IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No.7091/16 (Old No.94/14) Unique ID No. 02406R0081712012 FIR No.167/11 U/s: 498A/304B/306/34 IPC Police Station :Defence Colony State Vs. 1. Rahul Verma s/o Sh. Gyanchand 2. Gyanchand s/o Sh. Ram Chander 3. Madhu w/o Sh. Gyanchand All r/o Quarter No.389, Type-II, Sector -2, Sadiq Nagar, New Delhi .... Accused Date of Committal : 12.04.2012 Final arguments concluded on : 02.07.2018 Judgment pronounced on : 12.07.2018 JUDGMENT
1. Vide this judgment, I shall decide session case number 7091/16 which is an outcome of FIR No. 167/11 registered at PS Defence Colony, u/s 498A/304B/34 IPC in connection with a case of dowry death.
Prosecution case as per charge sheet
2. As per charge sheet, the case of prosecution in brief is that vide DD no.12 dated 29.12.2011, an information was received at FIR No.167/11 Page No.1/65 St. Vs. Rahul Verma etc. PS Defence Colony regarding an attempt made by a lady to commit suicide at 389, Sector-2, Type-II, Sadiq Nagar, Defence Colony. Pursuant thereto, ASI Devender Singh with Ct. Bilas Rao reached at the spot where victim was reported to have already been taken to Mool Chand hospital by the family members. In the meanwhile, another DD no.16A was received from the duty officer PS Defence Colony at 3:05 pm, regarding admission of Gauri Verma w/o Rahul Verma in Mool Chand hospital vide MLC no.530037 wherein she was declared to have been brought dead. Upon said information, ASI Devender Singh with Ct. Bilas Rao reached Mool Chand hospital and collected MLC of deceased Gauri Verma and the dead body was lying in the hospital. ASI Devender Singh conveyed about said incident to the SHO and SDM of Defence Colony, who later reached the hospital and inspected the dead body. SDM then gave directions for preserving the dead body at AIIMS mortuary for postmortem. As per said instruction, ASI Devender Singh through Ct. Vilas Rao got the dead body preserved at AIIMS hospital. Thereafter, ASI Devender Singh, SHO and SDM reached the spot for the purpose of inquiry.
2.1 The crime scene was got inspected through crime team and photographs were clicked. From the spot, one chunni (the piece of cloth worn by lady around the neck) which was found hanging at the ceiling fan of the room and one piece of it with the knot and one scissor lying on the bed were taken into police possession. As per the instruction of the SDM, deceased’s father Sohan Lal, her mother Smt. Chandra Kala, her brother Inder Kohli and one Anil Kumar Goyal were taken to SDM office where inquiries were made from them and their FIR No.167/11 Page No.2/65 St. Vs. Rahul Verma etc. statements were recorded by the SDM. Thereafter, written directions were given to SHO PS Defence Colony to investigate the matter and take appropriate action as per law. Accordingly, IO, on the basis of the statement Ex. PW1/A of deceased’s father recorded before the SDM on 29.12.2011, prepared rukka and got the present FIR lodged u/s 498A/304-B/34 IPC.
2.2 In the above statement Ex. PW1/A, the father of the deceased, Sh. Sohan Lal came up with the allegations that he got his daughter Pinki @ Gauri married with accused Rahul Verma according to Hindu Rites and Ceremony on 23.02.2011 and gave sufficient dowry as per his status and capacity. However, his daughter’s mother in law Madhu, father in law Gyan Chand, husband Rahul were not happy with the dowry and just after one month of her marriage, they started harassing her. On account of said ill treatment and harassment, his daughter i.e. deceased came to live at her parental home in the month of November and stayed there for about one month. On 28th November, deceased was directly taken from her office to her matrimonial home by her husband Rahul Verma and later, they were informed by the deceased on telephone that her husband had counselled his parents and neither his parents nor he himself would now quarrel with her. On 29.12.2011 i.e. the date of incident, complainant was informed by his elder brother Chiranji Lal regarding admission of deceased by her in laws in Mool Chand hospital. After said information, when complainant reached the hospital, he found his daughter Pinki lying dead in the hospital.
