IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 21st July, 2016
Crl. A No.438/2000
STATE ….. APPELLANT
Through: Ms. Aashaa Tiwari, APP
VINOD KUMAR & ANR. ….. RESPONDENTS
Through: Ms. Inderjeet Sidhu, Amicus Curiae
HON’BLE MS. JUSTICE GITA MITTAL
HON’BLE MR. JUSTICE R.K.GAUBA
GITA MITTAL, J. (ORAL)
By a visualisation antiquated 9.10.1998, a schooled Additional Sessions Judge, New Delhi clear a dual respondents after hearing for elect of offences, underneath Section 498A/304B of a Indian Penal Code, 1860 in Sessions Case No. 58/1996 that arose out of FIR No. 41/1996 purebred by a Police Station Vasant Kunj. Against this order, a State has filed a benefaction interest underneath Section 378 of a Cr. PC contending that a visualisation of a hearing Court is not formed on a justification on record and that a Sessions Court had unsuccessful to conclude that a respondents had tormented a defunct for dowry shortly before her genocide and that mixture of both a offences, underneath Section 498A as good Section 304 B of a IPC, had been determined over any reasonable doubt justifying a self-assurance of a respondents for elect of a pronounced offence.
2. The leave to interest underneath Section 378 of a Cr.P.C. was postulated to a State after use of notice to a respondents. In as most as, there was no entrance on interest of a respondents, we have allocated Ms. Inderjeet Sidhu, Amicus Curiae in a matter to seem on interest of a respondents and support us. She has had a advantage of a paper book as good as record of a box and has assisted this Court by creation submissions on interest of a respondents hostile a appeal.
3. We have listened Ms. Aashaa Tiwari, schooled APP for a State.
4. In as most as there is no element brawl with courtesy to a contribution heading adult to a incident, we quickly notice a same hereafter. One Ramphal (PW-4) was sanctified with 4 daughters and 5 sons including Smt. Shakuntala (PW-1); Sunderi (PW-2) and Kusum (deceased). On 5.3.1992, Smt. Sunderi and Kusum were married to dual brothers. While Sunderi (PW-2) was married to Vir Singh, a defunct Kusum was married to Vinod Kumar, respondent No. 1 herein. We might note that a dual brothers, Veer Singh as good as a respondent Vinod, and their wives were staying jointly with their mom Kasturi, respondent No. 2 herein, in a jhuggi.
5. It is also in justification that from their marriage, a defunct Kusum and Vinod were sanctified with dual sons, one aged about 3 years and a other aged about 6 or 7 months during a time of a hapless occurrence on a 19th of January, 1996.
6. So distant as a occurrence itself is concerned, we find that a usually comment thereof is to be performed in a testimony of Har Parsad, a proprietor in a community of a deceased, who lived 8 to 10 jhuggis divided from a residence of a respondents, who was examined as DW-1. It is in his testimony that on a fatal day i.e. 19.01.1996 during about 8.30 / 9.00 a.m., he beheld fume entrance out from a residence of respondent No. 1 while he was flitting thereby. He proceeded towards a residence accompanied by some other persons when they found that a doorway of a residence was sealed from inside and had to be pulled down whereupon it was found that Smt. Kusum was blazing inside a jhuggi and respirating with difficulty. The younger son of a parties was found in burnt condition on a floor. Sh. Har Parsad testified that Kusum had died during a mark itself though a burnt child was private to a sanatorium by Subhash, a neighbour, and that he also succumbed to a bake injuries.
7. We find that Har Parsad (DW-1) has definitely staid that both a respondents, that is respondent No. 1 and mother-in-law of a defunct were not found benefaction in a residence when he had reached there and that Vinod Kumar (respondent No. 1) had returned about half an hour of his (Har Parsad) reaching a mark since Kasturi, respondent No. 2) reached even later.
8. Sh. Har Parsad has staid that Vinod Kumar (respondent No. 1) alongwith himself, gave information about a occurrence to a Police Control Room that immediately reached there while internal military reached within 18-20 minutes.
9. It is also in a testimony of DW-1 that he never beheld any argue between indicted and a deceased. The declare creates a protest that a military did not record a matter of any of a neighbours or a persons who had collected there.
