IN THE COURT OF SHRI KULDEEP NARAYAN ADDITIONAL SESSIONS JUDGE (PILOT COURT) WEST: TIS HAZARI COURTS: DELHI SC No.57795/2016 FIR No.563/2014 U/s. 498A/304 B/34 IPC PS Rajouri Garden In the matter of : State versus 1. Rohit Kumar S/o Ramesh Kumar R/o H.No. F-89, 25 Sq. Yards Raghubir Nagar, Delhi. 2. Ramesh Kumar S/o late Ramji Lal R/o H.No. F-89, 25 Sq. Yards Raghubir Nagar, Delhi. 3. Shashi W/o Ramesh Kumar R/o H.No. F-89, 25 Sq. Yards Raghubir Nagar, Delhi. Sessions Case No. 57795/16 Page 1/80 4. Amit S/o Ramesh Kumar R/o H.No. F-89, 25 Sq. Yards Raghubir Nagar, Delhi. Date of Institution : 23.08.2014 Date of reserving Judgment : 07.06.2018 Date of pronouncement : 06.08.2018 Appearances: For the State : Ms. Reeta Sharma, Additional Public Prosecutor For the Complainant : Ms. Mallika Parmar, Advocate For Accused Persons : Sh. Vineet Mehta and Shri Ankur Gupta, Advocate. JUDGMENT
Accused persons namely, Rohit Kumar son of Ramesh Kumar aged 26 years, Ramesh son of late Ramji Lal aged 47 years, Shashi wife of Ramesh Kumar aged 44 years and Amit son of Ramesh Kumar aged 21 years were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973, (Cr.P.C) i.e. Sessions Case No. 57795/16 Page 2/80 chargesheet submitted on 19.08.2014 upon conclusion of investigation into First Information Report (FIR) No. 563/14 of police station (PS) Rajouri Garden for offences punishable under Section 498A/304B /34 of the Indian Penal Code, 1860 (IPC).
2. As per the prosecution story, on 21.05.2014, on receipt of DD No. 33A, Assistant Sub Inspector (ASI) Abhinandan alongwith Constable (Ct.) Satender reached at the place of incident i.e. F-89, 25 Sq. yard, Raghubir Nagar, New Delhi where on the top floor of the said house, Anjali wife of Rohit was found hanging to the ceiling fan using a saree. SHO as well as the Executive Magistrate concerned was informed. The mobile crime team was called and the spot was got photographed. SDM, Rajouri Garden recorded the statement of Smt. Sunita, mother of the deceased.
3. As per the statement of complainant Smt. Sunita, her daughter Anjali (deceased) was married to Rohit son of Ramesh Kumar resident of F-89, 25 Sq. yard, Raghubir Nagar, New Delhi on 13 Sessions Case No. 57795/16 Page 3/80 November, 2013. After 10-12 days of marriage, when Anjali (deceased) had come to her parental home, she told her mother that her husband Rohit, father-in-law namely Ramesh Kumar, mother-in- law namely Shashi, sister-in-law namely Monika and brother-in-law namely Amit used to harass her for dowry and had demanded a car. Deceased also told that her mother-in-law used to instigate Rohit (her husband) to beat her so that she would bring dowry. The parents-in-law of deceased used to keep her hungry and even did not allow her to talk to her husband. However, at that time complainant made the deceased understand and advised her to adjust in her matrimonial house. Complainant further stated that three months prior to the incident when she alongwith her husband had gone to the matrimonial house of the deceased, the in-laws of deceased did not allow them to talk to deceased and also insulted them. On 19.05.2014, deceased had again come to her parental home. On 20.05.2014, when her husband Rohit came to take her back, she refused to go back saying that her in-laws would kill her. Further, on 21.05.2014 at about 6.30 p.m, father of deceased received a telephone call from Sessions Case No. 57795/16 Page 4/80 father-in-law of deceased who asked him to come to his house immediately. On reaching the matrimonial home of the deceased, complainant and her husband found her hanging to the ceiling fan in her room.
4. On the statement of the complainant, FIR under Section 498A/304B/34 IPC was registered against all the accused persons. Exhibits were lifted from the spot and the dead body was shifted to DDU hospital for postmortem examination. Further investigation of the case was handed over to Inspector Suman Kumar Sharma, Investigating Officer (I.O) of the case.
5. During the investigation, IO prepared the site plan. He also seized one note book containing the suicide note of the deceased. IO arrested accused persons namely, Rohit, Ramesh Kumar and Shashi. Accused persons Amit and Monika could not be arrested as both absconded. IO got conducted the postmortem examination of dead body of the deceased and after postmortem examination, the dead body was handed over to father of deceased. Exhibits were sent to FSL for examination. Statement of the witnesses under Section 161 Sessions Case No. 57795/16 Page 5/80 Cr.P.C were recorded by the IO. On 30.05.2014, accused Monika was granted anticipatory bail by the Hon’ble High Court. On 31.07.2014, accused Amit was also granted anticipatory bail by the Hon’ble High Court.
6. Thereafter, IO obtained the postmortem examination report in which cause of death was opined to be due to asphyxia caused by ligature hanging. Manner of death was opined to be suicide.
7. After completion of the investigation, the I.O came to the conclusion that sufficient evidence had come on record against the accused persons namely Rohit, Ramesh Kumar, Shashi, Amit and Monika for commission of offences under Section 304B/498A/302/34 IPC. The charge-sheet was prepared against accused persons namely, Rohit, Ramesh Kumar, Shashi and Amit and filed in the court.
8. The charge-sheet was also prepared against Monika and she being the juvenile, chargesheet against her was filed before the Juvenile Justice Board.
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9. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate, Delhi took cognizance of offences under Section 498A/304B /34 IPC and vide order dated 21.08.2014 after complying with the provisions contained in Section 207 Cr.P.C committed the case to the Court of Session for 23.08.2014.
10. On 20.09.2014, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused persons, charge was framed against the accused persons namely, Rohit Kumar, Ramesh Kumar, Shashi and Amit for commission of offences punishable under Section 498A/304B/34IPC. The charge so framed was read over and explained to the accused persons to which they all did not plead guilty and claimed trial.
11. To bring home the afore-mentioned charges to the accused persons, the prosecution got examined Khushi Ram (PW-1), Sunita (PW-2), Ct.
Sessions Case No. 57795/16 Page 7/80 Jagat Singh (PW-3), HC Om Parkash (PW-4), Ct. Veena (PW-5), Hc Sukhbir Singh (PW-6), Sh. Sukhdev Singh, Retired Executive Magistrate (PW-
7), Israr Babu (PW-8), ASI Sensor Pal (PW-9), Dr. B.N. Mishra (PW-10), Madhvi (PW-11), Ct. Satender (PW-12), SI Devender Singh (PW-14), SI Jyoti (PW-15), Ct. Satender Jeet (PW-16), Inspector Rajesh Kumar (PW-17), Retired ASI Abhinandan(PW-18), Inspector Suman Kumar Sharma (PW-19) and Ms. Sarita Sharma (PW-20) Documentary Evidence
12. The prosecution also relied on following documents tendered into evidence i.e statement of Khushi Ram before SDM (Ex. PW-1/A), identification statement of dead body (Ex.PW-1/B), receipt of dead body (Ex.PW-1/C), seizure memo of note book (Ex.PW-1/D), marriage card (Ex.PW- 1/P-1), statement of Sunita before SDM (Ex.PW- 2/A), photographs of place of occurrence (Ex.PW- 3/P1 to Ex.PW-3/P12), negatives of the abovesaid photographs (Ex.PW-3/P13 to Ex.PW-3/P24), scaled site plan (Ex.PW-4/A), PCR form (Ex.PW- 5/A), application for conducting the postmortem Sessions Case No. 57795/16 Page 8/80 examination (Ex.PW-7/A), identification statement of dead body (Ex.PW-7/B), customer application form of mobile no. 9711508977 (Ex.PW-8/A), ID proof of customer i.e. photocopy of election I-card (Ex.PW-8/B), call details of above said mobile number w.e.f 15.05.2014 to 21.05.2014 (Ex.PW- 8/C), certificate u/s 65 B Evidence Act (Ex.PW- 8/D), customer application form of mobile no. 9654964337 (Ex.PW-8/E), ID proof of customer i.e. photocopy of driving licence (Ex.8/F), call details of above said mobile number w.e.f 15.05.2014 to 21.05.2014 (Ex.PW-8/G), certificate u/s 65 B Evidence Act (Ex.PW-8/H), FIR (Ex.PW- 9/A), endorsement on rukka (Ex.PW-9/B), certificate u/s 65 B Evidence Act (Ex.PW-9/C), DD Entry no. 33 A dt. 21/05/2014 (Ex.PW-9/D), postmortem examination report (Ex.PW-10/A), statement (Ex.PW-11/DA), seizure memo of half piece of saree (Ex.PW-12/A), seizure memo of pulanda and sample seal (Ex.PW-12/B), scene of crime report (Ex.PW-14/A), arrest memo of accused Shashi (Ex. PW-15/A), personal search memo of accused Shashi (Ex.PW-15/B), arrest memo of accused Rohit (Ex.PW-16/A), arrest Sessions Case No. 57795/16 Page 9/80 memo of accused Ramesh Kumar (Ex.PW-16/B), personal search memo of accused Rohit (Ex.PW- 16/C), personal search memo of accused Ramesh Kumar (Ex.PW-16/D), disclosure statement of accused Rohit (Ex.PW-16/E), disclosure statement of accused Ramesh Kumar (Ex.PW-16/F), acknowledgment of case property (Ex.PW-17/A), rukka (Ex.PW-18/A), seizure memo of note book containing sucidie note (Ex.PW-18/B), note book containing suicide note (Ex.PW-17/B), suicide note (Ex.PW-18/P1), note book containing handwriting of the deceased (Ex.PW-1/P2), seizure memo (Ex.PW-1/D), site plan without scale (Ex.PW- 19/A), request form for post mortem examination (Ex.PW-19/B), disclosure statement of accused Shashi (Ex.PW-19/C), arrest memo of accused Amit (Ex.PW-19/D) and detailed report regarding handwriting of deceased (Ex.PW-20/A).
