Delhi District Court
St. vs . Deepak @ Kalu & Anr. on 31 October, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No.6739/2016 CNR No.DLST010004222014 FIR No.01/2014 U/s: 498A/304B/306/34 IPC Police Station : Ambedkar Nagar State Vs. Deepak @ Kalu & anr. 1. Deepak @ Kalu s/o Sh. Ramesh Gupta 2. Pushpa w/o Ramesh Gupta Both R/o A-21, Jan Park, Uttam Nagar, Delhi .... Accused Date of Committal :05.05.2014 Final arguments heard on :29.10.2018 Judgment pronounced on :31.10.2018 JUDGMENT
1. In this case, the accused have faced trial for the offences of section 498A/304B/306/34 IPC. The case of prosecution as emerging out from the chargesheet is that on 01.01.2014, accused Deepak came to the police station Ambedkar Nagar and informed the police that his wife Durga aged 20 years had committed suicide at his house. Said information was recorded vide DD No.14A and through Ct. Chhagan said DD was handed over to SI Varun Kumar for the purpose of investigation. The information was sent to police control room for calling the crime team and SHO was also apprised about the same. SI Varun alongwith Ct. Munesh visited FIR No.01/2014 Page No.1/41 St. Vs. Deepak @ Kalu & anr.
the flat no.10/48 First Floor Dakshin Puri where they inspected the spot and the dead body. The name of the deceased was revealed as Durga w/o Deepak and her marriage had occurred three years prior to the incident. The spot was got inspected through crime team and the photographs of the spot were taken. The concerned SDM was also telephonically informed about the incident. As per the instructions of SDM, dead body was sent to hospital where deceased was declared as brought dead. The parents of deceased namely Shankar Lal and Smt. Janki Devi were interrogated and their statements were recorded by the SDM.
2. On the statement of the mother of deceased recorded by SDM, which is available on record as Ex.PW4/A, the SDM vide his endorsement Ex.PW6/A gave directions to the SHO Ambedkar Nagar for registering the case under relevant provisions of law and consequently, the IO prepared the rukka Ex.PW14/B on the basis of which present FIR Ex.PW14/A u/sec. 498A/406/306/34 IPC was registered.
3. During investigation, IO collected the PM Report No.2/14 and the viscera from AIIMS hospital. As per PM report, the opinion regarding cause of death was given as asphyxia due to antemortem hanging, though the viscera was also preserved to rule out concommitant intoxication. After postmortem, the dead body was handed over to the mother of deceased. The viscera and the clothes of deceased were taken into police possession. The ligature cloth used in committing suicide was also seized by the IO and sealed with the seal of VKS. From the spot, one plastic FIR No.01/2014 Page No.2/41 St. Vs. Deepak @ Kalu & anr.
stool was also seized and taken into police possession. IO also prepared the unscaled site plan. On the identification of the complainant accused Deepak and Pushpa Devi were arrested from the first floor of house no.14/270, Dakshinpuri and their disclosure statements were recorded. On the pointing out of the accused persons one Videocon 14 TV and one gas stove which were allegedly given as dowry were also seized and taken into police possession. IO also recorded the statement of witnesses namely Radha wife of Netram and Shambhu s/o Gauri Shankar u/s 161 Cr.PC. During investigation, the neighbours informed that deceased was living with her husband at the first floor of 10/48, Dakshin Puri and they were having matrimonial discords and accused Deepak also used to beat his wife and taunt her for not bringing dowry. It was also revealed during investigation that mother in law of deceased used to live with her younger son Sunil at a separate house at 14/270, Dakshinpuri and she used to occasionally visit the house of accused Deepak.
4. After completing the investigation, IO filed the charge sheet before Ld. Magistrate on 31.03.2014 upon which, cognizance was taken and accused was summoned. After compliance of Section 207Cr.P.C., Ld. Magistrate committed the case to the court of Sessions and same came to be assigned to this court on 05.05.2014.
5. Vide order dated 24.05.2014, the charge for the offences punishable under Section 498A/304B/306/34 IPC was framed against the accused persons to which they pleaded not FIR No.01/2014 Page No.3/41 St. Vs. Deepak @ Kalu & anr.
guilty and claimed trial.
6. In order to prove its case, prosecution examined 19 witnesses namely PW1 Ct. Puneet, PW2 Saraswati, PW3 Janki Devi, PW4 Radha, PW5 Narender Kumar, PW6 SK Gupta, PW7 Dr. Mantaran Singh Bakshi, PW8 Insp. KP Shah, PW9 HC Vikram, PW10 Ct. Chhagan Lal, PW11 Dr. Preeti Singh, PW12 Shankar Lal, PW13 SI Chetram, PW14 ASI Maam Chand, PW15 SI Amit Kumar, PW16 Ct. Archana, PW17 Ct. Munesh Kumar, PW18 SI Varun and PW19 Dr. Deepak Prakash (substitute for autopsy surgeon). For the purpose of convenience and easy reference, the witnesses have been categorized under following heads with the documents exhibited through said witnesses:-
A) Public witnesses
1) PW2 Saraswati (Sister of deceased)
2) PW3 Janaki (Mother of deceased)
3) PW4 Radha (neighbour of accused)
4) PW5 Narender Kumar (shopkeeper)
5) PW12 Shankar Lal (Father of deceased) B)Formal police witnesses
1) PW1 Ct. Puneet (Photographer)
2) PW8 Insp. KP Shah (Incharge Crime Branch)
3) PW9 HC Vikram (Duty officer)
4) PW10 Ct. Chhagan Lal
5) PW13 SI Chetram (Finger Print Expert)
6) PW14 SI Mamchand (Duty officer) C)Material police witnesses
1) PW6 SK Gupta (SDM)
2) PW15 SI Amit Kumar
3) PW16 Wct Archana
4) PW17 Ct. Munesh Kumar FIR No.01/2014 Page No.4/41 St. Vs. Deepak @ Kalu & anr.
