Crl.Appeal No.249/2009 Page 1 of 48 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Appeal No.249/2009 % Judgment reserved on :28th September,2011 Judgment delivered on: 05th December, 2011 VINITA & ANR. ..... Appellants Through:Mr.K. K. Sud, Senior Advocate with Mr.Atul Sahi, & Mr.Harendra Singh, Advs versus STATE N.C.T. OF DELHI ..... Respondent Through : Ms.Ritu Gauba, APP for State. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J. 1. The instant appeal is being filed by challenging the judgment dated 19.03.2009, whereby the learned Additional Sessions Judge has held guilty the appellant No.1/Smt.Vinita under Section 498 A of Indian Penal Code, 1860, appellant No.2/Nitin under Section 304 B and 498 A Indian Penal Code, 1860. 2. Vide order dated 24.03.2009, the appellant No.1/Smt.Vinita was sentenced to undergo RI for two years U/s 498-A IPC with fine of ` 5000/-. The appellant No.2/Nitin has been sentenced to undergo RI for ten years for offence U/s 304-B IPC and to undergo RI for two Crl.Appeal No.249/2009 Page 2 of 48 years for offence U/s 498-A IPC with fine of ` 5000/-. The benefit of Section 428 Cr.P.C. has been given to both the appellants/convicts. 3. The case of prosecution in brief is that on 26.04.2001 Sh.Vijay Khanna, SDM, Rajouri Garden recorded the statement of Shri Jitender Singh Daani father of victim Sarika(deceased) wherein Shri Jitender Singh Daani stated that his daughter Sarika(deceased) was married to Nitin Sharma /appellant No.2 on 02.10.2000. On the very next day of marriage,Smt.Vinita/appellant No.1 mother-in-law of Sarika(deceased) demanded ` 5 Lacs from her for the construction of top floor of their house. Smt. Vinita/appellant No. 1 has also threatened Sarika(deceased) that if she would keep her son Nitin/appellant No.2 happy only then she would keep her happy. The newly wedded couple even did not go for honey-moon. He has met with the small demands of in-laws of his daughter as per his financial conditions but mother-in- law, father-in-law, brother-in-law (Devar) and mother of mother-in-law of Sarika(deceased) kept on torturing her. On 30-31/3/01 his wife fell sick due to cervical attack but he did not inform it to Sarika(deceased) as her in-laws were already bothering her. However, one day Sarika (deceased) and Nitin/appellant No.2 suddenly visited their house and on looking at ill health of her mother, Sarika (deceased) became upset and with the permission of Nitin/ appellant No.2 she stayed back at his house for overnight. 4. On the next day while leaving for his office, he asked his wife that since mother-in-law of Sarika(deceased) usually remain annoyed with them, it would be appropriate if her permission is obtained for Crl.Appeal No.249/2009 Page 3 of 48 keeping Sarika (deceased) for some more time. But on asking, mother- in-law of Sarika (deceased) replied in very unusual manner that why our younger daughter would not take care of her mother. On this account Sarika (deceased) tried to contact Nitin/appellant No. 2 seven/eight times on his mobile phone but he did not receive the calls because the calls were made from telephone number of their residence. Then Sarika(deceased) contacted Nitin/appellant No. 2 from the telephone number of neighbouring house No.15-A. Nitin/appellant No.2 shouted at her on phone and asked her to mind her own business. In the evening when he returned, found Sarika (deceased) was crying at that time. His father also came to his house to meet him. His father also became very upset with such conduct of Nitin/appellant No. 2. Then he alongwith his father, wife and daughter went to house of Mrs. Bela and Anil Aunty & Uncle (Mausi & Mausa) of Nitin/appellant No. 2 to discuss in this regard. There Smt. Bela requested them that since she was residing in the joint family, we should wait for him at the house of Smt. Manju, accordingly they went there. Anil returned at 11.00 PM. After hearing them, he assured that he would talk to Nitin/appellant No.2 and further asked to send Sarika (deceased) to his house at 10.00 AM in the morning and he would advice Nitin/appellant No. 2 to take her alongwith him. On next day, he made phone call to Anil to inform him that he was sending Sarika(deceased) to his house to which Anil replied that Vinita/appellant No. 1 & Laxmi Narain (mother-in-law & father-in-law of deceased) had asked him that they would take Sarika(deceased) to their house only after sorting out some points including the demand of ` 5 Lacs. It badly hurted Crl.Appeal No.249/2009 Page 4 of 48 Sarika(deceased) and them. After few days, after collecting some courage, he himself made request to Smt. Vinita/appellant No. 1 that he was not in position to fulfill their demands and they should keep Sarika(deceased) in their house as their own daughter. On his insistence Vinita/appellant No. 1 allowed him to visit her house. Then he alongwith his father, his wife and sister-in-law went to the matrimonial house of Sarika(deceased). 