FIR No.167/11 Page No.3/65 St. Vs. Rahul Verma etc. 2.3 Ex. PW1/A further shows that complainant was also put
certain questions by the SDM in answer to which he expressed his suspicion that his daughter had been murdered by hanging her with chunni because she was subjected to harassment and beatings by her in laws on account of dowry.
2.4 SDM had also recorded the statements of other family members of deceased namely deceased’s uncle Chiranji Lal, brother Inder Kohli, employer Anil Kumar Goyal and deceased’s mother Smt. Chanderkala which are available on record as Ex. PW3/A, Ex. PW4/A, Ex. PW13/A & Ex. PW13/B.
2.5 Chiranji Lal in his statement Ex. PW3/A, narrated the facts that complainant Sohan Lal was his brother and was having two children namely daughter Pinki @ Gauri and son Inder. Pinki was elder and she was graduate in Commerce from Delhi University and for the last two years, she was working with Goyal Associates, a Chartered Accountant Firm. The deceased got married with accused Rahul Verma on 23.02.2011 and in the marriage, deceased’s father gave dowry to the best of his capacity. But, just after about one month of marriage, in laws of deceased i.e. her father in law, mother in law and husband started harassing her and every now and then they also used to give her beatings and the deceased informed about all these things to her father Sohan Lal. On account of said ill treatment at the hands of her in laws, Pinki came to her parental home in the month of November and she stayed there for about one month. Thereafter, they talked to father in law of the deceased and they were assured FIR No.167/11 Page No.4/65 St. Vs. Rahul Verma etc. that no such incident would recur and on their said assurance, the deceased was sent to her matrimonial home. But, nothing changed even thereafter as they continued to ill-treat her. On 29.12.2011, at about 2:00 pm, he was informed by accused Gyan Chand on his mobile phone that Pinki had done something and he asked him to immediately come. While, he was still on the way, he again received two phone calls from deceased’s brother in law on his mobile phone and he asked him to reach directly to Mool Chand hospital saying that Pinki had already expired. Thereafter, he alongwith his wife Jamuna reached Mool Chand hospital where he found accused Gyan Chand, Rahul Verma and his younger brother (deceased’s dever) present and deceased was lying dead in the hospital. Thereafter, he informed his brother Sohan Lal and asked him to immediately reach there.
2.6 Ex. PW4/A is the statement given by deceased’s brother Inder Kohli. In said statement, he stated that about 10 months before, his parents had got his sister Pinki married to Rahul Verma according to Hindu Rites and Ceremonies and in her marriage, sufficient dowry was given. However, his sister used to tell them on phone that she was being taunted by her father in law, mother in law for bringing less dowry and they also used to quarrel with her saying that her parents had befooled them by giving meager dowry. As and when deceased complained about said behaviour of her in laws to her husband, he also used to beat her and also used to suspect her for having extra marital affairs with some other person. He further stated that about said ill treatment meted out to his sister, he had informed his parents. On 29.12.2011, he got an information from his father about death of FIR No.167/11 Page No.5/65 St. Vs. Rahul Verma etc. his sister Pinki @ Gauri. After said information, he immediately rushed to Mool Chand hospital.
2.7 Ex. PW 13/B is the statement of deceased’s mother given before SDM. As per her statement, her daughter used to telephonically inform them that her in laws and husband were not right people and used to get her assaulted through her husband and also used to ask her that if she wanted separate home, she should ask her parents for the same as they had given insufficient dowry.
2.8 Ex. PW13/A is the statement of deceased’s employer Anil Goyal given before SDM. In said statement, he stated that deceased was working in his office prior to her marriage and then left the job for sometime and thereafter, rejoined back in the year 2011. She used to sit in the office next to another girl Monu Bhatnagar at whose mobile she had sent a SMS informing that she had a fight with her husband and her husband had hit her as well and since she was not felling well, she would not come to office. He further stated that deceased had told him that her husband was of quite suspicious nature and therefore, she preferred a seat near other girl colleagues.
3. After completion of investigation, chargesheet was filed before the court of Ld. Magistrate on 27.03.2012 against husband, mother in law and father in law of deceased upon which cognizance was taken for the offences punishable u/s 498A/304B/34 IPC. After compliance of Section 207 Cr.P.C., Ld. Magistrate committed the case to the Court of Session on 10.04.2012 and same came to be assigned FIR No.167/11 Page No.6/65 St. Vs. Rahul Verma etc. to this court on 12.04.2012.