Statements of Accused persons
13. After conclusion of prosecution evidence, on 15.09.2016, statements of accused persons namely Rohit Kumar, Shashi, Ramesh Kumar and Amit were recorded under Section 313 Cr.P.C wherein Sessions Case No. 57795/16 Page 10/80 they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were innocent and were falsely implicated in the present case.
14. The accused persons desired to lead evidence in their defence. Accordingly, accused persons got examined Dr. Anuj Mittal as DW-1, Ram Chander as DW-2, Bansi Lal as DW-3, Dr. Anil Khetrapal as DW-4 and Shailender as DW-5.
15. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Shri Vineet Mehta, learned counsel for all the accused persons and also perused the entire material available on record.
16. During the course of arguments, learned Additional Public Prosecutor argued that during lifetime of the deceased, all the accused persons harassed and compelled the deceased to bring big car and other articles from her parents. The deceased died within six months of her marriage and soon before her death, she was subjected to cruelty by the accused persons for demand of Sessions Case No. 57795/16 Page 11/80 dowry. The deceased had expressed her apprehension to her mother on 20.05.2014 that she might be killed by the accused persons and on 21.05.2014 also the deceased had had telephonic conversation with her mother complaining about the harassment being caused to her by the accused persons. The deceased committed suicide on 21.05.2014 itself after leaving suicide note. Further, learned prosecutor argued that there are no vital improvements in the testimonies of prosecution witnesses. The accused persons could not rebut the mandatory presumption available under u/s 113 B of the Evidence Act against them, hence, all the accused persons are liable to be convicted. Learned prosecutor also relied on the written submissions prepared by the learned counsel for the complainant, relying upon the judgments namely Kanta & Ors v. State – 184 (2011)DLT 734, Maya Devi & Ors v. State of Haryana – AIR 2016 SC 125, Raja Lal Singh v. State of Jharkhand – AIR 2007 SC 2154, Sudhakar Singh v. State – 2014 (3) JCC 1943, V.K Mishra & Ors v. State of Uttrakhand & Ors – AIR 2015 SC 3043, Bhim Singh & Anr v. State of Uttrakhand passed by the Sessions Case No. 57795/16 Page 12/80 Apex Court on 11.02.2015 in criminal appeal no. 2146 of 2009 and Bhagaloo Lodh & Anr v. State of U.P passed by the Apex Court on 14.06.2011 in criminal appeal no. 207 of 2007.
17. Per contra, learned Counsel for the accused persons argued that there was no demand of dowry prior or at the time of marriage and the demand of big car and sarees could not be proved by the prosecution. As per the testimonies of prosecution witnesses, the deceased was never treated with cruelty by the accused persons nor was she subjected to any cruelty soon before her death in connection with any demand of dowry. Further, not a single allegation could be brought to the notice of the mediator nor any complaint against the accused persons in this regard could be filed anywhere. Learned defence counsel further argued that the family members of the deceased made substantial improvements in their respective testimonies while deposing in the court out of sheer vengeance. Further, recovery of suicide note is doubtful whereas it could not be established that the same was written by the deceased. The deceased was suffering from depression for the last 2-3 years Sessions Case No. 57795/16 Page 13/80 prior to marriage. She was also taken to the doctors for her treatment but in vain as she committed suicide for the reasons known to her. Learned defence counsel lastly argued that prosecution miserable failed to establish the essential ingredients of the offences charged against the accused persons beyond reasonable doubt and all the accused persons accordingly, deserve acquittal. Learned defence counsel also filed written submissions and relied on judgments namelyBaijnath & Ors v. State of Madhya Pradesh passed by the Apex Court on 18.11.2016 in criminal appeal no. 1097 of 2016, Durga Prashad & Anr v. State of Madhya Pradesh passed by the Apex Court on 14.05.2010 in criminal appeal n. 1081 of 2010 and Ramesh Chander v. State of Delhi passed by the High Court of Delhi on 21.12.2016 in criminal appeal no. 526 of 2002 in support of his contentions.
18. I have given my thoughtful consideration to the submissions of both the sides.
Sessions Case No. 57795/16 Page 14/80 Testimonies of prosecution witnesses
19. To prove the afore-mentioned charges against the accused persons, the prosecution got examined 20 witnesses in all. For the sake of convenience, a brief description of the testimonies of all the prosecution witnesses in tabular form is as under :-
S.N. Name of PW Nature of testimony Documentary of PW Evidence. PW-1 Khushi Ram Deposed about harrassment Ex.PW-1/A, Ex.PW-1/B
caused to Anjali (deceased) Ex.PW-1/C, Ex.PW-1/D (Father of by her in-laws in her and Ex.PW-1/P-1 deceased) matrimonial house. Also deposed about demand of dowry made from the deceased.
PW-2 Sunita She also deposed about Ex.PW-2/A harrassment caused to Anjali (Mother of the (deceased) by her in-laws in deceased) her matrimonial house and demand of dowry made from her.
PW-3 Ct. Jagat Singh Took the photographs of the Ex.PW-3/P-1 to P-12 spot, proved photographs as and Ex.PW-3/P-13 to (Photographer) well as its negatives. P-24 PW-4 HC Om Prakash Deposed about inspecting the Ex.PW-4/A spot and prepared the scaled (Assistant site plan.
Draughtsman) PW-5 Ct. Veena Deposed about receiving PCR Ex.PW-5/A (Wireless call and forwarding the same. Operator, PCR) Sessions Case No. 57795/16 Page 15/80 PW-6 HC Sukhbir Deposed about deposit of Singh exhibits and entry in register no.19.
( MHC(M) ) PW-7 Shri Sukhdev Recorded statement of mother Ex.PW-7/A and Singh and father of deceased, sent Ex. PW-7/B the body for postmortem (Executive examination and conducted Magistrate) inquest proceedings. PW-8 Israr Babu Produced CAF, CDR of Ex.PW-8/A, Ex.PW-
mobile numbers 9711508977 8/B, Ex.PW-8/C, (Nodal Officer) and 9657964337 as well as Ex.PW-8/D, Ex.PW-
8/H PW-9 ASI Sansor Pal Deposed abut recording of Ex.PW-9/A, Ex.PW-9/B FIR and proved the same. Ex.PW-9/C and Ex.PW-
(Duty Officer) 9/D PW-10 Dr. B.N Mishra Performed postmortem Ex.PW-10/A examination on the dead body
(DDU Hospital) of the deceased and prepared the postmortem examination report.
PW-11 Madhvi Deposed about harrassment caused to Anjali (deceased) (Sister of in connection with demand deceased) of dowry.
PW-12 Ct. Satender Joined the initial investigation Ex.PW-12/A and Ex.
and deposed about the same. PW-12/B PW-13 Jai Gopal Identified and received the dead body of the deceased.
( (brother-in-law (Jija) of deceased) Sessions Case No. 57795/16 Page 16/80 PW-14 SI Devender Deposed about inspecting the Ex.PW-14/A Singh spot and preparation of scene of crime report.
(Incharge Mobile Crime Team) PW-15 SI Jyoti Joined the investigation and Ex.PW-15/A and deposed about the same. Ex.PW-15/B PW-16 Ct. Satender Jeet Joined the investigation and Ex.PW-16/A, Ex.PW-
deposed about the same. 16/B, Ex.PW-16/C, Ex.
16/E and Ex.PW-16/F PW-17 Inspector Rajesh Deposed about deposit of Ex.PW-17/A Kumar sealed parcels with FSL Rohini and receipt thereof with MHC (M).
PW-18 ASI Abhinandan Deposed about initial Ex.PW-18/A and investigation and recovery of Ex. PW-18/B. sucide note.
PW-19 Inspector Suman Deposed about the Ex.PW-19/A, Ex. PW-
Kumar Sharma investigation, recording 19/B, Ex.PW-19/C and statement of witnesses, sent Ex.PW-19/D (Investigation the dead body for Officer) postmortem examination and preparation of seizure memos.
He also identified the case property in the court.
PW-20 Ms. Sarita Deposed about comparison of Ex.PW-20/A Sharma handwriting on suicide note of deceased with her (Scientific admitted handwriting. Assistant, RFSL) Sessions Case No. 57795/16 Page 17/80 Testimony of Defence Witnesses
20. Dr. Anuj Mittal (DW-1) deposed about examining Anjali wife of Rohit Kumar resident of F-89, Raghubir Nagar, Delhi on 27.02.2014. He deposed that Anjali (deceased) had been suffering from depression for last two and half years and she had suicidal ideation. DW-1 further deposed that after examining the deceased again on 13.03.2014, he prescribed her medicine for depression. Further, DW-1 deposed that as per the illness deceased was suffering from, she was at the risk of committing suicide.