5. However, there the conduct of in-laws of Sarika (deceased) made them very upset as Vinita/appellant No. 1 time and again was stating that earlier she was behaving like mother and now onward she would behave like mother-in-law. She further said that Sarika(deceased) would have to pay for the period she had stayed at her parental house and also insisted that Sarika(deceased) should join some job. Sarika remained twenty nine days with them when her „Chura‟ was not yet removed. She used to wear „Mangalsutra‟ only and used to wear the clothes of her sister despite newly wedded bride. Under the fear of society, he sent his daughter to house of his father at F-176, Mansarover Garden. There she used to remain alone on the upper floor of the house. At about 12.00 midnight, when his father and his sister Pushpa were sleeping, Sarika(deceased) took out some tablet from her purse and went to bathroom. There she started vomiting and at this his father woke up. On suspicion, his father asked Pushpa to look into the matter and, accordingly, Pushpa knocked at the door of bathroom and asked Sarika(deceased) that if door would not be opened then she would break it. Sarika(deceased) opened the door but her Crl.Appeal No.249/2009 Page 5 of 48 condition was very serious. She immediately became unconscious. On hearing noise, wife of his nephew also came to the spot and thereafter, she went to call doctor from Nursing Home. His father informed him in this regard on phone and when he went to the spot he found Sarika(deceased) was in unconscious condition. With the help of doctor they took Sarika(deceased) to Nursing Home, where the doctor on duty after examining her stated the condition of Sarika (deceased) was serious. Then they took Sarika (deceased) to Ganga Ram Hospital, however, there the doctor on duty declared her clinically brought dead. His daughter Sarika(deceased) had committed suicide as Vinita/appellant No.1 (mother-in-law), Laxmi Narain (father-in-law), Nitin/appellant No.2 (husband), Neeraj Sharma (Devar) had mentally tortured her. 6. On basis of statement of Shri Jitender Singh Daani, FIR U/s 304- B/498-A/34 IPC was registered at PS Kirti Nagar. The investigation of case was entrusted to IO SI Daya Ram. The site plan of the spot was prepared. A sulphas tablets and Viscera sealed with seal of DDU received by IO from the concerned doctor were taken into possession. Accused Laxmi Narain, Vinita/appellant No. 1, Nitin/appellant No. 2 and Neeraj were arrested. Accused Tara Rani Kakkar was granted interim anticipatory bail by High Court. The photographs, invitation card of marriage alongwith one letter in the handwriting of Sarika(deceased) were taken into possession. The samples were sent for expert opinion to CFSL, Hyderabad. The list of dowry articles given in the marriage of Sarika(deceased) was given to the IO. Crl.Appeal No.249/2009 Page 6 of 48 Thereafter, offence U/s 406 IPC was added to the investigation. After completing other formal investigations, charge sheet U/s 498-A/304- B/406/34 IPC was presented in court against accused Laxmi Narain, Vinita/appellant No.1, Nitin/appellant No. 2, Neeraj and Smt.Tara Rani Kakkar (mother of Vinita/appellant No.1). 7. Vide order dated 29.3.09 accused Laxmi Narain, Neeraj and Tara Rani were discharged. Accused Vinita/appellant No.1 was charged U/S 498-A IPC only and accused Nitin/appellant No.2 was charged U/s 498-A/304-B IPC. Formal charges were framed accordingly against accused Vinita/appellant No.1 and Nitin/appellant No.2 to which both accused pleaded not guilty and claimed trial. 8. The prosecution has examined 19 witnesses in support of its case. PW2 is Shivender Kumar. He is maternal uncle of deceased Sarika (deceased) deposed that after the marriage of Sarika (deceased) with accused Nitin/appellant No.2 he came to know through parents of Sarika (deceased) and Sarika(deceased) that accused Nitin/appellant No.2 himself and his family members were making the demands of dowry. She used to remain depressed. One month prior to the incident, mother of Sarika(deceased) fell sick and Nitin/appellant No.2 and Sarika(deceased) came to their house to find about her well being. Sarika(deceased) requested Nitin/appellant No. 2 to allow her to stay at their house to look after her mother; accordingly, Nitin/appellant No.2 left her there. Sarika(deceased) used to call Nitin/appellant No.2 on cellphone but he seldom reply to the same and told her that he would take her back if their demands would be met by her parents. On Crl.Appeal No.249/2009 Page 7 of 48 26.4.01 he received telephonic message that Sarika(deceased) was not