Delhi District Court
State vs . (1) Rakesh Kumar Garg on 3 April, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 122/2011
Unique Case ID No.: 02404R0123632009
State Vs. (1) Rakesh Kumar Garg
S/o Late Banarsi Dass
R/o House No. 666,
Gali No.7, Ambedkar Nagar,
Haiderpur, Delhi
(Convicted)
(2) Smt. Sheela
W/o Sh. Vidyanand
R/o House No. B71/A,
Gali No. 8, Shalimar Village,
Delhi
(Acquitted)
FIR No.: 31/2009
Police Station: Shalimar Bagh
Under Sections: 498A/304B Indian Penal Code
Date of committal to session court: 30.5.2009
Date on which orders were reserved: 1.4.2013
Date on which Judgment announced: 3.4.2013
JUDGMENT:
(1) As per allegations, during the period 23.7.2007 to 4.2.2009 at House No. 666, Gali No.7, Ambedkar Nagar, Haiderpur, Delhi the accused St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 1 Rakesh Kumar Garg being the husband of Sonia Gupta and Smt. Sheela being the sister in law (nanand) of Sonia Gupta, in pursuance to their common intention subjected Sonia Gupta to cruelty by harassing her to fulfill their unlawful demand of dowry pursuant to which Smt. Sonia died an unnatural death by hanging within seven years of marriage. CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 4.2.2009 at about 6:25 PM one Smt. Sonia Gupta was brought dead in the Ambedkar Hospital by her husband Rakesh Kumar and Sheela. Pursuant to the same Duty Constable Ct. Pramod informed the Duty Officer of Police Station Shalimar Bagh who lodged DD No.54B in this regard. At about 6:26 PM information was received through wireless operator through intercom that one lady had hung herself and her family members had taken her to some unknown hospital which information was lodged vide DD No.55. Pursuant to the same SI Ramesh Dutt along with Ct. Manoj reached at the aforesaid house which was found locked on which he left Ct. Manoj at the house and he himself went to Ambedkar Hospital where he collected the MLC of Sonia who was already declared as brought dead. SI Ramesh Dutt came to know that the marriage between Sonia and Rakesh Kumar had taken place before 1½ years back.
Information was given to the SDM and the dead body of Sonia was shifted to BJRM Hospital. On 5.2.2009 the Executive Magistrate Sh. M.Z. Ansari came at Police Station and on his dictation the statements of Rajender Gupta St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 2 (father of the deceased), Smt. Asha Gupta (mother of the deceased) and Rajiv Gupta (brother of the deceased were recorded by Inspector Puran Chand where they made allegations against the accused Rakesh Kumar Garg and his sister Sheela of having subjected Sonia to cruelty and harassment in connection with dowry demand. Thereafter on the directions of the Executive Magistrate the present FIR was got registered and both the accused were arrested.
CHARGE:
(3) Charges under Sections 498A/304B/34 Indian Penal Code were settled against both the accused Rakesh and Sheela to which they pleaded not guilty and claimed trial.
EVIDENCE:
(4) In order to prove its case the prosecution has examined as many as Twenty Eight witnesses as under:
Public witnesses:
(5) PW10 Rajender Kumar Gupta is the father of the deceased who has deposed that he is a private contractor by profession. According to the witness, he was blessed with four daughters and one son out of which his daughter namely Sonia expired. He has testified that his daughter Sonia was his third daughter who was married with accused Rakesh Kumar Garg on St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 3 23.07.2007 which marriage was solemnized according to Hindu Rites and Ceremonies. Witness has further deposed that he spent in the marriage according to his financial capacity but after two months of the marriage, his daughter was harassed for insufficient dowry by her husband Rakesh and the nanad / sister in law Sheela. He has alleged that the accused Rakesh used to give beatings to his daughter and in the month of October, 2007 his daughter came to his house in a weeping condition and told him that she would not return to her matrimonial home again because of the beatings given to her by her husband on the instructions of her sister in law Shiela. According to him, his daughter told him about the demand made by the accused to bring more dowry and on refusing for bringing money they used to give more beatings to her. Witness has testified that after one month Rajender Garg, elder brother of accused Rakesh came to their house on the occasion of Karva Chauth and asked him to send Sonia at her matrimonial home and assured that the acts would not be repeated. He has also deposed that three days prior to Deepawali in the year 2007 accused Rakesh came to their house and he sent Sonia with him. He has testified that about two and half months passed peacefully but subsequently the accused again started harassing his daughter and in the month of March 2008, he went to the matrimonial house of his daughter and brought her back with him and she remained with him for about one and half month. Witness has also deposed that thereafter due to intervention of the other relatives, he sent his daughter Sonia to her in laws house in the month of April/May, 2008.St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 4
(6) According to the witness, on 16.06.2008 he along with his wife were going to take bath at Haridwar when his son telephoned him that accused Rakesh was giving beatings to Sonia and at that time through mobile speaker beatings could be heard and the accused was telling Sonia to call her father and further told Sonia to call her father (i.e. the witness) and continued the beatings and harassments. The witness has testified that he instructed his son to bring Sonia back from her matrimonial home pursuant to which his son brought Sonia back on the same day. He has also deposed that when he returned back from Haridwar, he found that his daughter was bleeding as she was pregnant and accused Rakesh had given leg blows on her abdomen, as told to him by his daughter. Witness has further deposed that he also found injury marks on her whole body on which they took her to Dr. Poonam Tyagi and got her ultrasound there when doctor told them that there was a miscarriage and they also directed to get her abortion done. He has testified that they they took his daughter to Dr. S.K. Diwan where she was aborted and treated for about twothree months. According to him, the accused persons pressurized him through his Samdhi and other relatives and called him at Sonepat two three days prior to the Karva Chauth of 2008 in the house of maternal uncle of accused namely Sh. Brahm Parkash on which he along with his wife, his son, his elder daughter Poonam and other relatives reached there where he found that many relatives had already gathered there from both sides. He has also testified that Sh. Brahm Parkash took the guarantee of his daughter and requested him to send back his St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 5 daughter Sonia to her matrimonial home, on which he send Sonia back two days prior of the Karva Chauth and thereafter for one month he did not receive any complaint from his daughter Sonia. Witness has also deposed that after one month his daughter Sonia telephoned him and informed him that both accused persons have again started harassing and beating her and were demanding articles and money from her. According to him, in the month of January 2009 his daughter visited his home and he spent Rs. 25,000/ through her for purchasing computer after which on 30.01.2009 his daughter telephoned him that accused Rakesh has purchased one computer. He has further testified that on 31.01.2009, he made a call to his daughter Sonia from Garhwal, Uttrakhand when the accused Rakesh told him that he wanted to buy a car and asked him for some financial help but he (witness) refused to provide him any financial help for purchasing the car and he (witness) also explained him that his financial condition was not good for helping him. According to the witness on 04.02.2009 at about 4:00 PM his son telephoned him and informed that he (his son) received a telephone call of his elder daughter Poonam informing that Sonia was lying unconscious at her matrimonial house and was crying. Witness has further deposed that his son further informed him that Poonam asked the accused Rakesh to take her to the hospital on which accused Rakesh told Poonam that he had already shown Sonia to the doctor and there was no purpose to take her to hospital since there were no chances of her survival. According to him at about 6:00 PM accused persons had taken his daughter Sonia to hospital on the pressure St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 6 of his son namely Rajiv and daughter Poonam and thereafter his younger brother namely Virender Gupta, his wife, his son Rajiv, his wife Asha went to the matrimonial house of his daughter Sonia and made inquiries from the neighbors. He has also deposed that neighbors informed him that his daughter was removed to Ambedkar Hospital on which they went to Ambedkar Hospital where they came to know that his daughter Sonia had expired. He has proved that his statement was recorded by the Executive Magistrate which is Ex.PW10/A and he also identified the dead body of his daughter Sonia vide Ex.PW10/B and after postmortem the dead body was handed over to him vide Ex.PW10/C. The witness has further deposed that his daughter used to telephone him through the mobile about the harassments and beatings given by the accused persons during her stay at matrimonial home. According to the witness after the death of his daughter, he along with his daughter Poonam went to police station and handed over to the police the marriage card, list of dowry articles and photographs of the marriage which were seized by the police vide seizure memo Ex.PW10/D which marriage card is Ex.PW10/I, list of dowry articles is Ex.PW10/E (running into two pages) and five photographs of the marriage which are Ex.PW10/F1 to Ex.PW10/F5. He has deposed that he also handed over the ultrasound and treatment paper of his daughter to the police which were seized vide seizure memo Ex.PW10/G which report of Ultrasound is Ex.PW2/C, treatment paper of family clinic are Ex.PW2/A and Ex.PW2/B. St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 7 He has proved that the Investigating Officer recorded his statements. (7) In his cross examination by Ld. Defence counsel, the witness has deposed that accused Rakesh was aged 34 years at the time of marriage and his daughter Sonia was aged 21 years at the time of marriage. He has also deposed that Sonia studied upto 12th standard after which she had done computer course, beautician, sewing courses and as per information given accused rakesh was studied upto M.Com. and was doing the work of filling small cylinders at his shop. According to the witness, the marriage was solemnized at Paaliwal Dharamshala, Laxmi Nagar, Delhi 92 and he invited about 6070 guests and from the side of the accused persons above 100 guests attended the marriage. Witness has denied the suggestion that there were only 50 guests each from both the sides who attended the marriage. He has also deposed that accused Rakesh and his deceased daughter had come for phera to his house on 25.07.2007 and had not gone for honeymoon. According to the witness he is a building contractor and is an income tax payee and paid income tax of around Rs .4000/ in the year 2007. He has testified that his daughter was employed prior to the marriage as Sales Girl at Ganga Ram Watch Co., Preet Vihar. He has also deposed that his elder daughter Santosh married in the year 1997 and second daughter Poonam married in the year 2002 which marriage was solemnized at Aggarwal Dharamshala, Sonepat wherein he gifted TV, fridge, furnitures and jewelery and other articles which were given on the occasion of marriage. The witness has testified that after the marriage of Sonia, he changed his rented St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 8 accommodation thrice. The witness has further deposed that he did not hand over bills the of dowry articles to police and has voluntarily explained that he kept all the bills in the purse of his daughter at the time of Vidai. According to the witness, he did not tell to police exactly that he kept all the bills in purse of Sonia in his statement and has stated that he might have told to police that he had already handed over all the bills to his daughter Sonia. (8) He has also deposed that he had stated to the police in his statement under Section 161 Cr.P.C. he along with his wife went to Haridwar for Ganga Sanan and his son told him on phone accused gave beatings to Sonia and he also opened speaker of the phone so that he can hear the voice of beatings; that accused Rakesh Garg gave a leg blow on the abdomen of Sonia and he found injury marks; that in the month of January, 2009 when his daughter visited his house he had given her Rs 25,000/ for purchase of computer; that on 31.01.2009 he had made a call to his daughter deceased Sonia from Garwal at that time accused asked him for some financial help to buy a car, he had refused to provide any financial help as his financial condition was not well. However, when confronted with statements Ex.PW10/A, Ex.PW10/X1 and Ex.PW10/X2 where the said facts were not found so recorded.
(9) According to him, accused Rakesh Garg at the time of marriage was earning but he did not inquire whether he was earning handsomely or not. He has testified that accused Rakesh Garg also owned his own house. He is not aware what coaccused Sheela's husband did for a living nor does St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 9 he aware how many children Sheela has. The witness has further deposed that he had not visited the house of Sheela in Delhi but at the time of first compromise he had met Sheela's husband who had also scolded Rakesh and made him understand. He has denied the suggestion that the age of his daughter was 21 years whereas accused Rakesh was of the age 36 years at the time of marriage and deceased wanted to enjoy her youth, go to malls, shopping etc. and whereas accused Rakesh was a miser and accused Rakesh devoted more time towards his work due to which there was mismatch with life style and temperamental differences between the two. Witness has also denied the suggestion that accused persons had never given beatings to Sonia nor demanded any dowry articles and has voluntarily explained that the mediator Gopi ram told him the year of birth of Rakesh 1979 at the time of marriage and due to relations he did not make inquiry. According to the witness his daughter told him after seeing the certificates of accused Rakesh about his age after three months of the marriage and he also came to know later that accused Rakesh had also mental attacks earlier. Witness has further testified that his daughter Sonia used to tell about the incident only to her sister Poonam and mother but she did not disclose any fact to other relatives mentioned in the wedding card Ex.PW10/I. According to him they got her treatment done when they observed that she had suffered injuries from the beatings but they did not lodge any report with the police on different occasions. He has denied the suggestion that he had lodged a false complaint.
St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 10 (10) PW11 Mrs. Asha Gupta is the mother of the deceased who has deposed that she has four daughters and one son, out of which her daughter Sonia was expired whose marriage was solemnized with accused Rakesh Kumar Garg on 23.07.2007. According to her after marriage about two three months, accused Rakesh started quarreling with her daughter and also used to give beatings to her and also gave beatings on the pretext of dowry demand. Witness has further deposed that one day her daughter telephoned her and told the facts. She has also deposed that she was happy in her house (parental house) and whenever time would come to go back to her house she refused to go to her in laws house because of the beatings and dowry demand of the accused persons. According to her, they used to make understand both i.e. accused Rakesh and her deceased daughter Sonia and they also made complaints to Jeth namely Rajender who promised to make Rakesh understand and at the instance of Jeth Rajender they sent back their daughter Sonia to her in laws house on 16.10.2008 after which they were living peacefully for sometime. Witness has further deposed that after two months Rakesh gave beatings to her daughter at the instance of Sheela Nanad / sister in law of Sonia. She has deposed that after marriage her daughter came to her house after three days on 25.07.2007 and her daughter told her that accused Rakesh was quarreling with her on the pretext of wrist watch which was given by them to him in the marriage. According to the witness, Rakesh told Sonia that this watch was of Rs.600/ whereas her daughter told him that wrist watch was purchased by her father and it was of St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 11 Rs.3600/. She has testified that in October 2008 her daughter Sonia was washing her face near the motor when accused Rakesh came there and gave a leg blow on the back of her daughter and also gave beatings to her on account of which she received bruises on her body which injuries were on account of the bangles after which Sonia telephoned them. According to the witness she along with her husband went to the in law's house of her daughter and on seeing them Sonia started weeping abnormally and complained that Rakesh gave merciless beatings to her and also told them about the manner of beating given by accused Rakesh to her. Witness has further deposed that they brought their daughter back who remained with them for about twothree months. She has also deposed that they pacified the matter when the accused was threatening that electricity consumed by the motor who would pay the bill of the motor saying "Bill kya tera baap dega", after which they sent Sonia back to her in laws house with her husband accused Rakesh. She has admitted that they also given many gifts and articles at their own wish. Witness has also deposed that when they sent Sonia back with accused Rakesh he called his sister accused Sheela to his house and accused Sheela used to pass comments to his daughter "Tere baap ne mere liye kya diya, tu bhukhe ghar ke hai, hamne apne bhai ko bhuke ghar me bheaya diya, tumari koi ijjat nahi hai hamari ijjat ka toh khayal hota". According to her, Sonia telephoned them about the comments and accused Rakesh started gave beatings then they brought their daughter back and her daughter told her about all the incident. Witness has further St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 12 deposed that at that time she became pregnant for about two months and they got her medically treated first by Dr. Poonam and then Dr. Divan after which they asked her to go back but she refused to go to the house of accused Rakesh.