21. Ram Chander (DW-2), mediator of marriage of accused Rohit Kumar and Anjali (deceased) deposed that on asking of one of his relative, he had introduced family of accused Rohit Kumar to the family of Anjali (deceased) and both the parties agreed for the marriage. DW-2 also deposed that prior to marriage, there was no demand of dowry from the side of accused Rohit Kumar and prior to marriage, accused Rohit Kumar had bought Toyota Innova car on his own. DW-2 further deposed that in the first week of March, 2014 when he had visited the house of accused persons, he came to Sessions Case No. 57795/16 Page 18/80 know from them that the deceased was got examined at Deen Dayal Hospital and it was disclosed that she had been suffering from depression even prior to the marriage. At that time, parents of deceased were also present there and DW-2 asked them why they had not told about the disease of Anjali before marriage upon which parents of the deceased got annoyed and left from there. After about two months of the said incident when he was in Jaipur, he received telephonic information about death of the deceased. DW-2 also deposed that accused persons were innocent and had not done anything wrong with the deceased.
22. Bansi Lal (DW-3), neighbour of accused persons deposed that they had been knowing the family of accused Ramesh for last 35 years. DW-3 deposed that family of accused Ramesh was an affluent family and was having good reputation in the locality. Accused Rohit was self employed and prior to his marriage, he had bought a Toyota Innova car worth Rs. 18 lac. Further, he used to make enquiry from the deceased about her well being and she used to tell that she was fine and Sessions Case No. 57795/16 Page 19/80 having no problem. DW-3 further deposed that the deceased was medically examined in DDU hospital as she used to remain upset and it was disclosed that she was suffering from depression for which her treatment was started. Further, there was no demand of dowry from the side of accused persons and the relation between accused Rohit Kumar and Anjali (deceased) was going on smooth.
23. DW-3 also deposed that deceased was never harassed by the accused persons for demand of dowry.
24. Dr. Anil Khetrapal (DW-4) was examined to prove casuality card of Khetrapal Hospital (Ex.DW-4/A) which was in the name of Mrs. Anjali wife of Shri Rohit resident of F-89, Raghubir Nagar, New Delhi. DW-4 identified the handwriting of Dr. Zahur who was working in the same hospital, overleaf of the above-said card.
25. Shri Shailender (DW-5) Public Relation Officer, Khetrapal Hospital was examined who proved the original casuality register and medicine register both containing the entry bearing CR No. 938/14 dated 26.02.2014 pertaining to patient Sessions Case No. 57795/16 Page 20/80 Anjali wife of Rohit R/o F-85, Raghubir Nagar, New Delhi (Ex.DW-5/A and Ex.DW-5/B).
26. Dr. Rati Makkar (DW-6), Head of Department of Skin and OPD Incharge, DDU Hospital deposed about OPD card (Ex.DW-1/A) pertaining to patient Anjali aged 22 female dated 27.02.2014 of medicine department of DDU hospital. DW-6 admitted the OPD card (Ex.DW- 1/A) to be genuine.
Points for Determination:
27. In the light of facts and circumstances of the present case, following points for determination are arising in the present case:
(a) Whether the deceased was married with the accused Rohit Kumar ?
(b) Whether the deceased died within seven years of her marriage ?
(c) Whether the death of the deceased was an unnatural one and not under normal circumstances ?
(d) Whether soon before her death, the deceased was subjected to cruelty by the accused persons ?
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(e) Whether the deceased was treated with cruelty or harassed for or in connection with any demand for dowry by the accused persons.
(f) Whether the prosecution succeeded in establishing the essential ingredients of the offence under Section 304B IPC so as to raise the statutory presumption under Section 113B of the Evidence Act against the accused persons ?
(g) If the afore-mentioned presumption under Section 113 B of the Evidence Act is raised against the accused persons, whether the accused persons were able to rebut the said presumption ?
(h) Whether the accused persons are responsible for abetting the deceased to commit suicide ?
(i) Whether the deceased was subjected to cruelty by the accused persons?
28. To bring home the above-mentioned charges to the accused persons, the prosecution examined 20 witnesses in all. As per record, the evidence available on record are as under:-
1. Oral evidence, in the form of testimonies of prosecution witnesses.
2. Documentary evidence, i.e., (a) documents pertaining to investigation like FIR, daily Sessions Case No. 57795/16 Page 22/80 diaries (DDs), site plan, medico legal certificates (MLCs), postmortem examination reports, memos (arrest/search/seizure), handwriting expert opinion, photographs, and
(b) other documents i.e. (i) note book Ex.PW- 17/B containing suicide note Ex.PW-18/P1 (ii) note book of the deceased Ex.PW-1/P2.
29. It would be appropriate to discuss the entire evidence led by the prosecution as per the charges framed against the accused persons one-by-one.
Charge under Section 304 B IPC:
30. Before proceeding further, it would be relevant to address the contentions raised on behalf of the State as well as by the learned defence counsel regarding burden of proof of the essential ingredients of the offence under Section 304B IPC. It was contended by the learned Prosecutor that the prosecution is required only to show and not prove beyond reasonable doubts, where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances, within seven years of her marriage, that soon before Sessions Case No. 57795/16 Page 23/80 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, and such husband or relative shall be deemed to have caused her death and the presumption under Section 113 B of the Evidence Act would come into operation, thereby shifting the burden of proof to the accused to be discharged beyond reasonable doubt. In support of her contentions, learned Prosecutor placed reliance on V.K Mishra & Anr v. State of Uttrakhand & Ors 2015 Cr.L.J 4021, Maya Devi & Anr v. State of Haryana IX (2015) SLT 480, Bheem Singh & Anr v. State of Uttrakhana II (2015) SLT 145 and Sher Singh @ Pratapa v. State of Haryana judgment passed by the Apex Court on 09.01.2015 in criminal appeal no. 1592 of 2011.
31. Per contra, learned defence counsel contended that the prosecution is obliged to prove the existence of all the essential ingredients of the offence under Section 304B IPC, beyond reasonable doubt and only then the presumption under Section 113 B of the Evidence Act can be raised against the accused. In support of his Sessions Case No. 57795/16 Page 24/80 contentions, learned defence counsel relied on Baijnath & Ors v. State of M.P AIR 2016 SC 5313 wherein Rajeev Kumar v. State of Haryana(2013) 16 SCC 640 was also referred, Ramesh Chander v. State of Delhi dated 21.12.2016 passed in Crl. A no. 526/2002 wherein Vipin Jaiswal v. State of Andhra Pradesh AIR 2013 SC 1567, was also referred.
32. Having heard the contentions on both sides and perused the cited judgments, I am in agreement with the contentions of learned Prosecutor.
33. In Sher Singh (supra) case, it was held that it is for the prosecution to prove that a “dowry death” has occurred namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured,
(ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or live link with the demand of dowry. It was further held that once the presence of these concomitants are established or shown or proved by the prosecution, Sessions Case No. 57795/16 Page 25/80 even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.(Emphasis supplied).
34. In another judgment titled as Ramakant Mishra @ Lalu etc v. State of U.P, in Criminal Appeal No. 1279-1281 of 2011, passed on February 27,2015, the Apex Court cited with approval Sher Singh (supra) case wherein it had been held that the use of word “shown” instead of “proved” in Section 304-B IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, “shown” will have to be read up to mean “proved”, but only to the extent of preponderance of probability. Thereafter, the word “deemed” used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The “deemed” culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong Sessions Case No. 57795/16 Page 26/80 “presumption” of his culpability. However, the accused is required to dislodge this presumption by proving his innocence beyond reasonable doubts as distinct from preponderance of probability.
35. In V.K Mishra (supra) case, which was delivered by the Hon’ble Bench of three Judges, Sher Singh @ Pratapa (supra) case and Ramakant Mishra @ Lalu (supra) case were referred with approval to lay down that where the prosecution has shown ‘that soon before her death the deceased was subjected to cruelty or harassment by the husband or in-laws in connection with demand for dowry, the presumption under Section 113 B of the Evidence Act arises and the Court shall presume that such person who had subjected the woman to cruelty shall be presumed to have caused the dowry death, however, the presumption that arises in such case may be rebutted by the accused’. In another judgment passed on 26.02.2015 by the Hon’ble Bench of three Judges of the Apex Court titled as Rajender Singh v. State of Punjab, in criminal appeal no. 2321 of 2009, it was laid down that the law laid down in Appasaheb v. State of Maharashtra (2007) 9 SCC 721 which was Sessions Case No. 57795/16 Page 27/80 followed by the judgment in Vipin Jaiswal (supra) case (relied upon by the learned defence counsel in the present case) do not state the correct law. Again, in Rajender Singh (supra) case, Sher Singh @ Pratapa (supra) case was referred with approval.