4. Vide order dated 31.05.2012, charges for offences punishable u/s 498A/304-B/34 IPCwere framed against all the three accused persons; in alternate to Section 304B IPC, charges for offence u/s 306/34 IPC were also framed against all the accused to which they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined 22 witnesses namely PW1 Sh. Sohan Lal, PW2 Smt. Chanderkala, PW3 Sh. Chiranji Lal, PW4 Sh. Inder Kohli, PW5 Dr. Karthik Krishna, PW6 Dr. Ritu Kathuria, PW7 Ms. Jaspreet Bhatnagar @ Monu, PW8 Sh. Anil Kumar Goyal, PW9 Inspector Naresh Kumar, PW10 Sh. Sandeep, PW11 ASI Devender Singh, PW12 Ct. Vilas Rao, PW13 Sh. Pravesh Ranjan Jha, PW14 Ct. Ajay Kumar, PW15 HC Arvind Kumar Dubey, PW16 Sh. Om Prakash Kohli, PW17 Ct. Surender Rawat, PW18 Ct. Onkar Mal, PW19 SI Amit Kumar, PW20 Dr. Virender Singh, PW21 Ct. Dev Raj and PW22 SI Mahipal Singh.
6. PW1/Sohan Lal is the father of deceased. As per his version, his daughter Pinki @ Gauri was married to accused Rahul Verma on 23.02.2011. Household goods like furniture, LCD, TV, washing machine, jewellery and clothes etc. were given in the marriage by PW1 to the best of his capacity. Before marriage, PW1 was told that accused Rahul was working in a Multi National Company and earning Rs.30-40 thousand per month. His daughter was working FIR No.167/11 Page No.7/65 St. Vs. Rahul Verma etc. as an accountant with M/s Goel Associates. Before marriage, it was agreed that his daughter would not work after marriage. But, just after about 2-3 months of marriage, Rahul Verma left his job. Thereafter, accused Rahul Verma and his parents started pressuring his daughter to look for a job as Rahul Verma was doing nothing. They also started harassing his daughter and under compelling circumstances, she again joined the same company where she was working earlier. But accused Rahul kept her ATM and he used to say that when he will get a job, he would allow her to leave her job. Accused Rahul Verma kept spending all her salary by using her ATM card.
6.1 PW1 further testified that his daughter used to tell them about all the said things as and when she used to visit them. In October, 2011 his daughter became pregnant. The accused however, got her pregnancy terminated without their information. Accused persons used to demand Rs.3 lacs and asked her to approach them (her parents) for money. Deceased was constantly harassed by the accused persons as they demanded Rs. 3 lacs on the pretext of buying a house in Noida. On 28th day of the month, accused took his daughter Pinki from her office directly stating that he had pacified his parents and they would not raise any demand of money from her. However, prior to that i.e. 2nd or 3rd deceased was going to her office from her parental home where she was left by the accused. Further that, after she was taken from her office by accused Rahul, they received a phone call from deceased Pinki informing that she was still being harassed for Rs.3 lacs upon which, PW1 assured her that as and FIR No.167/11 Page No.8/65 St. Vs. Rahul Verma etc. when he was able to arrange money, he would give the same to them.
6.2 PW1 further deposed that before he could meet their demand, his (PW1’s) brother received a phone call from Saurabh Verma, the brother of accused Rahul for asking them to reach hospital saying that Pinki had done something to herself. PW1 further deposed that all four accused persons had murdered his daughter. PW1 further testified that his statement was recorded by SDM vide Ex. PW1/A bearing his signature at point A and he had also handed over the list of dowry articles Ex. PW1/B given in the marriage to the police. PW1 had also identified the dead body of his daughter in the hospital vide his statement Ex. PW1/C and received the same vide memo Ex. PW1/D.
