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Can’t Convict Husband In Dowry Case Without Proof

IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:

ADDITIONAL SESSIONS JUDGE;
FTC : E COURT: SHAHDARA: KARKARDOOMA COURT: DELHI.

SESSIONS CASE No.47/12
Unique Case ID No.742/2016

FIR No. 123/2008

U/S: 498-A/304-B/34 IPC

P.S: Kalyan Puri

State

Versus

1. Puran Chand
S/o Sh. Chander Mani
R/o B-7B, Gali No.1, East Vinod Nagar, Delhi.
2. Suraj Chand @ Anand
S/o Sh. Puran Chand
R/o B-7B, East Vinod Nagar, Delhi.
3. Savitri
D/o Sh. Puran Chand
R/o B-7B, East Vinod Nagar, Delhi.
4. Deepa
W/o Sh. Raj Kumar
R/o G-36A, East Vinod Nagar
(Old), E-22, East Vinod Nagar, Gali No.2 (New).

Date of Institution : 23.07.2012

FIR No.123/08 State Vs. Puran Chand Etc.
Date of Arguments : 25.10.2016

Date of Judgment : 22.11.2016

JUDGMENT
Case of Prosecution

1. Criminal law was set into motion on the statement of Raghuvar Dutt, father of deceased Deepa given to the SDM on 19.04.2008. As per statement, marriage of his daughter Deepa was solemnized on 06.05.2006 according to Hindu rites and Ceremonies at West Vinod Nagar, Delhi. In marriage of his daughter, he had given articles more than his status such as almirah, T.V., washing machine, fridge, bed, utensils, clothes and jewellery around Rs.22000/- alongwith Rs.5000/- in cash. After marriage his daughter came three times to his house and her in laws were of the view that he should come to take her and also to send back her at their home. His daughter used to stammer and could not hear from one ear, while her husband was deaf and dumb. On 12.03.2006 when marriage was fixed, in laws of her daughter told them that they do not want anything in the marriage except proper reception of marriage party consisting about 200 persons but before one week from the marriage Puran Chand, father of the groom and his daughter Savitri made a demand of fridge, T.V., washing machine, almirah, ring and one nath. Although his status was not so but as the marriage cards were already distributed, therefore, under compulsion with the help of his relatives, he had to give all above said articles in the marriage. After one and a half months of the marriage, father-in-law of his daughter namely Puran Chand asked him to give motorcycle, he told this fact to his brother Sh. Heera Ballabh who contacted Puran Chand and told him that driving license of a handicapped person is not issued and in case he will get the license, they will give the motorcycle. After marriage, on the occasion of Raksha Bandhan when his daughter came to his house, she told wife of his nephew that after 1 – 2 days of the marriage she was kept away from her husband and was not allowed to sleep with him. On their intervention, she was allowed to live together and for this reason elder married sister of the boy namely Deepa, gave beatings to his daughter. Since then her in laws used to harass his daughter although his daughter used to do the entire household work. On 18.04.2008 at about 8.15 pm, his nephew informed telephonically that his daughter is serious and to reach Delhi at once. Thereupon, he reached at Delhi on 19.04.2008 at about 7.30 pm. On the basis of above mentioned complaint, case FIR No.123/08 u/s 498-A/304-B/34 IPC was registered on 19.04.2008 at PS Kalyanpuri. Further investigation was carried out. Accused were arrested. After completion of investigation chargesheet was filed before the Court.

2. After compliance of section 207 Cr.P.C., the case was committed to Sessions Court. Charge u/s 498-A/304-B/34 IPC and in the alternative u/s 302 IPC was framed against all the four accused to which they pleaded not guilty.

3. It is pertinent to note here that vide order dated 14.05.2010 of my Ld. Predecessor it was held that ingredients of section 304-B IPC are not attracted and all the accused were discharged u/s 304-B IPC and matter was remanded to Ld. ACMM as offence u/s 498-A IPC is triable by the court of Metropolitan Magistrate. Aggrieved from the order of Ld. Predecessor, State preferred a criminal revision petition No.116/2011 and vide order dated 11.04.2012, it was directed that accused persons shall also be charged u/s 304-B IPC while maintaining the charge u/s 498-A IPC.