5) PW18 SI Varun (IO) D)Medical Experts
1) PW7 Dr. Mantaran Singh (partly examined)
2) PW11 Dr. Preeti Singh
3) PW19 Dr. Deepak Prakash A) Public witnesses
7. PW2/ Saraswati is the elder sister of deceased Durga. In her examination in chief, she deposes that her younger sister Durga was married with Deepak on 10.07.2010 and it was a love marriage. After marriage her sister told her that she was subjected to harassment and cruelty by her husband and her mother in law for dowry demand by subjecting her to beating and abuses. PW2 has further deposed that after the marriage of her sister, her parents had given one Videocon TV and gas stove to the accused. She further deposed that 10 days prior to the incident she had brought her sister Durga to their house as she had called her and complained her about her harassment at the hands of her husband and her mother in law on account of demand of dowry. PW2 further testified that on 01.01.2014 at about 6am Sunil, the brother in law of deceased came to their house and informed them that Durga had hanged herself. At that time her mother had gone to hospital to see some relative, who was admitted there. However, her father was present in the house and he went to police station and also informed her mother on telephone about the incident. Thereafter, she (PW2) alongwith her parents and brother went to matrimonial house of deceased.
7.1 In her cross examination PW2 further deposed that the FIR No.01/2014 Page No.5/41 St. Vs. Deepak @ Kalu & anr.
marriage of deceased with accused Deepak was solemnized in Madangir and the same was also attended by her parents and relatives. She admitted that initially the parents of the deceased were not agreeable to the marriage of deceased with accused Deepak. She denied the suggestion that none of her family members attended the marriage because they were against the marriage of the deceased with accused Deepak. She denied the suggestion that the parents of deceased never met her after her marriage or did not allow her to visit them because they were not happy with her marriage with Deepak. She denied the suggestion that accused persons were falsely implicated by her father because he did not use to like him. She also denied the suggestion that no item was given to the accused or to the deceased after their marriage by her parents or that the couple never visited their house after their marriage.
8. PW3/Janaki Devi is the mother of deceased. In her examination in chief, she seems to have deposed more or less on the same lines as deposed by PW2 Saraswati. She deposed that marriage of her daughter Durga with accused Deepak was a love marriage and no dowry was given in the marriage. However, after marriage, her daughter used to tell them that her husband and mother in law used to harass her for dowry. PW3 further deposed that the accused used to taunt her (deceased) that if Deepak had married in his caste, they would have got handsome dowry. PW3 further deposed that both the accused persons had demanded Rs.50,000/- from them saying that they would otherwise marry Deepak again. Further that as per the demands of accused, they FIR No.01/2014 Page No.6/41 St. Vs. Deepak @ Kalu & anr.
(parents of deceased) had given TV, gas stove and Mattress etc. PW3 has further deposed that her daughter had informed her that accused persons used to beat her and harass her for dowry demand.
8.1 She further deposed that 10 days prior the incident her daughter had informed that both the accused had been harassing her for dowry demand and that her husband and mother in law would kill her. She has further deposed that on 01.01.2014 in the morning at 6.30am, when she was present in a hospital to attend daughter of her brother in law, who was admitted there, she received a telephonic information from her daughter Saraswati that deceased had hanged herself and thereafter, she went to the house of accused where she found dead body of her deceased daughter lying on a bed. Further that, police officials had taken her to senior officers where her statement Ex.PW4/A was recorded. PW4 identified her signature at point A on the same. Further that the accused persons were arrested by the police vide arrest memo Ex.PW4/B and Ex.PW4/C bearing her signatures at point A. Further as per PW3, she had identified the dead body of her daughter vide memo Ex.PW4/D. PW3 also identified TV Ex.P1 and gas stove Ex.P2, which were given to accused after the marriage of her daughter.
8.2 PW3 was cross examined at length by the defence counsel wherein she deposed further that she had six children (five daughters and one son) including the deceased. As per her version, She (PW3) was the only one from her family who FIR No.01/2014 Page No.7/41 St. Vs. Deepak @ Kalu & anr.
attended the marriage of deceased in the temple and on the date of marriage, her daughter was happy but she stayed happy only for seven days after her marriage. She deposed further that she was not aware why the deceased had any quarrel or became unhappy with her inlaws after seven days. She however, voluntarily stated that there used to occur quarrel between deceased and her inlaws on account of dowry as told by deceased to her. PW3 further deposed that deceased had visited her house after 5-6 days of her marriage and her husband had also accompanied her at the time of said visit. Further that, thereafter her daughter started visiting her every week or fortnight. She further deposed that distance between her house and the house of the accused was fifteen minutes walking only. She denied the suggestion that she used to meet her daughter only in the market at some common place in the residential area. She deposed further that she did not lodge any complaint with police with regard to the incident of quarrel between deceased and her inlaws nor called any panchayat or relatives or friends to resolve the dispute. She denied the suggestion that the matter was never reported to police nor any intervention of any mediator was sought because no such quarrel had ever taken place between the deceased and accused. Further, as per PW3 the demand of Rs.50,000/- was raised by the accused persons in her presence and in the presence of her elder daughter Saraswati and the deceased Durga. She deposed that she could not tell the date when said demand was made by the accused persons. She however, denied that no such demand was raised by them. She deposed that she did not remember the brand of the gas stove FIR No.01/2014 Page No.8/41 St. Vs. Deepak @ Kalu & anr.
given to the accused She deposed further that the mattress was given to the accused as the earlier mattresses given to them were burnt. She denied the suggestion that they had not given any article on account of demand raised by the accused.
8.3 PW3 denied the suggestion that deceased used to remain disturbed as she was childless despite three years of her marriage. She denied the suggestion that her husband i.e. father of deceased had got the deceased treated through some tantrik for conceiving a child. She admitted that once she had got the ultrasound and other medical examination of deceased at Majidia hospital when deceased was having severe stomach pain. She denied the suggestion that said medical examination of deceased was conducted for the purpose of her treatment for conception. She denied the suggestion that deceased had committed suicide as she was not able to conceive the child despite three years of her marriage. She denied the suggestion that TV Ex.P1 And gas stove Ex.P2 were not the same which were allegedly given to the accused persons. She deposed that her statement was recorded by the SDM only.
9. PW4/Smt. Radha is the neighbour of accused persons. PW4 did not support the prosecution case as she turned completely hostile. In her examination in chief she has deposed that accused Pushpa was residing in house no.16 with her younger son Sunil, whereas, accused Deepak used to reside at the first floor of Dakshinpur near her house. Even in her cross examination by ld. Addl.PP she denied the suggestion that FIR No.01/2014 Page No.9/41 St. Vs. Deepak @ Kalu & anr.
accused Deepak used to raise quarrel with deceased or used to taunt her for not bringing sufficient dowry or that she had tried to make him understand as Deepak was her neighbour. Despite being confronted with her statement u/s 161 Cr.PCEx.PW4/A, she denied to have stated any such fact to the police. In her cross examination by defence counsel PW4 further deposed that she never talked to the deceased.