10. The record also shows that one Rajesh, cousin hermit of respondent No. 1 gave information about a occurrence to Smt. Shakuntala (PW-1), a elder sister of a defunct who also reached a spot. Her matter (Ex. PW1/A) was available by a military during a mark that forms a basement of a initial information news purebred by a police, being FIR No. 41/1996 underneath Section 498A/304 B of a IPC.
11. The military filed a charge-sheet underneath Section 173 of a Cr. PC opposite a respondents for elect of offences punishable underneath these really Sections review with Section 34, IPC. By an sequence antiquated 13th May, 1996, a respondents were charged as follows:
“..I, B.B. Chaudhary, Addl. Sessions Judge, New Delhi hereby assign we (1) Viond Kumar s/o. Hargian Singh; (2) Kasturi w/o. Hargian Singh as follows:—
That Smt. Kusam was married to we indicted Vinod Kumar on 5.3.1992 according to Hindu Customs in Ghaziabad and that Smt. Kusam came as allegedly married mom of we Vinod Kumar indicted and we Smt. Kasturi mom in law and that during a duration after a matrimony and upto her genocide on 19.1.1996 we both tormented her and maltreated her and even demanded dowry and thereby we committed an corruption punishable u/s. 498-A/34, IPC and within my cognizance. Secondly, that Smt. Kusam died of bake injuries on 19.1.1996 during Jhuggi No.S-243, Sonia Gandhi Camp Village Smalga differently than underneath normal resources within a duration of 7 years of her matrimony and that shortly before her matrimony Smt. Kusam was subjected to cruelty and nuisance by we both in tie with approach of dowry as a outcome of that Smt. Kusam died on 19.1.1996 and thereby we both committed dowry genocide punishable u/s. 304-B/34, IPC and within my cognizance. And we hereby approach that we both be attempted by this Court on a aforesaid charge…”
12. As a dual respondents pleaded not guilty and claimed trial, a event Court proceeded with a trial. The charge examined 12 witnesses in support of a box including several kin of a defunct namely, sister Shakuntala (PW-1); sister Sunderi (PW-2); her father – Sh. Ramphal (PW-4); cousin hermit Sh. Tarachand (PW-5); brother-in-law -who was father of Smt. Shakuntala namely Sh. Kishori Lal (PW-6), and Sh. Ram Saran (PW-9) who was a tauji (father’s elder brother) of a deceased.
13. Given a box of a charge opposite a respondents, it is to be remarkable that if a mixture of a offences mentioned underneath Section 304 B of a Indian Penal Code are satisfied, afterwards a hypothesis as mandated underneath Section 113 B of a Indian Evidence Act has to be drawn opposite a indicted persons. For elect of an corruption underneath Section 304 B of a IPC a charge is compulsory to settle firstly that a genocide of a lady should be caused by damage or differently afterwards underneath normal circumstances; secondly genocide of lady has occurred within 7 years of marriage; thirdly that a defunct had been subjected to cruelty or nuisance by her father or any relations of her father and fourthly that such cruelty or nuisance should be for or in tie with a approach of dowry before her death.
14. So distant as a initial dual mixture beheld above are concerned, it is undisputed that Kusum was married to Vinod Kumar (respondent No. 1) on 5th March, 1992 and that she died an assumed genocide by browns on a 19th January, 1996 within 7 years of her marriage. Therefore, so distant as a achievement of a initial dual conditions in a benefaction box are concerned, there is no brawl that a same are satisfied. The doubt that arises for care is a third and fourth mandate of law are satisfied, that is as to either a defunct was subjected to cruelty or nuisance by her father or his relations shortly before her genocide in tie with any approach of dowry?
15. We now introduce to inspect a justification led by a charge before a hearing Court.
16. It is in justification of Ramphal (PW-4) that after a brief duration of cohabitation of respondent No. 1 and a deceased, there was struggle in their charge and that after one year of their marriage, Kusum was taken by her father Ramphal (PW-4) and her cousin hermit – Tarachand (PW-5) behind to her parental home in District Ghaziabad. On this occasion, Kusum lived with her kin again for about one year. Thereafter her in-laws that is Smt. Kasturi (Respondent No.2) with her father and some other persons went to a encampment of Ramphal. On this arise with a involvement of obliged persons, a matter was staid ensuing in a parties recording a allotment agreement on 30th December, 1994 (Ex. PW4/B).