(11) She has also deposed that on one occasion Panchayat was called from her side, her son, husband, herself and Sonia whereas from the other side accused Rakesh Garg, Rajender, Laxman, brother in law of accused, Lala Gopi Ram, Maternal Uncles Birma Singh and Vishnu were present which panchayat was called at the house of Birma Singh. According to the witness, her elder Mama Birma Singh gave the guarantee in the panchayat that in future accused Rakesh would not beat Sonia and keep her well and after panchayat they sent their daughter Sonia at her matrimonial home and accused Rakesh kept her daughter Sonia well for two three months but again he started the same behaviour of beating to her daughter Sonia. She has testified that at the time of beatings, he (accused Rakesh) opened the speaker of the phone so that they could listen. Witness has further deposed that his son telephoned her at Haidawar about this incident on which she returned back from Haridwar whereas her son Rajiv brought back Sonia from her matrimonial home and then they kept her in their house. She has also deposed that accused never came to her house to bring back Sonia and on every occasion they themselves pacified the matter and sent Sonia back after calling him. The witness has also deposed that on 04.02.2009 her daughter told her on phone that Sonia had expired after hanging on which she along St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 13 with her family members reached to the house of accused which was found locked from outside. According to her they came to know that Sonia was in the Ambedkar hospital after which they reached there and found Sonia in dead condition in the hospital. She has proved that on the next day i.e. on 05.02.2009 SDM recorded her statement which is Ex.PW11/A. (12) In her cross examination by Ld. Defence counsel, the witness has deposed that at the time of marriage her daughter Sonia was aged 22 years and was employed prior to marriage whereas the accused Rakesh Kumar was aged 35 years which age was told to them by their Samadhi Gopi Ram at the time of arrangement of marriage. She has admitted that accused Rakesh was having his own house and earning handsomely. She does not remember exactly how many guests were invited at the time of marriage. She is unable to admit or deny whether 50 guests each side attended the marriage ceremony. Witness has further deposed that they spent about Rs 50,00060,000/ for food arrangement and Dharamshala and also admits that they have cordial relationship with Gopi Ram, father in law of her daughter Poonam. According to her they did not lodge any report with the police when they had observed injuries on the body of her daughter Sonia on several occasions when she (witness) used to visit their house or when she had visited her matrimonial home. The witness has also deposed that she had stated to the police and SDM that they had gifted many articles and items when the accused took Sonia back after the motor beating incident. However, when confronted with her statement Ex.PW11/A and statement St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 14 U/s. 161 Cr.P.C. Ex.PW11/1 and Ex.PW11/2 where the said fact is not so recorded. Witness has further deposed that she is not known to the uncle of Rakesh namely Shri Niwas and does not know whether son of Shri Niwas is married in Rohtak on 25.11.2008. She has denied the suggestion that her daughter Sonia some times in a funny manner used to call accused Rakesh as uncle or that her daughter was in the habit of going out of the house without telling accused Rakesh with her friends for shopping and movies etc without informing Rakesh or that no beatings or harassment for dowry was ever inflicted upon the deceased by accused persons. The witness has also denied the suggestion that because of the age differences the life style and temperamental differences developed between the two i.e. Rakesh and Sonia therefore such unfortunate incident took place. According to her, during the wedding period of one and half year, maximum period was passed by her daughter in her house and whenever she went to her matrimonial house she was given beatings by accused Rakesh. Witness has denied the suggestion that she got her daughter married to accused Rakesh after seeing his sound financial condition and comforts and compromised on the age difference between the deceased Sonia and accused Rakesh.
(13) PW17 Ms. Shewta Gupta is the eldest daughter of Rajender Kumar Gupta (complainant) who has deposed that they were three sisters and one brother out of which her sister Sonia Gupta had expired. According to the witness, her sister Sonia was married to accused on 23.07.07 and after her marriage she did not remain happy with the accused as she was being St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 15 subjected to regular taunts from the accused regarding the article given by her father in the marriage and there was regular demand of dowry. She has further deposed that after the marriage Sonia used to stay at Village Haiderpur along with the accused where her sister was subjected to regular maar pitai by the accused and on one occasion she was severely beaten by the accused Rakesh Garg when her brother Rajiv Gupta got her back and she was then taken to the doctor and provided medical assistance and her child had to be aborted. According to the witness, her father had called the family of the accused and with their intervention there was some compromise after which her sister was sent back to their house but she did not remain very happy. She has testified that on 04.02.09 at about 4:30 PM, she received from a call from her elder sister Poonam informing that the accused Rakesh had telephoned to her and informed her that Sonia who was her matrimonial house at Haider Pur had committed suicide by hanging herself. The witness has deposed that she was shocked on receiving the information and she immediately called up her brother and informed him about whatever she was told by her sister Poonam Bansal and asked her brother to confirm this information since she was in her office at that time. She has testified that in the meanwhile she also left her office and tried to contact to accused Rakesh Garg who initially did not receive her phone and later received one of calls and told her that Sonia sister had committed suicide (Phansi Laga Li Hai). She has also deposed that she immediately told Rakesh to rush her sister to hospital but he told her that there was no use as she was virtually dead Iska St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 16 Kya Fayada Ismai to dochar percent hi jaan bachi hai.
(14) In her crossexamination the witness has deposed that she had done B. Com. She has admitted that the marriage of her sister was an arranged marriage. She is unable to tell the age of accused when he was marriage and has voluntarily explained that his age was much more but he had given his age to her family as 28 years. The witness has also deposed that the accused had told her family that he had studied upto M. Com. but at the time of marriage the accused was doing the work of filling of gas cylinders at his shop at Haider Pur. According to her, the marriage between the accused and her sister was performed at Dharamshala at Laxmi Nagar. She is unable to tell how many guests had attended the functions. She has admitted that her sister and accused were residing separately from their other family at Haider Pur and has voluntarily added that family of the accused were residing at Panipat. She has testified that her father was in the construction business at the time of marriage of her sister Sonia. She has denied the suggestion that her sister had never told her that she was unhappy with the accused or that she was being taunted by the accused for giving less dowry. The witness has further deposed that her sister was treated at a private hospital i.e. 'Family Clinic' when she was allegedly beaten by the accused. According to her, they have the record of the treatment taken by her sister from the said clinic and had also informed the SDM about the same and has voluntarily explained that the said Doctor who had treated Sonia had agreed to come for giving evidence in the court. She is unable to St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 17 tell the name of the doctor who had treated her sister Sonia and has voluntarily explained that his name is Dr. Dewan who is having the shop at the Mandawali for the last many years. She has denied the suggestion that they have procured and fabricated the record of her sister for the purposes of the present case. According to the witness, to her knowledge her parents had never made any complaint to the police or any other authority regarding the harassment or dowry demand made by accused. She has also deposed that the proposal for alliance of the accused had come for her sister through the father in law of her sister Poonam and whenever there was some problem the father in law of her sister namely Sh. Gopi Ram Bansal used to be taken into confidence and has voluntarily explained that Sh Gopi Ram Bansal had tried to counsel the accused on many occasion and even informed his brother about the same but to no use. The witness has testified that she had had given this fact in writing to her father to be given to the SDM/ Investigating Officer that when she called up the accused he was not receiving her call and ultimately when he received her call and she told him to take her sister to the hospital but he refused by saying that there was no use as she was virtually dead Iska Kya Fayada Ismai to dochar percent hi jaan bachi hai. However, when confronted with her statement Ex.PW17/DX1 the said fact was not found so recorded. She has denied the suggestion that she has made improvements in her statement and falsely implicated the accused on asking of her family. The witness has also denied the suggestion that her sister was always happy with the accused and there were no complaint by her and for St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 18 this reason there was no complaint in any other authority. (15) PW18 Ms. Poonam Bansal is also the sister of the deceased who has deposed that they were four sisters and one brother of which she at the third number and Sonia who was married with the accused was at fourth number who was two years younger to her. She has also deposed that Sonia was married to Rakesh who was a resident of Panipat on 23.07.07 which marriage was performed with great pomp and show. She has testified that after about twothree days of marriage her sister Sonia came to her father's house for Pagphera where she was also present and while talking to her she (Sonia) starting crying and when she asked her the reason for crying she (Sonia) told her that on the first day of marriage itself the accused Rakesh started taunting her with regard to the articles given by her father in the marriage. The witness has further deposed that Sonia told her that on seeing the watch gifted by her father Rakesh told her ye ghadi kesi hai, 600 rupee ki ghadi de di tere papa ne and thereafter he started arguing on the value of various articles given by her father at the time of marriage. She has also deposed that on the next day her sister in law Sheela also did not talk to her properly being unhappy by the articles given by her father at the time of marriage and also taunted Sonia saying that hamene apne bhai ki bade armano se shadi ki thi. Hame kya pata hamari kismat me tu likhi hai, bhuke nange ghar ke. The witness has also deposed that on hearing all this they were worried about the welfare of Sonia and they gave her a mobile phone thinking that at least they would be able to speak to her and know her St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 19 welfare. She has testified that her sister Sonia often spoke to her on the said mobile phone and told her that her husband used to subject her to regular taunts for bringing less dowry and used to beat her but she consoled her stating that she would come with her (witness's) father in law through whom the alliance had been fixed and he would advice the accused. She has also deposed that her sister and the accused had shifted to Haider Pur. According to the witness, on one occasion her father in law Sh. Gopi Ram, her husband, Smt. Sheela and she herself had gone to the house of the accused and advised him not to misbehave with her sister on which the accused undertook not to misbehave with her sister. According to her, after this episode, till about twothree months the behavior of the accused was normal but thereafter again his behavior towards her sister became bad and he used to beat him on every small opportunity for no fault of her. The witness has also deposed that on one occasion the accused while beating her sister had threatened her to call up her brother and told her that it was only when her brother would hear her cries that her brother and other family members would give something to him after which the accused called up her brother and made him hear the cries of Sonia from his mobile while she was being beaten by the accused and was asking her brother to save her. She has testified that pursuant to this incident her brother brought Sonia at home and thereafter a meeting was called at Sonipat where the relatives from both the sides were called because her sister had also suffered miscarriage on two occasions on account of the physical trauma which she was facing in the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 20 hands of the accused on account of the Maar Pitai. The witness has also deposed that at that time the Mama of accused Sh. Braham Kumar, her father in law Sh. Gopi Ram, his brother Laxman and also her father were present in the said meeting after which the accused undertook not to misbehave with her sister and they sent her back to the accused after Karawa Chauth. She has testified that even after this incident the accused continued to torture her sister and did not even get her the medical treatment after her miscarriage as there was swelling in the abdomen and it was her father who brought her home and got her medical treatment. The witness has further deposed that on 04.02.09 she was in Sonipat when Rakesh called her up on her landline phone which phone was received by her mother in law and was inquiring about her father in law but since he was not at home so she (witness) attended the call. According to her, Rakesh told her apki behan ne phasi laga rakhi hai. Drama kar rakha hai. Public ekhati kar rakhi hai on which she told him to rush her to the hospital on which the accused stated ek percent chance hai and immediately disconnected the phone thereafter. The witness has also deposed that on hearing this she became scared and perplexed and she immediately called up her younger sister Shewta and informed her about the same after which she again tried to contact the Rakesh but cannot contact. According to the witness, her statement was recorded after about twothree days of incident.
(16) In her crossexamination the witness has deposed that she is married more than 9 years. She has admitted that the marriage of her sister St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 21 was solemnized with the accused through her father in law Sh. Gopi Ram who acted as a mediator and has voluntarily explained that her father in law distinctly related to the family of the accused and has good relations with them. The witness has also admitted that her sister remained with the family of in laws at Panipat for very short time and thereafter shifted to Haider Pur along with accused in his own house where she resided separately. She has admitted that accused Sheela is married and was residing at her matrimonial home but has denied the suggestion that there was no interference from Sheela. The witness has also admitted that they have given a mobile phone to her sister and she often spoke to her (Sonia). She has denied the suggestion that accused never objected to her sister speaking to her or to other family members on phone. The witness has admitted that the accused often told her that her sister was addicted to the mobile (mobile se chipki rehti hai). She has denied the suggestion that it was her frequent interference in the family of her sister who was regularly in touch with her on which was the cause of matrimonial discord between her sister and the accused. The witness has also denied the suggestion that there was a frequent interference of her family in the matrimonial life of her sister to which the accused had objections. She has admitted that she had told the police that the accused used to taunt her sister on small things like standing, sitting and going out of the house. According to her, the watch given by her father in the marriage was worth Rs.3,600/ but she is unable to tell the details of the said watch and has voluntarily explained that it was purchased St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 22 by her father. She has admitted that the accused had never demanded any watch and her father had given the same of his own. The witness has also admitted that at the time of marriage there was no specific demand on behalf of accused and has voluntarily stated that her father had made it very clear to the family of the accused that whatever possible they would do for the girl. She has further admitted that even Sheela who was married at that time did not raise any demand. The witness has denied the suggestion that there was no such incident of taunting her sister for value of various articles given at the time of marriage as there was no occasion for the same, there being no demand.
