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State vs Jitender Garg And Ors. on 21 November, 2007

Delhi High Court State vs Jitender Garg And Ors. on 21 November, 2007Equivalent citations: 2008 CriLJ 1574 Author: R Khetrapal Bench: M Mudgal, R Khetrapal

JUDGMENT

Reva Khetrapal, J.

1. The State seeks leave to appeal against the judgment dated 30th July, 2005 of acquittal passed by the Court of the learned Addl. Sessions Judge in case F.I.R. No. 215/2000, under Sections 498A/304B/302 IPC, Police Station Shakarpur, Delhi.

2. The facts in a nutshell are that four accused persons, namely, Jitender Garg (husband of the deceased), Mr. Rajinder Kumar Gupta (nandoi of the deceased), Ms. Kusum (nanad of the deceased) and Pawan Kumar (jeth of the deceased) were charge-sheeted for the offence of having caused the death of Smt. Rajni, the wife of Jitender Garg. It is not in dispute that Rajni died by strangulating herself with a ‘chunni’ after bolting the door of her room from the inside. Her MLC Ex.PW-2/A prepared by Dr. Anant Kumar in Walia Nursing Home shows that a ligature mark was found around her neck, but no other external injury or mark was seen. The postmortem report further confirms the finding of the ligature mark on the neck and the fact that no external injury was seen on the body of the deceased by Dr. K.Goel (PW-1) who conducted the post mortem. The cause of death was opined by Dr. K. Goel to be asphyxia, consequent upon pressure over neck. Thus, the postmortem findings were consistent with suicide by hanging, and the ligature mark was specifically opined to be ante-mortem in nature.

3. The learned Counsel for the State forcefully contended that the death of Rajni having taken place within 11 months of her marriage with Jitender Garg and she being pregnant with first child at the time of her death, the death must be attributed either to the commission of a crime or to the fact that the deceased was subjected to continuous torture which impelled her to commit suicide. According to the learned Counsel, the statements of PW-4, PW-5, PW-6, PW-7 and PW-8 are consistent on one point that during the period of 11 months of marriage, the demand for dowry was continuously made and continued to be made till soon before her death. He submits that the trial Court failed to appreciate that minor discrepancies in the testimonies of the aforesaid witnesses were of no significance, and, wrongly declined to convict the accused despite clear and cogent evidence against them. The learned Counsel for the State also submits that the defense plea that the deceased was pursuing the career of modelling without the permission of the accused/husband in no manner discharges the burden placed on the accused persons to prove that the death of the deceased was not due to any cruel treatment/harassment for dowry. The modelling photographs of the deceased, the learned Counsel urged, do not discharge the presumption enshrined in Section 113(B) of the Evidence Act.

4. In order to deal with the submissions of the learned Counsel for the State, we have gone through the trial court records summoned by us and in particular the testimonies of the witnesses examined by the trial court. Broadly speaking, the witnesses examined by the prosecution may be classified into four categories: The first category comprises of the formal witnesses, on whose testimonies we do not propose to dwell. The second category is of official witnesses including PW-1 Dr. Anant Kumar and PW-2 Dr. K. Goel, PW-3 Shri Ravi Dadhich, the concerned SDM and PW-19, Sub-Inspector Radhey Shyam, the Investigating Officer of the case. The third category is of relatives of the deceased, namely PW-4 Rajinder Gupta, who is the complainant and the brother of the deceased, PW-5 Virender Kumar Gupta, who is also the brother of the deceased, PW-6 Vidyawati, the mother of the deceased, PW-7 Smt. Raj Rani, the bhabhi of the deceased and the wife of PW-5, and PW-8 Saroj Gupta, the sister of the deceased. The fourth category of the witnesses comprises of independent witnesses, neighbours etc., who are PWs-9 to 12.

5. Adverting first to the testimonies of the relatives of the deceased on which reliance has been placed by the learned Counsel for the State, viz. PW-4 to PW-8, the learned Addl. Sessions Judge has given an unequivocal finding to the effect that the testimonies of the said witnesses are wholly unreliable being replete with material discrepancies. The learned Addl. Sessions Judge has further recorded that there is much improvement in the depositions of the said witnesses, who are close relatives of the deceased, as compared to their earlier statements recorded during the course of investigation and this factor also casts suspicion on the veracity of the deposition of these witnesses, and that the statement of the complainant/PW-4 Shri Rajinder Gupta itself is not free from suspicion.

