persons from my parents. No demand was ever raised by accused persons in my presence. I had made my statement to the police on the basis of information received by SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 40 of 57 -41- me from my parents."
26. PW3 Reshma Devi in her examination in chief has deposed as under :
I married my daughter Kiran Bala on 05.07.2006 with accused Om Prakash @ Bunty S/o. Accused Radhey Shyam Verma. Accused Prem Wati is the mother in law of my deceased daughter Kiran Bala. We had spent more than our capacity in the said marriage and given Pulsar motorcycle, Rs.1,51,000/ in cash, gold chain and ring. All three accused persons with other family members after the marriage started harassing and torturing my daughter for bringing less dowry. After a year accused Om Prakash demanded Rs. 2 Lacs and when we showed our inability, accused persons insisted to fulfil their demand. Out of compulsion, we had sold our house H17A, Prem Nagar and had given aforesaid Rs. 2 Lacs to accused Om Prakash. My daughter blessed with a son and all the three accused persons with other family members on the first birthday of my Naati asked articles worth Rs. 1 Lac stating that in Chuchak we had not given sufficient items. We somehow arranged items worth Rs. 1 Lacs and given to accused persons but the accused persons gave taunting by saying that "Tumne Hamari Naak Katwa Di". All the accused persons put so much pressure on my daughter that she remained mentally disturbed. My daughter had telephonically informed all the aforesaid harassment to us and also told the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 41 of 57 -42- aforesaid things when she personally visited with us. She remained in depression. Accused persons had sent Kiran to us without giving any treatment. When I with my family asked the accused persons to take back Kiran, they insisted that their demand of Rs. 1 Lac more first met then they will take Kiran Bala and also taunted and harassed Kiran as a result of which she become disturbed. Accused persons also allowed Kiran to meet her son and insisted to first fulfil their demand as a result of which my daughter Kiran become very much depressed.
Accused persons never allowed her son to accompany her. All the three accused persons with their family used to taunt my daughter Kiran for brining less dowry and calling her "Pagal" and by saying that they used to send to her matrimonial house. During the treatment several times we contacted all the three accused persons and their family for the treatment and to take back Kiran but all the three accused persons told to us first fulfil their demand so that a shop could be open and then they will think over for bringing back Kiran and during all this time, they kept my Naati Tanman with them and not allowed him to meet Kiran. During the conversation with accused persons by us on telephone my daughter Kiran used to remain present with us listening all the conversation and on some occasions she also talked with the accused persons Om Prakash, Premwati and Radhey Shyam present in the court today (correctly identified) and requested them to take her back but accused persons again demanded that their demand of Rs. 1 Lac SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 42 of 57 -43- first be fulfilled (Usko Aur Jayada Ganda Bolte The). My daughter Kiran got tensed.
On 23.02.11 my daughter Kiran was again having conversation with accused persons but she was again treated badly by the accused persons on phone. They all abused her and stated that their demand first be fulfilled and not allowed her to meet her son. My daughter used to remain disturbed and depressed after 23.02.11. We tried to make our daughter understand but she remained disturbed and depressed. I asked my daughter to make a complaint against the accused but she did not agree because of her son.
On 25.02.11 at about 5.00 p.m. my daughter Kiran closed herself in room by putting latch on the door. We heard no sound from inside the room. We called a Welder who came with a hammer and broke the door. We saw Kiran lying on the floor and forth was coming from her mouth and a bottle of poison was lying there. My husband shifted my daughter to SGM Hospital but during the treatment in the hospital she died on 26.02.11. I and my husband Shivjit Soni made statement before SDM on which we both signed. The statement is Ex.PW1/A which bears my signatures at point B, B1 and B2. At that time, due to the shock, we could not give our detailed statement. At my instance, site plan was prepared.
On 01.03.2011, I accompanied my husband Shri Shivjeet Soni to the PS Aman Vihar where my husband handed over six photographs of the marriage of my deceased daughter Kiran SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 43 of 57 -44- Bala with accused Om Prakash, which were taken into possession vide seizure memo already Ex.PW1/D, which bears my signature at point B. Photographs are exhibited as Ex.PW3/A (collectively).
27. The crux of the testimony of PW3 is that they had given sufficient dowry articles at the time of marriage i.e. motorcycle (Pulsar), gold chain, gold ring and cash amounting to Rs. 1,51,000/ and after one year of marriage, the accused Om Prakash @ Banty (soninlaw) started demanding Rs. 2 Lakhs from him, which they gave him by selling their house No. H17A, Prem Nagar, Delhi and thereafter Rs. 1 Lakh was demanded by him on the first birthday of their grandson.
