Excerpt:The contents of the complaint Ex PW3/3 of itself cannot become evidence even if he depose in the Court that that contents thereof were correct and was stated by him.
If such position is accepted then in all criminal cases complainant may give his written complaint in detail to the police and then appear in the witness box to depose in examinationinchief only that contents of his complaint is correct and he had written the same. What constitute evidence is testimony recorded in the Court. Previous statement of a witness if reduced in writing can be used only for the purpose of corroboration or contradiction.
Delhi District Court
Cnr No. Dlnw01-011368-2017 vs Unknown on 15 May, 2019
CNR No. DLNW01-011368-2017
FIR No. 635/17 PS. Aman Vihar
U/s 498A/304B/34 IPC
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL
SESSION JUDGE - 03 : NORTH WEST : ROHINI : DELHI
IN THE MATTER OF:
STATE
VERSUS
1. MONI
D/o Sh. Ajay Pal Singh
R/o A54, Parvesh Nagar, Mubarak Pur,
Dabas, Delhi110 081
2. NIRMALA
W/o Sh. Ajay Pal Singh
R/o A54, Parvesh Nagar, Mubarak Pur,
Dabas, Delhi110 081
Date of Institution of the case in Sessions Court : 15.11.2017
Date of conclusion of arguments : 02.05.2019
Date of Judgment : 15.05.2019
JUDGEMENT
1. The case of the prosecution is that on 01.06.2017 at about 6:44 pm ASI Jaswant Singh received a PCR call vide DD No. 36 PP, PS Aman Vihar that in A54, Parvesh Nagar, Mubarakpur, a lady aged 25 years had hanged and police help was needed. ASI Jaswant along with Ct. Hawa Singh reached at A54, Parvesh Nagar, CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC Mubarakpur and found crowd of nearby residents. The main gate of the house was opened by the residents of the locality. One lady namely Shashi Prabha w/o Subedar Singh was found hanged with dupatta from the iron grill between the bedroom and kitchen and a wooden stool and chappal were lying near her feet. Moni, the sisterinlaw of deceased was also present in the house along with neighbours. On enquiry, it was discovered that deceased got married in the month of April, 2014.
2. ASI Jaswant Singh called the Crime Team at the spot. ASI Jaswant Singh further came to know that parents of deceased live at Fatehpur, UP. Father of deceased Sh. Tej Pratap Singh was telephonically informed. Ld. SDM also came at the spot. Crime Team also came at the spot and inspected the spot and took photographs from different angles. Ld. SDM directed the ASI to get preserve the dead body of deceased in the mortuary of Sanjay Gandhi Memorial Hospital, Mangol Puri. ASI seized the wooden stool and chappal after preparing pullinda of the same. Thereafter, ASI got preserved the dead body of deceased Shashi Prabha in the mortuary of Sanjay Gandhi Memorial Hospital, Mangol Puri.
3. On 02.06.2017, SI Naveen Malik, ASI Jaswant Singh, Ct. Praveen Kumar reached at the mortuary of Sanjay Gandhi Memorial Hospital, Mangol Puri where Ct. Hawa Singh was already present. Sh. H.C. Sharma, Executive Magistrate, Rohini also reached at CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC mortuary of Sanjay Gandhi Memorial Hospital, Mangol Puri and waited for the family members of deceased. In the afternoon, father of deceased Sh. Tej Pratap Singh, brother Shailender Singh along with other persons reached at mortuary of Sanjay Gandhi Memorial Hospital, Mangol Puri. Thereafter, Sh. H.C. Sharma, Executive Magistrate, Rohini showed dead body of deceased to her father and brother who identified the dead body and after completing of formalities postmortem was conducted. On the identification of both father and brother, jewellery and mobile phone of the deceased was handed over to her brother Shailender.