10. PW5 is the owner of the shop NK Electronics from where the TV which was allegedly given to the accused persons upon their demand, was purchased by the parents of deceased. Pw5 has brought the original bill book dated 30.06.2011 and proved on record the bill of TV make Videocon 14 inches sold to Smt. Durga on 30.06.2011 for Rs.4500/- as Ex.PW5/A. In the cross examination witness deposed that he did not recollect the person who had come to purchase the aforesaid TV but there were two persons, one of whom was 25 years of age and the other one was Janki Devi, though the witness was not sure about her.
11. PW12/Shankar Lal is another very material witness of the prosecution as he is the father of deceased. As per his examination in chief, deceased was married to accused Deepak in the year 2010 and it was a love marriage. After marriage his daughter started living in matrimonial home at block no.10, Dakshinpuri alongwith her husband, brother in law and mother in law. After marriage deceased lived happily for 3-4 months but thereafter, her husband and mother in law started harassing her and treating her with cruelty by taunting that if Deepak had FIR No.01/2014 Page No.10/41 St. Vs. Deepak @ Kalu & anr.
married in his community, he would have got huge dowry. PW12 deposed that aforementioned facts were told by deceased to them, therefore, he (PW12) had given one TV and gas stove to the deceased but despite being given said items, the behaviour of accused persons did not change as they continued to torture the deceased.
11.1 PW12 further testified in his examination in chief that 10 days prior to her death deceased had visited her parental home and after staying there for some days, she was taken back by her husband Deepak on the assurance that she would not be tortured in future. It is further deposed by PW12 that on 01.01.2014, brother in law of the deceased namely Sunil visited their house and informed that deceased had hanged herself and further told that they had been called to police station Ambedkar Nagar. On said information, PW12 alongwith his son Sansar visited police station where they were informed that dead body of deceased was lying in AIIMS hospital. Thereafter, PW12 with his son reached AIIMS hospital where he identified the dead body and after postmortem dead body was handed over to him. Further that SDM had made inquiries from him and his wife and recorded statement of his wife Janki Devi. However, no inquiries were made by the local police. PW12 further deposed that deceased had committed suicide due to torture and harassment by the accused persons. The witness again said that in the police station they were informed that the dead body of deceased was still lying in matrimonial home, therefore, he alongwith his son and daughter Saraswati reached at the matrimonial house but the FIR No.01/2014 Page No.11/41 St. Vs. Deepak @ Kalu & anr.
same was found locked and after 10 minutes of their reaching there, two policemen came and opened the door and when they entered into the house alongwith the two policemen, they found the dead body of deceased lying on the bed.
11.2 In his cross-examination conducted by defence counsel, PW12 further deposed that he did not know the exact place of marriage of his daughter. He further testified that accused Deepak had eloped with his daughter i.e. the deceased in the year 2010 and in that regard a complaint was also lodged by him in the police station whereupon, accused Deepak and his daughter were called in the police station. He admitted the suggestion that the deceased had married the accused Deepak against his (PW12) wishes. Further as per PW12, none of his family member had attended the marriage of deceased and after marriage deceased had visited her parental house for the first time only after three months of her marriage and at that time her husband Deepak had also accompanied her. As per PW12, the house of accused was at five minutes walking distance from his house.
11.3 PW12 denied the suggestion that there had never occurred any fights between the deceased and her husband. He also denied the suggestion that deceased had never told him about her harassment and torture at the hands of accused. The suggestion that accused Deepak never demanded any dowry or they have been told by deceased about any such demand, was also categorically denied by PW12. PW12 also denied the FIR No.01/2014 Page No.12/41 St. Vs. Deepak @ Kalu & anr.
suggestion that the TV and the gas stove given to the accused was purchased by him from a shop near Virat Cinema. He further stated that gas stove was purchased for Rs.500/- while the TV was purchased on instalments. He denied the suggestion that money for purchase of said items was given by accused Deepak.
11.4 PW12 however admitted the suggestion that Durga was not having any child after even four years of her marriage and accused Deepak was getting deceased treated for infertility. He further admitted the suggestion that the marriage of deceased was inter caste marriage and further that he did not use to like Deepak because he was not from his caste. He however denied the suggestion that for that reason he gave a false statement against the accused to the SDM. As per his version, SDM had recorded his statement as per his instructions though he(PW12) did not go through his statement before signing it. He denied the suggestion that after receiving the information of death of his daughter he had not visited her matrimonial house. He admitted the suggestion that his wife and his daughter Saraswati also did not use to like Deepak. He denied the suggestion that he used to quarrel with accused Deepak and for that reason he had lodged false case against him.
B) Formal police witnesses
12. PW1/Ct. Puneet is the photographer of mobile crime team. As per his version, on 01.01.2014 he alongwith other members of crime team went to the place of occurrence i.e. house no.10/48, First floor, Dakshin Puri, New Delhi and took 9 FIR No.01/2014 Page No.13/41 St. Vs. Deepak @ Kalu & anr.
photographs Ex.PW1/A1 to A10 and handed over the negatives Ex.PW1/A11 to the IO. In his cross examination he deposed that he did not recollect if there were any visible external marks of injury on the body of deceased.
13. PW8/Inspector KP Shah is the Incharge of Crime team who visited the spot with Finger print expert SI Chetram and photographer Ct. Puneet, after receiving the information of alleged incident from the control room. As per his deposition, the crime team reached at the spot at 7.45pm and found the dead body of a female whose name was revealed as Durga @ Nikky, lying on the bed. Near dead body one piece of saree of red and yellow colour was found lying whereas, one piece of said saree was tied on the ceiling fan hook. After inspection of the spot, PW8 found the nature of crime as suicide by hanging. Spot was photographed by Ct. Puneet and the crime team remained at the spot till 8am. PW8 prepared the scene of crime report and proved the same on record as Ex.PW8/A. The witness was not cross examined by the defence counsel despite opportunity given.
