IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA COURTS, DELHI SC No.546/16 FIR No. 301/10 PS Vivek Vihar u/s 498A/304B/34 IPC State Vs. 1) Manish Kumar @ Monu 2) Avinash Kumar Pal @ Shalu Both S/o Narender Both R/o H. No. 56A/5, Circular Road Shahdara, Delhi 3) Narender S/o Ram Prasad R/o H. No. 56A/5, Circular Road Shahdara, Delhi 4) Rajni D/o Roop Chand R/o H. No. 56A/5, Circular Road Shahdara, Delhi Date of Institution 01.04.2011 Arguments heard 10.01.2018 Date of order 24.01.2018 JUDGMENT
1. Brief facts as per prosecution case are as under:
(a) That L/Ct. Suchita No.8102/PCR informed at PS Vivek Vihar that on dated 26.12.2010 at about 16.22 pm, a call was received from theState vs Manish Kumar @ Monu etc FIR No.301/2010 1 of 32 Mobile No.9818319126. Caller stated that yesterday his sister Sunny has been killed by her in laws by hanging her at Circular road, Shahdara, Pal Mohalla, Pal Gali, Near Metro Station and now a quarrel is taking place. The said information was reduced into DD No.23A, at PS Vivek Vihar.
(b) That on receipt of the DD No.23A, ASI Desh Raj alongwith Ct.
Mukesh reached at H.No.56A/5, Pal Gali, Circular Road, Delhi. The dead body of deceased Sarita Pal D/o Ramphal was kept on the floor of the Ground floor of the house. The mother of the deceased Smt. Jagpali and her brother Sh. Pramod were present there and during inquiries they came to know that the marriage of deceased (Sarita) was solemnized with the accused Manish on 07.05.2009 and a quarrel had taken place between the husband (Manish) and wife (Sarita) on the issue of job of deceased and at about 9.00 am the deceased hanged herself in a room situated at the first floor of the house. The in laws of the deceased broke open the door and taken her to a private hospital where doctor declared her dead.
(c) That the family members of the deceased informed the police after they reached at the spot. SHO concerned also reached at the spot and apprised the SDM, Vivek Vihar about the aforesaid facts. As per the instructions of the SDM, the crime team was called and spot was photographed. All exhibits were taken in possession and dead body of the deceased was sent at Subzi Mandi Mortuary. The dead body of the deceased was handed over to her relatives after post mortem.
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(d) That Next day i.e. 27.12.2010, the SDM recorded the statements of the relatives of deceased. Smt. Jagpali, the mother of the deceased stated that her daughter got married with the accused Manish on 07.05.2009. She had spent handsome money on the marriage. At the time of marriage she was shown a TV factory and told that it was the factory of accused Manish, however, he was jobless and entirely dependent on the salary of his daughter. All three accused persons i.e. Avinash (brother in law), Narender (fatherinlaw) and Rajni (mother in law) were doing nothing and they alongwith accused Manish asked the deceased to bring dowry from her mother. Deceased was beaten before suicide and a meeting was held on 25.12.2010 wherein her brother and cousin had come. She also stated that deceased was three month pregnant.
(e) That the SDM also recorded the statement of Mr. Pramod, the brother of the deceased who stated that it was not a suicide and it was a murder. His brother in law/accused Manish used to tease his sister as he did not want her to be pregnant. The other accused persons also used to tease her sister for the same reason. Accused Manish was doing nothing, hence, all the family members were dependent on the salary of his sister. Thus, he stated that strict action be taken against all who are responsible for the death of his sister.
(f) Thereafter, on the directions of the SDM a case u/s 498A/304 B/34 IPC was registered against husband (Manish), Avinash (brother in law), Narender (father in law) and Rajni (mother in law).
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(g) During investigation a note book was handed over to the police by the relative of the accused persons stated to be containing the handwriting of the deceased. The family members of the deceased also submitted four papers which stated to be containing the admitted handwriting of the deceased. The said note book and papers were taken into possession and sent to the FSL for expert opinion which was not received at the time of filing of charge sheet. However, after filing of the chargesheet, report was received from the FSL and same was placed on record. As per report no final opinion could be given for the shortage of the handwriting and they requested to provide some more material for giving opinion on the documents. After registration of FIR, all the accused persons were arrested and after completion of investigation a charge sheet u/s 498A/304B/34 IPC was filed.
2. After compliance of the provisions of section 207 Crl.P.C. the case was committed to the sessions court.
4. FACT IN ISSUE: Points which emerged for determination in this case are:
Whether accused persons subjected the deceased Sarita Pal to physical and mental cruelty and harassment before her death, for dowry and the same led the deceased to commit State vs Manish Kumar @ Monu etc FIR No.301/2010 4 of 32 suicide on 25.12.10 which amounts to dowry death.