36. In view of the above-mentioned authoritative pronouncement of the Hon’ble Bench of three Judges of the Apex Court, I do not find any force in the contentions of the learned defence counsel to the effect that the prosecution is obliged to prove the essential ingredients of the offence punishable under Section 304 B IPC beyond reasonable doubt and only then the presumption under Section 113 B of the Evidence Act can be raised against the accused. It is, therefore, clear that it is for the prosecution to prove that a “dowry death” has occurred in terms of Section 304B IPC that is to say death of a woman was caused by any burns or bodily injury or occurred otherwise than under normal circumstances, within seven years of her marriage and soon before her death, she was subjected to cruelty or harassment by her husband or any of his relative, in connection with the demand for dowry and once these essential Sessions Case No. 57795/16 Page 28/80 ingredients are established or shown or proved by the prosecution, even by preponderance of possibility, the essential presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dis-lodging his guilt beyond reasonable doubt.
304B. Dowry death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband 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. Explanation.- For the purpose of this sub- section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years Sessions Case No. 57795/16 Page 29/80 but which may extend to imprisonment for life.
38. Section 113B of the Evidence Act stipulates about the presumption as to dowry death which reads as under:
113B. Presumption as to dowry death- when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation: For the purposes of this Section, “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).
2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or Sessions Case No. 57795/16 Page 30/80
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
40. First and foremost, to attract the offence stipulated under Section 304 B IPC, death of a woman must be a “dowry death”. As per Section 2 of the Dowry Prohibition Act, ‘dowry’ means any property or valuable security which can be given or agreed to be given, either directly or indirectly by one party to a marriage to the other party or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other persons. Such giving or agreeing to give can be at any time-at, before or at any time after the marriage. Such giving or agreeing to give must be in connection with the marriage of the parties.
41. As per the settled propositions of law, in order to convict an accused for the offence punishable under Section 304B IPC, the following essentials must be proved by the prosecution:-
Sessions Case No. 57795/16 Page 31/80
(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband; and
(iv) Such cruelty or harassment must be for, or in connection with, demand for dowry.
42. On perusal of the entire testimonies of prosecution witnesses, it is evident that besides Khushi Ram (PW-1), father of the deceased, Sunita (PW-2) mother of the deceased, Madhvi (PW-11) sister of the deceased, ASI Abhinandan (PW-18), Initial IO of the case, Sukhdev Singh (PW-7), Executive Magistrate and Inspector Suman Sharma (PW-19) IO of the case, the testimonies of other prosecution witnesses are more or less formal in nature regarding investigation. The testimonies of all such prosecution witnesses are referred as under:-
Sessions Case No. 57795/16 Page 32/80
43. Jai Gopal (PW-13), brother-in-law of the deceased identified the dead body vide statement Ex.PW-7/B. The dead body after postmortem examination was received vide receipt Ex.PW-1/C.
44. Ct. Veena (PW-5) had filled up the Delhi Police Control Room form I (Ex.PW-5/A) after receiving message from mobile number 97171 22325 regarding commission of suicide by the wife of the caller. She had also conveyed a message to the District Control Room as well as the concerned police station.
45. SI Devender Singh (PW-14) proved the scene of crime report (Ex.PW-14/A).
46. Ct. Jagat Singh (PW-3), photographer in mobile crime team, had taken 12 photographs of the spot (Ex.PW-3/P1 to Ex.PW-3/P12). He also produced the negatives (Ex.PW-3/P13 to Ex.PW- 3/P24) thereof.
47. ASI Sensor Pal (PW-9), Duty Officer got the FIR (Ex.PW-9/A) recorded and made endorsement on rukka (Ex.PW-9/B). He had also issued certificate u/s 65B of the Evidence Act (Ex.PW- 9/C). PW-9 had also recorded DD no. 33 A Sessions Case No. 57795/16 Page 33/80 (Ex.PW-9/D) regarding information about commission of suicide by the deceased.
48. Ct. Satender (PW-12) alongwith ASI Abhinandan (PW-18), on receipt of DD No. 33A, had reached at the spot i.e. F-89, Raghubir Nagar, Delhi on 21.05.2014. He had also taken rukka to the police station for registration of FIR and after its registration returned to the spot with a copy of FIR and original rukka and handed over the same to ASI Abhinandan. PW-12, on the next day, had also accompanied the IO to the hospital where the doctor concerned had handed over one sealed parcel alongwith sample seal of the hospital to the IO which was seized vide seizure memo Ex.PW- 12/B. PW-12 also duly identified one piece of printed saree of blue and sky blue colour (Ex.P1) which was seized from the spot by the IO.
49. HC Om Prakash (PW-4) had prepared the scaled site plan (Ex.PW-4/A) on 10.06.2014 at the instance of Inspector Suman Kumar.
50. HC Sukhbir Singh (PW-6), MHC(M) deposed about receiving one sealed parcel sealed with the seal of AN from ASI Abhinandan on 21.05.2014. On 22.05.2014, PW-6 again received Sessions Case No. 57795/16 Page 34/80 another sealed parcel from Inspector Suman Kumar sealed with the seal of DFMT DDU hospital. He also received sample seal from the IO. PW-6 made entries at serial no. 3628 and 3630 in register no. 19 (Ex.PW-5/A).
51. Israr Babu (PW-8), Alternate Nodal Officer, Vodafone Mobile Services Ltd produced the original record of customer application form (Ex.PW-8/A) of mobile number 97115 08977 subscribed to Khushi Ram son of Laxman Dass. He also produced the call details of the said mobile number for the period 15.05.2014 to 21.05.2014 (Ex.PW-8/C). PW-8 had also issued certificate u/s 65 B (iv) (c) of Evidence Act (Ex.PW-8/D). PW-8 also produced the original record of customer application form Ex.PW-8/E in respect of mobile number 96549 64337 subscribed to Rohit son of Ramesh Kumar. The call details (Ex.PW-8/G) of the said mobile number for the period 15.05.2014 to 21.05.2014 and certificate u/s 65 B (iv) (c) of Evidence Act (Ex.PW-8/H) were also produced by him.
52. Inspector Rajesh Kumar (PW-17) deposed about depositing two registers in FSL Rohini vide Sessions Case No. 57795/16 Page 35/80 RC No. 65/21/14 and the acknowledgment Ex.PW17/A in this regard.
53. SI Jyoti (PW-15) witnessed the arrest of accused Shashi vide arrest memo (Ex.PW-15/A) and took her personal search vide memo (Ex.PW- 15/B).
54. Ct. Satender Jeet (PW-16) witnessed arrest memo of accused Rohit and accused Ramesh vide memos (Ex.PW-16/A and Ex.PW-16/B) as well as their personal search memos (Ex.PW-16/C and Ex.PW-16/D). He also deposed about the disclouser statements of accused Rohit and Ramesh (Ex.PW- 16/E and Ex.PW-16/F).
55. Dr. B.N Mishra (PW-10) had conducted postmortem examination on the dead body of deceased vide postmortem examination report (Ex.PW-10/A) whereby the ligature mark on the neck of the deceased associated with internal findings was found which was consistent with sucidal hanging. PW-10 also opined the cause of death to be due to asphyxia as a result of ligature hanging.
56. None of the afore-mentioned prosecution witnesses except PW-16 was cross-examined by the Sessions Case No. 57795/16 Page 36/80 learned defence counsel. Even PW-16 was cross- examined in a formal manner.
57. Now, coming to the testimonies of family members of the deceased, as per the testimonies of Khushi Ram (PW-1), Sunita (PW-2) and Madhvi (PW-11), the deceased got married with accused Rohit on 13.11.2013. The deceased was found hanging at her matrimonial home on 21.05.2014 i.e. within six months of her marriage. The dead body of the deceased was duly identified by PW-1 as well as by Jai Gopal (PW-13) vide their respective statements (Ex.PW-1/B) and (Ex.PW-7/B). As per postmortem examination report (Ex.PW-10/A), the cause of death was due to asphyxia as a result of ligature hanging and the manner of death of the deceased was suicide. It is thus clear that the death of the deceased was otherwise than under normal circumstances.
58. The points for determination nos. (a), (b) and
(c) are decided accordingly.
59. Further, a conjoint reading of testimony of Khushi Ram (PW-1), father of the deceased and Sunita (PW-2) mother of the deceased would show that the deceased was married with accused Rohit Sessions Case No. 57795/16 Page 37/80 on 13.11.2013. Dowry articles were also given in the marriage. After about 10-12 days of the marriage, the deceased had come to her parental house and was looking upset. On enquiry, the deceased had told them that her mother-in-law, father-in-law, sister-in-law and brother-in-law harass her for dowry and would continuously demand for sarees and big vehicle. Her husband would be instigated to beat her in order to compel her parents to give big vehicle. The in-laws would also taunt the deceased that the motorcycle given in marriage would not serve the purpose and when the deceased refused to ask her father to give a big car, she was beaten by them and was not provided food for two days. However, despite the deceased telling so to PW-1 and PW-2, she was made to understand and was sent back to her matrimonial home.
60. PW-2 further deposed that on 18.05.2014 the deceased told her on telephone that she was not given food by her in-laws for the last two days as they were not satisfied with the dowry given in the marriage. PW-2 made a telephone call to accused Rohit to tell him that she was coming to take her daughter back to her house on which accused Rohit Sessions Case No. 57795/16 Page 38/80 said that there was no need to come as Kriya Ceremony of his Nani (maternal grand-mother) was on 18.05.2014. PW-2 further deposed that on 19.05.2014, she and her husband (PW-1) had to go to the matrimonial home of the deceased but accused Rohit dropped the deceased at their home before they could visit her matrimonial home.