4. To substantiate the charge, prosecution has examined 16 witnesses in all.

Formal Witnesses PW-1 is Dr. Deepak Mathur, who conducted the postmortem on the body of deceased Deepa and proved his report as Ex.PW1/A. As per opinion of PW-1, the cause of death was Asphyxia following ante mortem hanging.

PW-3 is Dr. Ramesh Kumar, CMO, who proved the MLC of deceased Deepa as Ex.PW3/A.

PW-4 is Retired ASI Chander Pal Singh, who was working as duty officer on 19.04.08 between 4.00 pm to 12.00 midnight and proved the copy of FIR as Ex.PW4/A.

PW-6 is Dr. Rakesh Kumar, Associate Professor, ENT Department, AIIMS, who deposed that as per record accused Suraj was brought to AIIMS hospital as he wanted the deafness handicap certificate. He proved the copy of OPD card as Mark PW6/A.

PW-9 is Sh. Radha Charan, Addl. CEO (DP), who was working as SDM Preet Vihar on 18.04.2008 and recorded the statement of Sh. Raghuvar Dutt (father of deceased) Ex.PW4/B. PW-9 also got conducted the postmortem of the deceased and proved the application for postmortem as Ex.PW9/C.

PW11 is Ct. Ratan Singh, who was on emergency duty on 18.04.2008. PW-11 was deputed to take care of the body at the mortuary and sealed pullanda Ex.PW11/A containing clothes of the deceased were handed over to him by the doctor.

PW-12 is Retired SI Rajbir Singh, who collected the MLC of deceased and sent the body to LBS hospital mortuary. PW-12 also seized the saree which was hanging from the fan in the room vide memo Ex.PW12/B. In his cross examination he confirmed that saree was seized from the ground floor of the house and no one from the family of the victim was present in the house.

PW-15 is Sh. Sanjeev Sharma, who deposed that on 18.04.2008 at about 5.45 pm, he heard the noise from the house of accused Suraj Chand @ Anand which is situated opposite of his house and when he came out from his house, one another neighbourer Ajay Pratap also came there and when they reached at the said house, they noticed that the middle room of the house was found locked from inside. PW-15 deposed that they pushed the door which was then opened and they found that wife of accused Suraj namely Deepa was hanging with fan with the help of a saree. In his cross examination he deposed that he had not heard or seen any quarrel between Deepa, her husband and other in laws at any point of time before the death of Deepa.

Material Witnesses PW-2 is Smt. Hema Sharma, who deposed that deceased Deepa was his Nanad being the daughter of her chachiya sasur. As per PW-2 on the arrival of baraat accused Suraj made demand of chain and ring by gestures. PW-2 deposed that he was given ring to meet his demand. PW-2 deposed that deceased Deepa was very close to her and after about 2 ½ – 3 months of the marriage, Deepa told her that she was not allowed to sleep with her husband and that her in-laws say that due to heavy electricity bill, they would all sleep together. PW-2 deposed that Deepa used to tell her that she was being harassed by her Nanads and father-in-law Puran Chand. In her cross examination she deposed that she cannot tell the time when demand of chain and ring was made and her mother-in-law informed her that accused Suraj was given ring. She further confirmed that Deepa came to her parents house after about one month but she did not make any complaint. To a specific question PW-2 deposed that Deepa did not come to her parents house on Raksha Bandhan in 2006 and she had never talked with the mother of Deepa with regard to the dowry harassment faced by Deepa. She further confirmed that Deepa wanted to go to village but does not know whether her father took her to village or not.