5. In order to establish accusations against the accused, the prosecution has examined 18 witnesses. For the purpose of discussion, they are classified into the following categories: MATERIAL WITNESSES: PW3 Smt. Jagpali, the mother of the deceased. She deposed that about 23 years ago her daughter got married with the accused Manish and in the marriage she had given dowry articles such as fridge, double bed, cooler, four tolas gold, silver articles weighing about 250 gm and cash amount for purchasing motorbike. Prior to marriage her daughter was working with the Rohan Motors and she continued with her job even after her marriage. After marriage, initially, the accuses persons were very cordial with her daughter but after about 45 months they started beating her for more dowry articles such as four wheeler etc. The accused persons also demanded two lakh rupees for starting some work for the accused Manish. She gave this amount to the accused Manish after disposing of half portion of her house. After that her daughter remained happy for 45 months but thereafter accused persons again started harassing and pressurising her for purchasing a four wheeler. She also stated that accused persons used to snatch her salary. She further deposed that on 25.12.2010, the accused persons called them. They reached there and prior to their reaching her daughter was beaten up and a State vs Manish Kumar @ Monu etc FIR No.301/2010 5 of 32 quarrel had taken place between her daughter and her in laws. They pacified them and she asked her daughter to remain with her in laws and after that she came back. After that in the night hours the accused Narender (father in law) made a call which was attended by her son Pramod. Accused Narender told that they were sending her daughter back alongwith the dowry articles and after getting her aborted. Thereafter, at about 1 am, her daughter called and told that accused persons were beating her. Deceased asked PW3 to come but she pacified her and told her that she would come next morning. On 26.12.2010, on receipt of a call, at about 12 pm, she went to the house of the accused alongwith her son Pramod. She was shocked to see that her daughter had died. The accused persons surrounded her son and did not allow him to report the matter to the police. At about 4 pm, her son called the police and thereafter police reached on the spot and taken the photos of the spot and took her daughter to the hospital. On 27.12.2010, she alongwith her son Pramod and relatives went to the police station PS Vivek Vihar and reported the matter to the police where police interrogated them and after that they went to the office of SDM where her statement (ExPW3/A) was recorded. She stated that the accused persons are responsible for the death of her daughter.
PW4 Mr. Pramod is the brother of the deceased. He deposed that his sister got married to the accused Manish Kumar according to Hindu rites and rituals. In marriage they had given dowry articles such as fridge, cooler, double bed, T.V. trolly, center table,State vs Manish Kumar @ Monu etc FIR No.301/2010 6 of 32 almirah, washing machine alongwith gold jewellery and silver articles. Prior to marriage her sister was working at Rohan Motors and she continued with her job after her marriage also. She remained well for about 23 months and thereafter the accused persons again said accused Manish started demanding 2 lakh rupees for getting a job in MCD which they paid after disposing of half of the portion of their house. Thereafter, the relations of his sister remained cordial with her in laws for 23 months and after that accused persons again started harassing her on one pretext or the other. On 25.12.2010, accused Manish phoned him and called them at his house. He alongwith his mother and cousin Manoj went there and came to know that his sister was insisting to go for her job but her husband was not allowing her to go due to pending household work. They pacified their sister and accused persons and came back home about 99.30 pm. During 11.00 pm to 1.00 am, accused Narender called them and told that they were sending his sister back alongwith all the dowry articles after getting her aborted. He told them that they will go to their house on the next day. They went to their house next day at about 12.00 noon and stunned to see their daughter dead. Accused persons and their relatives asked them to settle the matter amicably. They called their relatives and decided to call the police who came and made inquires and took the dead body of his sister for post mortem. He accompanied the police to the hospital then they came back to their home. On 27.12.2010, he alongwith his mother and cousin Manoj went to PS Vivek Vihar and thereafter went to the office of SDM and where hisState vs Manish Kumar @ Monu etc FIR No.301/2010 7 of 32 statement (ExPW4/A) was recorded. Thereafter, on 25.01.2011, he alongwith his mother and cousin Manoj visited the PS Vivek Vihar where their statements were recorded by the police. On 21.02.2011, he handed over four papers containing handwriting of his sister and same were seized vide seizure memo (ExPW4/B). On 03.03.2011, the accused Rajni was arrested in the PS in his presence.
PW5 Mr. Manoj is the cousin brother of the deceased. He stated that her sister was working at Rohan Motors for about 3 years before her demise. He used to visit her there and she used to tell him that she was being harassed by her husband as he used to tell her to take a vehicle on instalment basis and her in laws used to harass her and asked her not to do the job. He used to pacify her that it was a family dispute and would get settled by the passage of time. On 25.12.2010, his cousin Pramod called him and requested him to accompany him to the matrimonial home of his sister. He went there alongwith Pramod and Smt. Jagpali alongwith other relatives. They pacified the in laws and the Sarita in this regard and after that they came back. On 26.12.2010, he again received a call from his cousin who told him to come to Shahdara whereupon at about 12 noon, he alongwith his parents reached the matrimonial home of Sarita and found her dead. Thereafter they called their relatives and police whereupon police reached there and conducted the proceedings.