4. After enquiry, Sh. H.C. Sharma, Executive Magistrate, Rohini recorded the detail statement of father of the deceased on which brother of deceased had also signed. After the postmortem, the dead body of the deceased and statements of father and brother of the deceased was handed over to SI Naveen Malik. Thereafter, SI Naveen Malik handed over the dead body of the deceased to their family. Doctor who conducted the postmortem on the dead body of the deceased handed over a pullinda to the SI containing chunni and sample seal. SI got deposited the same in malkhana and handed over the statements to the SHO and SHO on the statement of father of the deceased got registered the FIR under Section 498A/304B/34 IPC. Thereafter, further investigation of the present case was handed over to the Inspector.
CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC
5. During investigation, IO Krishna inspected the spot and prepared site plan. Sisterinlaw of deceased namely Moni was arrested on 23.06.2017. Postmortem report of deceased was received vide no. 482/17 dated 02.06.2017. IO collected the Crime Team Report and recorded the statement of photographer u/s 161 Cr.P.C. During investigation motherinlaw of deceased Nirmala was served with notice u/s 41A and after enquiry without arrest she was kept in column no. 11(b) as motherinlaw of deceased was in her village for about 1 ½ month prior to the incident, for taking care of the crops. Scaled site plan was prepared by the draftsman. Statement of witnesses were recorded u/s 161 Cr.P.C. During investigation, it came to knowledge that deceased has a daughter aged about 18 months who was playing in the neighborhood house. Statement u/s 161 Cr.P.C. of neigbourer Smt. Fatima Begum was recorded to this effect. During investigation it was revealed that deceased committed suicide by hanging herself after her marriage within 3 years and 1 and ½ month. As per investigation both the accused Moni and Nirmala were kept in column no. 11 and charge sheet was filed before the Court.
6. Ld. Metropolitan Magistrate before whom charge sheet was filed who took cognizance of the offense and after compliance with the provision of the Section 207 CrPC committed the case to the session court after which it was assigned to this Court.
7. Prima facie finding case having been made out Ld.
CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC Predecessor of this Court was pleased to frame requisite charge against the accused persons which was explained to the accused persons to which they pleaded not guilty and claimed trial. Thereafter, prosecution was asked to substantiate its allegation by examining its witnesses cited in the list of witnesses.
8. In all prosecution examined 15 witnesses out of which PW3 and PW4 are father and brother of the deceased, PW6 Fatima is neighbour of the deceased, PW13 is the SEM and PW15 is the Doctor. Rest all are police witness.
9. PW1 ASI Surender Singh proved the Mobile Crime Team inspection report Ex PW1/1. PW2 ASI Nem Singh was working as MHC(M) on 01.06.2017 and as Duty Officer on 03.06.2017 and he proved the deposit of Stool & Chappal in Malkhana vide entry No. 368 in the Registered No. 19 Ex PW2/5 and deposit of seal pullinda with sample seal of SGM vide entry Ex PW2/6. He also proved registration of FIR Ex.PW2/1, endorsement thereon Ex PW2/2, certificate Ex PW2/3 under Section 65 B Evidence Act and DD No.3 Ex PW2/4 regarding handing over rukka and copy of FIR.
10. PW3 Sh. Tej Pratap the father of the deceased proved his statement Ex PW3/1 regarding identification of the body of the deceased and his statement PW3/2 made to the Magistrate and receipt Ex. PW3/3 regarding receipt of death body. PW4 Sh Shailender, the CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC brother of the deceased, proved his statement Ex PW4/1 regarding identification of the deceased as well receipt of body of deceased vide receipt Ex PW3/3. He also identified his on the statement Ex PW3/2 of his father made to the Magistrate. PW6 Ms Fatima is next door neighbor and with whom deceased had left her daughter just before her suicide.
11. PW5 is the photographer of Mobile Crime Team and he proved the photographs Ex PW5/A (112) that he clicked at the spot. PW7 Ct. Dharmender proved the scaled site plan Ex PW7/1. PW8 Ct. Praveen proved the DD No. 36 PP Ex PW8/1 entered on 01.06.2017. He also proved the seizure of jamuni color chunni in a plastic panni sealed with seal of hospital vide memo Ex PW8/2. PW9 Ct. Hawa Singh was the one who had gone to the spot with ASI Jaswant Singh after receipt of PCR call and seen the deceased hanging with chunni from a iron grill between kitchen and bedroom and he was also witness to the proceeding conducted there like calling of Crime Team, arrival of SDM etc. PW10 W/Ct. Pinki is witness to the arrest of accused Moni.
