1 IN THE COURT OF SMT. BIMLA KUMARI ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI S.C. No. 11/2010 State Vs. 1 [ENTITY] S/o Sh[ENTITY] 2 [ENTITY] S/o Late Sh[ENTITY] 3 Smt. [ENTITY] W/o [ENTITY] All residents of H-18, NPL Colony, New Rajender Nagar, Delhi FIR No. 207/06 P.S. Rajender Nagar U/[SECTION] [ACT] Arguments heard on 28.04.10. Judgment announced: 10.05.10 JUDGMENT
Brief facts of the prosecution case are that on 25.04.01, deceased [ENTITY] was got married to accused [ENTITY] according to Hindu rites and ceremonies. Soon after the marriage, she was subjected to cruelty by her in-laws. Accused [ENTITY] used to beat her on petty matters. Her in-laws were used not to take deceased [ENTITY] to her parental home even on the festivals. The brother of deceased used to bring her to her parental home and also used to leave her at her matrimonial home. Whenever deceased used to tell her parental family about the beatings by accused [ENTITY] and his parents, her parental family used to ask her to lodge police report, but deceased [ENTITY] used to say that her matrimonial life would be spoiled as she was having two small children. On 23.11.06, the brother of deceased namely, [ENTITY] received a telephonic call from accused [ENTITY] that [ENTITY] had locked herself in a room. Later on, the door of the house was broken by police. It was found that dead body of [ENTITY] was hanging on ceiling fan.
2 Charge in respect of offences U/[SECTION] and [SECTION] [ACT] was framed by ld. Predecessor on 16.07.08 against accused [ENTITY] (husband), [ENTITY] (father-in-law) and [ENTITY] (mother-in-law) of deceased [ENTITY] with the allegation that they subjected the deceased [ENTITY] with cruelty and committed dowry death of [ENTITY]. All the accused pleaded not guilty to the said charges and claimed trial.
3 To prove its case, the prosecution has examined thirteen witnesses. They are [ENTITY]), [ENTITY](PW-2), [ENTITY] (PW-3), [ENTITY]), Parvesh(PW-5), constable Shri Kumar(PW-6), [ENTITY]), Constable [ENTITY]), [ENTITY]), SI [ENTITY]), [ENTITY]), Dr. [ENTITY]) and [ENTITY] (PW-13).
4 Statements of all accused have been recorded, wherein they have denied the allegations of the prosecution. They have submitted that it is a false case against them. The complainant, who is the brother of deceased has deliberately and intentionally implicated them in this case in order to extort money from them. They have stated that deceased [ENTITY] was living happily with [ENTITY] and her two children at matrimonial home. There is suicidal tendency in the parental family of [ENTITY]. Her father also committed suicide and her cousin sister namely, [ENTITY] had also committed suicide. After committal of suicide by [ENTITY], complainant demanded Rs. Five Lakhs from them. When they (accused) declined to give money to them, they made a false complaint against them. 5 Accused did not examine any witness in their defence. 6 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. I have also perused the case file.
7 In [PRECEDENT], it was held that [SECTION] [ACT] has been inserted by the [ACT] with a view to combating the increased menace of dowry deaths. It lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry, such death shall be called "dowry death" and such husband or the relative shall be deemed to have caused her death. The explanation appended to [SECTION] says that for the purposes of sub-section (1) "dowry" shall have the same meaning as in [SECTION] of the [ACT]. By the same Amendment Act, [SECTION] has also been inserted in [ACT]. It deals with the presumption as to dowry death and proclaims that when the question is whether a person has committed "dowry death" of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry, the Court shall presume that such person has caused dowry death. The explanation appended to this section further explains that for the purpose of [SECTION], "dowry death" shall have the same meaning as in [SECTION], [ACT]. Therefore, to raise the presumption as to "dowry death", the basic pre-requisites are : (i) that the death of such woman has been caused by any burns or bodily injury or otherwise than under normal circumstances,
(ii) that such death should have occurred within seven years of her marriage, (iii) that it should be shown that soon before her death such woman had been subjected to cruelty or harassment for, or in connection with any demand for dowry and that the words, "soon before her death, such woman had been subjected to cruelty or harassment etc." are very important. Therefore, the prosecution must first establish that the deceased soon before her death was subjected to cruelty or harassment for demand of dowry before any presumption under [SECTION], [ACT] can be drawn.