PW6 Mr. Mohit Kumar Pal is the uncle of accused Manish. In the month of February, 2011 this witness had handed over a diary which contained the suicide note written by the deceased. The saidState vs Manish Kumar @ Monu etc FIR No.301/2010 8 of 32 diary was taken into possession by the police vide seizure memo Ex PW6/A. This witness also placed on record the original page which contained the suicide note as Ex.PW6/A.
PW7 Mr. Naresh Kumar is another uncle of accused Manish who had accompanied the PW6 to the police for handing over the diary containing the suicide note of the deceased.
PW10 Mr. Dinesh is the relative of deceased who had accompanied Pramod, the brother of the deceased to the police station when Pramod handed over four papers written by his sister Sarita. He placed on record these papers as ExPW10/A (Colly).
PW16 Ms. Usha Chaturvedi, is the SDM concerned. She placed on record the statement of Smt. Jagpali and Mr. Pramod recorded by her on 27.12.2010 as ExPW3/A and PW4/A.
MEDICAL EVIDENCE: PW2 Dr. Akash Jhanjee conducted the autopsy. He placed on record the autopsy report as ExPW2/A. He opined that the cause of death was asphyxia as a result of ante mortem hanging. During examination, he observed the following injuries on the body of the deceased: (External Examination)
(i) Ligature marks in the form of pressure abrasion with oblique discontinuous disposition around the front and sides of the neck. The circumference of the neck was 31 cms and the length of the mark was 25 cms, widths varying between 3.5 to 4.5 cm. The base of the mark was redish, hard and State vs Manish Kumar @ Monu etc FIR No.301/2010 9 of 32 parchmentized. The mark was more apparent over left side front of the neck. The mark ws placed 4 cm below the right mastoid process, 5 cm below right angle of mandible, 6 cm below chin in midline, 5.5 cm below left angle of mandible and 7 cm below the left mastoid process.
(ii) Contusions swelling reddish, 3 x 1.5 cm over right side parietal region of the head lying 5.1 cm above the top of left ear pinna.
MEMBERS OF CRIME TEAM: PW8 Ct. Sandeep is the member of crime team. He had taken the photograph of the crime scene. He placed on record the photographs as ExPW8/A1 to A13.
FORMAL WITNESS: PW1 HC Suresh Pal Singh, is the DO who placed on record the copy of the FIR as Ex.PW1/A and rukka ExPW1/B.
PW9 Ct. Mukesh is police official who on 17.02.2011 deposited the exhibits including one wooden box, one pulanda, two sample seals and one envelopes with the FSL.
PW11Ct. Sandeep is the police official who on 03.03.2011 had deposited the two sealed envelope with the FSL.
PW12 Insp, Mukesh Jain prepared the scaled site plan and placed on record the same as ExPW12/A.
PW17 HC Yudhvir is the MHCM. On 17.02.2011, he handed over exhibits of the case to Ct. Mukesh for depositing them with FSL.
State vs Manish Kumar @ Monu etc FIR No.301/2010 10 of 32 MEMBERS OF INVESTIGATING TEAM: PW9 HC Mukesh Kumar is the member of investigating team. (It seems that inadvertently this witness has also been given the serial number PW9 though prior to him Ct. Mukesh was already examined as PW9) On 26.12.2010, he visited the spot alongwith the first IO ASI Desraj. He also joined investigation on 14.03.2011 when Insp. Mukesh Jain Prepared the scaled site plan.
PW13 ASI Surender Pal is another member of investigating team and witness to the arrest of accused Rajni.
PW14 SI Amarjeet Singh, is the second IO of the case. On 27.12.2010, after registration of the FIR, he arrested the accused Manish, Avinash and Narender.
PW15 Insp. Sushma Rawat is another IO of the case. She took over the investigation after the accused Manish, Avinash and Narender were already arrested. She arrested the accused Rajni. During investigation she recorded the statement of Smt. Jagpali, Mr. Pramod and Mr. Manoj. She seized the diary containing the suicide note and also the admitted handwriting of the deceased and sent the same to FSL. She placed on record the FSL result as ExPW15/D. After recording the statement of relevant witness and collecting relevant documents she submitted the charge sheet.
PW18 SI Desh Raj Singh is the first IO of the case. He deposed more or less on the same point as discussed in para no.1 of the judgment.