14. PW9/HC Vikram is a formal witness who recorded DD No.14A after the accused Deepak visited the police station Ambedkar Nagar at 6.40am and reported that his wife had committed suicide. The said information was recorded vide DD no.14A Ex.PW9/A. As per PW9 said DD was handed over to SI Varun Kumar through Ct. Chhagan Lal and he(PW9) also gave the information in this regard to Insp. Investigation and to control room. PW9 was also not cross examined by the defence despite FIR No.01/2014 Page No.14/41 St. Vs. Deepak @ Kalu & anr.
15. PW10/ Chhagan Lal is also a formal witness as he had only handed over DD no.14A already exhibited as Ex.PW9/A to SI Varun Kumar as per the directions of Duty officer PW9. He was also not cross examined by the defence.
16. PW13/SI Chet Ram is again a formal witness as he is a Finger print expert who visited the spot with the crime team on 01.01.2014. As per his deposition, since it was a case of suicide by hanging therefore, there was no requirement for obtaining chance print from the place of occurrence. Nothing was asked in his cross examination.
17. PW14/ASI Mam Chand is the duty officer who recorded the present FIR Ex.PW14/A on the basis of the rukka handed over to him by SHO. As per his version, he had made his endorsement on the original tehrir as Ex.PW14/B under his signature at point A and got the FIR Ex.PW14/A registered through computer operator. After registration of FIR, he handed over the copy of FIR and original rukka to SI Varun Kumar for further investigation.
C) Material police witnesses
18. PW6/SK Gupta is the SDM Hauz Khas, who conducted the inquest proceedings. As per his deposition, on 01.01.2014 when he was posted as SDM Hauz Khas, he received a telephonic information about the suicide committed by one Smt. Durga wife of Deepak at Dakshinpuri. The dead body was taken to AIIMS by FIR No.01/2014 Page No.15/41 St. Vs. Deepak @ Kalu & anr.
the police officials where deceased was declared brought dead. On 01.01.2014, parents of the deceased were brought to his (PW6’s) office. PW6 further deposed that he had recorded the statement of Smt. Janki as Ex.PW4/A bearing his signature at point B and directed the SHO for taking legal action after making endorsement Ex.PW6/A on the same. Further that thereafter, he went to Mortuary AIIMS and conducted the inquest proceedings vide Ex.PW6/B bearing his signature at point A. PW6 also proved one application moved by him to the Autopsy surgeon for conducting the post mortem, as Ex.PW6/C.
18.1 In his cross examination witness further deposed that at the time of recording the statement of Janki Devi he had satisfied himself regarding the voluntariness of her statement and at that time Janki Devi was accompanied by her husband.
19. PW15/SI Amit Kumar is the member of the investigation team to whom the investigation of this case was
marked on 27.02.2014. During investigation, PW15 sent the viscera of this case to CFSL Lodhi Road vide RC No.56/21/14 on 06.03.2014. He further deposed that he also verified the receipt of Videocon TV from NK Electronics, made inquiry from the owner of shop Narender Kumar and recorded his statement u/s 161 Cr.PC. He also recorded the statement of witnesses i.e. mother and sister of the deceased vide their supplementary statements as well as the statement of other witnesses. Further that, he also collected the CFSL report Ex.PW15/A and filed the same on record. He denied the suggestion that Narender, the owner of NK FIR No.01/2014 Page No.16/41 St. Vs. Deepak @ Kalu & anr.
Electronics had told that accused Deepak had made payment for purchase of TV. He also denied the suggestion that during course of investigation, he had come to know that present case was not a case of dowry death or that deceased had committed suicide due to frustration as she was unable to bear any child.
20. PW16/Wct. Archana is a witness to the seizure memo Ex.PW16/A of the television set and gas stove allegedly recovered from the house of accused persons at Dakshinpuri. As per his version said articles were seized after same were identified by the mother of the deceased. In her cross examination PW16 deposed that she did not know how many rooms were there on the first floor or what was the size of the house or whether the main door of the house was made of wood or iron. She however denied the suggestion that she never visited the spot or that nothing was recovered from the house of the accused.
21. PW17/Ct. Munesh Kumar is also the member of the Investigation team, who accompanied the IO SI Varun Kumar to the spot after a call was received. As per his version, on reaching the spot, they found dead body of a lady lying on a bed and the name of deceased was revealed as Durga. The husband of the deceased i.e. accused Deepak was also present in the house alongwith his mother. Further that, SI Varun thereafter, called crime team and got the spot inspected and photographed through crime team. IO SI Varun also informed SDM through his mobile phone. The exhibits i.e. the piece of saree tied on the hook from the ceiling fan of his house, one piece of saree lying on the FIR No.01/2014 Page No.17/41 St. Vs. Deepak @ Kalu & anr.
bed and one plastic table lying in the room were taken into police possession and were seized vide seizure memo Ex.PW17/A bearing his signature at point A with the seal of VKG. Thereafter, dead body was taken to AIIMS hospital in an ambulance where the deceased was declared as brought dead. Further that, postmortem on the dead body was got conducted and prior to that SDM was called at AIIMS hospital and the postmortem was conducted only after the SDM inspected the dead body.
21.1 PW17 further deposed that viscera box duly sealed alongwith sample seal was also seized vide seizure memo E.PW17/A. Rest of the deposition of said witness with regard to the arrest of accused and seizure of household articles is on the lines of PW16 hence not repeated for the sake of brevity. The witness correctly identified the pieces of saree and the plastic stool seized from the spot as EX.PW17/P1 to P3 and the household articles i.e. TV and Gas stove as Ex.P1 and Ex.P2 respectively.
21.2 In his cross examination by ld. Defence counsel, PW17 deposed that Smt. Janki Devi was not present at the time of arrest of accused persons. On his re-examination by ld. Addl.PP, he denied the suggestion that he was deliberately deposing falsely about the absence of accused Janki Devi at the time of arrest of accused persons. Nothing material was asked in the rest of the cross examination of said witness.