17. We have delicately scrutinized this request and we find that a document, that is sealed by Ramphal (PW-4), Tarachand (PW-5) and some other persons including Ramsaran, Ganga Prasad, Surender and other unidentifiable persons as good as initial respondent – Vinod Kumar, annals that a defunct Kusum had been tormented on several occasions and annals that in box a defunct faced any harassment, afterwards a child side would be hold obliged for a same. The allotment does not discuss any approach of dowry from a respondents and manifests that Kusum went to live in her parents’ residence not since of any conflict outset on comment of non-compliance with a dowry demand.
18. For a purposes, it is essential to note that as on 30th December, 1994, there was no protest during all or censure from a defunct or her family members that Kusum had been tormented for a functions of dowry or property. In fact a whole allotment creates a ubiquitous avowal of nuisance though naming a means thereof.
19. In this regard, Smt. Sunderi (PW-2) who was really most benefaction in a matrimonial home, being married to hermit of respondent No. 1, also does not discuss any means of nuisance nor any dowry approach on a defunct before a allotment help antiquated 30th December, 1994. In fact, Smt. Sunderi does not discuss any nuisance or dowry approach from father or in-laws (which includes a respondents) on her during any indicate of time.
20. We find that a schooled hearing decider has remarkable a deceptive and ubiquitous testimony of Smt. Shankuntala (PW-1), a other sister of a deceased, to a outcome that she had been teased and beaten by dual respondents on comment of dowry. No specific instance is mentioned by her. No such occurrence has also been adverted to by Sunderi (PW-2) who was indeed vital in a same house. This ubiquitous and non-exclusive claim has, therefore, been righteously disbelieved and deserted by a schooled hearing judge. It is also not upheld by a documentary justification or by a other associated witnesses.
21. The usually means of a restlessness to a defunct or censure opposite her father is to be found in a testimony of Kishori Lal (PW-6) who is a father of Smt. Shakuntala, thus, closely associated to her as her brother-in-law. He has deposed that he had visited Kusum frequently in intervals of 3 or 4 months. It is in Kishori Lal’s testimony that on such visits to defunct Kusum’s matrimonial home, she done a protest to him that her father used to come late in a night and enforce her to prepare food in late hours. The declare claimed that Vinod Kumar was hooked to celebration and indulging in gambling and that she was unfortunate with him for this reason.
22. Two critical things that are compulsory to be remarkable from this testimony is a fact that while other witnesses have claimed an removed revisit to a residence of a defunct Kusum, however, Sh. Kishori Lal (PW-6) was a unchanging caller to her house. The second critical cause for a care is a fact that Shri Kishori Lal (PW-6) is sure that Kusum’s unhappiness with her in-laws complacent in her restlessness with Vinod’s (respondent No. 1) celebration and gambling habits and did not branch from any approach for dowry.
23. The schooled hearing decider has delicately scrutinized a justification of PW-1 (Shakuntala), PW-2 (Sunderi), PW-4 (Ram Phal) and PW-5 (Tara Chand) per any claim of dowry approach done by a respondents on a deceased. The record of a box shows that they done no such matter or claim during all to a military when their statements were available immediately after a occurrence in that a defunct mislaid her life. Such allegations opposite a respondents were done for a initial time prolonged after her genocide when these relations witnesses were appearing in a declare box in Court.
24. So distant as a claim of dowry approach are concerned, a testimonies of Ramphal (PW-4) and Tara Chand (PW-5) are paradoxical in element details with a testimony of Smt. Sunderi (PW-2) who was vital in a same house.