State vs Manish Kumar @ Monu etc FIR No.301/2010 11 of 32 STATEMENT OF ACCUSED:
6. On conclusion of prosecution evidence, statements of accused person were recorded u/s 313 Cr.P.C separately. Accused persons pleaded innocence. All the accused persons took the similar defence, thus, the defence take by the accused Manish is reproduced as under: “I am innocent. I have never demanded any dowry from the deceased or her family members. I, my father and brother were earning well and we have provided scooty to deceased Sarita for her going to job at Noida. We never demanded any money from her/her parents. Her salary used to be credited in her account. We have helped her many times to pay her credit cards bills and other expesnes. On 25.12.2010, I requested deceased Sarita to leave her job as she was in family way. She has already fallen two times from the scooty and it was taken against the good health of Sarita and the child. Sarita was not ready to consider my request and hence a meeting was called in which PW3, PW4 and our relatives also came. The entire story was discussed with the mother and brother of deceased and it was decided that Sarita should discontinue her job because of her ill health. In the morning of 26.12.2010, Sarita became aggressive on the point of her going to job and committed suicide after bolting the door of her bed room. She has also left the suicide note. Immediately thereafter, the door was broken by me, Avinash and one of our tenant. She was immediately taken to Sharda Nursing Home at Jhilmil but she was declared brought dead. The dead body was taken back to our home and the brother of the deceased was immediately informed about the same. We have been falsely implilcated in the present case as while reaching our home, the brother and mother of trhe deceased in consultation with their relativs have raised a demand that their your daughter namely Chinki should be married to me or Avinash, to which we refused. We have not committed any State vs Manish Kumar @ Monu etc FIR No.301/2010 12 of 32 harassment and never demanded any dowry or money from the complainant and her family members.”
7. I have heard Ld. Addl. P.P as well as Ld. defence counsel and Ld. Amicus Curiae and gone through the record of the case. I have also gone through the written submissions as well as case laws filed on behalf of accused persons.
8. Ld. Addl. PP submitted that the prosecution has proved its case against the accused persons by the testimony of PW3, PW4 and PW5. These witness have fully supported the prosecution case on the point that accused persons were demanding dowry and on that account they used to harass the deceased due to which the deceased committed suicide. Thus, he submitted that the accused may be convicted for the offences they are charged with.
9. On the other hand Ld. defence counsel submitted that the complainant and her son have not made any allegations regarding dowry demand prior to incident. The ingredient of 304B IPC have not been established as neither any demand nor any harassment on that account has been proved. The material witnesses ie PW3 and PW4 have made material improvements in their testimony and they are not reliable witnesses. There was dispute between the deceased and her husband regarding the job of the deceased as deceased was in the family way and not keeping in good health. The accused Manish and other accused persons were worried about her health as she was pregnant and physically very weak and had already fallen from the scooty and State vs Manish Kumar @ Monu etc FIR No.301/2010 13 of 32 therefore, they were pursuing her to leave her job, however, deceased wanted to continue with her job. Ld. Defence counsel submitted that these facts have been admitted by the material witnesses ie PW3 and PW4 during their cross examination. It is also submitted that the facts that the deceased was being properly taken care of by the accused Manish and the accused persons had also provided a scooty to the deceased, have been admitted by PW4 during their cross examination. Thus, he submitted that the prosecution has failed to prove the necessary ingredients for 498A IPC as well as 304B IPC, hence, prayed that accused may be acquitted. Ld. Defence counsel placed reliance upon following judgments in support of his argument.
a) SCC 2002(5) 371 Sanju @ Sanjay Singh Sengar vs State of MP
b) SCC 2004 (9) 431 Ashok Vishnu Davare vs State of Maharashtra
c) JCC 2011 (1) 668 Rani vs. State, Govt. Of NCT of Delhi
d) JCC 2011 (1) 41 Subhash vs. State of Haryana
e) AIR 2013 SC 1567 Vipin Jaiswal vs State of Andhra Pradesh
f) 2017 (1) Crl. CC 272 SC Baijnath & Ors vs. State of MP
g) AIR 2017 SC 2425 Heera Lal & Anr. vs. State of Rajasthan
h) 2016 JCC 1480 State of NCT of Delhi vs Sudhir Kr. @ Bunti
i) AIR 2013 SC 3150 Raj Kr. Singh @ Raju vs State of Rajasthan
j) AIR 2013 SC 3163 State of J. & K. v. Lakhwinder Kumar & Ors. LEGAL POSITION:
10. At the outset, to appreciate submissions and before making discussions on the testimony of material witnesses, the legal position in regard to the provisions of section 498 A & 304B IPC is required to be noted: The ingredients of Section 498A IPC are as follows: State vs Manish Kumar @ Monu etc FIR No.301/2010 14 of 32 “Section:498A: Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation For the purpose of this section ‘cruelty’ means
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
11. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. As per settled law the provisions of Sections 304B and 498A, IPC are not mutually inclusive. These provisions deal with two distinct offences. Cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences, meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.
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12. Essential ingredients of Section 304B IPC are as follows: Sec:304 B:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv)Such cruelty or harassment should be for or in connection with demand of dowry.