A conjoint reading of [SECTION] of the [ACT] and [SECTION] [ACT] shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. 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 circumstance." The expression "soon before" is very relevant where [SECTION] of the Act and [SECTION] [ACT] 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 regarding has to be led by prosecution. "Soon before" is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period soon before the occurrence. It would be hazardous to indicate any fixed period. The expression "soon before her death" used in the substantive [SECTION] [ACT] and [SECTION] of the [ACT] is pregnant 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 after" used in [SECTION], [SECTION] of the 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 or 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" 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 life link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
8 In [PRECEDENT] it was held by Hon'ble Supreme Court that basic ingredients to attract provisions of [SECTION] are as follows:-
1) The death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances;
2) Such death should have occurred within seven years of her marriage;
3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband and;
4) Such cruelty or harassment should be for or in connection with demand for dowry.
It was further held by Hon'ble Supreme Court that if [SECTION] [ACT] is read together with [SECTION] of the [ACT], a comprehensive picture emerges that if a married woman dies in an unnatural circumstances at her matrimonial home within seven years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives.
9 In the present case, it is proved from evidence of brothers and mother of deceased and from postmortem report that the death of deceased [ENTITY] has occurred otherwise than under normal circumstances. It is also proved that death has occurred within seven years of marriage. The question that arises for consideration is whether the third and fourth ingredients namely, the deceased was subjected to cruelty or harassment by her husband and his relatives and such cruelty or harassment was for or in connection with demand of dowry, are present or not in this case.
10 In this case, PW-2, PW-5 and PW-3 are the material witnesses being elder brothers and mother of deceased. All these witnesses have nowhere stated that deceased [ENTITY] was ever subjected to cruelty or harassment in connection with demand of dowry. They have simply stated that behaviour of accused [ENTITY] and his parents was not good and they used to torture and harass deceased [ENTITY]. There is no iota of evidence in the testimonies of these PWs that accused ever made any demand for dowry from deceased [ENTITY] and on account of non-fulfillment of demand of dowry by the deceased, she was subjected to cruelty or harassment. 11 PW-2 [ENTITY] has deposed that [ENTITY] was his younger sister and was married to accused [ENTITY]. After marriage of his sister, the behaviour of accused [ENTITY] and his parents towards [ENTITY] was not good. They tortured his sister, physically and mentally. Accused [ENTITY] and his mother [ENTITY] used to beat his sister [ENTITY]. His sister [ENTITY] used to tell the facts, whenever she visited them. Accused [ENTITY] and his family members did not send his sister [ENTITY] to her parental home. They did not send his sister to attend functions of her relatives. In six years, two children were born to [ENTITY]. During those six years, [ENTITY] used to complain against her husband that he used to beat her and did not return home in time in night. [ENTITY] used to complain against other accused that they were not helping in keeping peaceful atmosphere in the house. He does not remember the date but during the period of six years, mother-in-law had given her beatings on one or two occasions. No complaint was ever made to police or other police officials as [ENTITY] asked them not to lodge any complaint.
12 In cross-examination by ld. counsel for accused, PW-2 has admitted that his father had committed suicide. He had seen marks of beatings on the body of [ENTITY] on one or two occasions after 3-4 years of her marriage. He has further deposed that both children of deceased [ENTITY] were born at her matrimonial home and she was looked after by her in-laws after delivery. [ENTITY] usually never stayed in his house at night. PW-2 has admitted that mother-in-law of [ENTITY] was in service. She used to leave office at 7:00 AM and used to return back at about 2/2:30 PM.
13 PW-3 [ENTITY], mother of deceased, has deposed that after solemnisation of marriage, the husband of her daughter and his parents started harassing her daughter. She (her daughter) used to tell her about the harassment. She (PW-3) used to make her daughter understand by saying that "har ghar mein jhagde hote hain or apni grahsthi khud chalani padti hai". Whenever they (family members of deceased) asked her to file police case against accused, deceased used to say that "mera ghar kharab ho jayega, police case na karo". Beatings and quarrel on the part of accused continued even thereafter. On 23.11.06, her son [ENTITY] received a phone call from accused [ENTITY] and his father asked him to go to their home. Her son inquired as to what was the matter. [ENTITY] told him that [ENTITY] was not opening the door of the room. Her son [ENTITY] went to the house of accused. Police had already reached there. Her son found that [ENTITY] was hanging from the ceiling fan. Accused [ENTITY] and his parents never allowed her daughter [ENTITY] to visit her house. Her son used to bring [ENTITY] to her house and used to take her back to matrimonial home.