The accused persons used to taunt and harass her consistently and persistently. The accused persons also used to call her 'pagli', as a result of which she became very depressed but the accused persons did not allow her son to accompany her. They got her treated and tried to contact all the accused persons many times to take her back, but the accused persons refused and again demanded Rs. 1 Lakh.
On 23.02.2011 the deceased was again having conversation with the accused persons, but she was treated badly by them. All of them abused her and stated that their demand should be fulfilled first and they would not allow her to meet her son and her SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 44 of 57 -45- daughter used to remain disturbed after 23.01.2011. She asked her daughter to make a complaint against the accused, but she did not agree because of her son and on 25.02.2011 she committed suicide.
28. The relevant crossexamination of this witness is as under :
The property No. D84, Sector1, Avantika, Rohini was sold after 2007. H.No. H74, in the area of Prem Nagar was already with us..... The mediator between the marriage was Sushila. Sushila is my cousin (mameri behan). I alongwith my husband had gone to the house of Om Prakash to see the proposed groom.... Accused persons demanded Rs.2 lakhs, but we had given Rs. 1 lakh and they had also demanded one Pulsar motorcycle besides that they had also demanded cash to the tune of Rs.51,000/ and jewellery articles. We had done the marriage, knowingly the dowry demand of the accused persons. we could not pay Rs.2/lakhs, but paid Rs.1/ lakh and further paid cash of Rs.51,000/. The Roka Ceremony of the accused Om Prakash was done on 30.06.2006 again said on 01.07.2006....
My daughter visited our house after marriage, after four days of her marriage. My husband had gone to take my daughter and reported no complaint for the treatment he received there. My daughter remained with us for about one month......
My daughter was not suffering from the disease of depression before marriage. She was not under SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 45 of 57 -46- depression at the time of Radha Swami Satsang in month of September/October. My daughter Kiran Bala was treated for depression occurred due to the acts of the accused persons through Dr. Inderjeet Sharma....
My daughter took treatment from Dr. Inderjeet Sharma for about six months. I had not taken treatment from Dr. Inderjeet Sharma..... After the delivery of male child to my daughter, on Chathi the accused Om Prakash with accused Smt. Premwati visited our house and insisted on taking away the male child and inspite of our request refused to took my daughter Kiran Bala and thereafter on our insistence/persistent request they agreed to took my daughter and took her also with them..... The accused persons also gave reason for not taking my daughter for her treatment. My daughter remained there for about 45 days and during that period of stay, accused persons had not raised their demands and my daughter had not complained towards for any cruelty. I had visited to the matrimonial house of my daughter after 8 months of her delivery and at that time my daughter had not told me for any cruelty. Vol. She had complained to us for the cruelty acts before that time. On the first birthday of my grand maternal son (nati) I alongwith my husband, my sister and another relatives visited the house of the accused and there accused persons quarreled with us on the issue of the Chuchak items given to them, though, as per their wishes/demands of Rs.1 lakh items, we had brought the sufficient articles for them...... On the next day, accused Radhey Shyam telephonically called on our house and made us to hear the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 46 of 57 -47- voice of our daughter, who seems not in good condition. We asked Radhey Shyam that on the previous day, we had left Kiran Bala in good health and as to how this happened to her. My daughter Kiran Bala was crying and was saying, "mai mar jaungi mujhe le jao" and she further showed her concern about her child by saying, "mere ladke ko bhi le jaoge"....
Myself, my deceased daughter and my daughter in law were present in the house when my deceased daughter committed suicide. My husband was on work at that time. My daughter in law had informed my husband. We were not together before the act of suicide...."
29. The next relevant testimony is that of PW18 Baljeet Kaur, who in her examination in chief has deposed as under :
In the year 2007, Plot no. C130, was purchased by us from the wife of Shivjeet Saini and at the time of purchasing the plot, he was pressing to give the payment a little earlier. I do not know why he was demanding the payment a little earlier. We had made the payment of the plot about within 1½ month. The sale amount of this plot was Rs.3,10,000/. This plot has now been sold to some another person. My statement was recorded by the police.
30. From the testimony of the above witness, it appears that one plot no. C130 was sold by PW3 to her in the year 2007, which is different from the property claimed to have been sold by PW1 and PW2 i.e. H17A, Prem Nagar, Delhi. This witness has also SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 47 of 57 -48- deposed that PW3 was pressing to give the payment a little earlier, but she did not know the reason thereof. They had made payment within one and a half months.
She was also declared hostile by the Ld. Addl PP for the state on certain aspects, but she had denied that Shivjeet Saini had asked the money to be paid earlier, as the same was to be given as dowry to the inlaws of her daughter.