22. PW18/SI Varun is the IO of the case. He deposed that FIR No.01/2014 Page No.18/41 St. Vs. Deepak @ Kalu & anr.
on the intervening night of 31.12.2013 and 01.01.2014, he was posted at PP Jamia Nagar, PS Ambedkar Nagar and on receipt of DD no.14 Ex.PW9/A from Ct. Chhagan Lal, he alongwith Ct. Munesh reached at the house of No.10/48, Dakshinpuri where the alleged incident had occurred on the first floor of said house. The rest of the examination of the IO is on the same lines as deposed by Ct. Munesh PW17. The IO proved the two site plans, one of the room where the incident had occurred and the other regarding the location of the house where it was situated, as Ex.PW18/A and Ex.PW18/B respectively. He further deposed that vide letter Ex.PW6/C of the SDM, he was authorized to get the postmortem conducted on the dead body of deceased and he accordingly moved an application Ex.PW18/C for said purpose before the autopsy surgeon. Further as per IO, he produced the statement of the mother of deceased Smt. Janki recorded by the SDM to the SHO, upon which SHO Insp.Abhay Singh prepared the rukka and got the FIR registered and after registration of FIR, he was assigned the further investigation of the case. Thereafter, he alongwith WCt. Archana and Ct. Munesh reached the spot and arrested the accused, interrogated them, recorded their disclosure statements. As per the IO, the household article i.e. TV and gas stove were seized from the house of accused at their instance. He further deposed that during investigation complainant had handed over him the photocopy of receipt Ex.PW5/A of television given to her deceased daughter.
22.1 In his cross examination, PW18 further deposed that when they first reached the spot at 7.50am mother in law of the FIR No.01/2014 Page No.19/41 St. Vs. Deepak @ Kalu & anr.
deceased was not present at the spot. Further the house where the incident had occurred was constructed on a plot admeasuring 25 square yards. Further that, SDM had not visited the place of incident and directly reached the hospital at 12.30pm. He further deposed that during investigation it came to his notice that accused Pushpa Devi was residing in a separate house in the same locality and he did not use to frequently visit the house of accused Deepak as she was not happy with the love marriage of his son Deepak with the deceased. He further admitted the suggestion that during investigation, it had also come to his knowledge that deceased used to remain depressed for not bearing any child. PW18 however, denied the suggestion that due to said reason the deceased had committed suicide. He further voluntarily stated that upon inquiry from the neighbours, he had come to know that accused Deepak and deceased used to frequently quarrel with each other.
D) Medical Experts
23. As per record PW7 Dr. Mantaran Singh, who is the autopsy surgeon was partly examined in the matter in the year 2015. His further examination was deferred but thereafter, said witness shifted to United Kingdom, therefore, at his place PW19 Dr. Deepak Prakash was examined for proving the postmortem report.
24. PW11/Dr. Preeti Singh had examined the deceased when she was brought to AIIMS on 01.01.2014. As per her version, on said date she was posted as Junior Resident at AIIMS FIR No.01/2014 Page No.20/41 St. Vs. Deepak @ Kalu & anr.
and after examination she found the ligature mark on the neck of said patient who was declared brought dead by her at 8.23am. PW10 proved the MLC prepared by him as Ex.PW11/A. In her cross examination, PW11 deposed further that past history of deceased was not mentioned in the MLC nor it was asked by her.
25. PW19 Dr. Deepak Prakash was examined at the place of autopsy surgeon Dr.Mantaran Singh, who was partly examined as PW7. As per version of PW19, Dr. Mantaran Singh had left the services of AIIMS hospital and was residing at United Kingdom. PW19 deposed further that he was well conversant with the signature of Dr. Mantaran Singh as he (Dr. Mantaran) had worked under him as Junior Resident. After seeing the postmortem report dated 01.10.2014, of deceased Durga @ Nikki witness further deposed that as per said report, the postmortem was conducted on 01.10.2014, after the deadbody was identified by relatives of deceased namely Janki Devi and Shankar Lal. Further that, the alleged history of deceased was found hanging at her home at 5am on 01.01.2014, and she was taken to AIIMS casualty by the police where she was declared dead at 8.23am on the same day. Further that, no external antemortem injury were found and the time since death was 1/3rd of the day. Further that, as per autopsy surgeon the cause of death was asphyxia due to ante mortem hanging, though the viscera was also preserved to rule out concomitant intoxication. PM report has been proved on record as Ex.PW19/A and as per PM Report, following injuries were found:-
"Ligature mark – A reddish brown parchmentised ligature mark of width 1cm at the anterior midline FIR No.01/2014 Page No.21/41 St. Vs. Deepak @ Kalu & anr.
and left lateral aspect of neck and 3cm. At the right lateral aspect of the neck was present in the upper third of the neck. The ligature mark was running obliquely, upwards and backwards, merging with posterior hairline at the nape of neck. The ligature mark was 3.5cm below the mentum and 9 cm above suprasternal notch in anterior midline of neck. The ligature mark was 6cm below right mastoid tip and 5cm below left mastoid tip on lateral aspect of neck. Total neck circumference is 27cm. On dissection the underlying soft tissue is dry, pale, glistening, white and hard to touch and is devoid of any extravasation or hematoma. The underlying muscles and blood vessels of neck were intact and were devoid of any extravasation or hematoma. Thyrohyoid complex was intact, tracheal mucuso was congested.
No other external antemortem injury was present. Time since death was about one-third of day. The cause of death was asphyxia due to antemortem hanging, however the viscera has been preserved to rule out concomitent intoxication.
Nothing material was asked in the cross examination of PW19.
Statement of accused
26. After completion of investigation, statements u/s 313 Cr.P.C. of both the accused persons were separately recorded wherein all the incriminating evidence which had come on record during trial was put to the accused but the same was denied by them as wrong and incorrect. The accused persons came up with the plea that deceased Durga was very disturbed because she was not able to conceive even after three years of marriage and she used to suffer from severe stomach pain. Further that, marriage of deceased with Deepak was a love marriage and father of deceased Durga was against her marriage and for said FIR No.01/2014 Page No.22/41 St. Vs. Deepak @ Kalu & anr.
reasons, deceased had committed suicide. Accused persons wished to lead evidence in their defence and examined only one witness in their defence.
27. DW1/ Smt. Laxmi has deposed that she was residing in the house no.14/301, Dakshinpuri New Delhi for the last 25-30 years and had been knowing accused Pushpa Devi since last 25 years as she lived in her street after leaving 4-5 houses from her house and she was living with her other son Sunil. Further that, accused Pushpa is having three children and her son Deepak lived in Gali no.10 Dakshinpuri. She further deposed that on 01.01.2014, she had seen accused Pushpa Devi and her son Sunil in the street outside their house and both of them were in hurry. Accused Pushpa told her that some mishappening had occurred with her daughter in law i.e. wife of accused Deepak, who lived with accused Deepak in gali no.10.