12. PW11 SI Naveen Malik is witness to the completion of formalities before postmortem like identification of body etc. and subsequent to postmortem like seizure of articles like chunni etc. PW12 ASI Jaswant Singh had done preliminary inquiry after reaching at the spot upon receiving information about a lady having hanged CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC herself. PW13 Sh. H.C. Sharma is the Executive Magistrate who had conducted the inquest proceedings and proved the same. PW14 Inspector Shri Krishna is the investigation officer and he proved his investigation. PW15 Dr. Anurag Thakur proved the postmortem report Ex PW15/A conducted by Dr. Manoj Dhingra.
13. After completion of prosecution evidence, all incriminating substance as appearing in the evidence was put to the accused persons under section 313 CrPC and their respective response were recorded and asked if they want to lead defense evidence to which they said No. Thereafter, final arguments were heard from both sides.
14. Ld. APP for the state has argued that deceased was subjected to cruelty in connection with dowry demand was categorically proved by the testimony of father and brother of the deceased. He has argued that testimony of father of the deceased is genuine testimony as he never named husband and fatherinlaw of the deceased as culprit. He argued that if father of the deceased had wanted to falsely implicate then he would have also implicated the husband and fatherinlaw of the deceased as well. He further argued that admittedly deceased had died unnatural death within 7 years of her marriage and thus there is presumption of dowry death against the accused persons.
15. Per contra Ld. Counsel for accused persons have expressed CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC surprise as to how prosecution is persisting with allegation of cruelty only against sisterinlaw and motherinlaw without the complicity of husband. He argued that falsity of the prosecution story is writ large from the fact that if deceased had no grievance with her husband then how husband would allow alleged cruelty from sisterinlaw and mother inlaw. He argued that in such circumstance husband must have taken corrective steps in the shape of living separately or keeping mother and sister away from the deceased. No allegation against the husband itself shows that investigating agency in order to have semblance of solution of the mystery has falsely implicated the accused persons. He further argued that even other wise the allegation against the accused persons is general in nature and father of the deceased admitted in cross examination that quarrel used to be on minor issues, which, as per Ld. Counsel for the accused persons, can be termed as normal wear and tear of life.
16. Ld. Counsel for the accused persons has further argued that neither in the testimony of the father of the deceased nor in the written complaint given by him there was mention of any kind of cruelty/harassment which would drive the deceased to take harsh step of ending her own life. He has argued that father of the deceased did not depose anything incriminating against the accused persons in the court and mere admitting in cross examination by Ld. APP that contents of his complaint Ex PW3/B was correct will not serve the purpose of testimony. Further contents thereof per se cannot be said to CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC be testimony of the father in the court. His such admission at best go to prove that complaint was made to the police but that of itself would not prove the contents of the allegation unless witness himself depose in the court.
17. Ld. Counsel for the accused persons has argued that father of the deceased had deposed that there was quarrel on 25.03.2017 between the deceased and the motherinlaw of the deceased and following day when father of the deceased wanted to take her back home deceased herself did not go which also goes to show that allege quarrel was of minor nature otherwise neither the deceased would have stayed behind nor her father would have left her behind even if she did not want to join if such was the gravity of the situation as would drive her to commit suicide later.
18. Ld Counsel for accused persons has further submitted that admittedly neighbor who had last seen the deceased handing over her child in her care did not notice any sign of tension on her face nor any neighbour including PW6 deposed anything regarding any cruel treatment allegedly being meted out to her. He has further argued that mere a married lady has committed suicide within 7 years of her marriage, her inlaws cannot be held guilty. Investigation has responsibility to bring either direct or circumstantial evidence to prove that the deceased was subject to cruelty and that too in connection with demand for dowry but in the present case prosecution has failed CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC to bring any material on record to prove the guilt of the accused persons beyond reasonable doubt.