(v)Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
13. The harassment has to be in connection with demand of dowry. In Appasaheb and another vs. State of Maharashtra, 2007 (1) Crimes 110 Hon’ble Supreme Court observed that: “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 money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, I.P.C. viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”
14. As per the definition of “dowry death” in Section 304B IPC and the wording of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment “soon beforeState vs Manish Kumar @ Monu etc FIR No.301/2010 16 of 32 her death” and that too “for or in connection with the demand for dowry”. The legal position is well settled that on a joint reading of Section 113B of the Evidence Act and Section 304B IPC it would reveal that there must be cogent material to show that soon before her death the victim was subjected to cruelty or harassment, and that too in connection with any demand for dowry. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where presumption u/s 113B of the Evidence Act and Section 304B IPC are pressed into service. In the case reported as 2014 (9) SCC 645 titled as Manohar Lal Vs State of Haryana Hon’ble Supreme Court has observed that prosecution is obliged to prove that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption under section 113B of Evidence Act would operate.
15. Evidence in this regard has to be led in by the prosecution and established beyond doubt. In a case reported as Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon’ble Supreme Court observed that the allegations of dowry death have to be carefully scrutinized keeping in view of the gravity of punishment.
16. In regard to the the term “Soon before” in the case of Hira Lal & Others v. State (Govt. of NCT), Delhi, (2003)8 SCC 80. the Hon’ble Supreme Court has made the following observations: “The expression ‘soon before’ is very relevant where Section 113B of the Evidence Act and Section 304 B State vs Manish Kumar @ Monu etc FIR No.301/2010 17 of 32 Indian Penal Code are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test 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 304 B Indian Penal Code and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114, Illustration
(a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the 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 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.”
17. In the case of Vipin Jaiswal Vs State of A.P. 2013(3) SCC 684 the Hon’ble Supreme Court has observed that the allegations of cruelty have to be specific. The relevant para of this judgment reads as under:State vs Manish Kumar @ Monu etc FIR No.301/2010 18 of 32 “In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, Indian Penal Code, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased.”
18. Hon’ble Supreme Court has taken the same view in the case of 2014 (9) SCC 645 titled as Manohar Lal Vs State of Haryana Hon’ble Supreme Court.
19. In the recent case reported as Monju Roy & ors. Vs State of West Bengal 2015(3) Recent Apex Judgments (R.A.J.) 472 the Hon’ble Supreme Court has observed that for proving the offence under section 304B the harassment has to be proved alongwith demand. It is also held that prosecution is to also establish that all family members caused harassment.
20. In the light of above settled proposition of law, facts of the case in hand will be analyzed to ascertain as to whether prosecution has led sufficient evidence to bring home the guilt of accused persons for the offence punishable under Section 304B IPC or not.
DISCUSSIONS ON THE PROSECUTION EVIDENCE:
21. Now let us see whether all the essential ingredients have been established by the prosecution on record or not.
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22. It is undisputed in the present case that the deceased got married to the accused Manish Kumar on 07.05.2009 and the deceased committed suicide on 29.12.2010. Thus, the incident occurred within seven years of the marriage.
23. It also stands proved that the death of the deceased did not occur under normal circumstances. PW Dr. Akash Jhanjee, conducted the postmortem on the body of deceased Sarita and gave his report Ex.PW2/A. He opined that the cause of death is asphyxia as a result of ante mortem hanging. Under the circumstances, it stands proved that the deceased committed suicide. Therefore, it is proved that the deceased died “otherwise than under normal circumstances”. Viscera report ruled the consumption of any poisonous substance by the deceased.
24. It is now to be seen whether deceased Sarita was subjected to cruelty or harassment by accused persons before her demise and whether the same was in connection with demand of dowry.
25. To prove the aforesaid charges prosecution mainly cited and examined following three witness i.e. PW3 Smt. Jagpali (complainant/mother of deceased), PW4 Mr. Pramod (brother), and PW5 Mr. Manoj (cousin of the deceased).
26. PW3 Smt. Jagpali is the complainant and mother of the deceased. The present case was registered on the statement of complainant which she brought on record as ExPW3/A. Regarding dowry demand and harassment she stated that accused Manish wasState vs Manish Kumar @ Monu etc FIR No.301/2010 20 of 32 jobless and dependant on the salary of her daughter and that all the accused persons were doing nothing, therefore, they asked her daughter to bring dowry. She also stated that her daughter was beaten up on 25.12.2010 i.e. one day prior to the incident. Likewise, the statement of PW4 Pramod, the brother of Sarita was also recorded who stated that the accused persons have committed murder of his sister. Accused Manish was jobless and all the accused persons were dependant on the salary of his sister and the accused persons used to tease his sister. PW3 did not make any specific allegations regarding the period as to when and what kind of demand was made. The allegations regarding dowry demand are general in nature. Besides that PW3 stated that accused persons had beaten the deceased on 25.12.2010 i.e. one day prior to the incident. She stated that in that regard a meeting was also held on that day which was attended by her, her son Pramod and her nephew Manoj. The veracity of the allegations of beating will be considered in further part of this order, however, it is clear that PW3 did not say that deceased was beaten on that day on account of dowry demand. Moreover, she did not disclose the reason why the meeting was held between the accused persons and them on 25.12.2010. PW4 did not state that deceased was harassed on account of dowry. Thus, it is clear from the initial statement of PW3 that the allegations of dowry demand are of general in nature while there are no allegations of dowry demand in the statement of PW4. Further there are no allegations that deceased was harassed before her death on account of dowry.