7. PW2/Smt. Chanderkala is the mother of deceased. As per her version, her daughter Gauri @ Pinki was married to accused Rahul (correctly identified). Before the marriage, they were informed that accused Rahul was employed with a company in Bangalore and was earning Rs.20,000 to Rs.25,000/- per month. PW2 further deposed that as their daughter i.e. deceased was also employed in Green Park area, they considered it a good proposal as both were employed. Thereafter, marriage was performed on 23.02.2011. In the marriage, they gave all the household articles including jewellery and other things like bed, T.V., almirah, fridge, washing machine and clothes etc. After marriage, her daughter informed her that accused Rahul was not working anywhere and used to stay at home, on which PW2 consoled FIR No.167/11 Page No.9/65 St. Vs. Rahul Verma etc. her daughter not to worry saying that Rahul would soon get a job. Further as per examination in chief of PW2, all accused persons used to harass her daughter on account of demand for money. Before the marriage, accused had asked their daughter to leave the job but after marriage accused Rahul insisted deceased to go back to her job and accordingly, her daughter again started working and earning Rs.15,000/- per month. But, she was never allowed to retain any money out of her salary by the accused persons as she was given only a meager amount for her expenses by her husband. Further that, her daughter used to also complain that accused did not allow her to have sufficient balance in her mobile phone and for said reason, she was not able to even make calls to them. PW2 further testified that when her daughter asked accused Rahul to live separately, he (Rahul) asked her (deceased) to bring Rs.3 lacs to take a separate home. PW2 told her daughter to convey to Rahul their inability to fulfill his demand as they had spent a lot in the marriage. Thereafter, accused Rahul told her daughter that she should ask them (her parents) to give them one room in their (deceased’s parents) two rooms house at Wazir Nagar, but since said house was already on rent, deceased was accordingly informed by PW2. PW2 further deposed that thereafter, at the instance of his parents, accused Rahul left Pinki at their home as they (deceased’s parents) did not fulfill their demand of Rs.3 lacs.
7.1 PW2 further testified that in the month of October when they visited Haridwar, accused Rahul and her daughter Pinki also accompanied them. After coming back from Haridwar, her daughter fell sick as she was pregnant and in that condition, accused Rahul left FIR No.167/11 Page No.10/65 St. Vs. Rahul Verma etc. her at their house. Upon being asked as to why she (deceased) was left at their house, deceased told her (PW2) that despite her having fallen sick, her mother in law used to comment that who would do the household work therefore, accused Rahul left her at their house for 8- 10 days. Even from parental home, she (deceased) continued her job and her husband i.e. accused Rahul used to pick and drop her. On 20th November, accused Rahul took back the deceased by stating that she was to be taken to the hospital for conducting some tests and returned by 2:00 pm. Further that, deceased Pinki told her that she was taken to some clinic at Lajpat Nagar by all the accused where she was given some injection and thereafter, she became unconscious. Thereafter, she was left at their house and later she (deceased) came to know that her child got aborted while she was unconscious. Thereafter, she (deceased) stayed at their house for about eight days (wrongly written as eight months). On 28th November, deceased was taken to her matrimonial home by her husband directly from her office. By making a call, deceased Pinki told her (PW2) that she was being taken by accused from her office on the assurance that his (accused Rahul’s) parents would not demand money. However, Pinki told her that her mother in law again commented as to why did accused Rahul bring her (deceased) back to her matrimonial home. PW2 further testified that thereafter, Pinki never came to their home and finally, they came to know about death of their daughter through her brother in law who had received said information from Gian Chand, pursuant to which, they reached Mool Chand hospital where they found their daughter lying dead.
FIR No.167/11 Page No.11/65 St. Vs. Rahul Verma etc.
8. PW3/Sh. Chiranji Lal is the uncle of deceased. He in his examination in chief, deposed that deceased Pinki was his niece i.e. daughter of his younger brother. She got married to accused Rahul Verma in the month of February, 2011. After marriage, deceased Pinki started living in her matrimonial home. After sometime, some differences arose between accused persons and Pinki. Pinki used to tell that her mother in law, father in law and husband used to harass her as they were not happy with the marriage as it was not as per the expected standards of accused. PW3 further testified that in order to resolve the dispute, he had once called accused Rahul and deceased Pinki but husband of Pinki did not turn up and stayed at deceased’s parental home while Pinki visited his house. Accused Rahul told Pinki not to insist him to visit PW3 otherwise, he would leave even Pinki’s father’s house. Thereafter, PW3 also met father of Rahul and asked him to resolve the matter, but he also did not pay any heed to his (PW3’s) request. Thereafter, accused persons raised demand of a house and a cash of Rs. 3 lacs for the purpose of registration of house and for this reason, the differences kept increasing. Accused persons had also demanded the flat belonging to his (PW3’s) brother but, his brother neither gave the flat nor any money to the accused and differences kept on increasing to the extent that finally, Pinki was murdered. As per PW3, he had received a call from accused Gyan Chand who informed him that Pinki had done something to herself and asked them to immediately reach his house. While PW3 was leaving for their house, he received another call from Saurabh (brother in law of deceased) saying that they were taking Pinki to Mool Chand hospital and he (PW3) should reach there. Thereafter, FIR No.167/11 Page No.12/65 St. Vs. Rahul Verma etc. PW3 alongwith his wife and deceased’s mother reached Mool Chand hospital where Pinki was found dead. His statement Ex. PW3/A was recorded by SDM.