19. Rival contentions considered. Allegation, material and evidence on record perused. Both accused persons have been charged under Section 498A and Section 304B read with Section 34 IPC.
20. Section 498A provides 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. The term “cruelty” has been explained in explanation attached to Section 498A IPC as per which “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.
21. Defense is not disputing that the deceased had died on 01.06.2017 within 7 years of her marriage in her matrimonial home.
CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC Defense is also not disputing that both accused persons are sisterin law and motherinlaw of the deceased. So there is no need to discuss the evidence regarding establishing the identity of the deceased and that she died within 7 years of her marriage as these facts are undisputed. Both prosecution and defense are in agreement that deceased had committed suicide i.e. had died otherwise than under normal circumstance and same is corroborated by the postmortem report Ex PW15/A wherein following has been observed: External examination: “Ligature mark seen with width 1.4cm & 29 cm long present above the thyroid eminence in midline of neck running upward & backward obliquely on both sides and absent over nape of neck . It is 5.6 cm below chin, 1.2.cm below right ear, and 3.5 cm below left ear. The mark was dry, brownish, parchmentised. Cut section shows glistening white subcutaneous tissue. No damage seen to neck muscles.”
Internal Examination Neck Structures : No injury seen to any muscles & cartilages. Mucosa is congested.
Opinion : Death is due to Asphyxia as a result of antemortem hanging.
22. In the light of above it has got to be seen if the prosecution has been successful in proving beyond reasonable doubt that deceased CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC was subjected to cruelty for the purpose of Section 498A and was subjected cruelty soon before her death for the purpose of Section 304B. In the present once it is established that deceased was subjected to cruelty or harassment soon before her death then presumption under Section 113B of Evidence Act, to the effect that they had caused dowry death of deceased, would arise against the accused persons and they would be under legal obligation to rebut those presumption either by eliciting in cross examination of prosecution witness or by leading evidence. Out of all the witnesses examined by prosecution only PW3, the father of deceased, PW4 the brother of the deceased and PW6 Ms Fatima the neighbor of the deceased are relevant on this point as other witnesses are either police officials or doctor or forensic expert who are not witness to treatment meted out to the deceased.
23. PW3 in his complaint Ex PW3/2 had stated that he had married his daughter Shashi Prabha to Subedar Singh in community marriage and soon after the marriage accused persons started harassing his daughter for dowry about which his daughter used to make complaint from time to time to him and her mother. At the time of marriage he had given Rs 3 Lacs in cash to the inlaws but despite that accused persons used to disturb/trouble his daughter for house articles such as TV, Fridge, Washing Machine etc. His soninlaw not being employed used to do agriculture work in his village in Fatehpur, UP and in his absence accused persons used to avoid medical care to his daughter. When baby Mansi was born to his daughter in January CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC 2016 accused persons had stated that her parents had given neither any suitable items nor suitable clothes in pilia.
24. It is further stated in the complaint Ex PW3/2 that on 25.03.2016 he received phone call from her daughter who while weeping asked him to come to Delhi. He came to Delhi on 26.03.2017 along with his son Shailender and his daughter told him that accused persons were harassing her by taunting her for bringing insufficient articles in dowry. He tried to make them understand on this issue but accused persons even quarreled with him. After fews days when he had returned from her inlaws place he received a phone call from his daughter from the phone of his soninlaw and told him that her sisterinlaw had snatched her mobile phone. He had further stated that on 01.06.2017 at about 6:30 PM his soninlaw gave him a call and informed that Shashi Prabha had hanged herself and asked him to come soon. He further stated she never had any complaint against her husband and fatherinlaw but she took harsh step due to harassment meted out to her by accused persons.