State vs Manish Kumar @ Monu etc FIR No.301/2010 21 of 32
27. In her statement before the court PW3 made lot of material improvements from her previous statement. In her deposition she stated that at the time of marriage she had given dowry articles such as fridge, double bed, cooler, four tolas gold, silver articles weighing about 250 gm and cash amount for purchasing motorbike. She stated that accused persons used to beat her daughter for more dowry articles like four wheeler etc. She also stated that accused persons demanded 2 lakh rupess for starting some work of accused Manish which she paid after disposing of half portion of her house. PW4 also stated the same in his testimony. These allegations are not trust worthy as firstly these allegations have been levelled by PW3 and PW4 for the first time in their testimony before court and secondly, in her statement to SDM, PW 3 only stated that accused persons used to demand dowry, however, she never stated that the accused demanded 2 lakh rupees and she paid the same after disposing of half portion of her house. It is also not that their statements were recorded by the SDM in haphazard manner or that she did not take down complete account of their statement. The incident had taken place on 26.12.2010 and complaint had reached the spot at about 12 noon and the complainant made her statement before the SDM on 27.12.2010 i.e. one day after the incident, thus, she had all the time to state the complete facts in her initial statement. However, no such allegation regarding demand of Rs.2 lakh was stated by her. Thus, it is to be considered to be a deliberate improvement. Besides, the allegation regarding demand of said amount are not trust worthy on another count as there are material contradictions in the testimony ofState vs Manish Kumar @ Monu etc FIR No.301/2010 22 of 32 PW3 and PW4 in this regard. PW3 stated that accused demanded the said amount as accused Manish wanted to start some work while PW4 stated that the said amount was demanded to get accused Manish a job in the MCD.
28. The allegations regarding dowry demand and regarding demand of two lakh rupees are not trustworthy for several other reasons. According to complainant the accused persons used to demand dowry as they were doing nothing, thus, she endeavoured to say that they were not having any source of income. In their cross examination, PW3 the mother as well as PW4 brother of the deceased both admitted that the financial conditions of the accused persons was better than theirs. PW4 admitted that accused persons were running a TV factory while PW3 also stated that accused persons used to assemble electronic parts. Thus, it is clear from the testimony of both the material witnesses that the accused persons were running a TV factory. Thus, the very basis of allegation that accused persons used to demand dowry as they were doing nothing proved to be false with the admissions of these witnesses. Since, accused Manish was already running a TV factory, therefore, allegation that demand of rupees two lakh was made either to start a work or to get a job for accused Manish are not trustworthy at all.
29. PW3 also stated in her testimony that accused persons used to demand more articles including a four wheeler. The PW5, Manoj also stated that deceased used to tell him that accused persons used to harass her for taking a four wheeler on instalments. The allegations raised by PW3 that accused used to harass the deceased and demandState vs Manish Kumar @ Monu etc FIR No.301/2010 23 of 32 more articles are general and vague. Neither PW3 nor PW5 has specified that how and in what manner, deceased was being subjected to the harassment and by whom. There is no previous complaint to support even the aforesaid vague allegations of demand of the cash amount and harassment. The said allegations are not trustworthy as PW3 did not raise these allegations in her first statement and in this regard also she has made material improvement in her statement. Further, these allegations have not been corroborated by PW4. In the case of Vipin Jaiswal Vs State of A.P. 2013(3) SCC 684, Hon’ble Supreme Court has held that the allegations of cruelty and harassment have to be specific to establish the offences. Thus, it held that prosecution has miserably failed to prove the allegations of demand or harassment as raised by the family members and relatives of the deceased especially by PW3 and PW4.
30. Furthermore, the witnesses i.e. PW3 and PW4 have made many material improvements in their statements and for the aforediscussed reasons, the allegations raised in their testimony are not trustworthy. It has been held by Hon’ble High Court in the case reported as 2014(209) DLT 106 and titled as Khushal Chand Vs State that the testimony of a witness becomes unreliable if he makes material improvements.