61. PW-1 on the other hand, deposed that on 19.05.2014 the deceased had come to his house alongwith accused Rohit to collect her admission card of B.Com first year and other articles like pouch, pen etc. On 20.05.2014, accused Rohit came to take the deceased back to the matrimonial home and at that time the deceased was upset and had started weeping as she did not want to go to her matrimonial home. The deceased also apprehended that she would be killed by her in-laws. Both, PW-1 and PW-2 made her understand in following words:- “Beta aapke paper aane wale hai aur aapki tuition bhi wahi lagi hui hai aur naya teacher lagayenge to baat nahi banegi”. (Beta, your examinations are about to come and your tuition is also there and if a new tutor is engaged, it will not serve any purpose). The deceased was also Sessions Case No. 57795/16 Page 39/80 told by PW-1 and PW-2 that after her examinations would be over on 02.06.2014, they would come alongwith 10-12 persons. Thereafter the deceased had gone to her matrimonial home with accused Rohit. PW-2 also stated that she had also given sarees and boxes of sweets to the deceased as her mother-in-law had asked for the same.
62. PW-1 further deposed that on 21.05.2014 at about 1 p.m, he received a phone call from the deceased and during conversation he felt that the deceased was having a hoarse throat. On enquiry, the deceased had started weeping and told him that she was being harassed, she was not given food since morning and was not even allowed to meet her husband. She was also asked to have ‘Parda’ (veil) from her husband. The deceased also told PW-1 that her mother-in-law had taken out the pesticides used for killing pests and the deceased had to go downstairs. PW-1 further deposed that his wife (PW-2) took the phone from him and started talking with the deceased. The deceased while weeping told his wife ” Mummy aapne mujhe yaha bhej kar acchaa nahi kiya ye log mujhe maar denge” (Mummy, you had not done good by Sessions Case No. 57795/16 Page 40/80 sending me here these persons would kill me). PW- 1 further stated that his wife told the deceased “Beta main abhi kaam kar rahi hoon shaam ko hum 8-10 admiyon ko lekar apke ghar ayenge” (Beta, right now I am working, in the evening we will come to your house with 8-10 persons).
63. As per the testimony of PW-2 about the afore-said incident, when she started talking with the deceased on telephone, the deceased had told her “Mummy maine tumhe mana kiya thaa ki mujhe mat bhejo dekho inhone mujhe kitna pareshaan kiya hua hai, main abhi tuition se aye hoon aur meri saas nai niche kitna samaan fela ke rakha hai” (Mummy I had told you not to send me here. See how much I have been troubled by these persons, I have just come back from tuition and my mother-in-law had scattered so much articles downstairs). PW-2 further explained that there were bedbugs in their house and the mother-in-law used to put drug (pesticides) every second day, spread the articles in the house and would ask the deceased to clean the house. PW-2 further deposed that the deceased also told her that her mother-in- law was not satisfied with the sarees given as she Sessions Case No. 57795/16 Page 41/80 wanted sarees of better quality. Accused Rohit had also given beatings to deceased for not asking her parents for giving car. The deceased was also not given food on that day upto the time, she talked with her on telephone and the biscuits etc which PW-2 had given to the deceased were also snatched from her by all the accused persons.
64. On 21.05.2014, in the evening at about 6.30 p.m, PW-1 received a call from accused Ramesh Chauhan who asked him to come to Raghubir Nagar immediately. When PW-1 and PW-2 reached there, they found the deceased hanging with the ceiling fan in her room situated on third floor of the house.
65. Both, PW-1 and PW-2 also stated that they were taken to police station by the police personnel where their statements Ex.PW-1/A and Ex.PW-2/A were recorded by the SDM.
66. During examination-in-chief, PW-1 was put a leading question if he had handed over the marriage card and diary of the deceased to the police. The learned defence counsel objected to putting such leading question. PW-1 answered that he had handed over the marriage card Ex.PW-1/P1 and Sessions Case No. 57795/16 Page 42/80 diary of the deceased to Inspector Suman Sharma in the police station. The IO had seized the note book vide seizure memo Ex.PW-1/D. PW-2 also identified the note book Ex.PW-1/P2 to be the same which was handed over by him to Inspector Suman Sharma.
67. Both, PW-1 and PW-2 were cross-examined at length by the learned defence counsel. In cross- examination, it was stated by them that the talks for marriage were initiated by Shri Balram, Nana of the deceased and one Ladli Prashad son of brother-in- law of said Balram. After satisfying themselves about the boy and his family, the marriage was performed.
68. PW-1 stated that accused Rohit and deceased had gone to Kerala for their honeymoon on 19.11.2013 and returned from there on 26.11.2013. On further cross-examination, PW-1 stated that he had not told his father-in-law or Ladli Prashad that the deceased was harassed by her in-laws. He again said when the deceased had gone to her matrimonial home, he had told his father-in-law that the in-laws of the deceased were not satisfied with the bike and were demanding big vehicle. PW-
Sessions Case No. 57795/16 Page 43/80 1, then, was shown photographs Ex.PW-1/D1 to Ex.PW-1/D6 on which he identified the car shown in the photographs to be the same in which the deceased had reached matrimonial home after marriage. PW-1 however, showed his ignorance about the owner of the said car or if the same was a big car or the small car. He also expressed his ignorance about the fact if the car shown in those photographs was purchased by accused Rohit before marriage as a gift for himself and for his would be wife. The documents pertaining to the purchase of said car Ex.PW-1/D7 were also shown to PW-1 and were taken on record. PW-1 further stated to have no knowledge if accused Rohit was paying installments of one Innova car bearing registration no. DL 10 CE 5386 from his own resources to Canara Bank, Tagore Garden, Delhi which had financed the purchase of the said car though he stated that after marriage accused Rohit and deceased had visited his house in Innova car only once.
69. In this regard, PW-2 also showed her ignorance if accused Rohit had purchased an Innova car before the marriage though she stated Sessions Case No. 57795/16 Page 44/80 that on the occasion of Phera Ceremony, accused Rohit and deceased had come in a brand new car.
70. Here, it is pertinent to refer testimony of Ms. Madhvi (PW-11) sister of the deceased who in her cross-examination admitted that one Innova car belonging to accused Rohit, was used by the family of accused Rohit at the time of marriage in which the Doli departed.
71. Ram Chander (DW-2) and Bansi Lal (DW-
3) were examined by the accused persons in defence who deposed that there was no demand of any kind by the accused persons and prior to marriage, accused Rohit had bought one Toyota Innova car on his own. DW-2 further stated that even in the marriage there was no talk of demand of dowry from the side of boy to the side of girl. In cross-examination, DW-2 reiterated that the said Toyota Innova car was purchased by accused Rohit in his name about 25-30 days prior to the marriage. He further stated that the said car was purchased partly in installments and volunteered to say that the accused Rohit had paid down payment of Rs. 10 lac towards the purchase of the said car.
Sessions Case No. 57795/16 Page 45/80
72. On perusal of the testimonies of PW-1 and PW-2, it is clear that none of them had never complained to their relatives about any harassment being caused to the deceased nor any complaint to the police authorities or any court of law was filed by them in this regard. PW-1, in his cross- examination, stated that he never confronted accused Rohit or accused Ramesh about any harassment being caused to the deceased. His father-in-law who was instrumental in marriage settlement also never talked with the accused persons in this regard. Similarly, PW-2 deposed that Ladli Prashad who had mediated the marriage proposal was never informed about any harassment being caused to the deceased by the accused person. PW-2 herself had not spoken to accused Shashi, mother-in-law of the deceased in this regard.
73. On further cross-examination, PW-1 also stated that in the month of April, 2014 he alongwith his wife i.e. PW-2, son, deceased and accused Rohit had also gone to visit Haridwar where the photographs Ex.PW1/D-46 to Ex.PW1/D-57 were taken. PW-1 admitted that in the said photographs Sessions Case No. 57795/16 Page 46/80 the deceased was appearing to be happy though he volunteered to say that she was so as she was with her parents.
74. Admittedly, the deceased was taking tuitions while staying in her matrimonial home which was arranged by the accused Rohit though PW-1 and PW-2 denied that the tuition fee was being paid by the accused Rohit. Both of them claimed that they were paying the tuition fee though no such proof could be handed over to the IO by them during investigation. They could not depose how much or to whom tuition fee was being paid by them.
75. PW-1 was using mobile phone having SIM number 99584 07770 in the year 2014 but the same was never seized nor his call detail record was obtained by the IO. Israr Babu (PW-8), Nodal Officer, Vodafone Mobile Services produced only the original record of customer application form pertaining to mobile number 97115 08977 subscribed in the name of Khushi Ram son of Laxman Das vide customer application form Ex.PW-8/A. He also produced the call details record of the mobile number 97115 08977 vide record Ex.PW-8/C. PW-8 also produced the record Sessions Case No. 57795/16 Page 47/80 pertaining to mobile number 96549 64337 subscribed in the name of Rohit son of Ramesh Kumar vide customer application form Ex. PW-8/E and call detail record Ex.PW-8/G. PW-8 also produced certificates under section 65B of Evidence Act Ex.PW-8/A and Ex.PW-8/H. As per the testimonies of PW-1 or PW-2, it is not clear which telephone number was used by the deceased in making call to them. The IO of the case also did not verify any telephone number – mobile or landline, which might have been used by the deceased in making call to her parents. There is no such evidence available on record.