25. When he appeared in the witness box as PW3 he deposed in examinationinchief that his daughter Shashi Prabha got married to Subedar Singh in April, 2014. Marriage was solemnized in their village. On 01.06.2017 at about 4:00 pm he received a telephonic call from his soninlaw Subedar who informed him that Shashi Prabha had hanged herself (faansi laga rakha hai). He (Subedar) asked him CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC to come over. He accordingly reached SGM Hospital at about 1:002:00 pm on 02.06.2017. One Magistrate was present there who had asked him as to what had happened and what was the matter. He told that he did not know anything as he had just come from his native village. He was asked if there were any disputes in matrimonial family of his daughter to which he had told that his daughter used to inform him some minor disputes in the family and the dispute used to be between his daughter and her motherinlaw and nanad. He further deposed that he had told that his daughter used to complain that accused persons used to quarrel with her over some articles. He further deposed that his daughter used to tell him that there used to be minor domestic quarrels in the family.
26. He further deposed that on 24.03.2017 his daughter had telephonically asked him to come to Delhi and when he reached Delhi on 25.03.2017 his daughter had told him that she had some minor dispute with the accused. He talked to the accused persons and he too had some quarrel with them. He asked his daughter to accompany him back home but she refused to come with him and he went back. He further deposed that he did not know anything else.
27. On leading question allowed to be put by Ld. APP for the state, PW3 deposed that his statement Ex PW3/2 was recorded by Magistrate Sahab and which he signed at points X and X1 after reading the same. Said statement was read out to him and he deposed CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC that it was the same statement which was stated by him before Magistrate. He further deposed that whatever was mentioned in the statement is correct and as per what was told by him to the Magistrate. He admitted that due to lapse of time he could not tell complete details earlier.
28. In cross examination he deposed that he had never lodged any complaint before any authority prior to 01.06.2017 in respect of what was happening with his daughter. He had no knowledge what her husband was doing in Delhi. Police had not interrogated Subedar in his presence. Accused Moni was doing some work in Delhi but he did not know what she was doing. After coming to Delhi he did not make enquiry from any of the neighbours of his daughter. He further deposed that police had never interrogated him in connection with this case after 02.06.2017 and police had not done any investigation in his presence after 02.06.2017. He further denied the suggestion that he had falsely implicated the accused persons in the case due to wrong advise. He denied that his signature were obtained on blank paper or PW3/2 was not his statement.
29. Brother of the deceased PW4 Shailender Singh in his examinationinchief in the court deposed that on 02.06.2017 had identified the dead body of his sister Shashi Prabha in SGM Mortuary and his statement Ex PW4/1 in this regard was recorded and after postmortem dead body was received by them vide receipt Ex PW3/3.
CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC He further deposed that statement of his father was recorded by the police and he too had signed the same. Said statement of his father was Ex PW3/3 which bore his signature at point Y and Y1.
30. In cross examination he admitted that his sister had got married in community marriage function. He came to know of death of his sister on 01.06.2017 through his brotherinlaw Subedar Singh. He reached Delhi on 02.06.2017. He admitted that they were angry and emotional when they came to Delhi on 02.06.2017. His sister had never told him about being harassed on account of dowry demand by her inlaws. He was not aware if his sister was suffering from any disease. He had signed Ex PW3/2 after reading the same and his sister had never complained to him about being tortured in her matrimonial home.
31. PW6 Ms Fatima Begum, the neighbour of the deceased, in her examinationinchief deposed that on 01.06.2017 accused Moni was going to her native village as it was her school holidays as she used to work in school. She (PW6) had told her to go after her mother come or else her Bhabhi (deceased) would be alone. She (Moni) claimed that her holidays would be over by that time and she would not be in a position to leave. She (PW6) accordingly asked a neighbouring boy to leave her (Moni) at the bus stand and she (Moni) left at about 5:10PM. Deceased looked out of the house to assure that she (Moni) had gone. Deceased was sweeping the floor and then she CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC went inside and came out after 1520 minutes. Daughter of the deceased was with her (PW6). Deceased asked about her daughter Mansi and she (PW6) told her that she was present in her house. Deceased allowed her daughter to remain with her(PW6) and then she went inside. She (PW6) went to her house after 510 minutes and knocked the door but there was no response from inside and she returned back with Mansi. She again went to her house after some time but none responded. She again came back and revisited her house after some time but still no one responded, then she tried to push open the door but it was locked from inside. She tried to peep inside but could not see anything.