(17) She is unable to tell the details of the first miscarriage of deceased that is whether it was at her father's house or at her own house. She is also unable to tell whether she (deceased) was taken to any doctor at that time and has voluntarily explained that she is aware of the second miscarriage which had taken place because she (deceased) was got medically treated from a private doctor at Laxmi Nagar. The witness has admitted that she was not present at her father's house at the time when second miscarriage took place and has voluntarily explained that she was informed about the incident by her sister who came to stay with her for some time thereafter for about ten days. She has admitted that Rakesh did not object to Sonia staying at her house at that time and has voluntarily stated that she had explained to Rakesh that there was swelling in the abdomen which required a treatment and it is for this reason that Sonia was staying with her. She has St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 23 denied the suggestion that the accused used to take good care of her sister and miscarriage if any was not on account of any beating or physical trauma by the accused to the deceased but on account of her weak physical status and it is for this reason that her sister was under depression. The witness has further admitted that she did not personally witness the incident when the accused had given physical beatings to her sister and called up her brother on mobile so that he could hear her cries and has voluntarily explained that she (witness) was told about it by Sonia and her brother. According to her, this incident was prior to the time when Sonia had stayed with her before her death. She has admitted that even after this alleged incident her sister had been residing with the accused and has voluntarily explained that it was on account of compromise. The witness has also admitted that there is no compromise in writing and that no police complaint had been made against the accused at any point of time nor any complaint had made to any other authority regarding the harassment caused to her sister by the accused. She has testified that she had told the police that when Rakesh called her on telephone on 04.02.09 he told her apki behan ne phasi laga rakhi hai. Drama kar rakha hai. Public ekhati kar rakhi hai on which she told him to rush her to the hospital on which the accused stated that ek percent chance hai and immediately disconnected the phone thereafter. However, when confronted her statement under Section 161 Cr.P.C. which is Ex.PW18/DX1 the said fact was not found mentioned. She St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 24 has denied the suggestion that accused and his family were financially well off and there was no question of making any demand for dowry or issuing any threats or taunts to the deceased on account of dowry. The witness has also denied the suggestion that on account of frequent interference of her and her family in the family affairs of Sonia which was not liked by Rakesh, there was matrimonial discord since her sister was ignoring the accused while she remained on mobile phone throughout the days. The witness has further denied the suggestion that there was an adjustment problem of her sister with the accused after the marriage on account of the age difference and she was in depression because of the same and also because of her physical condition on account of which she had suffered miscarriage. She has denied the suggestion that accused had never objected to the deceased visiting her father's house or any other relative because he wanted the deceased to get proper medical treatment and therefore the question of harassment does not arise.
(18) PW19 Raj Singh is the neighbour of the accused Rakesh and has deposed that he is a Driver by profession and used to operate his taxi from Delhi Cantt on contract basis. According to him, on 04.02.09 at about 5:00 PM when he returned home from his work he found a large number of persons gathered at Gali No.7 in the house of accused Rakesh and on query he came to know that the wife of Rakesh had committed suicide by hanging herself and was serious. The witness has further deposed that he was told that she was required to be shifted to hospital on which he immediately St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 25 brought his taxi and took Rakesh, his wife and sister Sheela to Baba Ambedkar Hospital where he left them. According to the witness later he came to know that wife of accused Rakesh had expired. This witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
(19) PW20 Sh. Gopi Ram has deposed that Rajendra Kumar Gupta is his Samdhi as his (Rajender Kumar Gupta's) daughter Poonam was married with his son namely Sunil before ten years ago. According to him, Sonia @ Mona was the third daughter of Rajendra Gupta who was married with accused Rakesh Kumar Garg on 23.07.2007 and he was the mediator in the said marriage. He has deposed that after twothree months of the said marriage he came to know from his daughter in law namely Poonam that there was quarrel between Sonia and her husband Rakesh on small issues on which he along with Poonam and Rajender brother of accused Rakesh went to the house of Rakesh at Shalimar Bagh and tried to advise them that they should not quarrel but in turn they use to make them understand that there was no such quarrel or dispute. He has further deposed that again after twothree months he along with Rajendra Gupta, Rajender and Lachhman Dass both brother of accused Rakesh went to the house of accused at Shalimar Bagh and again counseled them not to quarrel but both the deceased and accused Rakesh made understand that there was no such quarrel or dispute and that they had called him only for courtesy visit (milne ke bahane bulaya tha). He has testified that after one month St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 26 deceased Sonia went to her parental house and he told Rakesh to get Sonia back but instead he responded by saying "it is her house she can come back"
(yeh uska ghar hai, wapis aa jaye). According to him, in the month of October 2008 a meeting was held at the house of Brahma Nand at Sonepat where he was present along with Brahma Nand, Vishnu, Lachhman, Rajender, accused Rakesh, parents of deceased Sonia and brother of deceased namely Rajiv Gupta and Poonam were present in the said meeting which meeting was held due to quarrel / dispute between Sonia and accused Rakesh when both deceased and accused Rakesh were advised by them not to quarrel with each other. He has further deposed that Brahma Nand took the responsibility to take care of both both persons and visit them regularly after which Sonia was taken to her matrimonial house by accused Rakesh. He has also deposed that on 04.02.2009 in the evening time he came to know that Sonia committed suicide by hanging and on 05.02.2009 he came to Delhi and went to BJRM Hospital and thereafter took part in the cremation proceedings of deceased Sonia. The witness has correctly identified the accused Rakesh in the Court but he is unable to identify the accused Sheela claiming that he had never met her though she knew that she is the sister of Rakesh Garg.
(20) With the permission of the Court leading questions were put to the witness by the Ld. Addl. PP for the State with respect to cruelty made by accused Rakesh to the deceased Sonia wherein the witness has deposed that police made inquiries from him and recorded his statement. He has St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 27 admitted that his daughter in law Poonam told him that accused Rakesh harassed Sonia on small issues and gave beatings to her. He has however denied the suggestion that Rajendra Gupta also told him that Rakesh Garg used to harass Sonia on small issues and gave beatings to her; that he had told the Investigating Officer that Rajendra Gupta informed him that in June 2008 Rakesh Garg had kicked Sonia on her stomach and gave her beatings resulting into miscarriage of 2 ½ months pregnancy after which Sonia was taken from her matrimonial home at Mandawali where she was provided medical treatment and has voluntarily explained that it was his daughter in law Poonam i.e. the elder sister of Sonia who informed him about all these facts which he came to know through her. According to him, Brahma Nand is also known by the name of Brahm Prakash who is maternal uncle of accused Rakesh. He has admitted that in the meeting held in October 2008 Brahm Prakash gave assurance to them that accused Rakesh would not harass Sonia and he would not give beating to her. (21) In his crossexamination by the Ld. Defence Counsel the witness has deposed that his daughter in law Poonam resides with them in a joint family at Sonepat. According to him, the parents of Poonam are very respectful towards them and also confides in him on various issues regarding family. The witness has testified that Sonia never stayed overnight in their family and has voluntarily explained that she often used to come to meet her sister and also for her treatment from a "Dai" after her abortion/ miscarriage but normally left by evening. He is not aware if Sonia was suffering from St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 28 any Gynecological problem. He has further deposed that when he suggested the alliance of Rakesh and Sonia at that time Rakesh was having good income and even after his marriage there was no financial problem in his business. The witness has admitted that before the marriage the mother of accused Rakesh had expired due to which the marriage was a simple affair with not much pomp and show and has voluntarily explained that there was no give and take / lena dena in the marriage.
He has testified that there was marriage of his grandson (Pota) namely Kapil at Tri Nagar, Delhi on 07.12.2008 and both accused Rakesh and deceased Sonia had attended the said marriage and appeared to be happy at the said function. According to him, there was no demand of dowry either at the time of marriage nor any such demand was brought to his notice after the marriage. He has admitted that Rajendra Gupta (father of deceased Sonia) has great regard for him.
(22) PW21 Sh. Rajeev Gupta is the elder brother of the deceased Sonia who has deposed that now he has three other sisters namely Santosh, Poonam and Shewta. According to the witness, his sister Sonia was married with accused Rakesh Garg on 23.07.2007 and they had given gifts and dowry articles to her sister in the marriage according to their status. He has deposed that after marriage Sonia resided at Panipat and after twothree days Sonia started residing along with her husband at House No. 666, Gali No. 7, Ambedkar Nagar, Haiderpur, Delhi. The witness has further deposed that St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 29 he used to talk with her sister Sonia after her marriage and she informed him about her conditions regularly. According to him, after fourfive months of the marriage Sonia told him that accused Rakesh was harassing her continuously on small issues and gave beatings to her. He has testified that on 16.06.2008 accused Rakesh Garg made a telephone call to him and he told that his sister was making a drama at her matrimonial house. The witness has deposed that he had heard his sister Sonia weeping at that time and she told him that she was being given beating by her husband. He has further deposed that after hearing the cries of his sister he asked accused Rakesh why he had given beating to his sister on which the accused stated that he would beat his sister in the usual manner. According to the witness, he immediately informed about this incident to his father Sh. Rajender Kumar Gupta and in the evening he went to the matrimonial house of his sister and found beating marks on her body and she was weeping at that time. He has testified that thereafter he took his sister Sonia with him to their house at Mandawali where she remained with them thereafter for about twothree months. According to him, three to four days before the Karawachauth in the year 2008 he along with his sister Sonia, his parents, his another sister Poonam and Sh. Gopi Ram reached the house of Vishnu Parkash and Braham Parkash at Sonipat for a meeting/ panchayat where accused Rakesh Garg, his brother Rajender and his maternal uncle Vishnu and Braham Parkash were present. He has testified that after discussing the matter in the meeting, lastly Vishnu Parkash and Ved Parkash gave assurance St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 30 to them that accused Rakesh will not harass Sonia and he will not beat Sonia. According to him, after the meeting and their assurance Sonia was sent with Rakesh Garg and thereafter they resided at their matrimonial house at Haiderpur.
(23) The witness has further deposed that on 04.02.2009 at about 4:45 PM he received a telephone call from his younger sister Shweta Gupta that she had received telephone call of Poonam that Sonia was expired on which he immediately tried to contact the accused Rakesh Garg on his phone but same was not responded and found switched off. He has also deposed that after about 45 minutes Rakesh Garg received his phone and informed him that when he returned back to his house, he found Sonia on the chair on which he called a doctor but the doctor told that there was only one percent chance of surviving Sonia. The witness has also deposed that he again told Rakesh to take Sonia to the hospital but he refused and he again made request to him to take her to the hospital and thereafter on his continuous request accused Rakesh Garg took Sonia to Ambedkar hospital. He has further deposed that he along with his mother and aunt reached at Ambedkar Hospital at Rohini were they found Sonia lying dead in the emergency ward of the hospital. According to him, they asked accused Rakesh Garg about the actual facts but his behaviour was not normal. He has testified that accused Sheela was also present there but she was also not responding to their queries. The witness has further deposed that police also reached at the hospital and the dead body was transfered to the BJRM Hospital and took St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 31 the accused persons to Police Station. He has proved that on the next day i.e. on 05.02.2009 he identified the dead body of his sister Sonia vide statement Ex.PW21/A. According to him, his two statements were recorded in the police station on 05.02.2009, one statement was recorded by the SHO Police Station Shalimar Bagh but he does not remember about another person who recorded his statement. He has correctly identified both the accused Rakesh and Sheela in the Court.
(24) The Ld. Addl. PP for the State had put leading questions to the witness as he was not giving the complete details wherein he has admitted that his statement was written by Inspector Puran Chand in the presence of the executive Magistrate MZ Ansari on his directions and dictation which statement is Ex.PW21/B. (25) In his crossexamination by the Ld. Defence Counsel the witness admitted that Sh. Gopi Ram is the father in law of his sister Poonam who also reside in Sonepat. He has further admitted that they were very thick with Sh. Gopi Ram and discussed their day to day affairs with him and also confided him regarding their joys and sorrows. The witness has also admitted that they have high regard with Sh. Gopi Ram and the marriage of her sister Sonia with Rakesh was also fixed through Sh. Gopi Ram. According to him, on 16.06.2008 he had come to the house of her sister deceased Sonia and taken her away to their house at Mandawali on a motorcycle. He has testified that after getting her back to Mandawali no medical examination of Sonia was got conducted nor she was got medically St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 32 treated from any doctor and has voluntarily explained that there was no such apparent injury which required treatment. He has admitted that they did not lodge any police report regarding this incident. The witness has also admitted that the normal complaint of Rakesh was that Sonia frequently used to remain on mobile phone talking to people and did not attend on household work and it is for this reason that there was a dispute between them pursuant to which Sonia returned the mobile phone to them. He has also admitted that during 28.12.2008 till 10.01.2009 Vijender Bansal, the Jija of accused Rakesh was admitted in Maharaja Agarsain Hospital and they had gone to met him along with Rakesh and Sonia. He has further admitted that Sonia did not make any complaint to them regarding any ill treatment by Rakesh when she met them there. The witness has denied the suggestion that on account of frequent interference of his and his family there was marital discord between Rakesh and Sonia or that there was a general adjustment problems of Sonia with Rakesh on account of age difference of about 11 years and has voluntarily explained that at the time of marriage they were given the wrong age of the accused Rakesh on the lower side and after the marriage it was revealed that age of Rakesh was much more and he had also taken up this issue with in laws. The witness has admitted that it is for this reason that his sister was finding it difficult to adjust with Rakesh and has voluntarily explained that they used to start fight of any issue. He has denied the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 33 suggestion that the actual age of the accused Rakesh was known to them before the marriage or that being aggrieved by the death of his sister he has falsely implicated Rakesh and his sister in this case. (26) PW24 Sh. Virender Kumar Gupta a property dealer by profession is the uncle of the deceased has deposed that in the year 2009 he was residing at House No.B59, Shakarpur, Delhi. According to the witness, Rajiv Gupta is his nephew and Poonam is the sister of Rajiv Gupta. According to him, on 04.02.09 at about 4:305:00 PM he was present at his office at Pandav Nagar when he received a phone call from Rajiv Gupta that Poonam telephoned to him that Mona @ Sonia had committed suicide at her matrimonial house at Shalimar Village, Ambedkar Nagar, Haidarpur as there was a quarrel between Mona @ Sonia and her husband. He has further testified that he told Rajiv Gupta to reach there with her mother and his wife and he (witness) would reach there by his motorcycle. According to him, within 30 minutes at about 6:00 PM he reached at House of the Mona @ Sonia in Gali No.7, Ambedkar Nagar, Haidarpur where he found that the house was locked and thereafter, he came to know from neighbourhood persons that Sonia was taken to the Ambedkar Hospital by Rakesh Garg. He has also deposed that meanwhile his wife Raj Rani Gupta, Rajiv Gupta and his mother also reached there after which they reached at Ambedkar Hospital where accused Rakesh Garg husband of the Mona @ Sonia met him in the hospital who informed him that Mona @ Sonia was already declared dead. The witness has testified that Rakesh further told him that a St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 34 quarrel took place between him and Mona @ Sonia and thereafter, he went to his shop and Mona @ Sonia committed suicide by hanging. According to him, the dead body of Sonia was sent to the Hospital mortuary at Jahangirpuri for postmortem. He has also deposed that on the next day on 05.02.09 he along with twothree police officials reached the house of the Mona @ Sonia and accused Rakesh Garg which house was opened by the police officials. According to the witness, two chunnis were found on the bed, one was of red colour and another was of sky blue colour which were kept in a cloth pullanda by the police which was sealed with the seal of RDS and was seized vide memo vide Ex.PW24/A. He has testified that Amit Gupta his another nephew was also present at that time who also put his signatures on the seizure memo. The witness has testified that after postmortem dead body was handed over to Rajender Gupta father of the deceased vide Ex.PW10/C. (27) He has correctly identified the accused Rakesh Garg is in the Court and also identified the case property i.e. two chunnis which are collectively Ex.P1.