6. Adverting to the deposition of PW-4 Rajinder Gupta, according to PW-4 Rajinder Gupta on 7.6.2000, he along with his family members had gone to the Police Station at about 6:30/6:45 AM and thereafter they went to the mortuary. However, he stated, his statement was recorded by the police before they left for the mortuary and the said statement was Ex.PW-4/A, bearing his signature at point ‘A’. He further added in his deposition as under: This statement was got signed from me by SI Radhey Shyam after we were produced before the SDM on 8.6.2000 at about 10/11 AM. The SI did not read over this statement to me nor I was allowed to go through it. He asked me to sign it immediately because he was to produce the challan in the Court.

7. In his cross-examination by the learned Addl. Public Prosecutor, PW-4 categorically denied the suggestion put to him that his statement Ex.PW-4/A was recorded by the SDM in his presence and that he had signed the same in his presence. On the other hand, PW-19 SI Radhey Shyam, the Investigating Officer of the case deposed in the Court: “On 7.6.2000, I took Rajinder Gupta in the office of the SDM Ravi Dadhich. On the direction of the SDM, I recorded the statement of Rajinder Gupta Ex.PW-4/A and Ex.PW-4/C in presence of the SDM, on which Rajinder Gupta had signed and SDM made endorsement”. PW-13 Ravi Dadhich, the concerned SDM also deposed that the Investigating Officer of the case had recorded the statement of PW-4 Rajinder Gupta in his presence and the said statement was Ex.PW-4/A. He made his endorsement at Point ‘B’ which bears his signature at Point ‘C’.

8. From the above, it is abundantly clear that the deposition of PW-13 SDM Ravi Dadhich and PW-19 SI Radhey Shyam is clearly contrary to the deposition of PW-4 Rajinder Gupta, as he expressly deposed to the effect that “Statement Ex.PW-4/A bearing his signature at point ‘A’ was recorded by the police before he left for mortuary.” He also added that SI Radhey Shyam had already recorded his statement and the statements of his brother Virender Kumar Gupta and his wife Raj Rani at the Police Station, which he produced before the SDM on 8.6.2000. In his cross-examination by the learned Additional Public Prosecution, PW-4 specifically denied the suggestions of the learned Add. Public Prosecutor that his statement Ex.PW-4/A was recorded by the SDM (PW-13) in his presence and that he had signed the same in his presence. In contradiction, PW-13 could not depose in the Court by whom the said statement of PW-4 was recorded nor he could state as to when the statement was recorded by him (PW-13):

I am not in a position to say in whose handwriting the statement of Rajender Kumar Gupta Ex.PW-4/A was recorded. It is correct that I had not attested the signature of Rajender Kr.Gupta at point ‘A’ Ex.PW-4/A.

Further more, PW-13 has also deposed as under:

I cannot say at what time the statement of Rajender Kr.Gupta was recorded

PW-4 Rajender Gupta makes matters worse by deposing in the court to the effect that: “My statement on which the case was registered was not read over to me” and “The IO had already recorded my statement before asking me anything.

9. Likewise, his brother PW-5 Virender Kumar Gupta deposed in the court as follows:

My statement was recorded by SI Radhey Shyam on 7.6.2000 at the Police Station…. The SDM obtained signature on the said statement recorded by SI Radhey Shyam. However, the statements were not read over to us and nor we were allowed to go through the same.

On being cross-examined by the learned Addl. Public Prosecutor for the State, he deposed to the following effect:

It is incorrect to suggest that the statement Ex.PW-5/A was recorded by SI Radhey Shyam in the office and in the presence of the SDM. It is incorrect to suggest that the IO recorded a separate statement

10. Similarly, in respect of the statement of PW-7 Smt. Raj Rani, the depositions of PW-13 Ravi Dadhich (the SDM) and PW-19 SI Radhey Shyam are belied by the depositions of PW-4 and PW-5. Both PW-4 and PW-5 clearly deposed that the statement of Smt. Raj Rani had already been recorded by the I.O., SI Radhey Shyam when she was produced before the SDM and the said statement was neither read over to them nor they allowed her to go through the same.