PW-5 Sh. Raghuvar Dutt, father of deceased Deepa who deposed that initially the accused had told them that they do not want anything in the dowry and that there would be 200 persons in the baraat and requested that they should give them good welcome. About one week prior to marriage accused Puran Chand and Savitri made demand of fridge, T.V., washing machine, almirah, ring and nath in dowry and he gave the aforesaid goods in dowry as per demand of accused at the time of marriage. PW-5 deposed that about 1½ month after marriage, accused Puran Chand made demand of motorcycle for accused Suraj and he told this demand to his brother Heera Ballabh. His brother Heera Ballabh contacted the accused Puran Chand and told him that the driving license is not issued to handicap persons and asked him to get the driving license of accused Suraj and then they would give motorcycle to him. PW-5 deposed that on occasion of Raksha Bandhan when his daughter came at their house, she told the wife of his bhanja and also to the wife of his nephew that since after two days of her marriage she was kept away from accused Suraj and was not allowed to sleep with him and on their intervention, Deepa was allowed to stay with accused Suraj. PW-5 further deposed that accused Deepa got annoyed because of their intervention and she beaten his daughter Deepa. PW-5 further deposed that his daughter Deepa was harassed at matrimonial house and was taunted in her house hold works because of dowry demand. In his cross examination PW-5 confirmed that there was no demand of dowry from the side of accused persons and he did not give any dowry articles in the engagement ceremony of his daughter. To a specific question PW-5 deposed that he had budget of the expenditure in the marriage of his daughter Rs.2.5 lacs to Rs.3 lacs and all the expenditure of the marriage was in his budget i.e. Rs.2.5 lacs – 3 lacs. He further confirmed that TV, fridge, washing machine, almirah were purchased prior to 10 days of the marriage of his daughter and all these articles were purchased by Devi Dutt who is son of his sister. To a specific question, he further confirmed that he did not give gold chain to accused Suraj in the marriage and except gold ring he had not gifted any other gold item to accused Suraj at the time of marriage. PW-5 deposed that first time after marriage his daughter came to their house next day for pagphera ceremony and they remained in their house for about 4 – 5 hours. He had talked with his daughter on that day but his daughter had not made any complaint against accused persons during this talk. He further confirmed that after marriage uptill the death of his daughter he used to visit her matrimonial home and used to have food etc. and stayed there overnight also. PW-5 further confirmed in his cross examination that lastly he visited matrimonial home of Deepa on 10th – 11th April 2008. On that day, he reached there at about 7.00 – 7.30 pm and remained there till 9.00 pm. PW-5 further deposed that during this period he had talked with Deepa and further confirmed that Deepa had wished to meet her mother and to go to her native village Patigair, District, Almorah, Uttarakhand. He further confirmed that there was a jagaran organized by mohalla people and denied the suggestion that his daughter Deepa had gone in jagaran in his search and when he was not available in jagaran, she raised objection and told them that her father did not take her with him at her native village and left her matrimonial house without meeting her. He further confirmed that since the marriage of his daughter till 19.04.2008, i.e. before giving statement to SDM, he had not lodged any complaint regarding harassment and maltreatment of his daughter for demand of dowry against the accused persons to any authority. He further confirmed that since marriage uptill her death Deepa had visited his house 2 – 3 times and during those visits, she had not complained directly to him or his wife and that during his visits to his daughter’s house she had not made any complaint to him. He further confirmed that on his last visit his daughter expressed her wish to go to her native village.

PW-7 is Sh. Devi Dutt who deposed that deceased Deepa was his cousin being the daughter of his maternal uncle. He deposed that about 10 days prior to the marriage accused Puran Chand made demand of TV, fridge, almirah and washing machine in marriage. On the day of wedding i.e. 06.05.2006 accused Suraj insisted for chain and ring by his gesture as he is deaf and dumb and on his demand one ring was given to him. PW-7 further deposed that after the marriage of Deepa her sister-in-laws namely Deepa and Savitri started demanding motorcycle and tortured her for the same and she was also beaten by them.