31. The next is the testimony of IO PW26 Anil Kumar, who has deposed regarding the investigations as were carried out by him in the present case. He was subjected to crossexamination. His relevant crossexamination is as under :
It is correct that prior to 28.02.2011, I did not record any statement of witnesses u/s 161 Cr.P.C. It is correct that the information about the death of deceased was received on 26.02.2011 at police station and the same was marked to SI Shri Bhagwan. It is correct that I did not visit out station i.e. out of NCT of Delhi in connection with the investigation of this case.... It is correct that during my investigation, I did not find any complaint filed by the parents of the deceased or by the deceased prior to 25.02.2011 in respect of dowry demand and cruelty. It is correct that the statements of parents of the deceased was first time recorded by the SDM on 28.02.2011.
It is correct that the contents of diary Ex. P1 is SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 48 of 57 -49- written in Hindi. It is also correct that the documents annexed with the account opening form of deceased Kiran Bala is filled in English.
32. From the analysis of the testimonies of PW1, PW2 and PW3, the prosecution has been able to establish that sufficient dowry was given at the time of marriage of accused Om Prakash with the deceased Kiran Bala including motorcycle, gold chain, gold ring and cash of Rs.1.51 Lakhs. Thereafter, all the accused persons started harassing the deceased and also demanded Rs. 2 Lakhs after one year of marriage and to meet the said demand, the parents of the deceased sold their house / plot, which is corroborated by the testimony of PW18 Baljeet Kaur, who has testified that in the year 2007, one plot no. C130 was purchased by her from PW2 and at the time of purchasing the plot, she was pressing to give the payment earlier and the payment was made within one and half months and the same was sold for Rs. 3.10 Lakhs.
Though the plot number is different from what was stated by PW1 and PW2 in their testimonies, who had stated that they had sold the house no. H17A, Prem Nagar, Delhi however, the fact remains as corroborated by the testimony of PW18 that PW1 and PW2 had sold a plot in the year 2007, whereas the marriage of the deceased took place with the accused in the year 2006 and they were also pressing for early payment to the purchaser and SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 49 of 57 -50- therefore, this fact that they had to sell their house / plot to meet the demand of the accused persons one year after the marriage, is duly corroborated by the testimony of PW18.
33. The prosecution has also been able to establish that on the first birthday of the grandson of PW1 and PW2, the accused persons raised demand of Rs. 1 Lakh, which they fulfilled in the shape of clothes and jewellery, but accused persons were still not satisfied and they started harassing their daughter and she was so much harassed that she started remaining mentally disturbed.
34. It has been further proved that the accused persons had sent her without any treatment to her parental house and they insisted that their demand of Rs. 1 Lakh be met first and due to harassment the deceased became disturbed. The accused persons allowed her to meet her son, but insisted to first fulfill their demand, as a result of which she became very depressed.
During conversation on telephone with the accused persons, the deceased used to remain present listening all the conversation and on some occasions also talked to accused persons, but the accused persons reiterated their demand of Rs. 1 Lakh, due to which deceased got tensed.
SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 50 of 57 -51-
35. In the crossexamination PW1, PW2 and PW3 have only reiterated and reaffirmed the averments made by them in their examination in chief, thereby reinforcing their testimonial depositions in examination in chief and making it stronger.
The writing Ex. P1, which relates to the cause of death of deceased is duly admissible as piece of dying declaration, as per Section 32(1) of Evidence Act, which is an exception to hearsay rule, as the said writing can be said to be a statement made by Kiran Bala (deceased) as to the cause of death, as to any of the circumstances of the transaction, which resulted into her death in a case where the cause of death of hers comes into question.
As per the law applicable in India, such statement is relevant irrespective of the fact, whether the person who made the said statement was or not at the time they were made under expectation of death and whatever may be the nature of proceedings in which the cause of such death comes into question.
In other common law jurisdictions / countries the said statements are only admissible, if the person is fataly wounded or is so much ill or in such a condition where his death is imminent, only then and in those circumstances his statement with regard to cause of his death is admissible as dying declaration, as it is believed that the chances of fabrication or lying by a person facing imminent death are next to impossible, SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 51 of 57 -52- that is why this common law exception of dying declaration has been incorporated to the hearsay rule, as the declarant or the maker of the statement is missing and does not come to the witness box to depose and cannot be crossexamined by the opposite party.
36. In view of the testimonies of PW1, PW2, PW3 and the writing Ex. P1, which is a letter exhaustively penned by the deceased regarding her great sorrow, pain and despair due to the savage conduct of the accused persons, which is a tale of young lady, who was tormented after marriage by her husband, inlaws, sexually physically, emotionally in every sinister way, to wreck her. Last straw was when her minor son was separated from her, which is the greatest sin, separating an infant child from her mother, who constantly needs her care, emotionally and psychologically in formative years.