9. PW4/Sh. Inder Koli is the brother of deceased. As per his version, his sister Pinki got married with accused Rahul Verma. After marriage, he was telephonically informed by his sister that her father in law, mother in law and brother in law had been harassing her on account of dowry. She also told him that whenever she complained about said conduct of her in laws to her husband, then even her husband scolded her and did not believe her. PW4 further deposed that after deceased’s marriage, he used to visit his sister on every Sunday and used to take some eatables for her. On said visits, accused persons used to complain about insufficiency of dowry. Further that, even when his sister Pinki visited their house on the occasion of Rakshabandhan festival, she disclosed about displeasure of accused on account of insufficiency of dowry. PW4 further testified that his statement Ex.PW4/A was recorded by SDM after the death of his sister.
10. PW5/Dr. Karthik Krishna proved postmortem report as Ex. PW5/A. As per his version, on 30.12.2011, while he was posted at mortuary, AIIMS, he conducted postmortem on the body of deceased Gauri Verma @ Pinki, aged 26 years. On examination, bluish decolouration of lips oral mucosa and nails were present, ligature mark was present. PW5 further deposed that after postmortem examination, it was opined that the cause of death was asphyxia due FIR No.167/11 Page No.13/65 St. Vs. Rahul Verma etc. to ante-mortem hanging. Time since death was about one day.
11. PW6/Dr. Ritu Kathuria proved the MLC of deceased as Ex. PW6/A. As per her deposition, on 29.12.2011 while she was posted at Mool Chand hospital, one Gauri Verma w/o Rahul Verma, aged about 26 years was brought to the emergency. Upon examination, pulse was not recorded. There was no respiration, ECG showed flat line. After detailed examination, she was declared brought dead.
12. PW7/Ms. Jaspreet Bhatnagar @ Monu is the colleague of deceased. She deposed that she had been working with M/s Anil K. Goel & Associates and deceased Pinki also used to work there and she was having good terms with her. As per her version, on 29.12.2011, she received a SMS from Pinki on her mobile phone no. 9560026222 stating that “Mere husband ke sath mera Jhagra ho gaya hai aur mujhe maara bhi. Meri tabiyat theek nahi, aaj mai nahi aa paugi sir ko bata dena”. PW7 forwarded the same to Mr. Anil Goel. Later on, Anil Goel received the information that Pinki had died and he also visited PS Defence Colony in that regard. PW7 further deposed that later on, she told the police about SMS and a print out of the same i.e. Ex. PW7/A containing correct contents of the same received by her from Pinki, was taken out on which her signature were taken at point A and she also made her endorsement in her own handwriting on the same from point A2 to A2.
13. PW8/Anil Kumar Goyal is the employer of deceased. As per his version, deceased Pinki used to work in his office. On FIR No.167/11 Page No.14/65 St. Vs. Rahul Verma etc. 20.12.2011, a SMS was received by his (PW8’s) another employee Ms. Jaspreet Bhatnagar from Pinki for informing that she (deceased) would not be coming to the office as she had a fight with her husband and she was also assaulted by her husband. PW8 further deposed that Ms. Jaspreet Bhatnagar forwarded said message to him in the afternoon. Later, when they came to know about deceased’s death, PW8 visited PS Defence Colony and informed about said SMS, a print out of which Ex. PW7/A bearing his signatures at point B and endorsement on point B to B was also taken.