14 In cross-examination by ld. counsel for accused, PW-3 has deposed that her husband used to drink. Her daughter was found hanging on the ceiling fan. She herself had seen accused [ENTITY] beating his daughter at her house soon after the solemnisation of marriage.
15 PW-5 [ENTITY], other elder brother of deceased [ENTITY], has deposed that his younger sister [ENTITY] was married to accused [ENTITY] on 25.04.01. Soon after the solemnisation of marriage, accused [ENTITY], his father [ENTITY] and mother [ENTITY] started harassing his sister. Accused [ENTITY] never allowed his sister to visit her parental house. He himself used to bring his sister and drop her at her matrimonial home. This behaviour of accused continued till the death of his sister. This witness has been cross-examined by ld. Addl. PP, wherein PW-5 has deposed that he stated to police in his statement that accused used to beat his sister [ENTITY] and never allowed his sister to visit her parental home even on the occasion of festivals. He has further admitted that whenever his sister used to complain about the misbehaviour of accused persons and beatings by them, they (PW-5's family) used to tell her to complain to police, but she was reluctant in approaching the police as she used to say that she was having small kids and where she would go with her kids.
16 In cross-examination by ld. counsel for accused, PW-5 has admitted that his father had committed suicide and his cousin [ENTITY] (his uncle's daughter) was burnt by her in-laws and her case is pending at Bijnor, U.P. 17 It is worth noting that the fact, that no demand for dowry was ever made by accused from deceased, also finds support from the testimony of PW-4 Sh. [ENTITY]. He was the SDM, Karol Bagh on 23.11.06 and received a phone call from P.S. Rajender Nagar regarding the incident. At about 4:00 PM he went to matrimonial home of deceased [ENTITY] and found her hanging on the ceiling fan with duppatta around her neck. He has deposed that mother and brother of deceased, gave the statement to him, which is Ex. PW2/A. In cross- examination by ld. counsel for accused, PW-4 has admitted that on enquiry made by him, he did not find any allegation of harassment regarding dowry. He has deposed that there are allegations of harassment regarding the deceased.
18 In the absence of allegations, regarding harassment and cruelty on account of non-fulfillment of demand for dowry, I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against accused persons U/[SECTION] [ACT]. Accordingly, accused [ENTITY], [ENTITY] and [ENTITY] are acquitted of the offence U/[SECTION] read with [SECTION] [ACT].
19 Next charge against all accused persons is U/[SECTION] [ACT].
"In [PRECEDENT], it was held that a person charged and acquitted under [SECTION] can be convicted under [SECTION] if such a case was made out."
[SECTION] is reproduced here for ready reference:
" 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.
(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 any person related to her 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."
20 "In [PRECEDENT] Hon'ble Delhi High Court has inter alia held that where cruelty is for the sake of giving torture to the woman without any nexus with the demand, then such a cruelty will not be covered under [SECTION] [ACT]. Such a cruelty may fall within the scope of [ACT].
It was further held that the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life,limb or health.
It was also held that as per explanation (b) to [SECTION] A cruelty means 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.
It was further held that [SECTION] [ACT] does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand for any property. Harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the section."
"In [PRECEDENT] the Hon'ble Bombay High Court has held that it must be established that beating and harassment was with a view to force wife to commit suicide or to fulfill illegal demands of husband and in- laws."
21 In the present case, it has already been proved that deceased was not subjected to cruelty or harassment in connection with demand of dowry. In other words, the cruelty as defined in part (b) to [SECTION],is missing in the present case. So far as, cruelty as defined in Clause (a) to [SECTION] is concerned, I am of the considered view that conduct of accused persons towards deceased [ENTITY] was not of such a nature as was likely to drive the deceased to commit suicide or to cause grave injury or danger to her life, limb or health. 22 PW-2 and PW-5, who are the elder brothers of deceased [ENTITY] have not mentioned any date, month or year on which deceased [ENTITY] was subjected to cruelty by accused [ENTITY] and his parents. PW-2 [ENTITY] has only stated that behaviour of accused [ENTITY] and his parents was not good towards [ENTITY]. All the accused tortured his sister, physically and mentally. He has deposed that accused [ENTITY] and his mother [ENTITY] used to beat his sister [ENTITY], but he failed to mention the occasion on which his sister was beaten or harassed by the accused persons. He has categorically deposed that he does not remember the date during the period of six years, on which his sister was subjected to cruelty. He has deposed that mother-in-law of [ENTITY] had beaten her on one or two occasions. Similarly, PW-3 [ENTITY], mother of deceased has deposed that her daughter used to tell her about the harassment and she used to make her understand that quarrel takes place in every house and one has to run her house herself.