well as taken to Ganga Ram Hospital. When he reached Ganga Ram Hospital she was already dead. 9. PW3 is Ranjit Singh grandfather of the deceased Sarika(deceased). He submitted to the effect that after 2/3 days of his marriage Sarika(deceased) informed him that Nitin/appellant No. 2 and his relative himself used to demand money from her parent for construction of house. She was used to be taunted that her grandfather was 'Crorepati' despite nothing was given either car or cash in the dowry. The accused persons used to object her visiting his house. She used to make complaint that whenever she receive telephone call, her in-laws hear from the other line. On 26.3.01 Sarika(deceased) alongwith Nitin/appellant No. 2 visit her parents. She found that her mother was not well as she was suffering from cervical pain. After taking permission from her husband, she stayed back to look after her mother. Mother of Sarika(deceased) called up Smt.Vinita/appellant No. 1 to which Vinita replied that why Sarika(deceased) needed there as there was younger daughter to look after her. On 04.04.2001 Sarika(deceased) called Nitin/appellant No. 2 on his cell phone but he did not pick the same. Thereafter she went to house of her neighbour and again called her husband on mobile phone who picked up the phone and told her that the entire 'Daani' Family is a liar and she can do whatever she likes. On 04.04.2001 he himself, parents of Sarika(deceased) and Mausi in the evening hours went to house of Bela, Mausi of accused Nitin/appellant No. 2 to settle the dispute. But Crl.Appeal No.249/2009 Page 8 of 48 Smt. Bela advised them to go to the house of one Manju who was also a mediator of the marriage as her in-laws were residing on the upper floor and she did not want them to know about the incident. He called up Anil to the house of Manju who arrived here at 11:00 PM Mother of Sarika(deceased) called up Smt.Bela in the morning to find out as to whether Nitin/appellant No. 2 would come to their house to take her back to which she replied that Vinita/appellant No. 1 asked her not to sent back Sarika (deceased) till all the disputes are decided. 10. Further deposed that on 06.04.2001 he alongwith Sarika(deceased)'s and her parents, her sister, his elder son and his family went to Mussoorie and returned on 11.4.01. On 12.4.01 Sarika (deceased)'s father called up Vinita/appellant No. 1 to fix time for the meeting but she replied that she had no time. At about 9/10 p.m. on the same day he himself along with his younger daughter went to the house of accused persons, where both brothers, brother in law and sisters of Vinita/appellant No. 1 were present. Elder brother of Vinita/appellant No. 1 told that if Sarika(deceased) was not interested in staying at her matrimonial home then they should amicably decide the matter. On this, mother-in-law of deceased stated that she was mother upto now and onwards she would show them as to what mother in law is. His son Jitender (father of the deceased) also met Nitin/appellant No. 2 at hotel on 24.04.2001 but the meeting was not fruitful and failed. 11. He further deposed, on 24.04.2001 Sarika(deceased) called Nitin/appellant No.2 and desired to meet him. On 23.04.2001 Sarika Crl.Appeal No.249/2009 Page 9 of 48 (deceased) gone to meet Nitin/appellant No.2 somewhere. He promised her that he would talk to his family and they would again meet on 25.04.2001. Sarika(deceased) met him on 24.04.2001 at Connaught Place. Sarika(deceased) left for her parental home on 24.04.2001 and again came back to his home on 25.04.2001 at about 11 am. In the evening on 25.04.2001 at about 7p.m. she told that she was going to meet Nitin/appellant No.2. He advised her to take someone alongwith her but she stated that Nitin/appellant No.2 has asked her to come alone. She went to meet Nitin/appellant No. 2 and came back after about one and half hour. She cried a lot when she returned back and told him that now she neither belongs to her Maika nor Sasural as Nitin/appellant No. 2 has told her that everything was over. Thereafter Sarika(deceased) went to third floor of the house where his grandson was staying. He along with his daughter, who came from America were sleeping at the second floor and Sarika(deceased) was also supposed to sleep with them. At about 12.30/01:00 a.m. Sarika(deceased) came down stair, he got up and asked her as to what she was doing, she replied that she was taking some medicine. He asked his daughter as to which medicine Sarika(deceased) was taking to which she replied that she take medicine for good health. She used to take such medicine in past also. Thereafter, they heard that Sarika(deceased) was vomiting. Rest he deposed on the line of PW-4 J.S. Daani inter alia. His statement was recorded by SDM on 01.05.2001 which is