IN THE COURT OF SHRI RAJESH KUMAR SINGH ASJ/SPECIAL JUDGE-NDPS (SOUTH), SAKET COURT COMPLEX, NEW DELHI. S.C. No. 240/2017 FIR No. 776/2016 u/s. 498A/304B/34 IPC PS-Neb Sarai State VERSUS 1. Rakesh @ Dharmender S/o Sh. Shyam Singh R/o A-238, Devli Extension, New Delhi. 2. Shyam Singh S/o Sh. Badle Ram R/o E-A-238, Devli Extension, New Delhi. 3. Deepak S/o Sh. Shyam Singh R/o E-A-238, Devli Extension, New Delhi. 4. Reshma W/o Sh. Shyam Singh R/o E-A-238, Devli Extension, New Delhi. Computer ID No: : DLST01-003762-2017 Date of institution : 24.05.2017 Date of reserving judgment : 02.08.2018 Date of pronouncement : 31.08.2018 Decision : Acquittal. JUDGMENT
FACTS AS STATED IN THE CHARGE SHEET & THE CHARGE 1.1 In the present case, charge u/s. 498A/34 IPC, 304-B/34 IPC and alternatively u/s. 306/34 IPC was framed against the accused Rakesh @ Dharmender, Shyam Singh, Deepak and Reshma SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 1/11 vide order dated 06.06.2017.
1.2 The accused Rakesh is husband, Shyam Singh is the father-in-law, Reshma is the mother-in-law and Deepak is brother-in- law of the deceased Ms. Shobha. The accused Rakesh got married to the deceased Ms. Shobha on 30.04.2011. On 30.09.2016, Ms. Shobha died after falling from the second floor of the house of accused i.e. A238, Devli Extension. On 30.09.2016, ASI Ranbir Singh reached Majidia Hospital, Hamdard Nagar with Ct. Manendra on receiving DD No. 39A. He obtained the MLC of Ms. Shobha and took the statement of her husband Dharmender. Dharmender told that Ms. Shobha had gone to the terrace to pick-up clothes and she fell down. While ASI Ranbir Singh was taking the statement of Dharmender, family members of the deceased, their relatives and neighbours attacked the in-laws of the deceased and started causing damage to the property of the hospital. With lot of efforts, the situation was brought under control by the local police and police from PS-Neb Sarai. The in-laws of the deceased ran away from the hospital to save their lives.
1.3 ASI Ranbir Singh got the body of the deceased preserved in the mortuary of Majidia Hospital and informed the SDM. ASI Ranbir went to the place of incident i.e. A-238, Devli Extension and took photographs of the spot with his mobile phone. He could not find any blood or other marks and did not find any eye witness as it was night. ASI Ranbir Singh himself prepared the site plan after SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 2/11 inspecting the site. On inquiry, he came to know that the deceased had fallen from the second floor of the house and had become unconscious. The height of the second floor was about 30ft. The railing on the second floor was about 2.5 ft. high. He was told that family members of Ms. Shobha had taken to the hospital. The house was locked and the in-laws of Ms. Shobha were not present there. 1.4 On 01.10.2016, SDM, Saket recorded the statement of the family members of the deceased and he instructed the IO ASI Ranbir Singh to get the postmortem of the deceased conducted. After seeing the postmortem report on 18.10.2016, the SDM directed the IO to proceed further on the statement of Sh. Ramesh (Father of the deceased).
1.5 In his statement Ex. PW1/A, Sh. Ramesh stated that he had two daughters and sons. Ms. Shobha was his eldest daughter. She got married to the accused Dharmender on 30.04.2011. Before the marriage, demand was made for a four wheeler vehicle. He refused to give the vehicle. After some days, he again received a telephone call from the other side. They asked whether he would give a motorcycle to which he stated that he would give whatever was within his means. After the marriage, they used to ask for money. After three months of the marriage, they came to his house to ask for money to buy a car. All family members of the accused Dharmender used to beat Ms. Shobha and his daughter. When Ms. Shobha delivered a girl child, he gave Rs. 10,000/- and also paid the SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 3/11 expenses of the hospital. On 10th-11th when Ms. Shobha came to his house, she told that her in-laws used to beat her and harass her. He further stated that he and his family members used to tell Ms. Shobha that all will get well. On 30.09.2016 at about 9:00 pm the accused Deepak (brother-in-law of the deceased) called him on phone. He told him to come immediately to Majidia Hospital. He asked Deepak to put Dharmender on line. Deepak handed over the phone to someone. He realized that the person speaking from the other end was not Dharmender. When he confronted, the said person, the call was disconnected. Thereafter, he and his family members went to the hospital where he found his daughter dead. 1 .6 The FIR was registered on 20.10.2016 and charge sheet was filed u/s. 498A/304B/34 IPC. During trial the accused Rakesh @ Dharmender remained in custody and others were granted bail. Charge was framed against the accused persons u/s. 498A/304B/34 IPC alternatively, u/s. 306/34 IPC as already mentioned above. EVIDENCE 2.1 In order to prove its case, prosecution examined PW1 Sh. Ramesh (father of the deceased), PW2 Ct. Maninder Singh, PW3 Sh. Subhash (brother of the deceased), PW4 Smt. Pushpa (mother of the deceased), PW5 Sh. Rishi Kumar, PW6 Ms. Kalpana Sharma, PW7 Mr. Radhey Shyam, PW8 Sh. Krishan Kumar, PW9 Dr. D. N. Bhardwaj, Professor Forensic Medicine AIIMS, Delhi, PW10 Dr. Kashif Mansoor, CMO, H.A.H. Centinary Hospital, Jamia Hamdard, Hamdard Nagar, SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 4/11 Delhi, PW11 Sh. Vikas Ahlawat (the then SDM, Saket), PW12 HC Lomesh and PW12 SI Ranbir Singh.