23 In other words, as per the testimony of PW-3, only quarrel used to take place in the house of her daughter and she (PW-3) used to make her daughter understand. PW-3 has not levelled any allegations against accused persons, which could show that conduct of accused was of such a nature, which would drive her daughter [ENTITY] to commit suicide. The allegations levelled by PW-5 [ENTITY] against accused regarding harassment and cruelty, are also quite general in nature. He has also not specified any date, month or year on which his sister [ENTITY] was subjected to cruelty by the accused persons. 24 It is worth noting that as per prosecution story, accused did not allow the deceased to stay at her parental home and they used to take her at their house and used to leave her at her matrimonial home. But in their statements, there is no consistency in this regard.
25 PW-2 has deposed in examination-in-chief that accused [ENTITY] and his family members did not send [ENTITY] to her parental home. Accused did not allow his sister to attend her parental's family functions. But in cross-examination, PW- 2 has admitted that [ENTITY] stayed in his house continuously for 8-10 days on different occasions, in the month of September, October and first week of November, 2006. He has further admitted that [ENTITY] stayed in his house when the operation of his wife was likely to be conducted and when the operation was not done, [ENTITY] returned to her house. PW-2 has further admitted that in October, 2006, son of his brother [ENTITY] had expired and [ENTITY] had stayed in the house of [ENTITY] for 3-4 days. But PW-3 Smt. [ENTITY], who is the mother of deceased [ENTITY], has deposed that one and a half month before the death of deceased, her grandson( son of her son [ENTITY]) had expired and [ENTITY] was not at her house at that time. It is worth noting that PW-2 [ENTITY] has admitted in cross-examination that in November, 2006, [ENTITY] had stayed in the house of [ENTITY] for 3-4 days after the death of son of [ENTITY]. 26 It is worth noting that PW-5 [ENTITY], who is the elder brother of deceased [ENTITY] has put up a new story by deposing that accused [ENTITY] used to come late in the house. His sister had doubt over the character of accused [ENTITY] and for that reason, there were altercations between them on some occasions. In view of above facts, prosecution has not been able to prove as to what was the cause of harassment. Whether it was the bad behaviour of accused or it was the character of accused [ENTITY], which drove [ENTITY] to commit suicide.
27 It is significant to note that PW-2 has admitted that mother-in-law of deceased [ENTITY] was in service and she used to leave house at 7:00 AM and come back at about 2:00/2:30 PM. None of the PWs examined by prosecution has deposed that what profession or service, accused [ENTITY] and his father [ENTITY] were pursuing and whether they used to remain at home or used to go to pursue their work to earn their livelihood. PW-2 has gone to the extent of saying that he does not know what work accused [ENTITY] was doing to earn his livelihood. 28 It would not be out of place to mention that the defence taken by accused in their statements U/[SECTION] [ACT] that there was a suicidal tendency in the family of deceased, seems to be plausible. PW-2 and PW-5 have admitted that their father had committed suicide. Similarly, PW-3, who is the mother of deceased, has also admitted that her husband used to drink liquor and was found hanging on the ceiling fan. In other words, her husband had committed suicide.
29 In view of above discussion, I am of the considered view that prosecution has miserably failed to prove on record that all accused in furtherance of their common intention subjected deceased [ENTITY] to cruelty. Accordingly, accused [ENTITY], [ENTITY] and [ENTITY] are acquitted of the offence U/[SECTION] [ACT].
30 To conclude, all the three accused namely, [ENTITY], [ENTITY] and Smt. [ENTITY] stand acquitted of all the offences, they were charged with. In this case, all accused are on court bail. Their bail bonds/surety bonds are cancelled. Their sureties are discharged.
File be consigned to Record Room.
Announced in the open court today on 10.05.10 (Smt. [ENTITY]) Additional Sessions Judge(North) Tis Hazari Courts, Delhi.