25. The schooled hearing decider has really sincerely divided his care into dual phases. The initial proviso is pre 30th Dec 1994 when a allotment was recorded. The second, duration is a post allotment period. The schooled hearing decider has delicately deliberate either there was any arguable justification of nuisance of a defunct on comment of dowry on a fatal day or only before that date. The schooled decider annals that Sh. Ramphal (PW-4), Sh. Tara Chand (PW-5) and Sh. Kishori Lal (PW-6) have claimed to have visited a residence of a respondents on 16.1.1996 where respondent No. 1 met and quarreled with them, angry about a dowry given in marriage. These witnesses lay that a respondent No. 1 demanded .35,000/- and threatened them that in box a income was not paid , he would kill Kusum by environment her on fire.
26. Interestingly, a complainant (PW-1) Shankuntala does not state a singular word about such revisit of her father and relatives.
27. This instance of a approach on 16th January, 2016 has been totally disbelieved also for a reason that it finds no discuss during all in a matter of any of these 3 witnesses that were available by a military underneath Section 161 of a Cr.P.C. All these witnesses were confronted with their before matter in a interrogate on interest of a respondents though they could offer no explanation. For a omission
28. Ram Phal (PW-4) in fact certified in a declare box that he did not tell a military about any of a acts, that he had attributed to a respondents before a genocide of Kusum or that respondent No. 1 had done approach of any income or about her nuisance for a demands.
29. What renders a testimony of pronounced charge witnesses formidable to trust is that detached from a deceased, Sh. Ramphal had married her sister also into a family of a respondents. Smt. Sunderi (PW-2) was so married to Veer Singh, hermit of respondent No. 1. PW-2 Sunderi has no protest or censure opposite her father or any of her in-laws that they ever demanded dowry from her or tormented her for a same.
30. PW-2 has, however, done sum improvements in her testimony in Court so distant as Kusum (deceased) was concerned. She has attempted to charge earthy assault to a defunct Kusum during a hands of her mother-in-law (respondent No. 2) shortly before a occurrence of her burning.
31. The record would uncover that PW-2, Sunderi left her matrimonial home to reside with her family on 19th January, 1996 and there is each probability of her creation a tutored matter in a declare box. Smt. Sunderi (PW-2) has done no such matter to a police.
32. In any case, Sh. Har Parsad has given a sure and striking comment of a resources that were in existence during a time a occurrence took place.
33. It is also in justification that Ramphal (PW-4) has 4 daughters and 5 sons; earns about 400-500 per month and with good problem manages to feed his family. Smt. Sunderi (PW-2) and a defunct Kusum were married on a same date and their kin would have given a identical articles to a dual sisters in marriage. It is unimaginable that her in-laws have no protest for a same things as given to one sister and would make a protest for those really articles opposite a other. The removed instance of a purported dowry approach on a 16th January, 1996 is clearly an decoration of a charge box to move a box within a reach of a hypothesis to be drawn opposite a respondents, if a conditions underneath Section 304B of a IPC.
34. A examination of a impugned visualisation and carrying left by a testimonies of a applicable element witnesses as discussed hereinabove nothing of a witnesses have oral with courtesy to a approach of dowry or any kind of cruelty in tie still to a defunct before to a date of occurrence i.e. 19.1.1996. Material improvements in a testimonies of a witnesses would uncover that a significant exegesis with courtesy to a anxiety to a approach of dowry in their particular testimonies is concocted that can't be believed and has righteously been deserted by a schooled hearing judge. Therefore, a statements/improvements done in a testimonies of a witnesses post 19.1.1996 occurrence are not sufficient to infer a final dual mixture of 304 partial B to describe a indicted guilty of a corruption and crook them thereunder.
35. In perspective of a above discussion, we find no belligerent during all to meddle with a anticipating returned by a schooled Additional Sessions Judge to a outcome that a charge had unsuccessful to infer that a defunct was subjected to nuisance on comment of dowry during any time or shortly before her genocide on a 19.1.1996. This interest is, therefore, abandoned of consequence and is dismissed.
36. Ms. Inderjeet Sidhu, schooled Amicus Curiae shall be paid her fees by a Delhi High Court Legal Services Committee, as per rules.
37. The bail holds and a collateral holds submitted by and on interest of a respondents shall mount discharged.
38. The Registry is destined to send a duplicate of this visualisation to a respondents.