28. I have given my thoughtful consideration to the rival contentions raised from both the sides and also carefully perused the entire record.
29. Ld. Defence Counsel Sh. MM Ansari has vehemently argued that prosecution has miserably failed to prove the charges against any of the accused as the testimony of prosecution witnesses is not reliable on account of various discrepancies and contradictions. He further argued that even if the prosecution FIR No.01/2014 Page No.23/41 St. Vs. Deepak @ Kalu & anr.
evidence is believed to be true and reliable, in that case also the same is far from establishing any of the essential ingredients of the alleged offences so as to base conviction on the same. Counsel further argued that deceased was under depression because she was unable to bear any child even after a long time of her marriage. He further urged that prosecution witnesses have raised general and vague allegations of demand of dowry and harassment without any specific details. It is further argued that prosecution witnesses though have alleged that the deceased was subjected to harassment on account of dowry demand but none of them cited any specific instance when the deceased was subjected to alleged harassment nor they even specified in what manner she was subjected to such harassment or cruelty. It is further argued that as per PW3 Janki Devi, alleged demand of Rs.50,000/- was made by accused in the presence of deceased and her sister Saraswati i.e. PW2. But, there is no utterance of any such demand by PW2 Saraswati in her entire deposition before the court. It is further argued that prosecution has hopelessly failed to prove it on record that the deceased was subjected to any cruelty or harassment in connection with any demand for dowry soon before her death so as to raise the presumption of Section 113B of Indian Evidence Act. He further argued that the material on record is totally lacking to prove any of said material facts to seek conviction for the offence u/s 304-B IPC. In this regard, he has relied upon the judgment in Hira Lal vs. State (Govt. of NCT), Delhi, (2003) 8 SCC 80. He further urged that general allegation of harassment and cruelty without describing the exact conduct of accused will not be sufficient to FIR No.01/2014 Page No.24/41 St. Vs. Deepak @ Kalu & anr.
attract the provisions of Section 498A or 304-B IPC. To buttress his arguments, Ld. Defence Counsel placed reliance on the judgment in Amar Singh vs. State of Rajasthan 2010 (4) Criminal Court Cases 234 (SC) wherein it was held that " a prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of accused which, according to him, amounted to harassment or torture may not be believed by the court in cases u/s 498A and 304-B IPC."
30. Counsel further argued that even the charges for the offence u/s 306 IPC which were framed alternatively, have not been proved on record as the testimony of prosecution witnesses nowhere reflects any instigation or aiding within the meaning of Section 107 IPC on the part of accused persons.
Arguments of Ld. Addl. Public Prosecutor
31. Per contra, Ld. Addl. PP Mr. RK Gurjar rebutted the arguments by submitting that admittedly, the deceased had died otherwise than normal circumstances within 7 years of her marriage with accused Manoj and by clinching evidence of parents & sister of the deceased, prosecution has sufficiently proved on record that soon before her death the deceased was subjected to cruelty on account of non fulfillment of demands for money raised by the accused persons therefore, the presumption of Section 113B of Indian Evidence Act for the offence of Section 304-B IPC and that of Section 113A of Indian Evidence Act for the offence of Section 306 IPC, charge for which was framed in alternate are clearly drawn in favour of the prosecution and the FIR No.01/2014 Page No.25/41 St. Vs. Deepak @ Kalu & anr.
defence has miserably failed to rebut said presumption. It is further urged that in such like cases of dowry death, it is rare to find any direct evidence because such crimes are committed within the four corners of matrimonial house of deceased, but in the instant case there is ample material in the form of deceased’s conversation with her parents and other family members soon before her death and in view of the fact that said conversation is concerning the cause of her death and the circumstances of transaction which resulted into her death, same is admissible as dying declaration u/s 32 (1) of Indian Evidence Act, which is an exception to hearsay evidence.
32. Before embarking upon the evidence adduced on record, I deem it appropriate to reproduce the relevant provisions of law for the sake of ready reference. As noted above, the accused were charged for the offences punishable u/s 498A/34IPC, Section 304-B/34 IPC and in alternative u/s 306/34 IPC.
33. Section 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 willful 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 death (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 FIR No.01/2014 Page No.26/41 St. Vs. Deepak @ Kalu & anr.
any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
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 purposes 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 but which may extend to imprisonment for life.
"Section 2 of Dowry Prohibition Act defines dowry as under:
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
(b) by the parents 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.
Explanation II. – The expression ‘valuable security’ has the same meaning as in Section 30 of the Indian Penal Code."
113-B. Presumption as to dowry death.-
When the question is whether a person has committed the FIR No.01/2014 Page No.27/41 St. Vs. Deepak @ Kalu & anr.
dowry death of a woman and it is shown that soon before her death such woman had 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 304-B of the Indian Penal Code (45 of 1860).
Section 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."
113-A. 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 purposes of this section, "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860).] The abetment has been defined in Section 107 IPC and same also reads as under:-
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 in pursuance of that conspiracy, and in order to the doing of that thing;or FIR No.01/2014 Page No.28/41 St. Vs. Deepak @ Kalu & anr.
Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation1.-A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
34. We may now examine the evidence adduced on record to first determine whether an offence u/s 498A IPC has been made out against the accused persons. In this regard, prosecution has examined witnesses namely Saraswati (sister of deceased), Janki Devi (mother of deceased), Shankar Lal(father of deceased) as PW2, PW3 & PW12.
35. Before separately discussing the testimony of said material witnesses, I may mention here that it is an admitted position of prosecution case that deceased was never subjected to any harassment, cruelty or ill treatment in their presence. As per prosecution case, about alleged harassment and cruelty deceased had informed her parents.
36. One cannot lose sight of the fact that it is one of the fundamental principles of criminal jurispuradance that an accused is presumed to be innocent till he is proved guilty. It is equally well settled that suspicion however, strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the offence" and "must have FIR No.01/2014 Page No.29/41 St. Vs. Deepak @ Kalu & anr.
committed the offence" which must be transversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be washed away. Reliance placed on Kailash Guar & Ors. State of Aasam (2012) 2 SCC 34.