32. She further deposed that when she peeped inside from near the cooler window, she saw deceased was hanging from grill near the kitchen. She then raised noise and neighbours collected who tried to push open the door but could not succeed. Brother of Moni was called up. He then called up Moni. Public collected and broke open the door and police also reached there. After police came Moni also came there.
33. In cross examination she deposed that her house was across the road from house of the accused persons and she had never heard any noise of quarrel coming from house of accused. She had never heard Moni or her mother troubling or harassing Chander Prabha. Chander Prabha never complained to her. She further CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC deposed that parents of Chander Prabha used to come to her matrimonial home and she had seen them coming there. She had never heard nor seen Moni and others quarreling with the parents of Chander Prabha.
34. Question now is whether on the basis of what has been deposed to by above three witnesses can it be said that deceased was treated with such cruelty as to drive her to commit suicide or to cause grave injury or danger to her life, limb or health (whether mental or physical) of the deceased or whether such harassment was 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?
35. Brother of the deceased did not depose a single word that his sister was subjected to cruelty or harassment. He also did not depose that he had come with his father on 26.03.2017 to Delhi and when his father tried to make the accused persons understand which resulted into quarrel between the two. PW6 Fatima also did not depose about any cruel treatment meted out to her by her inlaws. In fact from her testimony it is clear that accused Nirmala was at her native place one and half month prior to her death. She also deposed that accused Moni had left for her school at around 5:00 PM and there after she had seen the deceased looking outside to assure that Moni had had left, thereafter deceased was seen sweeping the floor and CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC then deceased had come over to her to allowed her minor Mansi to remain with her whereafter PW6 went threefour times at the door of the deceased but it was not not opened and found locked from inside after which she peeped to find that deceased was hanging from grill between the kitchen and bedroom. The testimony of PW6 also did not point out any conduct against the accused persons. As per accused Moni had left fpr school and deceased did her normal work of weeping the floor and had also come to her to check about her 18 months old daughter and left her remain with PW6. Deceased did not show any sign of tension on her face.
36. PW3 father of the deceased in the court did not level any allegation against the accused persons but on leading question being put to him, he confirmed having stated to the Magistrate the contents of the complaint Ex PW3/2. In his written complaint he did not attribute any specific allegation but leveled general allegation that too was not with respect to demand. No article was alleged to have been given in response to any demand from any of the accused persons. Accused persons have alleged to have harassed with respect to quality and quantity of article presented by the parents of the deceased and for not bringing the certain consumer durables like TV, fridge etc. but there was no demand from any one and how and in what manner deceased was harassed or tortured has not been deposed to by him.
37. In cross examination he categorically deposed that CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC deceased used to have minor dispute over article with sisterinlaw and motherinlaw. Father of the deceased himself had termed the dispute between the deceased and accused persons as minor. He also admitted that he had made no complaints ever against the inlaws before 02.06.2017. The incident of 25/26 March 2017 is not corroborated by his son PW4 Shailender who had accompanied his father on that day. Further PW4 being a family member must be aware of any cruel treatment meted out to her by her inlaws even if she had not personally confided to him. But PW4 is completely silent about any alleged cruel treatment meted out to his sister.
38. Hon’ble Apex Court in the matter titled as Kanwar Pal v.Shakuntala And Ors., 2015 IV AD (Delhi) 450, has held as under: “In any case, to hold an accused guilty of both the offences under Sections 304B and 498A IPC, 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 allegation on the deceased…….. ……….. In our view, onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 498A and the essential ingredient of offence under Section 498A is that the accused, as the husband of the deceased, has subjected her to cruelty as defined in the Explanation to Section 498A IPC. Similarly, for the Court to draw the presumption under Section 113B of the Evidence Act that the appellant had caused dowry death as defined in Section 304B IPC, the prosecution has to prove besides the demand CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment of cruelty, neither of the offences under Section 498A and Section 304B IPC has been made out by the prosecution.