PW-8 is Sh. Heera Ballabh who also deposed on the same lines as PW-7 that about 10 days before marriage accused Puran Chand made demand of TV, fridge, almirah and washing machine as condition for marriage. At the time of baraat accused Suraj insisted that he be given gold chain and ring by gestures. Accused Savitri used to tell deceased that she was not permitted to stay with accused Suraj because she has not brought sufficient dowry. PW-8 further deposed that they did not give motorcycle as per demand of accused Suraj due to which Deepa was harassed by her in-laws. In his cross examination, he confirmed that after about 1½ month of marriage, he had come to know that accused was demanding motorcycle and after his meeting deceased Deepa was allowed to sleep with Suraj. He further confirmed that he had come to know about the harassment and maltreatment given to Deepa through Geeta wife of Devi Dutt.

PW-10 is Revti, mother of deceased Deepa. PW-10 deposed that after they had distributed the wedding cards accused Puran Chand made demand of almirah, fridge and washing machine and the accused were not satisfied with the dowry and used to harass her daughter. In her cross examination by Ld. Addl. PP for State, she confirmed that at the time of baraat on the wedding accused Suraj insisted that he be given chain and a ring. In her cross examination by Ld. defence counsel she confirmed that at about four days prior to death of her daughter Deepa, her husband met Deepa at her matrimonial home and she told her husband that she would accompany him next morning but her husband did not meet Deepa next morning and went to the village. She further confirmed that Deepa then went to look for her husband in the jagaran in the neighbourhood but he was not present there and Deepa was disturbed since accused had not permitted her to accompany with her father. She further confirmed that accused Suraj had not made any demand in her presence.

PW-13 is Sh. Mohan Chand, who was mediator in the marriage. He deposed that at the time when the marriage was finalized, there was no demand of dowry from the accused but later on he heard that accused persons have made demands. PW-13 further deposed that after about 7 – 10 days of marriage he was informed by Raghuvar Dutt i.e. father of the deceased that accused were saying that they were expecting motorcycle in the marriage but the same was not given and he told Raghuvar Dutt that the husband of Deepa was deaf and dumb and therefore he cannot get a driving license and therefore there is no need to give motorcycle. PW-13 deposed that thereafter there was no demand from the side of accused.

PW-14 is Devki Devi, wife of Mohan Chand. She also deposed that accused Puran Chand made demand of fridge, almirah and sofa in the marriage and at the time of marriage ceremony, accused Suraj made demand of ring. In her cross examination she confirmed that ring was bought prior to the marriage and that accused Deepa never made any demand or harassment of the deceased Deepa in her presence.

PW-16 is SI Raj Kumar to whom investigation was entrusted. He proved the various memos regarding arrest and personal search of accused and in respect of seized articles prepared by him.

Arguments and conclusion

5. Arguments have been heard from Ld. Addl. PP as also from Ld. Defence Counsel. Ld. Addl. PP has argued that deceased has died within two years of marriage. Her husband i.e. accused Suraj made demand of ring and chain at the time of marriage. Ld. Addl. PP for State has further argued that deceased was harassed by not allowing her to sleep with her husband. The witnesses examined by the prosecution have proved that deceased was subjected to cruelty on account of dowry demand.

6. Per contra Ld. Defence Counsel has argued that there is no cogent evidence that deceased was ever harassed for demand of dowry. Ld. Defence Counsel further argued that father of deceased whenever visited her matrimonial home, she did not make any complaint regarding cruelty or harassment in respect of demand of dowry by the accused persons. Ld. Defence Counsel further argued that prosecution witnesses have not only contradicted each other but have also contradicted prosecution case.

7. 304-B IPC was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combating the increasing menace of dowry death. It provides that where the death of a woman is caused by any burns or bodily injury or 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 for or in connection with any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that since before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural death or accidental death so as to bring it within a purview of “death occurring otherwise than in normal circumstances.” Prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case, prosecution operates. Evidence in that regard has to be laid by the prosecution. The legal position thus firmly establishes that ‘suicidal death’ of married woman within seven years of her marriage is covered by the expression “death of a woman is caused or occurs otherwise than under normal circumstances” as used in Section 304-B of IPC.