2.2 Statements of the accused persons were recorded u/s. 313 Cr.P.C. They opted for defence evidence and examined DW1 Sh. Raj Bahadur.
ANALYSIS OF THE EVIDENCE 3.1 I have considered the arguments of Ld. Addl. PP for State and the arguments of Ld. Counsel for the accused. I have also perused the record. For the appreciation of the allegations regarding demand for dowry and harassment on this count, the testimony of the witnesses PW1 Sh. Ramesh, PW3 Sh. Subhash and PW4 Smt. Pushpa need to be examined.
3.2 In his statement Ex. PW1/A made before the SDM, Saket, PW1 Sh. Ramesh (Father of the deceased) used the word “They” to refer to the other side in respect of the allegation for demand for money. The money was allegedly being demanded to purchase a car. The deposition of PW1, PW3 and PW4 before the Court is also to the effect that the demand was for a car as dowry and the deceased was harassed and beaten due to non-fulfillment of this demand. In the testimony before this Court, PW1, PW3 and PW4 stated that before the marriage, the accused Shyam Singh (father-in-law) of the deceased made the demand for a four wheeler.
3.3 PW1 and PW3 have deposed that the deceased used to tell her mother (PW4) about the harassment caused to her by her in- SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 5/11 laws. They did not have first hand knowledge of the alleged harassment being meted out to the deceased by the accused persons and they derive their knowledge through PW4. In his cross- examination, PW3 has admitted that demand for the four wheeler was not made from him. It is admitted by these witnesses that prior to the incident, the deceased was residing with her husband separately in a rented accommodation in Sangam Vihar. PW1 has stated that she had been residing in the rented accommodation for about two years. PW4 has stated that she had returned to the house of in-laws i.e. A-238, Devli Extension, just a day before the incident. PW1 has also stated in his cross-examination that the deceased forced her husband to shift to the rented accommodation as she was harassed and tortured by the other in-laws. It is to be noted that in his cross-examination dated 28.076.2017 at page 2, PW1 made the voluntary statement : “Because she insisted, as she was harassed and tortured by other in-laws”. PW1 has also stated in his cross-examination dated 28.07.2017 at page 4 that at the time of delivery of his daughter-in-law (wife of PW3), he had gone to the house of in-laws of the deceased to request them to send her and the accused Rakesh dropped the deceased at his house to look- after his daughter-in-law. The statement of PW1 which is quoted above shows that the accused Rakesh did not torture the deceased. It is not explained as to how the accused Shyam Singh, Reshma and Deepak used to beat the deceased and torture her when she was SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 6/11 residing separately with her husband in a rented accommodation for two years before the incident.
3.4 In the statement Ex. PW1/A, PW1 Sh. Ramesh stated that after some days “their” phone call came and they asked whether “you all” would give a motorcycle. In his cross- examination, PW1 stated that he received the call from the accused Shyam and his nephew Sh. Diwan. PW3 has stated in his examination-in-chief that “when my father has shown his inability to give four wheeler and we denied for marriage, on which my father had offered that he can give two wheeler motorcycle to them along with other dowry articles”. In his cross-examination, PW1 was asked whether it is correct that he had given all articles of domestic use as per his own wish and he answered in affirmative. These statements create doubt even regarding the demand for motorcycle as dowry. 3.5 No independent witness has been examined by the prosecution to corroborate the allegations of harassment and beating to the deceased and to her daughter. The deceased died after more than five years of her marriage. If she was being tortured and beaten for dowry, she would have confided in some other relative or friend also especially when she was residing separately in a rented accommodation. No complaint was made to any authority prior to the incident. In her cross-examination dated 11.08.2017, PW4 in whom the deceased used to confide, was asked whether any complaint was made to the police. She answered in negative. In SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 7/11 voluntary statement, she stated that she had never thought that something of this sort would happen. She was also asked whether they ever tried conciliation through Panchayat and she answered in negative. In her voluntary statement, she stated that they did not call the Panchayat as the deceased used to say that all would get well.