31. The accused has taken a specific defence that the deceased was in the family way and was underweight and was not in good health and once, she had fallen from the scooty and keeping in view of her medical conditions, the accused were of the view that deceased should leave herState vs Manish Kumar @ Monu etc FIR No.301/2010 24 of 32 job and take rest at home. According to the accused, the deceased was not willing to part with her job and adamant to continue and this issue was the main reason for the dispute between the deceased and the accused persons. It is also contended on behalf of the accused that in order to make the deceased agree to leave the job, a meeting was held on 25.12.2010 between the accused persons and the family members and relative of the deceased. The mother of deceased (PW3) has made a discussion about the meeting of 25.12.2010 in her first statement, however, she has not spelled out the reason of the meeting. The mother of the deceased also not specified the reason for the said meeting in her statement before the court, however during cross examination she admitted that the meeting was held as the deceased was adamant to continue with her job and they pacified her and tried to pursue her to leave the job. In this regard the brother of the deceased deposed that on 25.12.2010, the accused Manish had called them and when he reached their with his mother and cousin Manoj, he came to know that his sister wanted to continue with her job but her husband wanted her to quit job due to pending household works. The cousin brother Manoj also did not say as to why the meeting was called, however, in his cross examination he admitted that the meeting was called as there was a dispute regarding deceased going for job. The mother and brother of the deceased admitted in their cross that deceased was in the family way and not keeping in good health and underweight also. PW4 also admitted that deceased was very weak and underweight and due to her weakness she had fallen twice of the scooty. PW4 admitted that theState vs Manish Kumar @ Monu etc FIR No.301/2010 25 of 32 deceased was not ready to resign from her job. The mother and brother of the deceased admitted in their testimony that the meeting was called as the deceased was insisting to go for her job and they went there and persuaded her to leave her job. Thus, it is clear from these discussions that the accused persons wanted the deceased to leave the job as she was in the family way and was very weak and underweight also. Thus, it was quite natural on the part of the accused persons, being her family members, to be worried about her well being as well as the child as she was in the family way and had fallen off the scooty twice while going to her office. Thus, under these circumstances, they were well within their right to pursue the deceased to leave her job. It clear from the evidence of the material witnesses that when the accused persons failed to pursue the deceased they called her family members to make her understand. Thus, it is clear that meeting was not called as the deceased was harassed or beaten rather for the reason discussed above. This fact further weakens the prosecution case that the accused used to demand dowry and for their livelihood as they were fully dependant on the job of the deceased. In case, they were idle and solely surviving on the earnings of the deceased then they would not ask her to leave the job. This fact further corroborates that the accused persons were doing their business and wanted the deceased to leave her job for her well being.
32. PW3 stated in her first statement (PW3/A) that in the night of 25.12.2010, the accused Narender called her son Pramod and told him that they are sending her daughter to their house alongwith dowry articles and after getting her aborted. She stated that after the said callState vs Manish Kumar @ Monu etc FIR No.301/2010 26 of 32 at about 1 am her daughter called her and told her that accused persons were beating her. She pacified her and said that she would come in the next morning. The statement of PW3 has not been corroborated by PW 4 and he did not discuss anything about the second call and according to him only one call as stated by PW3 was made. Thus, the allegations regarding the call made by the deceased are not trustworthy. Furthermore, It is clear from the aforesaid discussions that the accused persons were very much concerned about the health and safety of the deceased and when deceased did not accede to their request they called upon her family members. Thus, under these circumstances, the allegation that deceased made a call to her mother that she was being beaten by the accused persons is not trustworthy. The case of the prosecution is that deceased was being harassed by the accused persons on account of dowry while it is clear from forgoing discussions that prosecution has not been able to establish the allegations of dowry demand. Thus, when the motive i.e. dowry demand of harassment could not be established by the prosecution, therefore, under these circumstances, in the absence of motive, the said allegations becomes baseless and not reliable.
33. There are further allegations that accused persons used to snatch the salary of the deceased. These allegations are also not reliable in view of the cross examination of the PW4. PW4 admitted in his cross examination that the deceased was having a bank account and her salary used to be directly credited in her bank account and only she was operating this bank account. Thus, under these circumstances thereState vs Manish Kumar @ Monu etc FIR No.301/2010 27 of 32 was no occasion for the accused persons to snatch the salary of the deceased.
34. The allegations of beating raised by the mother also don’t find corroboration from the autopsy report. PW2 Dr. Akash Jhanjee who conducted postmortem examination on the dead body of deceased found following injury marks on the person of the deceased: (External Examination)
(i) Ligature marks in the form of pressure abrasion with oblique discontinuous disposition around the front and sides of the neck. The circumference of the neck was 31 cms and the length of the mark was 25 cms, widths varying between 3.5 to 4.5 cm. The base of the mark was redish, hard and parchmentized. The mark was more apparent over left side front of the neck. The mark ws placed 4 cm below the right mastoid process, 5 cm below right angle of mandible, 6 cm below chin in midline, 5.5 cm below left angle of mandible and 7 cm below the left mastoid process.
(ii) Contusions swelling reddish, 3 x 1.5 cm over right side parietal region of the head lying 5.1 cm above the top of left ear pinna.