(28) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein he has admitted that the house of the accused Rakesh was bearing No.666, Gali No.7, Ambedkar Nagar, Haidarpur. (29) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he had gone to the house of the Sonia @ Mona two times before her death. According to her, Sonia and accused Rakesh were St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 35 cordial to him when he visited the house. He has further deposed that he had told the police in his statement recorded on 05.02.09 that when he reached hospital, accused Rakesh told him that he had a quarrel with deceased Sonia and thereafter, he left for his shop and she hanged herself. However, when confronted with his statement Ex.PW24/DX1 where the said fact was not found so recorded. He has denied the suggestion that he has improved his statement in the court to favour the complainant. Medical witnesses:
(30) PW1 Dr. Raj Mohan Trivedi has deposed that on 04.02.2009 he was posted as CMO in the BSA Hospital and on that day at about 6 PM, patient Sonia W/o Rakesh Kumar aged 23 years female was brought in the casualty. According to him Rakesh Kumar told that Sonia was found lying unconscious in his house. Witness has further deposed that he examined the patient and found that patient was unconscious, BP not recordable, respiration not appreciable, entire body was cool, rigormortis absent, pupils bilateral dilated and fixed. He has testified that ECG showed straight line and ligature mark were present around neck except posterior part of neck.
Witness has proved that he declared the patient brought dead at 6:10 PM and body was handed over to the police for necessary action. He has proved having prepared the MLC which is Ex.PW1/A. He has further testified that he also observed that the signs of fresh injuries on the body other than neck was absent and all valuables have been taken out from the body by husband St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 36 Rakesh Kumar. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(31) PW2 Dr. Sunil Kumar Diwan has deposed that he used to run the Family Clinic and Maternity Home with his wife Dr. Bela Diwan at B45/2, Mandawli, Sazalpur, Unchepar (Opp. Nikki Complex), Delhi. According to the witness on 27.06.2008 patient Sonia came to his clinic with her father with the complaint of bleeding per vagina and were also having a ultrasound report with them. He has testified that his wife examined the patient and also examined the ultrasound report and found that patient was suffering from incomplete abortion (as per the ultrasound report). Witness has further deposed that the complete abortion was done by his wife Dr. Bela Diwan and the patient Sonia was discharged from the hospital on the same day. According to him on 30.06.2008 they again visited the clinic for review check up. He has proved the prescription dated 27.06.2008 which is Ex.PW2/A; prescription slip dated 30.06.2008 which is Ex.PW2/B and the report brought by patient Sonia which is Ex.PW2/C. (32) In his cross examination by Ld. Defence counsel the witness has deposed that his wife Dr. Bela Diwan is still in active practice at the Family Clinic and Maternity Home.
(33) PW3 Dr. Poonam Tyagi from Sarthi Ultra Sound, 102, Dwarka Shish, Dirst Floor, Vikas Marg, Shakarpur, New Delhi has deposed that on 26.06.2008 patient Mrs. Sonia aged about 21 years came to his clinic for St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 37 ultrasound examination of pelvis on which she did ultrasound and examined the patient and found that the urinary blood adequately filled with urine bladder ball contour was even. According to the witness, uterus appeared as a pear shaped organ and was anteverted sized 7cm x 3.3 cm, Myometrial echoes were even, cavity appeared wide and an irregular gestational sac of size 9 mm was seen in the uterine cavity in fundal area. Witness has further deposed that decidula reaction was weak and the sac was separated from uterine wall by haem and Internal OS was open. According to the witness such ultrasound picture is suggestive of incomplete abortion and both adenexal regions and ovaries appeared normal. She has testified that in her opinion it was incomplete abortion and she prepared her detailed report with diagram which is Ex.PW2/C which report was handed over to the patient. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(34) PW4 Dr. K. Goyal has deposed on behalf of Dr. Deepak Mathur and has proved the postmortem report of deceased Sonia Gupta, aged 23 years. According to the witness, the body was sent by M.Z. Ansari, Executive Magistrate, Model Town, Delhi with alleged history of found lying unconscious on 04.09.2009 and was taken to the BSA Hospital where she was declared dead at 6:10 PM on 04.02.2009. he has deposed that the postmortem examination was conducted by Dr. Deepak Mathur and on external examination there was ligature mark round the neck, but no St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 38 ligature material was found and there was contused mark seen incompletely circling the neck, measuring 27 cm x 1½ cm running transversely, anteriorly placed 6 cm below chin and running obliquely beneath the angles of mandibles towards both ear lobules, 4cm below right and 6 cm below left ear lobule towards nape of neck with a gap of 10 cm on right lateral neck, the total neck circumference was 32 cm and Ligature mark was parchmentised. The witness has testified that on internal examination the subcutaneous tissue underneath the ligature mark were white, parchmentised having no extra vasation of blood and all neck structures were intact. He has further deposed that the final opinion regarding the cause of death was kept pending as blood and viscera were preserved for chemical analysis, however the postmortem findings were consistent with ligature pressure on neck and time since death was about 24 hours. He has also deposed that sealed parcel of viscera was handed over to the police. The detail postmortem report is Ex.PW4/A. According to the witness on 01.05.2009 Investigating Officer moved an application for seeking subsequent opinion about the cause of death which application is Ex.PW4/B and also produced the postmortem report. He has testified that he examined the postmortem report and at that time chemical analysis of blood and viscera has not been submitted by the Investigating Officer, hence the final opinion regarding the cause of death was not given. The witness has further deposed that in his opinion the postmortem findings mentioned in the postmortem report are consistent with the ligature hanging and his report in this regard is Ex.PW4/C. St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 39 According to him, on 22.07.2009 the Investigating Officer again moved an application for subsequent opinion with regard to cause of death, vide application Ex.PW4/D and also produced FSL result of the viscera and the postmortem report. The witness has also deposed that Dr. Deepak Mathur examined the postmortem report and FSL report and opined the cause of death as asphyxia consequent upon antemortem hanging which opinion is Ex.PW4/E. He has proved that on the same day the Investigating Officer moved an application for providing the opinion regarding the ligature material which application is Ex.PW4/F and also produced one sealed parcel duly sealed with the seal of RDS before Dr. Deepak Mathur for obtaining the subsequent opinion. The witness has testified that Dr. Deepak Mathur opened the parcel by breaking the seal and found that two printed clothes (chunni) one of them measuring 193 cm x 80 cm of reddish orange in color and another was measuring 198 cm x 107 cm purplish blue in color. He has also deposed that both the clothes were totally opened from both ends and no knot over chunnis and after examining Dr. Deepak Mathur opined that no definite opinion regarding use of either of these ligature material for hanging can be given as two separate ligature material were produced which opinion is Ex.PW4/G. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 40 FSL Witness:
(35) PW22 Sh. Jitendra Kumar, Senior Scientific Assistant (Chemistry), FSL, Rohini, Delhi has proved that on 16.02.09, they received one parcel in case FIR No.31/09 from Police Station Shalimar Bagh in sealed condition and the seal was found intact and tallied with the sample seal.
According to the witness they found four viscera contents in the parcel which he examined and could not found any common poison in the viscera contents. He has proved his detailed report in this regard which is Ex.PW22/A. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
Police / official witnesses:
(36) PW5 SI Manohar Lal is a formal witness being the Draftsman who has deposed that on 10.02.2009 he was called by the Investigating Officer on which he reached at police station Shalimar Bagh at about 11 AM and thereafter he along with the Investigating Officer reached at the place of occurrence i.e. house No.666, Gali No.7, Ambedkar Nagar, Haiderpur, Delhi. According to him he took rough notes and measurements of the scene of crime at the instance of the investigating officer for preparation of the scaled site plan and he prepared the scaled site plan vide EX PW 5/A bearing his signatures at point A and rough notes and measurements were destroyed after preparation of scaled site plan and investigating officer St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 41 recorded his statement.
(37) The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(38) PW6 W/Ct. Usha has deposed that on 04.02.2009 she was posted at Police Control Room and on that day at about 18:18 hrs (6:18 PM) she received information by phone No. 9310483195 that "Ek ladki ne phansi laga lee hai, aur uske ghar wale use pata nahi, kis hospital mein le kar gaye hai". According to her, the informer also told that the place of incident is i.e. at H.No. 666, Ambedkar Nagar, Haiderpur Gali No. 7. Witness has further deposed that she prepared the PCR form through computer which is Ex.PW6/A and the form was sent for circulation. The witness has not been cross examined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted. (39) PW7 ASI Sumedha has deposed that on 05.02.2009 she was posted as Duty Officer at Police Station Shalimar Bagh from 8 AM to 4 PM and on that day at about 12:56 PM she received rukka sent by SHO police station Shalimar Bagh for registration of FIR. According to the witness she recorded FIR No.31/09, under Section 498A/304B IPC through Computer Operator which FIR is Ex.PW7/A which is the correct version of the Rukka.
She has also proved her endorsement on the rukka vide Ex.PW7/B. The witness has not been cross examined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted. St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 42 (40) PW8 Ct. Dalbir Singh has deposed that on 05.02.2009 he was posted as photographer in Mobile Crime Team, North West District and on that day he along with Incharge SI Matadeen Meena along with other staff of the mobile crime team reached at house No. 666, Gali No. 7, Ambedkar Nagar, Haiderpur, Delhi where local police was already present there. He has testified that they inspected the scene of crime and he took eight photographs of the scene of crime at the instance of the Investigating Officer. The witness has proved the negatives of the photographs which are Ex.PW8/A1 to Ex.PW8/A8 and the photographs which are Ex.PW8/B1 to Ex.PW8/B8. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(41) PW9 SI Matadeen is the Crime Team Incharge who has deposed that on 05.02.2009 he along with photographer Ct. Dalbir singh and Driver reached at house NO. 666, Gali No. 7, Ambedkar Nagar, Haiderpur, Delhi where local police was already present there. According to the witness he inspected the scene of crime and found that two chunnies were lying on the bed and he directed the Investigating Officer to seize the same. Witness has further deposed that photographer took the photographs of the scene of crime from different angles. He has proved having prepared his detailed report which is Ex.PW9/A which he handed over to the Investigating Officer. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 43 gone uncontroverted.
(42) PW12 Ct. Parmod is a formal witness being the duty Constable at BSA hospital who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.). He has proved that on 4.2.2009 at about 6:25 PM he telephonically informed Duty Officer of Police Station Shalimar Bagh that one Sunita had been brought to the hospital by Rakesh and his sister who had been declared brought dead. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted. (43) PW13 HC Surender Pal is a formal witness being the Duty Writer who has been examined by way of affidavit which is Ex.PW13/1 (as per the provisions of Section 296 Cr.P.C.). He has proved that on 4.2.2009 at about 6:25 PM he received a call from Duty Ct. Pramod who informed that one Sunita had been brought to the hospital by Rakesh and his sister who had been declared brought dead, on which he recorded DD No.54B which is Ex.PW13/A. He has also proved having recorded DD No.55B copy of which is Ex.PW13/B regarding handing of one lady which information was received from wireless operator. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
(44) PW14 Ct. Rakesh is a formal witness who has been examined by way of affidavit which is Ex.PW14/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 4.2.2009 he took the dead body St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 44 of Sonia to the mortuary of BJRM Hospital. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
(45) PW15 HC Raghuraj is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW15/1 (as per the provisions of Section 296 Cr.P.C.). He has proved entry No. 3462 and 3462 in register no. 19 copy of which are Ex.PW15/A; copy of RC No. 9/21/09 which is Ex.PW15/B; copy of FSL receipt which is Ex.PW15/C. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted. (46) PW16 Ct. Ashok Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW16/1 (as per the provisions of Section 296 Cr.P.C.). He has proved having taken the exhibits of this case to to FSL Rohini. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
(47) PW23 Lady Ct. Parvesh has deposed that on 05.02.09 she was posted at Police Station Shalimar Bagh and on that day at about 9:00 PM she was informed by the Duty Officer to reach at House No.D71/A, Village Shalimar. According to her, within ten minutes she reached there and Inspector Puran Chand, SI Ramesh, Ct. Shree Bhagwan were already present there. The witness has proved that accused Sheela was interrogated by Inspector Puran Chand after which the accused Sheela was arrested vide St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 45 Ex.PW23/A and she (witness) conducted her personal search vide Ex.PW23/B. According to the witness, thereafter the accused was taken to Police Station and on the directions of the Investigating Officer she took her for medical examination and after her medical examination, she handed over copy of MLC and accused Sheela to the Investigating Officer. She has correctly identified the accused Sheela is the Court. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence her testimony has gone uncontroverted.