Ex. PW3/A bears his signatures at point A to F. He told the SDM that Crl.Appeal No.249/2009 Page 10 of 48 the remaining tablets were taken out from the purse of Sarika(deceased) by his daughter Pushpa and were handed over to the Doctor. His statement was also recorded by the IO on 26.4.01 and proved the same Ex. PW3/B. 12. PW4 is J.S. Daani, father and complainant in this matter. He has also deposed on the similar lines to that of PW3 Ranjit Singh, however he further submitted to the effect that on 25.4.01 Sarika(deceased) again went to house of his father and on that day at about 12.00 night he was informed by his father that Sarika(deceased) had consumed something, he rushed to his house alongwith his younger daughter and wife. They reached there and found Sarika(deceased) was lying unconscious. He took her to nearby nursing home where the Doctor declared her to be in serious condition, then they took her to Ganga Ram Hospital, where she was declared dead. On the next day at about 11.30 am at PS Kirti Nagar his statement was recorded by the SDM. Statement was proved as Ex. PW4/A. After 5/6 days of death of his daughter Sarika(deceased) letter written by Sarika(deceased) but not signed, found in her room which was handed over to the police and the same was seized by seizure memo Ex. PW4/C. Letter is mark A. He requested the police to send mark A to comparison with the handwriting of Sarika(deceased) which obtained from her educational record. 13. PW7 Smt.Parvesh Daani is mother of deceased Sarika(deceased). She also deposed on the similar lines to that of evidence of PW3 Sh.Ranjit Singh and PW4, Sh. J.S. Daani. However, Crl.Appeal No.249/2009 Page 11 of 48 she further deposed to the effect that his daughter Sarika(deceased) on very next day of marriage told her that her mother in law had demanded ` 5 lacs for construction of another house. Two/three days prior to Karvachauth, Sarika(deceased) told her on phone that accused Vinita/appellant No.1 had expressed her desire that apart from the other gifts and articles a diamond set be also given on occasion of Karvachauth. On reaching home Nitin/appellant No. 2 got angry with Sarika(deceased) and even slept her. Vinita/appellant No.1 and Nitin/appellant No. 2 told her that how her mother had dared to telephone Nitin/appellant No. 2. On 25.3.2001 she sustained cervical attack. On 26.03.2001 Sarika(deceased) visited their house with Nitin/appellant No.2. Sarika(deceased) expressed her desire as to why she could not be informed about her illness to which she told her that he did not want to bother her as Vinita/appellant No. 1 was not happy with her. Thereafter, Sarika(deceased) went to kitchen to prepare tea. Nitin/appellant No. 2 asked her as to whether she had talked to her mother for ` 5 lac. But she expressed their inability to meet their demand to which he further asked that people do a lot to make their children happy. 14. She further submitted that on 24.04.2001 her younger daughter and sister in law Pushpa and Sarika(deceased) went for shopping. At 10.30 in the night when Sarika(deceased) came to their house to drop her younger sister Anushka, she informed that Nitin/appellant No.2 had told her about demand of ` 5 lacs. Crl.Appeal No.249/2009 Page 12 of 48 15. PW8 Manju Shah deposed that Sarika(deceased) came to her house for making telephone call. While talking to someone she was crying. Sarika (deceased) never talked to her regarding her matrimonial life. 16. This witness was cross examined by Ld. APP as witness was resiling from her earlier statement. But in her cross examination she did not depose anything else. 17. PW9 is Shikha Daani, sister of deceased Sarika(deceased) who has deposed Sarika(deceased) was not happy after marriage and stopped laughing and her excitements were also finished. She told her mother in law that if she would keep keeps her son happy only then she would keep her happy. They tried to call her sister on Diwali, Karvachauth and Holi, however, she did not come. She alongwith her family members requested Nitin/appellant No. 2 to bring her sister to their house but he never brought her to their house. She came to know regarding demands made by in-laws of her sister only on the day when her sister made telephonic call from the house of Manju Shah. They found one letter written to her in handwriting of her sister Sarika(deceased) which is mark A. She had handed over this letter to her father. 18. She further supported the case of prosecution and deposed that on 24.04.2001 her sister remained with her. They went for shopping and on 25.04.2001 to her grandfather's house, from there, she went to meet Nitin/appellant No. 2. Crl.Appeal No.249/2009 Page 13 of 48 19. On 25.04.2001 she received a call from her 'Taya Ji' that Sarika(deceased) had done something herself. She alongwith her parents went there. They took Sarika(deceased) to nearest nursing home from where they took her to Ganga Ram Hospital, where she was declared dead. Rupees Five Lacs were demanded by her in-laws, however, she did not know by whom. This fact was told by Sarika(deceased). 