39. In Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar 2005 III AD (S.C.) 261, the Hon’ble Apex Court has held that:
(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.
40. In a judgment titled Vipin Jaiswal v. State of Andhra Pradesh 2013 IV AD (SC) 275, it has been held by Apex Court that: “In any case, to hold an accused guilty of both the offences under Sections 304B and 498A IPC, 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 act of cruelty or harassment by the Appellant on the deceased. ….”
CNR No. DLNW01-011368-2017 FIR No. 635/17 PS. Aman Vihar U/s 498A/304B/34 IPC
41. In Amar Singh v. State of Rajasthan: 2010 (4) C.C.C.
234 (SC), it has been held:
“22. xxxxxx What is punishable under Section 498A or Section 304B IPC is the act of cruelty or harassment by the husband or the relative of the husband on the woman. It will be also clear from Section 113B of the Indian Evidence Act that only when it is shown that soon before her death a woman has been subjected by any person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death within the meaning of Section 304B IPC. The act of subjecting a woman to cruelty or harassment for, or in connection with, any demand for dowry by the accused, therefore, must be established by the prosecution for the Court to presume that the accused has caused the dowry death.
23. xxxxxxx A prosecution witness who merely uses the word “harassed” or “tortured” and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Section 498A and 304B IPC.
42. Thus the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused and it has got to be done not by mere general allegation. Only specific instance deposed to by PW3 is that his daughter had asked him to come Delhi on 24.03.2017 and he reached Delhi alongwith his son Shailender on 25.03.2017 and his daughter had told that she had some minor dispute with accused persons and when he tried to make them understand accused persons also had quarrel with him. He wanted his daughter to accompany him. Aman Vihar U/s 498A/304B/34 IPC back home but she refused. His son Shailender has not supported the said version by not deposing a single word about all this. Though contents of Ex PW3/3 does show that he had stated before the Ld Magistrate that accused persons used to taunt her about insufficient articles but there also his allegation are general. The contents of the complaint Ex PW3/3 of itself cannot become evidence even if he depose in the Court that that contents thereof were correct and was stated by him.
43. If such position is accepted then in all criminal cases complainant may give his written complaint in detail to the police and then appear in the witness box to depose in examinationinchief only that contents of his complaint is correct and he had written the same. What constitute evidence is testimony recorded in the Court. Previous statement of a witness if reduced in writing can be used only for the purpose of corroboration or contradiction. Perusal of entire testimony of PW3 no where proves that accused persons subjected the deceased to such cruelty so as to drive her to commit suicide. Testimony of PW4 and PW6 also do not have anything incriminating to prove that deceased was meted out cruel treatment or harassed so much so that she could commit suicide.
44. As stated earlier police witnesses are not witness to the treatment being meted out to the deceased by her inlaws, hence examining there testimony for the purpose of looking for evidence of cruelty will be a useless exercise. Hence, prosecution has failed to prove necessary ingredient of Section 498A that deceased was subjected to cruelty by accused persons as explained in Explanation appended to Section 498A IPC.
45. Once prosecution failed to prove that deceased was treated with cruelty at any point of time by accused persons there remains no purpose to see if the deceased was treated with cruelty soon before her unnatural death so as to find out if presumption of dowry death could be raised in view of Section 113B of Evidence Act.
Hence, in view of the above discussion and reasoning both accused persons are acquitted of offence under Section 498A and Section 304B IPC for which they were charged and tried.
In terms of Section 437A CrPC both acquitted are required to furnish for a period of six month personal bond of Rs 15,000/ each with one surety of like amount, as assurance to appear before the Hon’ble High Court in case prosecution wishes to challenge their acquittal.
File be consigned to Record Room after necessary Digitally signed by compliance. HARISH HARISH KUMAR KUMAR Date: 2019.05.16 15:12:11 +0530 (HARISH KUMAR) ADDL. SESSIONS JUDGE – 03, Announced in the open court NORTH WEST, ROHINI COURTS, (Judgement contains 24 pages) NEW DELHI / 15.05.2019
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