3.6 The facts mentioned above show that prosecution has not been able to prove beyond reasonable doubt that the accused persons used to harass and subject the deceased to cruelty for demand of dowry. U/s. 113-B of the Indian Evidence Act 1872 can be drawn if the prosecution can show that soon before her death, the woman was subjected to cruelty or harassment for, or in connection with any dowry demand. In the present case, prosecution has failed to show that soon before her death the deceased was subjected to cruelty or harassment for, or in connection with any dowry demand. Therefore, the charges u/s. 498A/34 IPC and 304B/34 IPC are not proved.
4.1 Now we are left with the charge u/s. 306/34 IPC. The postmortem report Ex. PW9/A, mentions the cause of death as “Shock due to cranio-cerebral and spinal injury caused by blunt force impact which could be possible in the alleged circumstances”. The postmortem report records 12 injuries. Request was made by the police to give opinion regarding the injuries on the postmortem report. The opinion was given by PW9 Dr. D.N. Bhardwaj. He opined SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 8/11 that the injuries at serial no. 1, 2, 3, 5, 6, 7, 8, 9, 10, 11 and 12 are possible by fall from height, injury no. 4 is possible by assault. He also mentioned that injuries no. 10 and 11 were also having overlapping self inflicting injuries which could have been inflicted prior to fall from height.
4.2 Injury no. 4 is a bluish colour contusion of size 4cm X 1cm over medial aspect of left arm. Injury no. 10 is multiple superficial linear cuts placed transversely over ventral aspect of right wrist, with size varying from 2cm X 0.3cm to 5.2 cm X 0.3 cm. The margins are clean cut with surrounding haematoma and inflamation. A reddish colour contusion of size 3 cm X 2 cm over ulnar aspect of wrist on dorsal surface associated with fracture and dislocation of right wrist joint. Injury no. 11 is described as multiple superficial linear cuts placed transversely over ventral aspect of left wrist, with size varying from 1 cm X 0.2 cm to 3.2 cm X 0.2 cm. The margins are clean cut with surrounding haematoma and inflammation associated with fracture and dislocation of left wrist. 4.3 In S.S. Chheena vs. Vijay Kumar Mahajan (2010) 12 SCC 190 Hon’ble Supreme Court held that in order to convict a person u/s. 306 IPC there has to be a clear mens rea to commit an offence and that there has to be an active or direct act leading the deceased to commit suicide being left with no option. In order to bring home the charge u/s. 306/34 IPC, the prosecution to firstly establish that the deceased committed suicide and it was not an accidental fall SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 9/11 from the roof. Secondly, the prosecution has to establish that the accused person left the deceased with no other option but to commit suicide.
4.4 PW8 Sh. Krishan Kumar has deposed that on 30.09.2016, he was standing on the roof of his house no. A224, Devli Extension, New Delhi. He saw that Ms. Shobha fell from the roof of her house. He was cross-examined by Ld. Addl. for State and confronted with statement u/s. 161 Cr.P.C. In the said statement Ex. PW13/D1, he stated that on 30.09.2016, in the evening, he was standing at the roof of his house. He saw that Ms. Shobha was picking up clothes from the grill on the top floor. Meanwhile, he heard the sound of Ms. Shobha falling down. Statement of PW8 shows that the fall of Ms. Shobha from the roof of her house was accidental. The height of the railing on the roof was only 2.5 ft. and the possibility of a grown up person tripping over the railing in the process of picking up clothes, cannot be ruled out.
4.5 PW9 Dr. D.N. Bhardwaj has opined that injury no. 4 which was contusion on the left arm was possible by assault. This is a possibility and there is no evidence to point out which of the accused caused that injury. This injury can be caused due to some minor accident also. The injury no. 10 and 11 were self inflicted but PW9 has stated in his cross-examination that his opinion regarding these injuries is also a possibility. There is nothing on record from which it can be inferred that the deceased inflicted those injuries SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 10/11 due to harassment and cruelty to her by the accused persons. Even if it is accepted that the injury no. 4 was not accidental and the injuries no. 10 and 11 were self inflicted, there is no evidence to show that the accused persons had left her with no option but to end her life. In his cross-examination, PW9 stated that it would be difficult to differentiate whether the injuries were caused prior to six hours or just before the death. In view of his testimony, we cannot presume that Ms. Shobha was assaulted due to which she inflicted injuries on her wrist and went to the roof soon thereafter to commit suicide. In view of the above discussion, the prosecution has also failed to prove the charge u/s. 306/34 IPC.
6. All accused namely Rakesh @ Dharmender, Shyam Singh, Deepak and Reshma are acquitted. Bonds submitted by all accused u/s. 437A Cr.P.C. accepted. Bonds shall remain in force for six months from the date of this judgment. Accused Rakesh @ Digitally Dharmender be released from custody. signed by RAJESH RAJESH KUMAR KUMAR SINGH
7. File be consigned to Record Room. SINGH Date:
2018.09.01 10:59:00 +0530 Announced in open Court on (Rajesh Kumar Singh) 31st August, 2018 Special Judge (NDPS)/ASJ (South) Saket Court, New Delhi SC No.240/2017 State Vs. Rakesh @ Dharmender & Ors. 11/11