76. During his cross-examination, PW-1 stated in categorical terms that he had only stated to the SDM and the IO that on 21.05.2014 he had a telephonic conversation with the deceased and the remaining details about the deceased complaining him about the harassment and not having been given food since morning or allowed to meet her husband, while weeping etc were not stated. PW-1 was also confronted with his statement Ex.PW- 1/D1 recorded before the Juvenile Justice Board (JJB) in case FIR No. 563/14 where he had deposed Sessions Case No. 57795/16 Page 48/80 as PW-2. PW-1 admitted that whatever he had stated in examination-in-chief before this court regarding having conversation with the deceased on 21.05.2014 and the other details, were not deposed by him before the JJB. As per record, the statement Ex.PW-1/D1 was recorded on 24.09.2014 and was not made immediately after the incident. So there was sufficient time with PW-1 to depose in detail about the facts within his knowledge. Further, PW- 1 was also confronted with his statement recorded before the SDM on 21.05.2014 Ex.PW-1/A, under section 161 Cr.P.C recorded on 22.05.2014 Ex.PW- 1/D2 as well as his statement Ex. PW-1/D1 recorded before the JJB wherein the facts regarding harassment and beatings to the deceased by the accused persons in order to compel for big vehicle were not found recorded. A perusal of the afore- mentioned statement of PW-1 reveal that PW-1 improved upon his version in material terms while deposing before this court.
77. In her cross-examination PW-2, on the other hand stated that deceased and accused Rohit had visited their house for about 10-12 times after her marriage and she and her husband (PW-1) had Sessions Case No. 57795/16 Page 49/80 spoken to accused Rohit on number of occasion regarding what had been told by the deceased to them. PW-2, on further cross-examination also admitted that she had not provided any proof of purchase of new sarees to the police officials during investigations. The statement of PW-2 Ex.PW- 2/DA recorded before the JJB was also put to her alongwith her statements Ex.PW-2/A recorded by the SDM and statement Ex.PW-7/A recorded under section 161 Cr.P.C. A perusal of the afore-said statements also reveal that PW-2 also improved upon her version in material and substantial term while deposing before this court.
78. It is also worthy to note that as per the testimonies of PW-1, PW-2 and Sukhdev Singh, Executive Magistrate (PW-7), statements of PW-1 and PW-2 (Ex.PW-1/A and Ex.PW-2/A) were recorded by the PW-7 in police station Rajouri Garden whereas ASI Abhinandan (PW-18) and Inspector Suman Kumar Sharma (PW-19) deposed that Sukhdev Singh (PW-7) recorded the statements of PW-1 and PW-2 at the spot which was endorsed by PW-18 vide his endorsement Ex.PW-18/A and was handed over to Ct. Satender for registration of Sessions Case No. 57795/16 Page 50/80 FIR. In his cross-examination, PW-18 admitted that both the afore-said statements were in his handwriting and there was no date mentioned below the signature of Executive Magistrate on both the statements. PW-19, on the other hand, stated in his cross-examination that the Executive Magistrate recorded the statement of PW-2 outside the room where the deceased had committed suicide. PW-19 could not tell whether the Executive Magistrate recorded the statement of PW-1 simultaneously with the statement of PW-2 or subsequently after registration of the FIR.
79. Now coming to the testimony of Ms. Madhvi (PW-11), sister of the deceased would show that PW-11 stated that whenever the deceased used to visit her parental home, PW-11 would go there to meet her and the deceased would tell her that her husband used to harass her to bring big car from her parents. Further, in-laws of the deceased i.e. father-in-law, mother-in-law, sister-in-law and brother-in-law all used to instigate her to bring big car. Her mother-in-law would ask her to bring costly sarees, her sister-in-law and brother-in-law would ask her to bring branded clothes whereas her Sessions Case No. 57795/16 Page 51/80 father-in-law would make complaint that less money was given in the marriage. PW-11 further stated that the deceased had told her that her in- laws used to torture her by not providing food and used to lock her in the room in order to compel to bring the dowry articles according to their demand. The deceased had also told her that her brother-in- law and sister-in-law also used to abuse her and sometime her brother-in-law had slapped her. The husband of the deceased would never support her rather he would favour the other accused persons.
80. PW-11 in her further examination-in-chief stated that she had gone to her parental house on 20.05.2013 in order to meet the deceased and at that time she was very much upset. On enquiry the deceased had told her that her one ear top (jewllery) was lost and when her mother in-law came to know about this fact she had told the deceased that already her parents had given less jewellery items and the deceased was loosing the articles of her matrimonial home which would be compensated by her poor father. Further, when the deceased refused to burden her father in this regard, mother-in-law of the deceased did not provide any food to her on Sessions Case No. 57795/16 Page 52/80 17.05.2014 and 18.05.2014 and accused Rohit deliberately dropped the deceased at her parental house on 19.05.2014. PW-11 further stated that the deceased had not stated to her parents about the demand of in-laws and PW-11 had offered to make a payment in order to satisfy their demands which was not accepted by the deceased. PW-11 further stated that on 19.04.2014 she had gone to Haridwar alongwith her parents, the deceased and accused Rohit and on the way the deceased had told her that her husband had received proposals from girls coming from good families but due to his misfortune he got struck in a beggar family.
81. PW-11 was also cross-examined at length by the learned defence counsel wherein she admitted that the Innova car used by accused Rohit at the time of marriage belonged to him. PW-11 further stated that the deceased was taking private tuition classes while pursuing her B.Com Course but the tuition fee used to be paid by her father. PW-11 was not aware about the tuition fee however, she insisted that the same was being paid by her father in her presence. It is noteworthy that PW-11 is a married woman who was residing with her husband Sessions Case No. 57795/16 Page 53/80 separately from her parental house, hence, it is not understandable how the said tuition fee was to be paid by her father in her presence. Statement of PW-11 was recorded under section 161 Cr.P.C Ex.PW11/DA which she was confronted with wherein the facts regarding allegations levelled against the accused persons qua the demand of dowry and treating the deceased with cruelty and in a torturous way were not found recorded which were deposed by her before this court. It is, therefore, clear that PW-11 also substantially improved upon her earlier version while deposing before this court.
82. As far as the suicide note relied upon by the prosecution is concerned, as per the testimony of ASI Abhinandan (PW-18) and Inspector Suman Sharma (PW-19), one notebook (Ex.PW-17/B) containing the suicide note (Ex.PW-18/P-1) was seized from the room in which the deceased was found hanging. PW-19 also deposed that on 08.07.2014 father of the deceased had come to the police station and handed over one notebook Sessions Case No. 57795/16 Page 54/80 (Ex.PW-1/P2) containing the handwriting of the deceased which was prepared by her while she was studying in first year. PW-19 seized the same through memo (Ex.PW-1/D). The father of deceased had also handed over one marriage card (Ex.PW-1/P1). PW-19 then sent both the notebooks to FSL Rohini.
83. Ms. Sarita Sharma, Scientific Assistant, RFSL (PW-20) deposed about receiving two notebooks in the office of FSL, Rohini on 31.07.2014 for examination. One notebook was having suicide note on page no. 214 marked Q1 & Q2 and the other notebook was having writings of deceased marked A1 to A23. PW-20 further deposed that after examination, it was observed that the person who wrote the red enclosed writings stamped and marked A1 to A23 had also written the red enclosed writing similarly stamped and marked Q1 though it was not possible to express any opinion on red enclosed signature Mark Q2 on the basis of the material at hand. PW-20 proved her report (Ex.PW-20/A) in this regard.
84. PW-18, PW-19 and PW-20 were cross- examined at length by the learned defence counsel.
Sessions Case No. 57795/16 Page 55/80 In her cross-examination, PW-20 stated that, for rendering her opinion, she had considered only page no. 214 in Ex.PW-17/B i.e. the suicide note. She had not considered other writings contained in notebook Ex.PW-17/B as the same were not marked by the IO of the case as specimen sample for the purposes of rendering her opinion. PW-20 further stated that she had not communicated with the IO asking him to send more specimen samples of signature in order to compare with the questioned signatures marked Q2. She further stated that after she rendered her opinion Ex.PW- 20/A, the IO of the case had not served her with any more specimen handwriting or signature sample at any point of time.
85. From the testimony of PW-20, it is clear that the author of text in Devanagri script of suicide note Ex. PW-18/P1 written in notebook Ex.PW- 17/B and the author of text in Devanagri script marked A1 to A23 written in notebook Ex.PW-1/P2 was one and the same person. However, no opinion about the signature in English marked Q2 below the said suicide note could be given as the Sessions Case No. 57795/16 Page 56/80 material for comparison was not provided by the IO of the case.
86. However, it is pertinent to note here that though as per the testimony of PW-20, the author of the suicide note Ex. PW-18/P1 written in notebook Ex.PW-17/B and the writings in notebook Ex.PW- 1/P2 was one and the same person, the recovery of notebook Ex.PW-17/B purportedly containing the said suicide note of the deceased and the handwriting of the deceased contained in notebook Ex.PW-1/P2 are not free from doubts.