11. Apart from the above, we find that no satisfactory explanation could be brought on record by the prosecution as to why the statement of the complainant was not recorded on the day of the incident, i.e., on 6.6.2000, especially when the complainant admittedly met the SHO, the ACP and the SDM at Walia Nursing Home on 6.6.2000 itself. PW-4 himself states in his deposition that he did not give any statement to the SDM, the ACP and the SHO on 6.6.2000, despite the fact that all of them were present at the Nursing Home. PW-5 Virender Kumar Gupta corroborates that on 6.6.2000 he had not given any statement before the police or the SDM or the ACP though we had gone to the house of the accused along with the ACP. PW-6 Vidyawati (the mother of the deceased) also deposed that the senior police officials were present in Walia Nursing Home on 6.6.2000 when she reached at 7:30AM, but she had not given any statement to the police or the SDM on the said date. Thus, the authenticity of the statement of the complainant forming the basis of the FIR and the statements of the other relatives of the deceased is not free from suspicion. This suspicion is compounded by the fact that out of the four brothers of the deceased, only two brothers have come forward to support the prosecution case, while the remaining two brothers, namely, Jitender Kumar Gupta and Surinder Kumar Gupta have not deposed anything as regards any harassment or torture due to dowry demands against the accused persons, though both the said brothers had reached Walia Nursing Home on the same night, i.e., on 6.6.2000 and had joined the inquest proceedings on 7.6.2000, and, as a mater of fact Surinder Kr.Gupta appeared in the witness box as PW-18 to depose with regard to the identification of the dead body, but was conspicuously silent about any dowry demand or harassment meted out to his deceased sister.

12. Then again, PWs-4 to 8 have given altogether contradictory versions with regard to the dowry demands from the side of the accused and there appear clear contradictions in their testimonies as regards the accused person/s who made the said demands, the purpose for which the cash amounts (allegedly Rupees one lac on the first occasion and Rs. 50,000/- on the second occasion) were demanded, when the said amounts were paid and as regards the person/s to whom the said amounts were paid. Thus, for instance, as regards the payment of Rupees one lac, according to PW-4 Rajender Kr. Gupta, it was accused Jitender and his sister Kusum who had come to their house along with his deceased sister Rajni to demand Rupees one lac one month before Diwali of the year 1999, while according to PW-5 Virender Kumar Gupta, about 20-25 days before Diwali, the accused persons had sent his sister to his house who stated that Rupees one lac was being demanded by them. However, contradicting them, PW-6 Smt. Vidyawati deposed that Rupees one lac was demanded by the accused Jitender himself. Then again, according to PW-4, the said sum of Rupees one lac was demanded for the purchase of a shop. However, from the deposition of PW-5 Virender Kumar Gupta, it is reflected that his sister Rajni had come to his house and stated that the demand of Rupees one lac had been sent by the accused for investment in the business. Further more, as regards the mode of payment of Rupees one lac, it is stated by PW-4 that accused Jitender, accused Rajinder and accused Kusum had come to their house on 24.9.1999 and they had received the payment. Contradicting him, PW-5 Virender Kumar Gupta deposed in the court that on 24.9.1999, they had called all the four accused to their house and Rajni also came with them and his elder brother Rajinder Kumar Gupta contributed Rs. 30,000/-, Jitender contributed Rs. 20,000/- and he (Virender Kumar Gupta) contributed Rs. 50,000/- for the payment of Rupees one lac. But PW-4 Rajender Kr. Gupta neither in his statement Ex.PW-4/A nor in his deposition in the court deposed in this regard and as a matter of fact the story of contribution as deposed in the court by PW-5 is also not found reflected in his earlier statement Ex.PW-5/A. Then again, it is stated by PWs 4 and 5 that the said payment was made on 24.9.1999, but their statement is contradicted by PW-6, who deposed that the payment of Rupees one lac was made about 15 days before Diwali which was in the month of November. Significantly, all the said witnesses admitted that no complaint was ever made by any one of them or by any one else as regards any demand raised by the accused persons.