(48) PW25 Ct. Shree Bhagwan has deposed that on 05.02.09 he was posted at Police Station Shalimar Bagh and on that day he was on beat duty when Investigating Officer called him after which he along with SI Ramesh Dutt and Inspector Puran Chand reached at House No.666, Gali No.7, Ambedkar Nagar, Haidarpur, Delhi where Crime Team was already present. According to the witness Executive Magistrate of Model Town was also present there and they found two chunnis on the bed, one of red colour and another of sky blue colour which were kept in a cloth pullanda by SI Ramesh Dutt and sealed the same with the seal of the 'RDS' which seal was handed over to him after use after which he again went for his duty. He has further deposed that in the same evening at about 6:00 PM he along with SI Ramesh Dutt and Inspector Puran Chand again reached the spot and house was found locked and thereafter, he went to the nearby shop and called the accused Rakesh Garg at the spot after which the lock of the house was opened and Investigating Officer conducted his proceedings inside the room. St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 46 He has proved that thereafter the accused Rakesh was arrested by Investigating Officer vide Ex.PW25/A and his personal search was conducted vide Ex.PW25/B. According to the witness, at the instance of accused Rakesh Garg they reached at Shalimar village B71/A and Lady/Ct. Parvesh was also called there by the Investigating Officer and the instance of the accused Rakesh Garg, his sister Sheela was also arrested by the Investigating Officer and her personal search was taken by Lady Ct. Parvesh at the instance of the Investigating Officer. He has testified that accused Rakesh and Sheela were taken to the BJRM Hospital for medical examination and thereafter, the medical documents and accused were handed over to the Investigating Officer. He has correctly identified both the accused Rakesh Garg and Sheela in the court. He has not been cross examined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
(49) PW26 SI Ramesh Dutt has deposed that on 04.02.09 he was posted at Police Station Shalimar Bagh and on that day, he received DD No. 54B that Sonia wife of Rakesh was brought at Ambedkar Hospital by Rakesh and his sister and she was brought dead which DD is Ex.PW13/A. According to him, he also received the DD No.55B which is Ex.PW13/B on which he along with Ct. Manoj immediately reached at House No. 666, Gali No.7, Ambedkar Nagar, Haidarpur, Delhi which house was found locked. The witness has also deposed that he left Ct. Manoj at the house whereas he himself went to Ambedkar Hospital. He has proved having collected the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 47 MLC of Sonia who was already declared as brought dead and came to know that the marriage between Sonia and her husband Rakesh took place before 1½ years back on which he immediately informed the SDM about the death of the Sonia. He has testified that he called Ct. Rakesh at the hospital and the dead body of Sonia was taken to the mortuary, BJRM Hospital where the dead body was preserved for postmortem vide his application Ex.PW26/A and the SDM directed him to bring the relatives of the deceased on the next date. According to him, on 05.02.09, Sh. M.Z. Ansari Executive Magistrate of Model Town inspected the site and Crime Team officials also reached the spot and inspected the site and took photographs. He has proved that two chunnis were also found on the bed, one of red colour and another was of sky blue colour which were kept in a cloth pullanda by him in the presence of Amit and Virender, relatives of the deceased which pullanda was sealed by him with the seal of 'RDS' vide seizure memo Ex.PW24/A and the seal was handed over to Ct. Shree Bhagwan after use. The witness has also deposed that he obtained the crime team report and deposited the seized pullandas in the Malkhana and handed over the prepared documents to the Investigating Officer Inspector Puran Chand.
(50) The witness has further proved that on the next day on 05.02.2009 he along with Inspector Puran Chand reached at BJRM Hospital Mortuary where Executive Magistrate Sh. M.Z. Ansari prepared the inquest documents and on his directions, postmortem was conducted after which the dead body was handed over the relatives of the deceased. The witness has St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 48 further deposed that after postmortem Duty Constable handed over the viscera of the deceased in sealed condition with the sample seal to the Investigating Officer who seized the same vide seizure memo Ex.PW26/B. He has also deposed that on the same evening at about 7:00 PM he along with Ct. Shree Bhagwan and Inspector Puran Chand reached at the place of incident where at the instance of the accused Rakesh Garg, Investigating Officer prepared the site plan and thereafter, accused Rakesh Garg was arrested vide Ex.PW25/A and his personal search was conducted vide Ex.PW25/B. The witness has testified that at the instance of the accused Rakesh Garg they reached at the house of the Sheela at Shalimar village and Lady Ct. Parvesh was called there by the Investigating Officer. According to him, at the instance of the accused Rakesh Garg, his sister Sheela was arrested by the Investigating Officer.
(51) He has correctly identified the accused Rakesh Garg and Sheela in the Court and also identified the case property i.e. two chunnis which are collectively Ex.P1. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
(52) PW27 Sh. M.Z. Ansari (Retired Executive Magistrate, Model Town) has deposed that on 05.02.2009 he was posted as Executive Magistrate Model Town, Delhi and on that day at about 8:00 AM he received information from SDM Model Town that a lady had expired within seven years of her marriage and directed him to inspect the place and to conduct St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 49 the further proceedings. According to him, thereafter at about 1010:30 AM he reached at Police Station Shalimar Bagh after which he along with SI Ramesh Dutt reached the house of the deceased at Haiderpur and the dead body had already been removed on 04.02.2009. The witness has further deposed that he tried to interrogate neighbour and public persons but nobody came forward and in the meanwhile crime team officials reached there. He has testified that thereafter he reached at Police Station Shalimar Bagh where the father, brother, sister and relatives of deceased Sonia met him. He has proved the statements of Rajender Kumar Gupta, Asha Gupta and Rajeev Gupta vide Ex.PW10/A, Ex.PW11/A and Ex.PW22/B respectively which were recorded by Inspector Puran Chand on his directions which was recorded before him after he examined the above said witnesses. The witness has testified that he also directed SHO Police Station Shalimar Bagh to lodge the FIR and registered the case U/s 498A/304 B IPC vide his directions at point X on Ex.PW10/A. According to the witness, thereafter he went to BJRM Hospital and filled the inquest form vide Ex.PW27/A, prepared the brief facts vide Ex.PW27/B, recorded statement of Rajender Gupta and Rajeev Gupta vide Ex.PW10/B and Ex.PW21/A about the identification of the dead body. The witness has further proved having made a request for postmortem on the dead body vide Ex.PW27/C and directed the police to hand over the dead body of the deceased to Rajender Kumar Gupta, father of the deceased after postmortem which directions are at point B on Ex.PW27/C. St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 50 (53) In his crossexamination the witness has deposed that statement of Rajender Kumar Gupta, Rajeev Gupta and Asha Gupta was recorded by the Investigating Officer on his directions and it was thereafter that he made endorsement at point X on Ex.PW10/A. He has admitted that he had conducted inquest proceedings of similar nature in various other cases and in some cases he had written the statements of the complainants in his handwriting and in some cases the same were written by the police officers. According to the witness, his hand shakes while writing on account of his age (age related medical problem) and therefore in some of the cases the statements have been written by other officials on his dictation which in most of the cases are police officials. He has denied the suggestion that the above three statements were already recorded by the Investigating Officer before he reached the police station and he had merely made his endorsement upon the same. According to him, it took about 3540 minutes each for recording the above said statements. He has testified that he received the information regarding the death of the deceased on 05.02.2009 at about 88:15 AM from from SDM Model Town. According to the witness he had seen the dead body of the deceased in the mortuary at BJRM hospital on 05.02.2009 at about 1:302PM. He has admitted that he had first gone to the police station and then to the matrimonial house of the deceased. The witness has also admitted that at the police station he had been briefed by ASI Ramesh with regard to the background of the case. According to the witness when he reached the matrimonial home of the deceased, he did not St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 51 find anybody there except one person. He has testified that he had inspected the house where the incident took place and has voluntarily explained that it was a house of two or three rooms and in the room where the incident took place, there was no door. He has explained that the house was of the iron, there was a bed of 2½ 3 feet high and the roof of the room was not very high and there was a hook attached with the kari on the roof. He has further deposed that the roof was around 6 ½ - 7 feet from the height of the bed i.e it must be around 10 feet. The witness has also deposed that there was a barber shop in the same gali and he had made inquiries from him but he did not know anything. According to the witness, there was a shop under the house but he did not make any inquiries from there because the said shop was closed. He has admitted that the house was opened when he entered the same. He does not recollect whether the said house was locked or not and who produced the keys in case it was lock but there was somebody present. According to him, he had given the directions for the registration of the FIR much later but the crime team had come earlier to that. He is unable to tell on whose calling the crime team had come to the spot. He has denied the suggestion that he did not conduct any proceedings himself or that the same were conducted by the police officers and he merely made his endorsement on the same.
(54) PW28 Inspector Puran Chand is the Investigating Officer of the present case who has deposed that on 05.02.2009 he was posted at Police Station Shalimar Bagh as Inspector Investigation and on that day on the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 52 direction of the SHO, he took over the investigation of this case. According to him, at about 11.30 AM Executive Magistrate Sh. M Z Ansari came at Police Station where the father, mother and brother and relatives of the deceased Sonia were present. He has testified that Executive Magistrate Sh. M. Z. Ansari examined the above said persons and recorded statement of Rajender Gupta, Smt. Asha Gupta and Sh. Rajiv Gupta and on the direction of the Executive Magistrate, hw recorded the statement whatever directed by the Executive Magistrate after examination of the above said persons which statements Ex.PW10/A, Ex.PW11/A and Ex.PW21/B are in his handwriting which were recorded on the direction of the Executive Magistrate after examination of the above said persons. The witness has further deposed that the Executive Magistrate also directed for registration of FIR and SHO Inspector Jogender Joon made endorsement vide Ex.PW28/A in his presence after which FIR of this case was registered and he received the copy of FIR and original rukka and documents for further investigation. He has testified that he along with Executive Magistrate Sh. M. Z. Ansari and SI Ramesh Dutt reached BJRM Hospital Mortuary where Executive Magistrate filled the inquest documents and on his direction, postmortem was conducted after which the dead body was handed over to Sh Rajender Gupta father of deceased vide memo Ex.PW10/C. According to him, after the Postmortem the duty clerk handed over one wooden box in sealed condition with the seal of FMT BJRM HOSPITAL, DELHI containing viscera of deceased, alongwith sample seal to him which he seized vide St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 53 seizure memo Ex.PW26/B after which he went to the Crime Team office and recorded statement of SI Mata Deen and photographer Ct. Dalbir. The witness has also deposed that he returned back to the police station and deposited the seized articles in the Malkhana and recorded the statement of witnesses.
(55) He has further deposed that in the evening he along with Ramesh Dutt, Ct. Shri Bhagwan went to H.No. 666, Gali No. 7, Ambedkar Nagar, Haiderpur, Delhi but the house was found locked and he came to know about the shop of Rakesh Garg on the backside lane. He has testified that thereafter accused Rakesh Garg was called form his shop through Ct. Shri Bhagwan which house was opened by accused Rakesh Garg and thereafter he prepared the site plan of the place of incident vide Ex.PW28/B. According to him, he interrogated the accused Rakesh Garg who confessed about his involvement in this case and thereafter he arrested the accused Rakesh Garg vide memo Ex.PW25/A and conducted his personal search vide Ex.PW25/B. He has also deposed that thereafter at the instance of accused Rakesh Garg they reached the house of accused Sheela and lady Ct. was also called at her house. The witness has further deposed that he interrogated accused Sheela who also confessed about her involvement in this case after which accused Sheela was arrested vide memo Ex.PW23/A and her personal search was taken through lady Ct. Parvesh Kumari vide Ex.PW23/B. He has testified that they returned back to the police station and the seized articles were deposited in the Malkhana and recorded St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 54 statement of witnesses. The witness has further deposed that on the next day accused were produced before the Court and sent to Judicial Custody. He has testified that on 07.02.2009 Rajender Gupta came at the police station and handed over marriage invitation card and the list of dowry articles which he seized vide seizure memo Ex.PW28/C which marriage card is Ex.PW10/I and the list of dowry articles is Ex.PW10/E (two pages). He has proved that on 10.02.2009 scaled site plan was got prepared through the draftsman SI Manohar Lal and the marriage photographs between Sonia and Rakesh Garg were seized by him vide memo Ex.PW10/D which photographs are already Ex.PW10/F1 to Ex.PW10/F5. According to the witness, during his investigations on 16.02.2009 exhibits of this case were sent to FSL through Ct. Ashok. He has also proved having collected the PCR Form, photographs from the crime team photographer. (56) The witness has testified that on 16.02.2009 Rajender Gupta also produced some medical prescription slips - documents to him which were seized by him vide memo Ex.PW10/G which medical prescription slips - documents are Ex.PW2/A, Ex.PW2/B and Ex.PW2/C. He has also proved having moved an application to seek the opinion of cause of death from the Autopsy Surgeon vide Ex.PW4/B and the doctor gave his opinion vide Ex.PW4/C. The witness has deposed that he recorded statement of witnesses and after completion of investigations he submitted the charge sheet against accused Rakesh Garg and Sheela. According to him, in the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 55 month of July 2009 he collected the FSL result Ex.PW22/A and on 22.07.2009 he moved an application to seek the opinion of doctor about the cause of death vide Ex.PW4/D on which doctor gave his opinion vide Ex.PW4/E. He has further proved having moved an application to seek the opinion regarding the ligature material vide Ex.PW4/F and doctor gave his opinion vide Ex.PW4/G after which he submitted the supplementary charge sheet. He has correctly identified both the accused Rakesh Garg and Sheela in the court.
(57) In his crossexamination by the Ld. Defence Counsel the witness has admitted that when he collected medical documents and recorded statement of Dr. S. K. Dewan (PW2) of Family Clinic and Maternity Home. According to the witness, he did not inquire whether the said clinic was registered under the "Medical Termination of Pregnancy Act 1971" and its Rules of 2003 nor did he inquire whether the records of the abortion conducted upon the deceased in the nature of Form I, II, III and Form C as prescribed under MTP Act. He has admitted that he has knowledge that it is mandatory that such clinic is registered under the MTP Act with The Chief District Medical Officer, Department of Health Services, Government of Delhi. He is unable to admit or deny if the clinic was registered under the MTP Act. According to the witness, he had recorded the statement of PW3 Dr. Poonam Tyagi of Sarthi Ultrasound but he did not inquire whether any record was maintained in Form F etc. under the PNDT Act 1994 because he was not aware about the same. He is unable to admit or deny the Chief St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 56 District Medical Officer, Department of Health Service, Government of Delhi, records available with them showed Nil for the month of June 2008. (58) The witness is unable to tell if the medical documents produced by PW10 Rajender Kumar Gupta father of deceased were procured and fabricated and has voluntarily explained that he only handed over the same to him. He has testified that he did not get these documents verified through independent sources to find out whether they were genuine or not and has voluntarily explained that he had only gone to the doctors who told him that the certificates were issued by their clinic but they did not check their records. He has denied the various suggestions put by the Ld. Defence Counsel.
STATEMENT OF ACCUSED / DEFENCE EVIDENCE:
(59) After completion of prosecution evidence the statements of both the accused were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to them which they have denied.
(60) The accused Rakesh Kumar Garg has stated that since his mother had expired about two months prior to his marriage, therefore the marriage ceremonies were kept very simple. According to him, his age at the time of his marriage was 34 years and the age of deceased was 21 years.