20. PW10 is Mrs.Manju, family friend of Sarika(deceased). She submitted that her husband and father of Sarika(deceased) were working in the same office. She was mediator to the marriage of Sarika(deceased) with Nitin/appellant No. 2. After 2/3 months of marriage, she met Sarika(deceased) at her parental house. She did not seem to be happy. She suspected that her in-laws were greedy. 21. On 04.04.2001 parents, grandfather, Bua and Sarika(deceased) came to her house. Nitin/appellant No. 2 did not attend the phone calls of Sarika(deceased). Nitin/appellant No. 2 had attended the call of Sarika(deceased), when she made call from neighbourer house and told her something. Sarika(deceased)'s father also called Smt. Bela and Nitin/appellant No.2 to sort out the issue but she did not know what had happened in the meeting. It was decided in the meeting that Sarika(deceased) would go to the house of Bela in the morning and Nitin/appellant No. 2 would take her back to matrimonial home. 22. This witness was cross examined by ld. APP as she was resiling from her earlier statement. But during cross examination witness has Crl.Appeal No.249/2009 Page 14 of 48 denied to make statement from portion A to A on Ex. PW10/X i.e. statement U/s 161 Cr. P.C. 23. PW11 is Veena Daani, Aunty (Chachi) of deceased Sarika(deceased). She deposed that Sarika(deceased) talked to her daughter, only through her she came to know that Sarika(deceased) was not happy at her matrimonial home as they were greedy people. 24. This witness also cross examined by Ld. APP as she was resiled from her earlier statement. During cross examination the witness was confronted with his statement U/s 161 Cr. P.C. Ex. PW11/X from portion A to A and portion B to B, however denied the facts as stated under Section 161 Cr.P.C. 25. PW5 is Dr. Virender Singh of Sarovar Nursing Home. He did not support the case of prosecution. He denied that he never treated any patient as mentioned in statement U/s 161 Cr. P.C. nor he has made any such statement to the police. 26. The witness was cross examined by Ld. APP but has not stated anything supporting the version of the Prosecution. 27. PW6 is Dr. Kunta Prasad, CMO Ganga Ram Hospital deposed that at about 2.45 a.m. one patient Sarika(deceased) was brought by Sh.J.S. Daani. The patient was not responding, he clinically declared her dead on 26.04.2001 at about 2.45 am. The patient had brought with the history of Alphos tablet regarding which he had given his observation in the MLC Ex. PW6/A prepared by him. Crl.Appeal No.249/2009 Page 15 of 48 28. PW12 is Dr. M.M. Narnaware, who conducted post mortem of dead body of deceased Sarika(deceased) and submitted that on 26.04.2001, his report is Ex. PW12/A. The Viscera was preserved, sealed and handed over to IO, but opinion was not recorded on the postmortem report, till the result of chemical analysis. He also handed over the inquest papers to IO and exhibited 10 papers of inquest as Ex. PW12/B. 29. PW1 is HC Birmati, who proved the FIR as Ex. PW1/B and endorsement on original rukka as Ex. PW1/A. 30. PW-13 is ASI Rai Singh, MHC(M) deposed, on 26.04.2001, IO/SI Daya Ram handed over him a „Fard‟ of FIR, four sealed parcels and two sealed samples, were endorsed was vide entry No.1463, which is Ex.PW13/A. I.O. also deposited articles of personal search i.e. ì 210/- and relevant entry in this regard were made in the same serial, same is Ex.PW-13/B. He further submitted that on 26.06.2001, two sealed parcels and two sample seals were sent to CFSL Hyderabad, though Ct.Dharam Singh vide RC No.118/21, he made entry in this in the same serial number. Photocopy is Ex.PW-13/C. On 18.10.2001 HC Jaswant Singh deposited one report from CFSL along with „Viscera‟. 31. PW-14 Vijay Khanna, SDM deposed that on 26.04.2001 he had conducted the proceedings in this matter and recorded the statement of witnesses i.e. Jitender Singh and Ranjit Singh, father and grandfather of deceased respectively. Crl.Appeal No.249/2009 Page 16 of 48 32. PW-15 is H. Ct. Jaswant deposed to the effect that on 26.06.2001, the sealed exhibits regarding the case were sent to CFSL Hyderabad through Ct.Dharam Singh vide RC No.118/21. Report of the same was obtained on 18.10.2001 by him and entry for sending the pullandas in CFSL Hyderabad and receiving the report were made by the Munshi in malkhana against the entry no.1463. Entry regarding sending the pullandas and receiving the report are encircled portion and the photocopy of the same is Ex.PW15/A.