37. Cruelty is defined under two clauses of Explanation to Section 498A. Clause (a) talks about willful conduct of such nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. As per clause (b), it also includes harassment of woman in furtherance of any unlawful demand for any property or valuable security or on account of failure of such woman or any person related to her to meet such demand.
38. In the instant case, testimony of prosecution witnesses is totally lacking to reflect any such willful conduct of accused in the nature to drive the deceased to commit suicide. Mere allegation that a demand of dowry was raised from deceased or household articles were demanded from her parents is not sufficient unless it is proved that deceased was put to some harassment mental or physical on account of said reason.
39. As regard the deposition of parents and sister of deceased, although there is no legal bar in relying upon their testimony relating to their alleged conversation with deceased soon before her death, especially when the same was concerning the circumstances of transactions which resulted into deceased’s FIR No.01/2014 Page No.30/41 St. Vs. Deepak @ Kalu & anr.
death. But, Hon’ble Apex Court has time and again emphasized the need of corroboration of such declaration particularly of this kind where oral statement was made by deceased to her parents and siblings, who is are an interested witness and therefore, such declaration has to be considered with care and caution.
40. Section 304-B IPC embodies a deemed fiction in contradiction with the cardinal principle of presumption of innocence in favour of an accused. The legislature has applied the concept of deemed fiction in Section 304-B IPC where the husband or his relatives shall be deemed to have caused death of a woman once the prosecution proves its case with regard to basic ingredients of Section 304-BIPC. In other words, the offence shall be deemed to have been committed by fiction of law once the prosecution proves the other ingredients of Section 304-B IPC and in that event, the court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. But ofcourse, the deemed fiction would introduce a rebuttable presumption which can be rebutted by the husband and his relatives by leading their defence and proving that the ingredients of Section 304-B were not satisfied. While referencing to raising of presumption u/s 304-B of the Code, Hon’ble Apex Court in Kaliyaperumal vs. State of T.N. (2004) 9 SCC 157, stated the following ingredients which should be satisfied:
(1) The question before the court must be whether the accused has committed the dowry death of a woman, (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by FIR No.01/2014 Page No.31/41 St. Vs. Deepak @ Kalu & anr.
her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death.
41. In the light of the above essential ingredients, for constituting an offence under Section 304-B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the "dowry death" and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence. Reliance placed on the judgment of Hon’ble Apex Court in Ashok Kumar vs. State of Haryana, 2010 (12) SCC 350.
42. As is evident from record, the accused have been tried before this court for the offence of dowry death u/s 304-B/34 IPC alongwith other offences u/s 498A/34 and in alternate for the offence u/s 306/34 IPC. Hence, the first ingredient of the offence i.e. the trial of the accused before the court should be for the offence of section 304-B IPC is satisfied. Now, comes to the second question as to whether deceased was subjected to harassment or cruelty by the accused persons.
43. In order to prove said ingredient of cruelty, prosecution has examined three witnesses namely deceased’s FIR No.01/2014 Page No.32/41 St. Vs. Deepak @ Kalu & anr.
sister Saraswati (PW2), mother Smt. Janki Devi (PW3) and father Shankar Lal (PW12).
44. However, all the said witnesses in their deposition before the court have come out with bald, general and unspecific allegations. As per PW3, deceased had told her that she (deceased) had been subjected to harassment and cruelty by her husband and mother in law for dowry demand as they subjected her to beatings and abuses. Here, the witness neither disclosed about any specific incident when the deceased was beaten up or abused nor she even mentioned when did the deceased made said disclosure to her. Her deposition is totally silent as to how and in what manner or on what specific date or occasion, the deceased was beaten up. Though, PW2 alleged that after marriage of deceased, her parents had given her TV and gas stove but, it is nowhere her case that said articles were given in furtherance of any demand raised by accused.
45. PW2, has though alleged that 10 days prior to deceased’s death, deceased had called her and complained her about her harassment at the hands of accused on account of demand of dowry but, here again she did not give any detail of any such incident nor she disclosed what exactly was allegedly demanded from deceased by the accused persons.
46. It is an admitted position on record that deceased had eloped with the accused Deepak and later got married with him against the wishes of her parents. In said circumstances, the FIR No.01/2014 Page No.33/41 St. Vs. Deepak @ Kalu & anr.
possibility of deceased’s parents developing hostility against accused persons and implicating them falsely, cannot be ruled out. Therefore, their version need to be scrutinized with great caution to check their credibility.
47. Careful scrutiny of deposition of deceased’s parents and her sister has revealed few discrepancies raising a doubt on their credibility. As per version of PW3, Smt. Janki Devi, she had attended the marriage of deceased and after marriage, deceased stayed happy only for seven days as she deposed further that deceased had told her that there used to occur quarrels between her and her in laws on account of dowry. As per PW3, deceased had visited their house with accused Deepak after 5-6 days of their marriage and thereafter, deceased started visiting them every fortnight.
48. On aforementioned facts, version of deceased’s father, who has been examined as PW12, is at total variance in as much as he has deposed that none of his family members had attended the marriage of deceased and that after marriage, deceased had visited her parental house for the first time only after 3-4 months. His said version is totally contrary to the version of his wife Smt. Janki, who stated that she had attended deceased’s marriage and after 5-6 days of marriage, deceased had visited them and thereafter, she started visiting them every fortnight. Said discrepancy in the statement of parents of deceased is certainly touching a material aspect and cannot be treated as minor discrepancy.
FIR No.01/2014 Page No.34/41 St. Vs. Deepak @ Kalu & anr.
49. Regarding alleged demand of Rs.50,000/-, father of deceased i.e. PW12 did not utter a word, while the deposition of PW3 did not draw any support from PW2, in whose presence, said demand was allegedly raised because PW2 is totally silent on any such demand. Even otherwise, no date, time or occasion has been disclosed by PW3, when alleged demand of Rs.50,000/- was raised by accused persons. There is nothing on record to even show that TV and gas stove, which the parents of deceased allegedly gave her after her marriage, was given in furtherance of any demands raised by the accused.
50. Though, it is alleged by prosecution witnesses that about 10 days prior to death, deceased had informed them that she had been subjected to harassment on account of dowry but, even in this regard, version of PW2, PW3 and PW12 is not in consonance with each other.