He has further stated that he was earning handsomely from his business and he even owned a house but due to age difference in the life style St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 57 temperamental differences developed. According to the accused the deceased was not doing the normal household work and continue to waste time talking over mobile phone to friends and relatives and on account of frequent interference of her family members in their family affairs often lead to matrimonial discord in their happy married life. The accused has also stated that the deceased used to go with friends and sometime all alone without informing him for roaming, shopping, movies or to meet her relatives. According to him, it was because of her weak health that she could not conceive and often went to Sonepat for treatment from a midwife (Dai) and was as such depressed. He has stated that there was no demand of dowry or harassment / beating in connection for demand of dowry by him. He has further stated that PW2 Dr. Sunil Kumar Dewan is a false witness since his clinic was not registered under the Medical Termination of Pregnancy Act 1971, hence this clinic was not authorized to conduct any abortion and the medical certificates / prescription are false. According to the accused, PW3 Dr. Poonam Tyagi is a false witness since her clinic was registered under the PreNatal Diagnostic Techniques (Regulations and prevention of misuse) Act 1994 but as per the record with the Chief District Medical Officer (East) there was no ultrasound conducted in the month of June 2008. The accused has tendered the reply to his RTI query, dated 22.06.2012 and 08.08.2012 from the office of The Chief District Medical Officer, (East District), Department of Health Services, Government of NCT of Delhi, which are marked as Mark A (one page) and Mark B (two pages) St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 58 respectively.
(61) The accused Sheela has stated that she is innocent and has been falsely implicated by the family members of the deceased. According to her, she is residing separately from her brother Rakesh and she never interfered in the family life of any of his four brothers including the accused Rakesh. The witness has testified that there was no occasion for her to demand dowry or harass the deceased on this account. According to the accused she remained busy at her house looking after her ailing husband and two young sons who are preparing for MBA and BA Courses.
(62) The accused Rakesh Kumar has examined one witness in his defence. DW1 Dr. A.K. Saxena, APIO, GTB Hospital has deposed htat in the month of June and August 2012 he was posted as PIO/ CDMO, DHS East District, Delhi and on the application of Rakesh S/o Banarsi Dass under RTI Act, he gave replied on 22.6.2012 and 8.8.2012 which replies are Mark DW1/A and Mark DW1/B. In his crossexamination by the Ld. Addl. PP for the State wherein he had admitted that his replies are the photocopies and he is not having original of the same.
FINDINGS:
(63) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed on behalf of the parties and the evidence on record. My findings are as under:
St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 59
Identity of the accused:
(64) In so far as the identity of the accused Rakesh and Sheela is concerned, there is no dispute. The accused Rakesh Kumar Garg is the husband of the deceased Sonia and accused Sheela is the married sister in law (Nanand) of the deceased. Even otherwise, both the accused have not dispute their identity. In view of the above I hereby hold that the identity of the accused stands established.
Unnatural death within seven years of marriage:
(65) The case of the prosecution is that the marriage of the deceased Sonia was solemnized with the accused Rakesh Kumar Garg on 23.7.2007 as per Hindu rites and ceremonies and she had committed suicide by hanging herself on 4.2.2009 at her matrimonial house. There is no dispute to the aforesaid aspect and hence I hereby hold that the prosecution has been able to prove that the unnatural death of the deceased had occurred within seven years of marriage (i.e. within one year and eight months).
Medical Evidence:
(66) Dr. Sunil Kumar Diwan (PW2) has proved that on 27.6.2008 the patient Sonia was brought to his clinic i.e. Family Clinic and Maternity Home at B45/2, Mandawli, Sazalpur, Unchepar (Opp. Nikki Complex), Delhi by her father with the complaint of bleeding per vagina. He has proved that his wife Dr. Bela Diwan examined the patient and also examined St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 60 the ultrasound report and found that patient was suffering from incomplete abortion (as per the ultrasound report). According to Dr. Sunil Kumar Diwan the complete abortion of Sonia was done by his wife Dr. Bela Diwan after which the patient Sonia was discharged on the same day. He has proved the prescription dated 27.06.2008 which is Ex.PW2/A; prescription slip dated 30.06.2008 which is Ex.PW2/B and the report brought by patient Sonia which is Ex.PW2/C. (67) Dr. Poonam Tyagi (PW3) has proved that on 26.06.2008 patient Mrs. Sonia aged about 21 years came to his clinic i.e. Sarthi Ultra Sound, 102, Dwarka Shish, First Floor, Vikas Marg, Shakarpur, New Delhi for ultrasound examination of pelvis on which she did her ultrasound and opined that it was incomplete abortion. She has proved having prepared her detailed report with diagram which is Ex.PW2/C. (68) Dr. Raj Mohan Trivedi (PW1) has deposed that on 04.02.2009 at about 6:00 PM the patient Sonia W/o Rakesh Kumar aged 23 years female was brought in the casualty of BSA Hospital and on examination he found that patient was unconscious, BP not recordable, respiration not appreciable, entire body was cool, rigormortis absent, pupils bilateral dilated and fixed.
He has further proved that that ECG showed straight line and ligature mark were present around neck except posterior part of neck and he declared the patient brought dead at 6:10 PM vide MLC which is Ex.PW1/A. St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 61 (69) Dr. K. Goyal (PW4) has proved the postmortem report of deceased Sonia which is Ex.PW4/A according to which on external examination there was ligature mark round the neck, but no ligature material was found and there was contused mark seen incompletely circling the neck, measuring 27 cm x 1½ cm running transversely, anteriorly placed 6 cm below chin and running obliquely beneath the angles of mandibles towards both ear lobules, 4cm below right and 6 cm below left ear lobule towards nape of neck with a gap of 10 cm on right lateral neck, the total neck circumference was 32 cm and Ligature mark was parchmentised. The witness has proved that on internal examination the subcutaneous tissue underneath the ligature mark were white, parchmentised having no extra vasation of blood and all neck structures were intact. The final opinion regarding the cause of death was kept pending as blood and viscera were preserved for chemical analysis, however the postmortem findings were consistent with ligature pressure on neck and Time Since Death was about 24 hours. He has also proved that on 22.07.2009 the Investigating Officer moved an application for subsequent opinion with regard to cause of death and also produced FSL result of the viscera and the postmortem report on which Dr. Deepak Mathur examined the postmortem report and FSL report and opined the cause of death as asphyxia consequent upon antemortem hanging which opinion is Ex.PW4/E. The witness has further proved that on the same day the Investigating Officer moved an application for providing the opinion regarding the ligature material and Dr. Deepak St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 62 Mathur examined the two printed clothes (chunni) one of them measuring 193 cm x 80 cm of reddish orange in color and another was measuring 198 cm x 107 cm purplish blue in color and after examining Dr. Deepak Mathur opined that no definite opinion regarding use of either of these ligature material for hanging can be given as two separate ligature material were produced which opinion is Ex.PW4/G. (70) The above medical evidence on record indicates that Firstly the deceased Sonia had suffered an incomplete abortion and Dr. Poonam Tyagi conducted her Ultrasound; Secondly that the complete abortion of the deceased was conducted by Dr. Bela Diwan and Lastly that the death of the deceased was suicidal and the cause of death was asphyxia consequent upon antemortem hanging.
(71) In so far as the Cause of Death is concerned the evidence has gone uncontroverted. However, in so far as the Medical Record of the deceased having conducted Ultrasound from the clinic of Dr. Poonam Tyagi and the deceased having suffered incomplete abortion is concerned, the accused has placed his reliance on the RTI replies Mark DW1/A & DW1/B which has been duly proved by Dr. A.K. Saxena, APIO, GTB Hospital (DW1) showing that no ultrasound was conducted in the month of June 2008 (Note: The said documents are admissible in evidence being proved by the executant of the document who had given the said replies). St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 63 (72) In so far as Dr. Sunil Kumar Diwan and Dr. Poonam Tyagi are concerned it does not stand established that the clinics which they are running are registered with the GNCT of Delhi and hence under the given circumstances the argument of the Ld. Defence Counsel and so also the possibility of these clinics running unauthorizedly cannot be ruled out. This being the background there can be no blanket presumption regarding the authenticity and correctness of the above medical records so produced by Dr. Sunil Kumar Diwan and Dr. Poonam Tyagi. Be that as the case may be, even if we assume for a moment that this record regarding incomplete abortion of the deceased having taken place is correct and authentic (in view of the oral testimony of Poonam Bansal sister of the deceased and other family members) at the most this record only indicates the medical condition regarding an incomplete abortion having taken place but not the cause for the same.
Allegations against the accused under Section 498A & 304B IPC (dowry death proximity test):
(73) The case of the prosecution is that the marriage between the accused Rakesh Kumar Garg and Sonia (deceased) was an arranged marriage and the parents of the deceased had given sufficient dowry to the best of their ability but soon after the marriage the accused Rakesh Kumar and Sheela started demanding dowry on account of which they started harassing the deceased Sonia. It is further the case of the prosecution that St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 64 the demands of the accused continued and the accused Rakesh Kumar started beating the deceased Sonia on account of which she had to suffer an abortion. It is also alleged that both the accused used to harass and taunt the deceased for getting less dowry.
(74) Before coming to the evidence on merits, it is necessary to discuss the law in this regard. In order to succeed in charge under Section 498A of the Indian Penal Code, the prosecution is required to prove that the accused had subjected the deceased to cruelty, as defined in the explanation to the section. It is not every cruelty which is punishable under Section 498A of the Indian Penal Code. The cruelty, so as to attract penal provisions, contained in Section 498A of Indian Penal Code, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to Section 498A of Indian Penal Code indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonably expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 65 act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A of Indian Penal Code. (75) The expression "Cruelty" takes in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498A of Indian Penal Code.
(76) If the woman has been harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498A of IPC. The expression "harassment" has not been defined in Section 498 A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. However, St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 66 it is not harassment of every nature which is punishable under section 498A of IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.
(77) Further, in order to establish a charge under Section 304B of Indian Penal Code, which deals with what is described as "dowry death", the prosecution must necessarily prove the following ingredients: i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstance;
ii. Such death must have occurred within seven years of her marriage;
iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
iv. Such cruelty or harassment must be for or in
connection with demand for dowry;
v. Such cruelty or harassment is when to have been
meted out to the woman soon before her death.
(78) The term "Dowry" has not been defined in Section 304B of
IPC, but, since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of under Section 304B IPC as held by Hon'ble Supreme Court in Satvir St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 67 Singh & Ors. v. State of Punjab and Anr. reported in 2001 (4) Crimes 45. Section 2 of Dowry Prohibition Act defines dowry as under:
"Definition of 'dowry'. In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage, or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 3 or any time after the marriage 4in connection with the marriage of the said parties, but does not include dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applies."
(79) Dowry would include that property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of a person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. However, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agree to give some cash, valuable security or property to her husband or inlaws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 68 constitute demand for dowry. If the husband of the girl or any other person related or connected to him, demands something from the girl or her parents or any other person related to or connected with her, saying that the articles being demanded by them were expected to be given or ought to have been given in marriage, that would also, to my mind, constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized. Even demand of articles such as T.V., fridge, jewellery, clothes, furniture, etc. which usually are given or expected in marriages in our country, would, considering the objective sought to be achieved by incorporating Section 304B in Indian Penal Code and enacting Dowry Prohibition Act, 1961 fall within the purview of Section 304B of Indian Penal Code. (80) In the case of Pawan Kumar & Ors. Vs. State of Haryana reported in AIR 1998 SC 958, the Apex Court has specifically held demand of T.V., Fridge, etc. though not agreed to be given or promised or even demanded prior to or at the time of marriage, to be a demand for dowry for the purpose of Section 304B of IPC. If cash or some property, etc. is demanded by the boy or his family members, after marriage, saying that they were expecting such cash, property, etc. to be given in marriage, and the girl, St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 69 or her parents or any other person related or connected to her promise to fulfill such a demand, that also may fall within the purview of dowry, as the promise though made after marriage, would nevertheless be referrable to the marriage, having been made with a view to preserve the marriage. In case, if the demand is made after marriage and it is in respect of a property or valuable security, which was not demanded, was not expected to be given and also was not in contemplation at any time up to solemnization of marriage, demand of such cash, property or valuable security, etc. cannot be said to be in connection with the marriage and, therefore, would not constitute demand of dowry.
(81) In the case of Satvir Singh Vs. State of Punjab reported in 2001 (4) Crimes 45 while dealing with this issue, the Hon"ble Supreme Court, inter alia, observed as under:
"Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on 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 of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry".
Hence the dowry mentioned in Section 304B should be St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 70 any property or valuable security given or agreed to be given in connection with the marriage."
(82) In the case of Appasaheb and Anr. Vs. State of Maharashtra, reported in AIR 2007 SC 763, the Hon'ble Supreme Court observed as under:
"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 conversant 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........ A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or 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 St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 71 money for meeting domestic expenses and for purchasing manure."
(83) The Indian Penal Code and the Dowry Prohibition Act are both remedial and penal statutes. As such Courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of language employed in the statute. If a case is established then the Courts are to be stringent in dealing with the culprits. The Courts while taking a stringent view and despite the obligation of the Legislature enactment a success have also to keep in mind that the charge should be made out.
(84) The main ingredients to be proved for establishing a case under Section 304B IPC are (i) unnatural death of a woman within seven years of her marriage and (ii) she being subjected to cruelty or harassment by her husband or any relative of her husband, in connection with any demand of dowry.
(85) The words "it is shown" occurring in section 304B IPC are of significance for the reason that the initial burden of proving that circumstances envisaged by Section 304B IPC do exist on the prosecution. This being shown or established, the question of presumption under Section 113B of the Evidence Act would arise. In other words, to draw a presumption under section 113B of the Evidence Act the necessary ingredient that it is shown that soon before her death she was subjected to cruelty or harassment in connection with the demand of dowry has to be St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 72 proved. Only when these facts are proved then by virtue of the deeming provision of section 304B IPC, the Court shall presume that the husband or any relative of the husband had caused dowry death. Though cruelty at any time after the marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged by Section 304B is to be soon before the death of a woman.
(86) The Courts are required to scrutinize the evidence carefully because cases are not rare in which occasionally there is a demand and then the atmosphere becomes calm and quiet and then again there is demand. Where a wife dies in the house of her husband within a short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined to the four walls of the house. The Courts are, however, required to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are the relatives of the deceased and relations between them and her in laws are strained for any reason whatever it might be.
(87) Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological problem or mental agony or such circumstances that the person committing suicide may think that life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person . Some St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 73 persons try to make the life easy by tolerance while others even on petty points bring an end to their life. (Reliance can be placed upon the judgment of the Rajasthan High Court reported as Gurditta Singh Vs. The State of Rajasthan reported in 1992 Crl. L.J. 309).
(88) The importance of proximity test is both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive section 304B IPC and Section 113B Evidence Act is pregnant with the idea of proximity test. No definite period has been indicated and the expression "soon before" used in Section 113B of the Evidence Act, Illustration (a) of the Act is relevant. The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before"
would normally imply that the interval should not be too much between the concerned cruelty or harassment 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 concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. (89) It is well settled by several judgments that mere suspicion cannot be a substitute for proof of guilt. In the case reported as State of Punjab Vs.. St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 74
Bhajan Singh and Ors., reported in AIR 1975 SC 258, it was observed by Hon'ble Supreme Court of India as under: ''The circumstances of this case undoubtedly create suspicion against the accused. Suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused."