8. Before the statutory presumption u/s 113-B of Evidence Act can be raised against the accused, the essential ingredients of the offence of dowry death, which the prosecution is duty bound to prove, is that deceased was subjected to cruelty/harassment soon before her death.

9. In view of the aforesaid, the evidence of the material witnesses and prosecution case needs to be scrutinized. I will consider the alleged demand of dowry and harassment, if any, caused to deceased Deepa stage wise i.e. prior to marriage, at the time of marriage, after marriage and soon before her death.

10. As per PW-5 Sh. Raghuvar Dutt, father of the deceased initially the accused had told them that they do not want anything in the dowry but about one week prior to the marriage, accused Puran Chand and Savitri made demand of fridge, TV, washing machine, almirah, ring and nath in dowry. In his cross examination, he confirmed that he had budget of the expenditure in the marriage of his daughter Rs.2.5 lacs to Rs.3 lacs and all the expenditure of marriage was in his budget. PW-7 Sh. Devi Dutt who purchased these articles deposed that these dowry articles were brought within last 10 days prior to the marriage after they were demanded by the accused. PW-13 Sh. Mohan Chand who was mediator of the marriage deposed that at the time of marriage, the parents of Deepa gave some goods but denied the suggestion as put by Ld. Addl. PP for State that accused Puran Chand made demand of fridge, TV, in his presence.

11. Next demand of dowry is alleged to have been made by accused Suraj at the time of marriage by asking for a gold ring and chain. PW-2 Smt. Hema Sharma deposed that on the arrival of baraat accused Suraj made demand of chain and ring by gestures. In this regard PW-5 Sh. Raghuvar Dutt deposed that he did not give gold chain to accused Suraj in the marriage. It was also confirmed by PW-5 Sh. Raghuvar Dutt that except gold ring, he had not gifted any other gold item to accused Suraj.

12. So far as demand of dowry after marriage is concerned, the only incriminating fact stated by prosecution witnesses is demand of motorcycle about 1 ½ month after marriage. In this regard PW-5 Sh. Raghuvar Dutt deposed that his brother Heera Ballabh contacted accused Puran Chand and told him that driving license is not issued to handicap persons and asked him to get the driving license of accused Suraj and then he would give motorcycle to him. PW-13 Sh. Mohan Chan, who was one of the mediator of the marriage deposed that after about 7 – 10 days of marriage, he was informed by Raghuvar Dutt i.e. father of the deceased that accused were saying that they were expecting motorcycle in the marriage but the same was not given. He told Raghuvar Dutt that husband of Deepa was deaf and dumb and therefore, he cannot get the driving license and therefore, there is no need to give the motorcycle and thereafter there was no demand from the side of accused.

13. Now, the question comes to decide whether on account of demand of dowry deceased Deepa was harassed by accused persons, if yes, by whom?

14. In an authority reported as Bhola Ram vs. State of Punjab 2013 XI AD (S.C) 245., wherein the Hon’ble Apex Court held that;

“Merely making a demand of dowry is not enough to bring about a conviction under section 304-B of the IPC. As held in Kans Raj a dowry death victim should also have been treated with cruelty or harassed for dowry either by her husband or relative. In this case, even assuming the silent or conniving participation of Bhola Ram in the demands of dowry, there is absolutely no evidence on record to suggest that he actively or passively treated Janki Devi with cruelty or harassed her in connection with, or for, dowry. The High Court has, unfortunately, not adverted to this ingredient of an offence punishable under section 304-B of the IPC or even considered it”.
15. Adverting back to the facts of the present case, in respect of alleged harassment, PW-5 Sh. Raghuvar Dutt, father of the deceased deposed that on the occasion of Raksha Bandhan when his daughter came to their house, she told the wife of his bhanja and nephew that since after two days of her marriage, she was kept away from Suraj and was not allowed to sleep with him. PW-8 Sh. Heera Ballabh and PW-13 Sh. Mohan Chand also deposed that they came to know that deceased was not permitted to stay with accused Suraj and after they intervened, only then she was allowed to sleep with her husband. However, the material witnesses in this regard is PW-2 Smt. Hema Sharma, who deposed that deceased Deepa was very close to her and she told her that she was not allowed to sleep with her husband and that her in-laws say that due to heavy electricity bill, they would all sleep together. In view of the fact that deceased had herself told PW-2 Smt. Hema Sharma who was very close to her that due to heavy electricity bill her in-laws told her that they would all sleep together, the case of prosecution that deceased was harassed on demand of dowry and as such she was not permitted to sleep with accused Suraj has no legs to stand. Another alleged harassment as deposed by PW-5 father of deceased was that accused Deepa got annoyed because of their intervention and she beaten her daughter Deepa but PW-14 Smt. Devki Devi who is sister of father of deceased deposed that accused Deepa made no demand and did not harass the deceased. Even otherwise, there is no evidence, how PW-5 Sh. Raghuvar Dutt came to know about alleged beating given by accused Deepa.