13. The allegation of the prosecution that a further demand of Rs. 50,000/- was made by the accused persons was also sought to be supported by the testimonies of PWs 4,5 and 6, but as noticed by the learned Addl. Sessions Judge, the testimonies of the said witnesses with regard to the demand for the sum of Rs. 50,000/- is again full of material contradictions. In paragraph 40 of his judgment, the learned Addl. Sessions Judge has noted as follows;-

40. Thus, from the perusal of deposition of PW 4, PW 5 and PW 6, it is clearly reflected about contradiction as regards to whom and as to when said demand of Rs. 50,000/- was made, as regards the person who demanded for Rs. 50,000/- and as regards the person who was given the said amount. As PW 4 deposed that accused Rajender along with his sister Rajni came to his house and told accused Rajinder had demanded Rs. 50,000/- from him. However, as per deposition of PW 5, when his sister Saroj being accompanied with her husband, had gone to house of her sister Rajni, on 12.5.2000, they found that a quarrel gong on between Rajni and accused Kusum and Rajni told Kusum that Jitender is demanding Rs. 50,000/- more because he was short of this much amount for the purchase of a flat. Whereas, PW-6 Vidyawati has deposed in the court that about 8 days before death of her daughter, this accused Kusum had demanded Rs. 50,000/-, from them. In the cross examination said PW 6 has added further to this effect as under:

I do not know the date, month of (or) year when Kusum demanded Rs. 50,000/- from them. Kusum had come to my house to demand said amount but I do not remember the time.

Furthermore, PW 6 has deposed to the effect that accused Kusum had come to her house about 8 days prior to death of her daughter and demanded Rs. 50,000/- but from the perusal of statement mark B of said Vidyawati mother of deceased as claimed to have been recorded by SDM, there is no reflection regarding said demand of Rs. 50,000/- by accused Kusum and said fact also creates suspicion on the stand of deposition of various PWs as regards demand of Rs. 50,000/- from the side of the accused. Furthermore, the deposition of PW 4 to the effect that on 26.5.2000, accused Rajinder along with his sister came to his house and accused Rajinder demanded Rs. 50,000/- from them is further contradicted from the statement of PW 4 as found reflected from Ex.PW 4/C as in the said complaint Ex.PW 4/C, which was claimed to have been recorded by the SDM on 7.6.2000 it is found reflected that on 26th May his sister came to him and told him that accused has been demanding money on which he stated that he was going out of Delhi for on week and thereafter coming back he will arrange the money. Thus, in the said complaint he had stated that only his sister Rajni came to his house for demanding money whereas in his deposition in the court he had deposed to the effect that accused Rajinder along with his sister Rajni had come to his house for demanding Rs. 50,000/-. and said fact also creates suspicion on the stand of the prosecution as regards payment of Rs. 50,000/- on behalf of accused persons. Furthermore, said PW 4, has not deposed anything about beating given to Rajni in the night of 12.5.2000 by the accused on account of demand of Rs. 50,000/-, and leaving of Rajni by accused Jitender at the house of PW 5 on 13.5.2000 and again dropping of her at accused house on 15.5.2000 and if any such thing had happened with Rajni on 12.5.2000, 13.5.2000 and 15.5.2000, there is no reason as to why deceased Rajni had not stated about the same to her brother PW 4 on 26.5.2000 when she had come to his house for demand of Rs. 50,000/- as claimed by PW 4 in his deposition.

14. Significantly, the contradictions in the testimonies of the prosecution witnesses are not confined to the time, mode, manner etc. of dowry demands, but further reflect on other aspects of the case as well. Thus, for instance, PW 4 Rajinder Kumar Gupta stated in the complaint Ex. PW-4/A, forming the basis of the FIR, that on 6.6.2000 at about 7 PM, accused Jitender had telephoned his house and informed his wife that a quarrel was going on at his house and they should reach there, after which his wife went to the house of the deceased and on being informed by the neighbours that Rajni had expired by hanging and had been taken to the Walia Nursing Home, his wife went to the said Nursing Home. But the said statement of PW 4 is contradicted by PW 4 himself, as he deposed in the court that there was no phone connection at his house at the relevant time nor there was any phone connection at the house of PW 5 Virender Kumar Gupta. PW 5 also admitted in his deposition that neither his brother Rajinder Kumar Gupta nor he himself had any phone connection at that time at their houses. Then again, while PWs.4 and 5 testified that they spent Rs. 50,000/- to Rs. 60,000/- in the marriage of their sister, PW-6 in direct contradiction, claimed that an expenditure of Rs. 2,50,000/- had been incurred in the marriage of her daughter.