51. As per PW2/Saraswati, 10 days prior to alleged incident, she (PW2) had brought her sister Durga to their house as deceased had complained her about her harassment at the hands of accused on account of their demand for dowry. But, Smt. Janki Devi, the mother of deceased nowhere mentioned in her deposition that 10 days prior to deceased’s death, deceased had visited them, though she also alleged that deceased had informed them that accused had been harassing her and would kill her.
52. In this regard, father of deceased i.e. PW12 Shankar Lal has gone a step ahead by saying that deceased had visited FIR No.01/2014 Page No.35/41 St. Vs. Deepak @ Kalu & anr.
them 10 days prior to her death and after staying there for some days, she was taken by her husband on the assurance that she would not be tortured. As already noted above, allegations of torture and harassment are unspecific and general. No specific incident of any such harassment or torture has been mentioned by any of the witnesses.
53. One independent witness examined by the prosecution namely Radha (PW4), who was the neighbour of accused, has turned totally hostile and did not support the prosecution case even in her cross examination by Ld. Addl. PP. Rather as per her version, mother in law of deceased was living at a separate address with her younger son Sunil. Qua the separate residence of mother in law, even the IO SI Varun/PW18 has also deposed that accused Pushpa was living at a separate address and as she was not happy with marriage of Deepak with deceased, she did not use to frequently visit them. Even DW1 has also deposed similarly on said fact that accused Pushpa was living at a separate address.
54. As per the defence plea, deceased was under depression as she was unable to bear any child despite three years of her marriage and out of said frustration and depression, she might have committed suicide. In this regard, even PW12 Sh. Shankar Lal has admitted in his cross examination that accused Deepak was getting deceased treated for infertility as deceased was not having any child even after 4 years of her marriage. In view of said admission on his part, the aforementioned defence FIR No.01/2014 Page No.36/41 St. Vs. Deepak @ Kalu & anr.
plea could not be rejected outrightly especially when prosecution has miserably failed to prove that deceased was subjected to cruelty within the meaning of Section 498A IPC. In Criminal trial, the burden is always on the prosecution to prove the guilt of accused beyond any reasonable doubt.
55. Having regard to above discussions, I am of the considered view that prosecution has miserably failed to prove that the deceased was subjected to any cruelty or harassment at the hands of accused persons. On account of numerous discrepancies and contradiction, the testimony of family members of deceased is found to be unreliable and untrustworthy and even otherwise, the same is totally lacking on material aspect and not sufficient to establish cruelty and harassment within meaning of section 498A IPC.
56. Since the first two essential ingredients of Section 304-B IPC i.e. the cruelty and harassment in connection with demand of dowry, have not been established on record, the third question whether such cruelty was soon before death, need not to be considered.
58. Now, comes to the question of consideration of charges of Section 306 IPC. In the judgment of Hon’ble Supreme FIR No.01/2014 Page No.37/41 St. Vs. Deepak @ Kalu & anr.
Court in case titled as Hans Raj v. State of Haryana(2004) 12 SCC 257, wherein Hon’ble Apex Court has examined the scope of Section 113A of the Evidence Act vis a vis sections 306, 107, 498A IPC and held that:-
"Unlike Section 113B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113A of the Evidence Act. This Court held that, under Section 113A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113A, therefore, gives discretion to the court to raise such presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word ‘cruelty’ in Section 498-A IPC."
59. In Pinakin Mahipatray Rawal vs. State of Gujarat (2013) 10 SCC 48, the Hon’ble Apex Court has again examined the scope of Section 113A of the Evidence Act and reiterated the legal position that the legislative mandate of Section 113A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty defined in Section 498A IPC, the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The Court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Seciton 498-A IPC is on the prosecution. The Court held that the burden is on the prosecution FIR No.01/2014 Page No.38/41 St. Vs. Deepak @ Kalu & anr.
to establish the fact that the deceased committed suicide and the accused abetted the suicide.
60. In the case of Randhir Singh vs. State of PunjabMANU/SC/0881/2004 : (2004) 13 SCC 129, wherein it was held by the Hon’ble Apex Court that :-
" 16. In order to bring a case within the purview ofSection 306 of IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of intigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said office must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
61. The alleged conduct of accused in harassing the deceased on account of her inter cste marriage, even otherwise is not sufficient to bring the case within ambit of Section 107 IPC, as the material on record is completely lacking to prove in what manner the deceased was put to alleged harassment by the accused persons. Though it is alleged that accused used to taunt deceased that had accused Deepak married in his community, he would have got huge dowry. But, in this regard the version of witness is not reliable for two reasons, Firstly, on account of some major contradiction their testimony is not trustworthy and secondly, it has specifically come in testimony of PW12, none of the family member of accused used to like her husband Deepak as she had married in another caste against their wishes by eloping with him and hence, their version is even otherwise has FIR No.01/2014 Page No.39/41 St. Vs. Deepak @ Kalu & anr.
to be seen with great caution and can not be relied upon without corroboration from some independent source.
62. In Ramesh Kumar vs. State of Chhatisgarh (2001) 9SCC 618, Hon’ble Apex Court examined different shades of the meaning of "instigation" defined in sec. 107 IPC as under:-
"20. 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 constitutes 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. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
63. In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon’ble Apex Court has 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 in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive 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 FIR No.01/2014 Page No.40/41 St. Vs. Deepak @ Kalu & anr.
basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
64. In the instant case, neither the prosecution has been able to prove the ‘cruelty’ within the meaning of Section 498A IPC on the part of accused persons so as to attract the prosecution of Section 113A of Indian Evidence Act nor the material on record is sufficient to even make out a case of abatement within the meaning of Section 107 IPC.
65. Having regard to above discussion, prosecution has miserably failed to bring home the guilt of any of the accused for any of the alleged offences. Accordingly, both the accused are acquitted of all the offences punishable u/s 498A/304B/306/34 IPC. Bail bond in terms of Section 437-A Cr.P.C. already taken on record. File be consigned to record room.
Announced in open Court (Sunena Sharma) on 31st October Additional Sessions Judge-03, (South) Saket Courts/New Delhi Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2018.11.02 22:28:05 +0530 FIR No.01/2014 Page No.41/41 St. Vs. Deepak @ Kalu & anr.