87. As per the testimony of ASI Abhinandan (PW-18), the IO Inspector Suman (PW-19) of the case seized the notebook Ex.PW-17/B which was lying on a chair near the double bed in the room of the deceased. The said seizure was done vide memo Ex.PW-18/B. In his cross-examination, PW-18 was confronted with his previous statement Ex.PW- 18/DA which was recorded before the Juvenile Justice Board on 18.11.2014 in case FIR No. 563/2014 in connection with the enquiry against the JCL concerning the present case. PW-18 admitted that in his statement Ex.PW-18/DA he had stated that the said notebook was lying under the mattress Sessions Case No. 57795/16 Page 57/80 though he volunteered to say that the chair was lying adjacent to the mattress on which the notebook containing the suicide note was found. Inspector Suman Kumar Sharma (PW-19), on the other hand deposed that on making search in the room of the deceased, he had found some books / notebooks lying on the chair near the bed and on checking the same the notebook containing the suicide note of the deceased was found. The seizure memo Ex.PW-18/B whereby the notebook Ex.PW- 17/B was seized does not bear the signatures of any of the parents of the deceased despite their availability at the spot. On further cross- examination, both PW-18 and PW-19 admitted that no photograph of the chair or the notebook was appearing in the photographs Ex.PW-3/P1 to Ex.PW-3/P12. Similarly, no chair was shown in site plan Ex.PW-19/A which was drawn by PW-19 or the scaled site plan Ex.PW-4/A. PW-19 further admitted that during investigation, he could not verify exactly when the said undated suicide note might have been inscribed. There is no mention about any such chair even in scene of crime report Ex.PW-14/A.
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88. As far as the admitted handwritings of the deceased contained in notebook Ex.PW-1/P2 are concerned, PW-19 deposed that the said notebook was handed over to him on 08.07.2014 by the father of the deceased who had come to the police station stating that the notebook was containing the handwriting of the deceased which was prepared by her while she was studying in first year. In cross- examination, PW-19 stated that during investigation he had come to know that deceased was the student of B.Com but he had not tried to take admitted handwritings of the deceased from her school and college. PW-19 also had not tried to get the admitted handwriting and signatures of the deceased from her bank record. PW-19 admitted in categorical terms that he had not tried to investigate to ascertain the veracity of the notebook Ex.PW- 1/P2 and merely relied upon the statement of Khushi Ram, father of the deceased to believe that the notebook Ex.PW-1/P2 contained the handwritings of the deceased. PW-19 had also not verified from the school / college if the deceased had studied the subject as mentioned in the notebook Ex.PW-1/P2. PW-19 further admitted Sessions Case No. 57795/16 Page 59/80 that he had not collected any admitted specimen signatures of the deceased so as to forward the same to FSL for its comparison with suicide note Ex.PW-18/P1.
89. In view of above-mentioned circumstances, in my considered opinion, a reasonable doubt has arisen regarding recovery of the notebook Ex.PW- 17/B containing the suicide note Ex.PW-18/P1 as well as the writings contained in notebook Ex.PW- 1/P2 to belong to the deceased. From his own admissions, it is clear that IO of the case conducted a wholly lop- sided investigation in this regard for the reasons best known to him. The contradictions with regard to the recovery of notebook Ex.PW- 17/B as borne out of the testimonies of PW-18 and PW-19, are material one which go to the root of the case.
90. At this juncture, the testimony of Dr. Anuj Mittal (DW-1) can be referred who deposed that the deceased was examined by him on 27.02.2014 vide OPD card Ex.DW-1/A of DDU hospital, which bears registration no. 20112. DW-1 deposed that the deceased was suffering from depression for the last about two and half years and had suicidal ideation.
Sessions Case No. 57795/16 Page 60/80 DW-1 again examined the deceased on 13.03.2014 and also prescribed medicine for depression as mentioned in OPD card Ex.DW-1/A. He further stated that because of the said illness, the deceased was at the risk of committing suicide. He had also advised 24 hours vigilance by the family members in this regard.
91. In his cross-examination by the learned prosecutor, DW-1 showed his ignorance if the OPD card bearing registration no. 20112 was prepared by the hospital on 09.01.2014 for the patients namely Veena aged about 58 years for Dr. Ashish Kapoor at Dental Department. DW-1 stated that the OPD cards are prepared at the OPD registration department where the OPD cards for all the departments are prepared. He reiterated that he had examined the deceased on the basis of OPD card Ex.DW-1/A and prior to prescribing medicines, he had written the brief history of the patient at point B to the effect that she was suffering from depression and sadness had started for the last two and half years. About the patient not referred for psychological counseling, DW-1 explained that as a standard practice of treatment, alongwith Sessions Case No. 57795/16 Page 61/80 prescribing the medicines brief psycho therapy is done then and there which is usually not mentioned in the OPD prescription. He further stated that there was no need for psychological testing, hence no test was prescribed in this regard. DW-1 volunteered to say that according to OPD prescription, the patient was referred to the psychiatry department by Dr. P.K Pathak who physically examined her and referred her for psychiatric assessment to him.
92. About the genuineness of the OPD card Ex.DW-1/A, Dr. Rati Makkar (DW-6), Head of the Department of Skin and OPD Incharge, DDU hospital was also examined who deposed that the OPD card Ex.DW-1/A is a genuine card pertaining to the medicine department of DDU hospital. DW- 6 also produced the OPD record qua registration no. 20112 pertaining to patient Veena, Female aged about 58 years for dental department on 09.01.2014 Ex.DW-6/A. DW-6 further deposed that the mismatching of the OPD registration number in OPD card Ex.DW-1/A and the record can be because of some software and data entry operator’s fault as the same has been outsourced to M/s G.A Digital Web World. DW-6 further stated that there Sessions Case No. 57795/16 Page 62/80 have been similar kinds of mismatching in other patients case which was in her notice and for which she has written to her seniors. In cross-examination, DW-6 identified the handwritings of Dr. P.K Pathak and Dr. Anuj Mittal (DW-1) on OPD card Ex.DW- 1/A being familiar with their handwritings.
93. In the light of entire evidence available on record, it is evident that none of the prosecution witnesses i.e. PW-1, PW-2 or PW-11 could depose if, soon before her death, the deceased was treated with cruelty by the accused persons for or in connection with any positive demand of dowry. The allegations levelled by the afore-said prosecution witnesses qua demand of big car holds no ground in the wake of accused Rohit having purchased one Toyota Innova car just before his marriage. No allegations to the effect if the deceased was being pressurized to bring money for payment of installments of the said car were levelled by the said prosecution witnesses. As far as the demand of good quality sarees is concerned, by no stretch of imagination the same can be construed as a demand for dowry within the contemplation of section 2 of the Dowry Prohibition Act. Such demand, if it is Sessions Case No. 57795/16 Page 63/80 presumed to be there, can be taken to be not more than an expectation on the part of the mother-in-law or sister-in-law in a recently concluded marriage. From the testimonies of PW-1, PW-2 and PW-11, it is clear that the allegations regarding harassment being caused to the deceased for bringing big car and sarees could not be proved. Though the afore- said prosecution witnesses deposed that the deceased had made telephone calls to them about the harassment being suffered by her, the fact remains that the IO of the case could not collect any evidence to show if any such telephonic calls were made by the deceased. From the testimony of PW-2, it can also be discerned that whatever complaints deceased might had made to her were not taken seriously and her household work and tuition were considered more important than the allegations qua harassment levelled by the deceased. Admittedly, no complaints were lodged by PW-1 or PW-2 with the mediator or their other relatives or police authorities etc. As observed above, the recovery of suicide note as well as the handwriting of the deceased sent to FSL for comparison purposes, have become doubtful in Sessions Case No. 57795/16 Page 64/80 view of contradictory testimonies of PW-18 and PW-19. The prosecution witnesses i.e. PW-1, PW- 2 and PW-11 substantially improved upon their respective version while deposing in the court which may be out of frustration or vengeance. However, such improved versions are not trustworthy. As far as the suicidal tendencies which the deceased was suffering with, as deposed by Dr. Anuj Mittal (DW-2), could not be impeached.
94. Therefore, in the above-discussed facts and circumstances, in my considered opinion, there is no evidence available on record to establish that soon before her death, the deceased was subjected to any cruelty by the accused persons for or in connection with demand of any dowry. Accordingly, death of the deceased cannot be termed as a “Dowry Death” as stipulated under section 304-B IPC. Since the prosecution could not prove or show the essential ingredients for commission of offence under section 304-B IPC, no question arises for invoking the presumption under section 113-B of the Evidence Act against the accused persons.
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95. The points for determination nos. (d), (e), (f) and (g) are decided accordingly.
96. It would not be out of place to mention here that in all cases involving commission of offence under Section 304 B IPC, a reference to offence punishable under Section 306 IPC has to be invariably made.
97. Alongside, a reference to presumption under Section 113A of the Evidence Act and Section 107IPC is also to be made. Section 306 IPC, Section 107 IPC and Section 113A of the Evidence Act also need to be reproduced which are as under:
306. Abetment of suicide- If any person commits suicide, whoever, abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
107. Abetment of a thing- A person abets the doing of a thing, who-
First- Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place Sessions Case No. 57795/16 Page 66/80 in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.