15. Adverting next to the testimonies of the independent witnesses, PW-9 Prithvi Raj Tiwari, PW-10 Pramod Kumar, PW-11 Pradeep Kumar and PW-12 Pradeep Chugh, all of whom reside in the neighborhood, we cannot but help noticing that all the said prosecution witnesses in one voice have deposed that the deceased was living happily at her matrimonial home, that she had never complained about the harassment or torture to her on account of dowry, that the deceased had a separate kitchen in the house and that there was never any quarrel in the house between the deceased Rajni and her family members.

16. PWs 9 to 12 have further deposed in one voice that none of the accused persons were present in the house on the fateful day when Rajni strangulated herself. PW 9 Prithvi Raj deposed that he had seen from the gallery of the house that Rajni had strangulated herself with her ‘chunni’, that he had come out of the house on hearing noise and when he came out he found that Rajni was inside the house and was not opening the door despite alarm by the public persons. Thereafter, her husband Jitender Garg took her to Walia Nursing Home, where she was declared brought dead. The above testimony of PW-9 is corroborated by that of PW-10 Pramod Kumar, who also stated that Rajni had bolted the door of the house and was not opening the door and accordingly he along with Pradeep Kumar had broken open the door of the gallery. He also testified that at the time of the incident, none of the accused were present at the spot. PW 11 Pradeep Kumar also highlighted the role played by him in breaking down the door of the room apart from corroborating the version of other PWs that none of the accused persons were present in the house when at the time of the incident. PW 12 Pradeep Chugh deposed likewise that he with the help of other persons had got the door opened, that none of the accused persons were present in the house when Rajni strangulated herself.

17. Thus, PWs 9, 10, 11 and 12, far from supporting the case of the prosecution, have shaken the very foundations of the case. Interestingly, none of the said independent witnesses have been declared hostile to the prosecution nor they have been subjected to any cross-examination on behalf of the State. The testimonies of the independent witnesses PWs 9 to 12 and the testimony of PW-18 Surinder Kumar, brother of the deceased who has made no allegation against the accused persons when read conjointly highlight the contradictions in the testimonies of the “interested witnesses” PWs 4 to 8, which naturally assume further significance in the light of the same.

18. We further find some significant admissions in the testimonies of the official prosecution witnesses. Thus, PW-13 Ravi Dadhich, the SDM has stated that he had made inquiries from the neighbours and the family members of the deceased on the day of the incident, but admitted that he had not recorded their statements. He admitted it to be correct that on inquiry it was revealed that the door was found closed from inside by way of a latch and it was opened by pushing the door from outside. He admitted that no case was registered on 6.6.2000 on allegations of torture or harassment for dowry demand and that though the complainant was present he had not made any such allegation. He admitted that he was not in a position to say in whose hand writing the statement of the complainant (Ex.PW-4/A) was recorded, at what time the statement of the complainant was recorded and who had recorded the same.

19. PW-19, the Investigating Officer of the case, SI Radhey Shyam was also compelled to make some significant admissions. Thus, PW-19 admitted that ‘mohalla’ persons had not told that the accused had ever demanded dowry from the deceased or that they had tortured the deceased in connection with dowry. He admitted that he had not received any statement from the side of the complainant or any other witness on 6.6.2000, nor the SHO had recorded any statement of any witness on that day. He admitted that neither the complainant nor any of family members of the deceased had produced any written complaints against the accused persons. He also candidly admitted that he could not say if the deceased was modelling without the permission of her husband and also could not say whether the deceased committed suicide when the accused persons came to know that she was engaged in modelling. He admitted that accused Jitender Garg was working at a cloth shop, accused Rajinder was a vegetable seller and accused Pawan was working as Security Guard at Super Bazar, Trilokpuri, Delhi.