(90) In another case reported as Kali Ram Vs. State of Himachal Pradesh reported in AIR 1973 SC 2773, it was observed by Hon'ble Supreme Court of India as under: ".....Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of this innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have benefit of that doubt........
It needs all the same to be reemphasized that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 75 that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused...."
(91) In another case reported as AIR 1973 SC 2622, it was observed by Hon'ble Supreme Court of India as under : ''Certainly it is a primary principle that the accused must be and not merely may be guilty before the court can convict and the mental distinction between "may be" and "must be"
is long and divides vague conjectures from sure consideration."
(92) Further more, in another case reported as Mousam Singha Roy & Ors. Vs. State of West Bengal, reported in 2003 (3) JCC 1358, it was observed by Hon'ble Supreme Court as under : ''......Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 76 reasonable doubt on the basis of acceptable evidence. In a similar circumstance this Court in the case of "Sarwan Singh Rattan Singh Vs State of Punjab (AIR 1957 SC 637) stated thus:
It is no doubt a matter of regret that a foul coldblooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted....."
(93) It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. (94) Applying the settled law to the facts of the present case, it is evident that the entire case of the prosecution is based upon the testimonies of the close relatives of the deceased i.e. her father Rajender Gupta (PW10), mother Smt. Asha Gupta (PW11), sisters Shweta Gupta (PW17) & Poonam Bansal (PW18), brother Rajeev Gupta (PW21) and uncle Virender Kumar Gupta (PW24). Further, Gopi Ram the Mediator of the marriage who is also the father in law of Poonam Bansal the sister of the deceased and was instrumental in arranging the marriage between the accused Rakesh Kumar and deceased Sonia has also been examined as PW20.
St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 77 (95) Coming first to the statement of Gopi Ram (PW20) who is the father in law of the sister of the deceased (Poonam Bansal) and the Mediator who was instrumental in arranging the marriage of accused Rakesh and deceased Sonia and also a part of the community panchayat which took place when the issue regarding the matrimonial dispute between the accused Rakesh and Sonia was taken up between the two families. The relevant portion of the statement of Gopi Ram (PW20) is as under:
"........ Rajendra Kumar Gupta is my Samdhi as his daughter Poonam was married with my son namely Sunil before 10 years back. Sonia @ Mona was the third daughter of Rajendra Gupta and she was married with accused Rakesh Kumar Garg on 23.07.2007. I was the mediator in the the marriage of Sonia and accused Rakesh Kumar Garg. After 23 months of the said marriage I came to know from my daughter in law namely Poonam that there was quarrel between Sonia and her husband Rakesh on small issues. Thereafter I alongwith my daughter in law Poonam and Rajender brother of accused Rakesh came at the house of Sonia and accused Rakesh at Shalimar Bagh and we tried to counsel them that they should not quarrel but in turn they use to make us understand that there was no such quarrel or dispute.
Again thereafter 23 months I alongwith Rajendra Gupta and Rajender and Lachhman Dass both brother of accused Rakesh came to the house of accused at Shalimar Bagh and again counsel them not to quarrel but both the deceased and accused Rakesh made understand that there was no such quarrel or dispute and that they had called me only for courtesy visit St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 78 (milne ko bahane bulaya tha). After one month deceased Sonia went to her parental house. I had told accused Rakesh to get Sonia back but instead he responded by saying "it is her house she can come back" (yeh uska ghar hai, wapis aa jaye). In the month of October 2008 a meeting was held at the house of Brahma Nand at Sonepat and I was present there. Brahma Nand, Vishnu, Lachhman, Rajender, accused Rakesh, parents of deceased Sonia and brother of deceased namely Rajiv Gupta and Poonam were present in the said meeting and the meeting was held due to quarrel between Sonia and accused Rakesh and both deceased and accused Rakesh were advised by us not to quarrel with each other. Brahma Nand took the responsibility to take care of both both persons and visit them regularly. Thereafter Sonia was taken to her matrimonial house by accused Rakesh.
On 04.02.2009 in the evening time I came to know that Sonia committed suicide by hanging. On 05.02.2009 I came to Delhi and went to BJRM Hospital and thereafter took part in the cremation proceedings of deceased Sonia. Accused Rakesh is present in the court today and the witness correctly identified accused Rakesh Garg but I cannot identify accused Sheela because I had never met her though I knew that she is the sister of Rakesh Garg.
At this stage Ld. Addl. PP seeks permission to put leading questioned to the witness with respect to cruelty made by accused Rakesh to the deceased Sonia.
Heard. Permitted.
Police made inquiries from me and recorded my statement. It is correct that my daughter in law Poonam told me that accused Rakesh harassed Sonia on small issues and gave beatings to her. It is wrong to suggest St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 79 that Rajendra Gupta also told me that Rakesh Garg used to harass Sonia on small issues and gave beatings to her. It is wrong to suggest that I had told the IO that Rajendra Gupta informed me that in June 2008 Rakesh Garg had kicked Sonia on her stomach and gave her beatings resulting into miscarriage of 2 ½ pregnancy after which Sonia was taken from her matrimonial home at Mandawali where she was provided medical treatment there. Vol. It was my daughter in law Poonam elder sister of Sonia who informed me about all these facts which I came to know through her. Brahma Nand is also known by the name of Brahm Prakash who is maternal uncle of accused Rakesh. It is correct that in the meeting held in October 2008 Brahm Prakash gave assurance us that accused Rakesh will not harass Sonia and he will not give beating to her...."
(96) In his crossexamination Gopi Ram (PW20) has explained that there were differences and disputes between the accused Rakesh and deceased Sonia on small issues. He has also admitted that the marriage of Rakesh and Sonia was a simple marriage without not much pomp & show and there was no give and take / lena dena in the marriage since the mother of accused Rakesh had expired. He has further admitted that both accused Rakesh and deceased Sonia had attended the marriage of his grandson namely Kapil at Tri Nagar, Delhi on 07.12.2008 and appeared to be happy at the said function. He has explained that there was no demand of dowry either at the time of marriage nor any such demand was brought to his notice St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 80 after the marriage.
(97) Coming next to the testimony of the brother of the deceased namely Rajeev Gupta (PW21), the relevant portion of his testimony is as under:
"....... Sonia (deceased) was my younger sister. I have three other sisters namely Santosh, Poonam and Shewta. My sister Sonia was married with accused Rakesh Garg on 23.07.2007. Accused Rakesh Garg is present in the court. Witness pointed out towards accused Rakesh Garg and correctly identified him. Witness has also correctly identified the other accused Sheela as the sister of accused Rakesh Garg. We have given gifts and dowry articles to my sister in the marriage of my sister according to our status. After marriage my sister Sonia resided at Panipat and thereafter 23 days Sonia resided along with her husband at House No. 666, Gali No. 7, Ambedkar Nagar, Haiderpur, Delhi. I used to talk with my sister Sonia after her marriage and she was informing me about her conditions regularly and after 45 months of the marriage she told me that accused Rakesh was harassing her continuously on small issues and gave beatings to her. On 16.06.2008 accused Rakesh Garg made a telephone call to me and he told me that my sister was making a drama at her matrimonial house and I heard that my sister Sonia was weeping at that time and she was telling that she was being given beating by her husband and after hearing the cries of my sister I asked accused Rakesh why he had given beating to my sister then he told me that he will beat my sister in the usual manner. I immediately informed about this incident to my father Sh. Rajender Kumar Gupta and in the evening time I went to the matrimonial house of my sister. I found beating marks on her body and she was St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 81 weeping at that time. Thereafter I took my sister Sonia with me to our house at Mandawali and she remained with us thereafter for about 23 months.
Three to four days before the Karawachauth in the year 2008 I along with my sister Sonia, my parents, my another sister Poonam and Sh. Gopi Ram reached the house of Vishnu Parkash and Braham Parkash at Sonipat for a meeting/panchayat. Accused Rakesh Garg and his brother Rajender and his maternal uncle Vishnu and Braham Parkash were present in the meeting. After discussing the matter in the meeting, lastly Vishnu Parkash and Ved Parkash gave assurance to us that accused Rakesh will not harass Sonia and he will not beat Sonia. After the meeting and their assurance Sonia was sent with Rakesh Garg and thereafter they resided at their matrimonial house at Haiderpur....."
(98) Rajeev Gupta has been subjected to a sustained cross examination wherein he has admitted that there was an age difference of 11 years between the accused Rakesh and deceased Sonia and it was for this reason that his sister was finding it difficult to adjust with Rakesh and they used to quarrel on small issues. He has further explained that on 16.06.2008 when he had taken her sister back at his house at Mandawali her medical examination was not got conducted nor she was got medically treated from any doctor since there was no such apparent injury which required treatment. Here, I may mention that Rajeev Gupta has contradicted the testimony of his sister Shweta Gupta (PW17) to the extent that when the accused Rakesh gave severe beatings to Sonia, she was taken back to her parental house and St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 82 provided medial assistance. He has admitted that they did not lodge any police report regarding this incident and that the normal complaint of Rakesh was that she frequently used to remain on mobile phone talking to people and did not attend on household work and it was for this reason that there was a dispute between them pursuant to which Sonia returned the mobile phone to them. Rajeev Gupta has further admitted that during the period 28.12.2008 till 10.01.2009 Vijender Bansal, the Jija of accused Rakesh was admitted in Maharaja Agarsain Hospital and they had gone to met him along with Rakesh and Sonia but Sonia did not make any complaint to them of any ill treatment by Rakesh.
(99) I have gone through the testimonies of the family members of the deceased as herein above (including Gopi Ram and Rajeev Gupta). From a joint reading of the testimonies of these witnesses of the prosecution the following aspects are borne out:
➢ That the marriage between the accused Rakesh Kumar Garg and Sonia had been solemnized on 23.7.2007 which was a simple marriage as the mother of the accused Rakesh Kumar had expired two months prior to the said marriage.
➢ That there was no demand of any kind of dowry or otherwise by the accused at the time of marriage.
➢ That the accused Sheela is the married sister of the accused Rakesh Kumar Garg and is residing separately at B71A, Gali no. 8, Shalimar Village, Delhi while the other brother of the accused St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 83 Rakesh is also residing separately.
➢ That after the marriage the accused Rakesh Kumar resided at Haryana for sometime in his ancestral house but thereafter shifted to his own house at House No. 666, Gali No.7, Ambedkar Nagar, Haiderpur, Delhi where he resided with the deceased. ➢ That the accused Rakesh Kumar is into his own business and is financially well off.
➢ That the family of the deceased had given many gifts and articles to the accused and deceased of their own wish (a which which is admitted by Smt. Asha - mother of the deceased).
➢ That there was frequent quarrels between the accused Rakesh Kumar Garg and Sonia on any issue on account of which she was also physically beaten by the accused Rakesh Kumar. ➢ That the deceased Sonia was addicted to mobile phone which was gifted to her by one of her sisters to which Rakesh frequently objected and on account of the same there were frequent quarrels and hence the parents of the deceased Sonia had taken away the said phone from her on this count (evident from the testimony of Rajeev Gupta the brother of the deceased).
➢ That there was a big age difference between the deceased Sonia and that of the accused Rakesh Kumar of 11 years and it is an admitted case of the family of the deceased that the deceased was finding it difficult to adjust with the accused Rakesh Kumar St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 84 (PW21 Rajeev Gupta the brother of the deceased has admitted this fact and has stated that there were quarrels between Rakesh Kumar and Sonia on small issues).
➢ That the deceased had suffered Gynecological problem and had also suffered an abortion and the possibility of this being so on account of the physical harassment and beating caused by the accused Rakesh cannot be ruled out but the said aspect regarding an abortion on account of trauma does not find confirmation from the medical evidence on record (in this background the other possibility of the said abortion being on account of other medical problems cannot be ruled out).
➢ That on many occasions the deceased was brought back to her parental house on account of the beatings given to her by the accused Rakesh due to her quarrels with the accused but despite the said allegations in the oral testimonies of the parents and sisters of the deceased there is no medical record to prove / substantiate the same.
➢ That according to Rajeev Gupta the brother of the deceased at no point of time the deceased Sonia was ever taken to any doctor for treatment of the alleged injuries received by her on account of the beatings given by the accused Rakesh as there were no apparent injuries requiring medical assistance (evident from the testimony of Rajeev Gupta which is contradicted to the testimonies of St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 85 parents and sisters of the deceased claiming that the deceased was taken to a doctor and provided medical aid).
➢ That there was a community meeting / panchayat attended to by the persons from both the sides and also by Gopi Ram the mediator to the marriage and the father in law of Poonam Bansal the sister of the deceased pursuant to which it was decided that the deceased Sonia would be sent back to join the company of her husband which was on the assurances given by accused Rakesh that he would not cause any beatings to the deceased Sonia. ➢ That the father of the deceased has not been able to produce any receipts of the articles purchased and given to the deceased in her marriage and for the first time in the Court he has explained that he had quietly kept the receipts in the purse of the deceased during her marriage and he is unable to tell whether the deceased was aware of the same or not. This appears to be improbable and the possibility of this being an after thought cannot be ruled out. ➢ That both accused Rakesh and deceased Sonia had attended the marriage of the grandson of Gopi Ram at Tri Nagar, Delhi on 07.12.2008 and they both appeared to be a happy couple at the said function (evident from the testimony of Gopi Ram).
➢ That during 28.12.2008 till 10.01.2009 (hardly a month prior to the incident) Vijender Bansal, the Jija of accused Rakesh was admitted in Maharaja Agarsain Hospital where the family of the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 86 deceased had also gone to see him and met the deceased but she did not make any complaint to them regarding any ill treatment by Rakesh and both appeared to be happy (evident from the testimony of Rajeev Gupta brother of the deceased).
➢ That the accused Rakesh Kumar was not present at the house and was in his shop when the deceased committed suicide at home leaving behind no suicide note to explain the reasons for her act. ➢ That it was the accused Rakesh and his sister Sheela who had rushed the deceased Sonia to the Hospital which the help of a neighbour Raj Singh (an aspect which is also borne out from the MLC of the deceased which is Ex.PW1/A).