16. Now, the next question comes to decide whether deceased was subjected to cruelty in respect of demand of dowry soon before her death. The unfortunate incident of the present case occurred on 18.04.2008 and the marriage of accused Suraj with Deepa (since deceased) was solemnized on 06.05.2006. Except about demand of motorcycle which was alleged to have been made after 1 ½ month of marriage, there are no specific allegation in respect of demand of dowry or harassment by the accused persons after the marriage. PW-5 also deposed that on the occasion of Raksha Bandhan, when her daughter came to their house in the year 2006, she told that she was kept away from accused Suraj and was not allowed to sleep with him. PW-5 Sh. Raghuvar Dutt confirmed that after marriage of his daughter uptill the death, he used to visit her matrimonial home, and stayed there overnight also and during his said visits his daughter had not made any complaint to him at her matrimonial home. Raghuvar Dutt, father of deceased further confirmed that since marriage uptill her death Deepa visited their house only 2 – 3 times and she had not made any complaint directly to him or to his wife. It is also not in dispute as also deposed by mother of the deceased PW-10 Revti that about four days prior her death, her husband met Deepa at her matrimonial house. No complaint was made by deceased Deepa to her father regarding any harassment by any of the accused, four days prior to her death.

17. There is no evidence on record regarding demand of dowry after about one and half month of marriage i.e. motorcycle, which is also admitted by the prosecution witnesses. Except the alleged harassment for not allowing the deceased to sleep with accused Suraj after some days from the marriage, which I have already dealt in preceding paras, there is no cogent evidence that deceased was subjected to cruelty or harassment on account of demand of dowry, till her death.

18. Consequently, in the absence of the prosecution proving the ingredients of Section 304-B of IPC, the initial burden cast on it has not been discharged. Therefore, the presumption under Section 113-B of the Evidence Act cannot be attracted.

19. While it is proved that the husband being the companion in the house ought to be able to explain as to the circumstances under which his wife was found lying hanged in the bedroom but there also exists an obligation on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Criminal jurisprudential system of the country has been to that effect and there is neither any departure nor any escape there from. Undoubtedly, it is a social and heinous crime to have the wife hanged to death but without any proper and reliable evidence, the court cannot by itself justify its conclusion of murder by the husband. PW-15 Sh. Sanjeev Sharma has already deposed that after hearing the noise when they reached at the house of the accused, they noticed that the middle room of the house was found locked from inside and they pushed the door and found that wife of Suraj @ Anand namely Deepa was hanging with fan with the help of a saree. Therefore, prosecution has failed to prove the alternative charge under Section 302/34 IPC.

20. In view of the aforesaid discussion, I am of the considered opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, all accused persons are acquitted from the charge u/s 498- A/304-B/34 IPC and in the alternative u/s 302 IPC. However, all accused persons are directed to furnish personal bonds u/s 437-A Cr.P.C. for a period of six months in the sum of Rs.10,000/- with one surety in the like amount each. After furnishing the bail bond, file be consigned to record room.

Announced in the open court

(Sanjeev Kumar Malhotra)
On 22.11.2016.
ASJ/FTC/E-COURT Shahdara/KKD/Delhi

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