20. We further find that it has also surfaced from the testimonies of the prosecution witnesses that accused Pawan was residing at Muzaffar Nagar and was commuting to and fro from Muzaffar Nagar to Delhi, where he was in government employment, and that accused Kusum had a shop at Jheel Khurenja and the said shop was sold and Kusum later purchased another shop from DW-2 Rajesh Goel (inadvertently examined by the trial court as DW-1). This is also borne out from the testimony of DW-1 Akbar Ali, the Pradhan of Village Madawali Bangar, Distt. Muzaffar Nagar (U.P.) and DW-2 who deposed in the court that on 17.9.2000 he had sold one shop No. LG-5, Lower Ground Floor, Madhu Vihar to Smt. Kusum Lata, wife of Rajinder Gupta, through a General Power of Attorney, for a sum of Rs. 60,000/-.

21. In their defense, the accused in their statements under Section 313 Cr.P.C. have stated that the deceased was doing the work of modelling without the knowledge of her husband and the other accused persons and when her husband Jitender Garg came to know of the same, she, feeling exposed, committed suicide. Accused Pawan in his statement further added that he had been working as a Security Guard at Super Bazar, Trilokpuri and he used to come to Delhi for his work from Village Madawali Bangar, Distt. Muzaffar Nagar. He also added that on receiving information on the next day, he came to Delhi to the house of the brother-in-law Shri Rajinder Gupta.

22. Relying upon the testimonies of the independent witnesses i.e. PWs 9 to 12, and the defense witnesses i.e. DWs 1 and 2, and the material contradictions in the testimonies of PWs 4 to 8 highlighted above, the learned Counsel for the accused vehemently contended that in the light of the material available on the record, the learned trial Judge had not erred in acquitting the accused of the charges under Sections 304B/498A IPC and alternatively for the offence under Sections 306/34 IPC. We see no reason to disagree. In our view, the learned trial Judge has correctly held that suspicion, by itself, howsoever strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused. Reliance placed by the learned trial Judge on the judgments of the Hon’ble Supreme Court in State of Punjab v. Bhajan Singh , Kali Ram v. State of Himachal Pradesh and AIR 1973 S.C. 2662 in this regard is not, in our view, mis-placed. Likewise, the learned trial Judge, to our mind, has rightly discarded the testimonies of PWs 4 to 8 as being vague, inconsistent on material aspects and untrustworthy in the light of law laid down by the Hon’ble Supreme Court in Badruddin Rukonddim Karpude and Ors. v. State of Maharashtra, 2005 (1) JCC 511 Sheikh Mehboob @ Hetak and Ors. v. State of Maharashtra, 1998 CRL.L.J. 1105 Meka Ramaswamy v. Dasari Mohan and Ors., 1995 Crl.L.J. 1020 Jai Ram v. State of Rajasthan and 1 (1993) DMC 418 (SC) Lekh Ram & Brij Lal v. State of Punjab.

23. The exoneration of the accused persons of the charge under Section 306 read with Section 34 IPC in the light of the law laid down by the Hon’ble Supreme Court in Shri Ram and Anr. v. State of U.P. is also, to our mind, fully justifiable taking into account the fact that there is not an iota of evidence on record to show the intentional aiding and therefore complicity on the part of the accused persons and, on the other hand, it appears to us that the modelling photographs of the deceased (Ex.PW-7/DA to PW-7/DC) which were admitted to be the photographs of the deceased by PWs 4 & 5, the brothers of the deceased and the fact that it is evident from the record that some amount of subterfuge was resorted to by the deceased for carrying out her modelling foray which subsequently, to her dismay, came to the knowledge of her husband, may well have some connection with the extreme step adopted by the deceased of strangulating herself. To our mind, it does not require much imagination to conjecture that possibly the husband of the deceased may have expressed some anguish on discovering that she was engaged in modelling without his knowledge or consent, more so, as it cannot be lost sight of that the family of the accused persons did not belong to the upper strata of the society but at best may be termed a lower middle class family. However, in view of the fact that this is not the case of the prosecution, nor there is any material on the record to this effect, we refrain from saying anything further on this aspect of the matter.

24. For all the reasons aforesaid, we do not consider this to be a proper case for grant of Leave to prefer an appeal to the State. The leave to appeal is accordingly declined.

Crl.L.P.No. 202/2005 stands disposed of accordingly.

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