(100) I may observe that the most independent and reliable witness of the prosecution is Gopi Ram (PW20) who is the father in law of Poonam Bansal the real sister of the deceased who is the one who had mediated and arranged the marriage of the accused Rakesh Kumar and Sonia (deceased). Though he has proved that after the marriage there were frequent disputes and quarrels between the accused Rakesh Kumar and deceased Sonia but has denied that there was any kind of demand of dowry at any time. He has also proved that the marriage in question was a simple marriage and there was no demand of dowry at any point of time, an aspect which the close family members of the deceased have also admitted. It is writ large that there were frequent quarrels between the accused Rakesh and deceased Sonia which quarrels would be on any issue and according to the parents of the deceased St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 87 and her sisters the accused Rakesh was in a habit of beating the deceased and on many occasions there were marks on her body which require treatment (unfortunately evidence of which medical treatment has not been produced in the Court by them). If this was so, then why was it that the deceased was repeatedly compelled to join the company of the accused Rakesh? (101) I am shocked at the manner in which the parents of the deceased had handled the issue. Being aware that the accused was a perpetual wife beater they never reported the matter to the police and every time when the deceased came to them, they would sent her back after sometime. For them the survival of marriage of their daughter was more important than the survival of their daughter. If the accused was indulging into beating the deceased why did the parents of the deceased did not intervene to support the deceased and initiate appropriate legal proceedings against the accused Rakesh. I am also shocked at the attitude of the members of the community and the panchayat which include the family members of the deceased as well as the accused who compelled the victim to go back to the house of the same accused (Rakesh) who has been indulging into beating her and it was perhaps this reason that the victim chose to take this extreme step of ending her life under an impression that perhaps there was no other option left for her.
(102) This court has come across a number of cases where the victims of Domestic Violence who lookup to their paternal family for help and support have been turned out and compelled to join the company of the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 88 same person i.e. Husband on the pretext of saving the marriage in the name of compromise and settlement. The existing Legal System in India exhibits zero tolerance for dowry related harassment, physical abuse of women and Domestic Violence. Why is it that the victims in cases of Domestic Violence are compelled to go back to the matrimonial home where their lives are at serious risk and all in the name of a settlement. Such an approach only exposes the victim to further harassment and torture which not only can be life threatening but also gives her a sense of feeling that she has no other place to go and all options for her are closed.
(103) The evidence on record reflects that all was not well between accused Rakesh Kumar Garg and deceased Sonia and their marriage was on the rocks right from the very inception. Whether it was on account of temperamental differences on account of huge age difference or on account of the deceased Sonia being addicted to mobile phone or for any other reason whatsoever as claimed by the family of the deceased, one thing which emerges from a joint reading of the entire evidence is the fact that the cruelty inflicted was certainly not on account of demand of dowry. The accused Rakesh Kumar Garg had been residing along with the deceased separately from his married brother and sister, in his own house and was financially well off, running his own business. The allegations of demand of dowry do not stand substantiated beyond reasonable doubt. However, in so far as the provisions of Section 498A Indian Penal Code are concerned, I may hold that they would cover all cases of cruelty inflicted upon a married woman St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 89 whether or not in connection with demand of dowry. It has been established that there was no demand of dowry at any point of time and the harassment if any was solely on account of the temperamental differences between the accused Rakesh Kumar Garg and the deceased Sonia who used to quarrel on small issues but one thing that has unequivocally emerges from the evidence on record is that the accused Rakesh Kumar Garg was the wife beater who was indulging into beating his wife Sonia. Taking that there was material difference in the temperamental and the way in which Sonia and Rakesh Kumar used to think. There was no justification whatsoever for the accused Rakesh to have indulged into physical abuse and wife beating. Wife beating is the worst kind of Domestic Violence which can be inflicted on a woman after her marriage. Even if it was not to such an extent that there was no apparent injury at any point of time requiring treatment, yet such a behaviour is totally unacceptable and cannot be tolerated. Hence, in this background I hereby hold that in so far as the accused Rakesh Kumar Garg is concerned, his case is covered within the provisions of Section 498A Indian Penal Code.
(104) Further, in so far as the provisions of Section 304B Indian Penal Code are concerned, it is evident from the evidence of the prosecution witnesses as discussed herein above that though the deceased Sonia had committed suicide by hanging herself at her matrimonial house but the prosecution has miserably failed to relate the same to any dowry related harassment by the accused Rakesh Kumar Garg and Sheela. The St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 90 prosecution has failed to establish any proximity or live link between the death of deceased or any misconduct by the accused. Also, in so far as the accused Sheela is concerned, it is evident that she is the married sister of the accused Rakesh Kumar Garg residing separately at her matrimonial house with her family at House No. B71/A, Gali No.8, Shalimar Village, Delhi. All allegations made against her are vague, general and non specific. Being aggrieved by the death of the deceased, the possibility of her implication by the family of the deceased on this count cannot be ruled out. Hence, in this background I hereby hold that the prosecution has not been able to prove and substantiate the allegations against Sheela regarding harassment to the deceased, beyond reasonable doubt. The allegations made by the family of the deceased regarding demand of dowry are totally vague and no specific in relation to time, place and extent of demand. Hence, I am of a considered view that the prosecution has not been able to establish the role of the above accused Rakesh Kumar Garg and Sheela in the commission of the alleged crime beyond reasonable doubt nor there is anything on record to show that the deceased had taken the extreme step of committing suicide on account of conduct of the accused, for which both the accused Rakesh Kumar and Sheela are acquitted of the charge under Section 304B Indian Penal Code. (105) The Ld. Addl. PP for the State has vehemently argued that under the given circumstances the accused Rakesh would be liable for abetting the suicide of the deceased Sonia. In this regard I may observe that in order to cover the case under Section 306 IPC it has to be established St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 91 beyond reasonable doubt that the accused had an intention to provoke, incite, urge or encourage the deceased to commit suicide [Ref.: Ramesh Kumar Vs. State of Chattisgarh, AIR 2001 SC 3837 and M. Mohan Vs. State, (2011) 3 SCC 626]. It is unfortunate that the deceased Sonia and the accused Rakesh had not been able to adjust with each other after their marriage for number of reasons. It is also established that she had returned to her parental house on a number of occasions on account of the frequent quarrels between them and the alleged beatings given to her and thereafter was compelled to join his company on account of the familial interventions and compromises. But that in itself does not make the accused liable under Section 306 Indian Penal Code. It is argued by the Ld. Addl. PP for the State that the deceased being fedup with the conduct of the accused and the frequent quarrels committed suicide feeling that she had no other option and no place to go. I may observe that what is important is not what "deceased had felt" but "what the accused had intended by his act". A fatal impulse or ill fated thought of the deceased, however unfortunate and touchy it may be, cannot unfortunate touch the issue and it cannot establish the intention of the accused so as to make him liable under the provisions of Section 306 IPC. There are two instances cited by the prosecution witnesses themselves i.e. Gopi Ram and Rajeev Gupta where they have admitted that about onetwo months before her death both the deceased and the accused had met them not only in Maharaja Aggarsain Hospital where they had gone to meet the ailing brother in law of Rakesh but also at the marriage of grandson of Gopi Ram St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 92 where they appeared to be a happy couple and the deceased made no complaints against the accused whatsoever. There is no material whatsoever on record, on the basis of which it can be conclusively established that the accused Rakesh had in any manner intentionally aided or abetted the commission of the suicide of the deceased. The mensrea on the part of the accused appears to be missing and cannot be covered under Section 306 Indian Penal Code.
FINAL CONCLUSIONS:
(106) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 93
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(107) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record it stands established that the marriage between the accused Rakesh Kumar Garg and Sonia had been solemnized on 23.7.2007 which was a simple marriage as the mother of the accused Rakesh Kumar had expired two months prior to the said marriage; that there was no demand of any kind of dowry or otherwise by the accused at the time of marriage; that after the marriage the accused Rakesh Kumar resided at Haryana for sometime in his ancestral house but thereafter shifted to his own house at House No. 666, Gali No.7, Ambedkar Nagar, Haiderpur, Delhi where he resided with the deceased; that the accused Rakesh Kumar is into his own business and is financially well off; that the family of the deceased had given many gifts and articles to the accused and deceased of their own wish; that there was a big age difference between the deceased Sonia and that of the accused Rakesh Kumar of 11 years and it is an admitted case of the family of the deceased that the deceased was finding it difficult to adjust with the accused Rakesh St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 94 Kumar; that there was frequent quarrels between the accused Rakesh Kumar Garg and Sonia on any issue on account of which she was also physically beaten by the accused Rakesh Kumar; that the deceased Sonia was addicted to mobile phone which was gifted to her by one of her sisters to which Rakesh frequently objected and on account of the same there were frequent quarrels and hence the parents of the deceased Sonia had taken away the said phone from her on this count; that on many occasions the deceased was brought back to her parental house on account of the beatings given to her by the accused Rakesh due to her quarrels with the accused; that there was a community meeting / panchayat attended to by the persons from both the sides and also by Gopi Ram the mediator to the marriage and the father in law of Poonam Bansal the sister of the deceased pursuant to which it was decided that the deceased Sonia would be sent back to join the company of her husband which was on the assurances given by accused Rakesh that he would not cause any beatings to the deceased Sonia; that both accused Rakesh and deceased Sonia had attended the marriage of the grandson of Gopi Ram at Tri Nagar, Delhi on 07.12.2008 and they both appeared to be a happy couple at the said function; that during 28.12.2008 till 10.01.2009 (hardly a month prior to the incident) Vijender Bansal, the Jija of accused Rakesh was admitted in Maharaja Agarsain Hospital where the family of the deceased had also gone to see him and met the deceased but she did not make any complaint to them regarding any ill treatment by Rakesh and both appeared to be happy; that the accused Rakesh Kumar was not present at the St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 95 house and was in his shop when the deceased committed suicide at home leaving behind no suicide note to explain the reasons for her act and that it was the accused Rakesh and his sister Sheela who had rushed the deceased Sonia to the Hospital which the help of a neighbour Raj Singh. (108) I may observe that despite the allegations of beatings and torture caused to the deceased Sonia by Rakesh for which she was given medical treatment there is no medical record to prove / substantiate the same. According to Rajeev Gupta the brother of the deceased at no point of time the deceased Sonia was ever taken to any doctor for treatment of the alleged injuries received by her on account of the beatings given by the accused Rakesh as there were no apparent injuries requiring medical assistance. According to the prosecution the deceased had suffered Gynecological problem and had also suffered an abortion and the possibility of this being so on account of the physical harassment and beating caused by the accused Rakesh cannot be ruled out but the said aspect regarding an abortion on account of trauma does not find confirmation from the medical evidence on record in view of the fact that the prosecution has failed to establish the credibility and authenticity of the medical records furnished by Dr. Sunil Kumar Diwan and Dr. Poonam Tyagi beyond reasonable doubt. (109) Further, allegations were made regarding demand of dowry which the prosecution has not been able to prove and substantiate beyond reasonable doubt. In fact it is for the first time in the court that the father of the deceased has come up with a new story of the receipts regarding St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 96 purchase of various articles given to the deceased in her marriage. He has stated that he had kept the said receipts in the purse of the deceased at the time of her marriage which explanation appears to be improbable and the possibility of this being an after thought cannot be ruled out. (110) The medical evidence on record only establishes the cause of death as asphyxia consequent upon antemortem hanging but not the aspect of the deceased having suffered an incomplete abortion on account of the trauma inflicted by the accused Rakesh.
(111) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(112) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 97 evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link in so far as the offence of harassment and cruelty is concerned.
(113) Therefore, I hold the accused Rakesh Kumar Garg guilty of the offence under Section 498A Indian Penal Code for which he is accordingly convicted. He is however acquitted of the charge under Section 304B Indian Penal Code.
(114) In so far as the accused Sheela is concerned, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused persons. The materials brought on record by the prosecution are insufficient so as to hold that the accused Sheela was guilty beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused Sheela. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 98 against the accused Sheela beyond reasonable doubt and hence, benefit of doubt is being given to them who is acquitted of the charges under Section 498A/304B Indian Penal Code.
Announced in the open court (Dr. KAMINI LAU)
Dated: 3.4.2013 ASJII(NW)/ ROHIN
St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 99
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 122/11 Unique Case ID No.: 02404R0123632009 State Vs. (1) Rakesh Kumar Garg S/o Late Banarsi Das R/o House No. 666, Gali No.7, Ambedkar Nagar, Haiderpur, Delhi (Convicted) (2) Smt. Sheela W/o Vidyanand R/o House No.B71/A, Gali No.8, Shalimar Village, Delhi (Acquitted) FIR No.: 31/2009 Police Station: Shalimar Bagh Under Sections: 498A/304B Indian Penal Code Date of conviction: 3.4.2013 Arguments heard on: 3.4.2013 Date of Sentence: 3.4.2013 APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Rakesh Kumar Garg in Judicial Custody with Sh. Anil Soni Advocate.
St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 100 ORDER ON SENTENCE:
As per the allegations during the period between 23.7.2007 to 4.2.2009 at House No. 666, Gali No.7, Ambedkar Nagar, Haiderpur, Delhi the accused Rakesh Kumar Garg being the husband of Sonia Gupta (deceased) and Smt. Sheela being her sister in law (Nanand) subjected Sonia Gupta cruelty by harassing her to fulfill their unlawful demand of dowry, due to which reason Sonia Gupta committed suicide by hanging herself.
On the basis of the testimonies of the various prosecution witnesses particularly the family members of the deceased and the independent witness Gopi Ram and also on the basis of other evidence on record, this Court vide a detail judgment of even date held the accused Rakesh Kumar Garg guilty of the offence under Section 498A Indian Penal Code. However, he has been acquitted of the charge under Section 304B Indian Penal Code. Further, the accused Sheela has been acquitted of the charges under Sections 498A/304B Indian Penal Code.
Heard arguments on the point of sentence. The convict Rakesh Kumar Garg is stated to be aged about 41 years having a family comprising of four married sisters, two married and two unmarried brothers. He is a B. Com. and is running a shop. Ld. Counsel for the convict has prayed for a lenient view and has pointed out that the convict is in Judicial Custody since 5.2.2009.
I have considered the submissions made before me. The maximum punishment provided for the offence under Section 498A IPC is St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 101 imprisonment for a period which may extend to three years and fine. The convict Rakesh Kumar Garg has already undergone the imprisonment for a period more than the maximum punishment provided for the offence under Section 498A IPC. Therefore, I sentence the convict Rakesh Kumar Garg to Rigorous Imprisonment for a period of three years and fine to the tune of Rs.25,000/ for the offence under Section 498A Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
Benefit of Section 428 Cr.P.C. is given to the convict for the period already undergone by him during the trial.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and another copy of sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 3.04.2013 ASJII(NW)/ ROHINI
St. Vs. Rakesh Kumar Garg & Anr., FIR No. 31/09, PS Shalimar Bagh Page No. 102