35. It is clear from the autopsy report that first injury was due to hanging and same is also the reason of the demise of the deceased. According to PW2, the second injury was the result of blunt force impact. In regard to the second injury, ld. Defence counsel contented that after the accused persons came to know that the deceased had hanged herself, they broke open the door of the room and immediately took the deceased to a private hospital. Ld counsel submitted that the second injury might have been caused during the transit of the deceasedState vs Manish Kumar @ Monu etc FIR No.301/2010 28 of 32 from home to the hospital. To further strengthen his argument ld. Defence counsel has relied upon the DD No.28B (ExPW16/E) and submitted that the fact that deceased was taken to the hospital has been recorded in the said document. Ld. Counsel further stated that the PW2 did not deny that deceased could have died during the time when she was being taken to the hospital. He stated that PW2 also did not deny that the second injury could have been caused during the said process. It is clear from the DD No.28B that the fact that deceased was taken to the private hospital by the accused persons has been mentioned by PW 16 ASI Desh Raj in his said DD entry which he made after his first visit to the house of the accused persons. Thus, under these circumstances, it can be assumed that deceased might have suffered the second injury while accused made their efforts to save her life. Thus, prosecution has failed to establish the charges of dowry demand and harassment of the deceased in connection with dowry demand either through ocular evidence or through the medical evidence.
36. The defence of the accused persons that they were worried about the health and safety of the deceased and a dispute arose only when they asked the deceased to leave the job and she was adamant to continue with her job. The defence taken by the accused persons they were taking best care of the deceased stood proved from the admissions came in the cross examination of the PW4. PW4 admitted in her that the accused persons had provided his sister a scooty for going to job. He further admitted that accused Manish was taking care of his sister and he used to take her to the doctor. It is also clear that this witness State vs Manish Kumar @ Monu etc FIR No.301/2010 29 of 32 admitted that his sister was not ready to leave her job and she was short tempered by nature and sometimes she used to be aggressive. Thus, keeping in view of these admissions of the material witness it can be very well said that the deceased was adamant to continue with her job despite the persuasions of her in laws and her own family members in the meeting of 25.12.2010. After his first visit to the spot, the ASI Desh Raj/PW16 made a record of the inquiries made by him from the mother and brother of the deceased in regard to the incident in the DD No.28B. It is mentioned in the DD No.28B (Ex.PW16/E) entry that mother and brother of the deceased told that a quarrel took place between husband and wife on the issue of the job of the deceased and at 9 am, the deceased committed suicide. This fact has been admitted by PW16 in his cross examination also. Thus, once the said circumstances and the DD No.28B are taken into consideration together, it can be concluded that after the said meeting held on 25.12.2010, the dispute regarding job again broke out between the husband and wife and in the next morning the deceased committed suicide after bolting herself in the room of the first floor of the house as she was being persuaded to leave her job which she was not willing to. Nothing has come on record to substantiate the case of the prosecution that deceased was beaten or harassed soon before her death or even prior to that on account of dowry demand. In view of the settled propositions of law, the prosecution was required to prove that immediately prior to the demise there was a dowry demand and deceased was harassed and treated with cruelty for meeting out the dowry demand. In the instant case neither the allegations of the dowryState vs Manish Kumar @ Monu etc FIR No.301/2010 30 of 32 demand/illegal demand nor harassment or cruelty have been brought on record by the prosecution.
37. During investigation, PW6 Mohit Kumar Pal, the uncle of accused persons had handed over a diary which contained the suicide note MarkA. The said diary was taken into possession vide seizure Ex PW6/A. PW4 also handed over the documents containing the admitted handwriting of the deceased and these documents were also seized vide seizure memo ExPW4/B. These documents were sent to FSL for expert opinion but FSL did not provide any opinion and sought some more material for comparing the documents, however during his cross examination, PW4 categorically admitted that his deceased sister had left the suicide note MarkX before her death. Thus, under these circumstances the suicide note can be relied upon and it is clear from the contents of this suicide note that deceased has clearly stated that her in laws and her family members love her a lot and none of these families be harassed after her demise. Thus, the suicide note completely demolishes the case of the prosecution that she was subjected to the harassment on account of dowry before her demise.
38. Thus, it is held that prosecution has failed to prove all the necessary ingredients of section 498A/304 B IPC. In the present case, an alternate charge u/s 302/34 IPC was also framed, however, it is clear from the medical evidence came on record that the death of the deceased was suicidal and not homicidal, thus, there is no evidence also regarding charges u/s 302/34 IPC against the accused persons.
State vs Manish Kumar @ Monu etc FIR No.301/2010 31 of 32 CONCLUSION:
39. Keeping in view of these facts and circumstances, it is held that prosecution has failed to prove the allegation of dowry demand and harassment, thus, all accused persons are directed to be acquitted of the charges 498A/304B/302/34 IPC.
40. File be consigned to record room after due compliance of section Digitally signed by 437A Cr.P.C. AJAY AJAY GUPTA Location: Delhi GUPTA Date: 2018.01.24 16:55:59 +0530 (Ajay Gupta) ASJ02/ Special Judge(NDPS) KKD/East/Delhi Announced in open court on 24.01.2018 State vs Manish Kumar @ Monu etc FIR No.301/2010 32 of 32