113A. Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation – For the purpose of this section, “cruelty” shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).
98. Section 306 IPC stipulates about the abetment of suicide and lays down that if any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. To constitute Sessions Case No. 57795/16 Page 67/80 an offence under Section 306 IPC, the prosecution has to establish beyond reasonable doubt that a person has committed suicide and such suicide was abetted by the accused. As mentioned above, such abetment can be by instigation, by entering into any conspiracy in this regard or by intentionally aiding the commission of such thing. An Hon’ble bench of three Judges of the Apex Court held in Ramesh Kumar v. State of Chhatisgarh AIR 2001 SC 3837 (1) that before the presumption under Section 113A of the Evidence Act may be raised, the foundation thereof must exists and it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. The relevant observation of the Apex Court is reproduced as under:
” 12……………………..a bare reading of Section 113A shows that to attract applicability ofSection 113A, it must be shown that (i) the woman has committed suicide (ii) such suicide has been committed within a period of seven years from the date of her marriage (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and Sessions Case No. 57795/16 Page 68/80 availability of the above-said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggest. Secondly, the existence and availability of the above-said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn, the Court shall have to have regard to ‘all the other circumstances of the case’. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the Conscience of the Court to abstain from drawing the presumption. The expression – ‘the other circumstance of the case’ used insection 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one.
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99. It is clear from the facts and circumstances of the present case that the present case is not the one which may fall under clauses Secondly and Thirdly of section 107 IPC. The present case has to be decided by reference to the First clause i.e. whether the accused persons abetted the suicide by instigating the deceased to do so.
100. As earlier discussed in detail, the allegations levelled by Khushi Ram (PW-1), Sunita (PW-2) and Madhvi (PW-11) qua harassment to the deceased , could not be conclusively proved. All the allegations remained vague and unsubstantiated. There is not an iota of evidence to indicate if any of the accused persons ever caused any incitement to the deceased to commit suicide, leave aside any sustained incitement. The purported suicide note Ex.PW-18/P1 could not be proved to be in the handwriting of the deceased rather the recovery of notebook in which the said suicide note was found written was entirely doubtful in view of contradictory deposition of PW-18 and PW-19.
101. In the afore-mentioned circumstances, can it be said that there was abetment by instigation to the suicide committed by the deceased?
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102. In this regard, the observations of the Apex Court in Ramesh Kumar (supra) case are pertinent to note which are as under:
“instigation is to goad, urge forward, provoke incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitute instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out……….A word uttered in the fit of anger or emotion without intending the consequence to actually follow cannot be said to be instigation”.
103. The Apex Court further referred the case State of West Bengal v. Orilal Jaiswal (1994 1 SCC
73) wherein it was cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had infact induced her to end the life by committing suicide. It was further laid down that if it transpires to the Court that a victim committing suicide was Sessions Case No. 57795/16 Page 71/80 hyper sensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
104. In Gurucharan Singh v. State of Punjab, Crl. Appeal No. 1135 of 2016 judgment passed on 2nd December, 2016, , the Apex Court held that to constitute abetment, the intention and involvement of the accused to conspire, aid or instigate the commission of suicide is imperative and any severance or absence of any of this constituents would militate against this indictment. It was further laid down that the contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment and Section 306 IPC thus criminalises the sustained incitement for suicide.
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105. In a recent judgment dated 28.04.2017 titled Pawan Kumar v. State of Himachal Pradesh in criminal appeal no. 775 of 2017, Hon’ble bench of three Judges of the Apex Court, while citing Ramesh Kumar (supra) case with approval and discussing other judgments on the subject, held that a person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Further, on mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of the accused that led a person to commit suicide, a conviction in terms of Section 306 IPC is not sustainable. A casual remark which is likely to cause harassment in ordinary course of things will not come within the purview of instigation. A mere reprimand or a word in a fit of anger will not earn the status of abetment. There has to be positive action that creates a situation for the victim to end his life.
106. In short, undoubtedly, presence of mens rea is the necessary concomitant of instigation.
Sessions Case No. 57795/16 Page 73/80 Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and is to be found out by continuous conduct of the accused, involving his mental element.
107. In view of above-discussed facts, in my considered opinion, the present case is not a case where the accused persons had by their acts or omissions or by continued course of conduct created such circumstances that the deceased was left with no other option but to commit suicide. There is nothing to infer any instigation by the accused persons to provoke or incite the deceased for taking the extreme step. There is neither any proximate or remote acts of omission or commission on the part of the accused person that can be construed to be a direct or indirect cause or factor compelling the deceased to take the extreme step of ending her life. As discussed above, it appears that the deceased was unable to cope up with the day-to-day domestic affairs in a new atmosphere at her matrimonial house and used to be easily perturbed if she was asked to do extra work which can be inferred from her complaints Sessions Case No. 57795/16 Page 74/80 regarding putting pesticides by the mother-in-law and to observe Parda (veil) from her husband.
108. At this juncture, it would be pertinent to rely upon the locus classicus of circumstantial evidence case Sharad Biridhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 (1), which elaborately dealt with the subject in question. The deceased in Sharad Birdhichand (supra) case, was 4 to 6 weeks pregnant when she committed suicide. She also appeared to be not only a highly sensitive woman, who expected whole hearted love and affection from her husband but having been thoroughly disappointed out of sheer disgust, frustration and depression, she may have chosen to end her life which was clearly evident from her letters and mental attitude. It was also laid down by the Apex Court that though the case superficially viewed bear an ugly look so as to prima facie shock the conscience of any Court yet suspicion, however, great it may be, cannot take the place of legal proof. A moral conviction, however, strong or genuine, cannot amount to a legal conviction supportable in law.
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109. In the entire facts and circumstances as discussed above, in my considered opinion, there is no evidence available on record to invoke presumption available under Section 113 A of the Evidence Act and to establish if any of the accused persons abetted the commission of suicide by the deceased. Accordingly, the offence under Section 306 IPC is not made out against any of the accused persons.
110. The point for determination no. (h) is decided accordingly.
111. Charge under Section 498A IPC:
498A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this section, “Cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable Sessions Case No. 57795/16 Page 76/80 security or is on account of failure by her or any person related to her to meet such demand.
112. In view of the above-mentioned provision, for the purposes of the case in hand, either proof of the “willful conduct” on the part of the accused persons, of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health – whether mental or physical or any harassment caused to the woman with a view to meet any unlawful demand for any property or valuable security, is the sine qua non for entering a finding of cruelty against the accused persons. Needless to say, both “willful conduct” or “harassment” must be coupled with mens rea on the part of the accused persons to subject the woman to cruelty.
113. In view of the afore-discussed facts and circumstance, there is no evidence available on record to establish that by any act or omissions of the accused persons, physical or mental health of the deceased suffered.
114. For the purposes of present case qua commission of offence under Section 498A IPC, Sessions Case No. 57795/16 Page 77/80 the ratio laid down by the Apex Court in Gurcharan Singh (supra) case, is pertinent to be referred wherein it was held that proof of the willful conduct accentuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, is the sine qua non for entering a finding of cruelty against the person charged.
115. In Girdhar Shankar Tawade v. State of Maharashtra (2002) 5, SCC,177, the scope of the Explanation appended with Section 498A IPC was examined and it was held that the basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning. Further, two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” in Explanation (a) and Explanation
(b). Needless to say, the prosecution is obliged to prove, beyond all reasonable doubts, proof of willful conduct on the part of the accused persons and, that is too, of such a nature as to drive a woman to commit suicide or to cause injury or danger to her. As per settled propositions of law, mere comments or taunts are not covered within the Sessions Case No. 57795/16 Page 78/80 concept of cruelty as stipulated under Section 498A IPC.
116. It is clear from the testimonies of PW-1, PW- 2 and PW-11 that all the allegations about harassment or cruelty on the part of the accused persons remained vague in nature and could not be substantiated. In the entire set of circumstances, as discussed above, in my considered opinion, there is no direct evidence available on record to establish that any of the accused persons subjected the deceased to cruelty. The prosecution failed to establish the essential ingredients of the offence punishable under Section 498A IPC against the accused persons.
117. The point for determination no.(i) is decided accordingly.
118. In view of the afore-discussed facts and circumstances, accused persons namely Rohit Kumar son of Ramesh Kumar, Ramesh Kumar son of late Ramji Lal, Shashi wife of Ramesh Kumar and Amit son of Ramesh Kumar are acquitted of the charge qua commission of offences punishable under section 304B/498A/34 IPC. Offence under Sessions Case No. 57795/16 Page 79/80 section 306 IPC is not made out against any of the accused persons.
119. Bail Bond earlier furnished by accused Amit is cancelled and surety is discharged.
120. Bail bonds under Section 437A Cr.P.C were furnished by all the accused persons with photographs and residential proof of their respective sureties.
121. In view of Section 365 Cr.P.C, a copy of the judgment be also sent to the District Magistrate concerned for his information.
122. The parental family members of Anjali (deceased) are referred to District Legal Services Authority (West) for award of suitable compensation.
123. A copy of this order be sent to DLSA ( West), Tis Hazari Courts, Delhi.
124. File be consigned to Record Room after due compliance.
(Pronounced in the open (Kuldeep Narayan) Court on 06-08-2018) Additional Sessions Judge (Pilot Court) West :Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 57795/16 Page 80/80