37. The version of DW1, DW2 and DW3 is not trustworthy and on reading of their testimonies as a whole, it appears that they were meeting the accused Om Prakash very rarely and occasionally and whatever facts have been deposed by them in the court are based on the version of accused Om Prakash and they had not witnessed any of the facts, which the defence wants to rebut by recording their testimonies. Their testimonies are SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 52 of 57 -53- second hand version i.e. hearsay, which are not admissible in evidence. Therefore, they do not support the defence case in any way.
38. Now it is to be seen whether from the allegations discussed above, Section 498A IPC is attracted or not. Same reads as under:
498A IPC 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.
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 SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 53 of 57 -54- 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.
From the evidence discussed above including the writing Ex. P1, the prosecution has been able to prove that the harassment of the deceased Kiran Bala was made with a view to coerce her or any person related to her to meet the unlawful demands of dowry made by the accused persons and on their failure to do so, she was harassed as well as her parents.
The said willful conduct of the accused persons was of such a nature, which was likely to drive the deceased to commit suicide, which she did in the present case. Therefore, ingredients of Section 498A(a)(b) IPC are clearly made out in the present case.
39. With regard to the common intention of both the accused persons with regard to the offence u/S. 498A/34 IPC, it has been proved from the testimonies of PW1, PW2 and PW3 coupled with the writing Ex. P1 that all the accused persons facing trial before this Court in furtherance of their common intention in concert with each other had committed cruelty, harassment upon her in relation to the demand of dowry and also mentally, emotionally, SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 54 of 57 -55- psychologically harassed her by separating her from her infant child.
Therefore, this clearly shows meeting of minds of the accused persons to commit the offence in question. It shows premeditation before the commission of the offence. Therefore, the confederacy or the meeting of minds of the accused persons is clearly visible in the present case. Therefore, by the principle of agency, both are liable for the acts of each other. Therefore, both the accused persons stands convicted u/S. 498A/34 IPC.
40. Now with regard to the offence u/S. 306 IPC, it has come on the record in view of testimonies of prosecution witnesses namely PW1, PW2 and PW3 that the deceased was living separately from her inlaws two years prior to her death. However, at the same time, the prosecution has failed to prove that on 23.02.2011, deceased was having any conversation with the accused persons, but she was again badly treated by the accused person.
All of them abused her and also stated that their demand of Rs. 1 Lakh be made first, which fact has not been established from the evidence on the record as no such call records have been produced in the record that any such call was made by the deceased from her phone installed at her house or from her mobile phone at the phone of any of the accused persons, in the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 55 of 57 -56- absence of said scientific or corroborative piece of evidence, no such logical inference can be drawn in favour of the prosecution.
41. Though, the separation of the deceased from her infant child can be said to be a source of continuous harassment and sorrow, which can be termed as cruelty as defined u/S. 498A(a)
(b) IPC, but there was no trigger or any sudden act or omission, which could have ignited, accelerated, provoked, instigated or stirred up her suicide, as the said state of affairs were continuing for almost two years from when she was residing separately from her inlaws at the house of her parents.
There was nothing fresh, which could have actuated her to commit suicide. There was no direct and proximate relation between the acts / omission of the accused and her suicide. Therefore, in view of the evidence on the record, there cannot be any instigation, aid or goading or provocation on the part of the accused persons in conspiracy with each other to abet her suicide within the meaning of Section 107 IPC. Therefore, the prosecution has failed to prove the ingredients of Section 306/34 IPC. Accordingly, both the accused persons stand acquitted u/S. 306/34 IPC.
42. On the scale of 1 to 10, where happening of any event is measured, the probative force of the entire mass of the SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 56 of 57 -57- prosecution evidence lead on record taken as a whole with regard to offence u/S. 498A/34 IPC is touching the point of almost certainty. It can be given 7 or 8 points on such scale of '10' i.e 70% or 80% probability '1' being the certainty or 100% (which though can never be achieved in reality), whereas the defence version has very weak probative force touching the point of almost disbelief. On such kind of evidence, the accused persons can be safely convicted for the offence u/S. 498A/34 IPC.
To sum up :
43. From the aforesaid analysis of evidence, the probative force of the prosecution evidence as a whole with regard to offence u/S. 498A/34 IPC is touching the point of certainty on the scales, where probability of happening of any event is assessed, whereas the defence version is having very low probative force which is almost touching the point of disbelief. As a consequence, both the accused persons Om Prakash @ Banti and Premwati Devi stand convicted u/S. 498A/34 IPC.
Announced in the open Court (Sanjeev Aggarwal) th on 10 day of April 2019 Addl. Sessions Judge02,North Rohini Courts, Delhi 10.04.2019 SC No. 58055/16; FIR No.51/11; PS. Aman Vihar State Vs. Om Prakash & Ors. Page No. 57 of 57