14. PW9/Inspector Naresh Kumar deposed that on 29.12.2011, he was posted as Incharge Mobile Crime Team, South-East. Upon receipt of an information from South District, Control Room, he alongwith HC Bhagwan Singh (Finger Print Proficient) and Ct. Dev Raj (Photographer) reached at the spot i.e. H. No.389, Type-II, Sector-II, Sadiq Nagar, New Delhi where IO/ASI Devender met them. At the spot, one half piece of chunni (dupata) was found tied with the ceiling fan while the other half portion of it was lying on the bed. PW9 further deposed that deceased had already been removed to the hospital. PW9 inspected the scene of crime and Ct. Dev Raj took the photographs of scene of crime from different angles and he (PW9) prepared his crime team report Ex. PW9/A bearing his signatures at point A.
15. PW10/Sh. Sandeep deposes that on 29.12.2011, at about 1:30 pm when he was present at his home at H. No.550, Sector-2, Sadiq Nagar, he heard some noise. Saurabh @ Ashu (brother of FIR No.167/11 Page No.15/65 St. Vs. Rahul Verma etc. accused Rahul) came to his house calling him (PW10) by his name. PW10 also heard some screams of Pinki which was coming from the back side of his house where accused Rahul used to reside. When he reached to his kitchen situated on the backside of his house and looked toward Rahul’s house, he saw him (accused Rahul) breaking the window while uttering Pinki-PInki. PW10 came back to his room, worn clothes and went down stairs. Thereafter, he reached to the house of accused Rahul where he found Pinki was on the bed and all family members were crying. Further as per PW10, he also noticed a Chunni on the ceiling fan. He thought that something wrong had happened and medical help was required. Thereafter, he alongwith Saurabh left to bring some doctor for medical aid. On the way, upon asking of Saurabh, he dialed 100 number and informed police that it was an emergency and ambulance was required as it appeared to be suicidal attempt or something like that. Thereafter, they reached Shyam Nursing Home but that doctor refused to accompany them. Thereafter, they again reached back to the house of Saurabh and decided to call a TSR. PW10 left for the TSR stand and brought an auto but by that time, Rahul had already taken his wife to the hospital in a car.
16. PW 11/ASI Devender Singh is the first IO, who first reached the spot. As per his version, on 29.12.2011, when he was posted at PS Defence Colony on emergency duty, at about 1.44pm, on receipt of copy of DD No.12A Ex.PW11/A, he alongwith Ct. Bilas Rao reached at House No.389, Sector-2, Type-II, Sadiq Nagar, Defence Colony. By that time Pinki @ Gauri was taken to unknown hospital by FIR No.167/11 Page No.16/65 St. Vs. Rahul Verma etc. her family members and he was informed by Duty officer on telephone that Pinki @ Gauri had been taken to Moolchand hospital and she was admitted there vide MLC No.530037 and was declared as brought dead. He alongwith Ct. Bilas Rao reached at Mool Chand Hospital where dead body of deceased Pinki @ Gauri was lying. He collected the MLC of deceased and informed SHO PS Defence Colony as well as area SDM about the death of deceased. Subsequently, both SDM and SHO reached at Moolchand hospital. Area SDM inspected the dead body. SDM directed him to preserve the dead body at AIIMS for postmortem. He sent the dead body through Ct. Bilas Rao vide an application Ex.PW11/B to request for preserving the dead body. He alongwith SHO and area SDM reached at the spot i.e. house no.389, Sector-2, Type II, Sadiq Nagar, Defence Colony where SHO and SDM inspected the spot. He noticed that some portion of Chunni was tied with the fan and remaining portion of the Chunni was lying on bed. One scissor was also found lying on the bed and one pair of plastic gloves were lying at the spot. Both the pieces of chunni, gloves and scissor were sealed in a pullanda with the seal of DS and taken into police possession vide seizure memo Ex.PW11/C bearing signature of PW11 at point A. Said articles were seized in the presence of SDM. SDM directed him to bring the relatives/parents of deceased Pinki @ Gauri to his office. He accordingly took Sohan Lal (father of deceased), Inder Kohli (brother of deceased) and elder brother of father of Pinki @ Gauri and other relatives of deceased to the office of SDM where SDM recorded their statements and directed SHO PS Defence Colony to investigate the case and to take appropriate action as per the law. As per the directions of SDM, he prepared rukka FIR No.167/11 Page No.17/65 St. Vs. Rahul Verma etc. Ex.PW11/D, bearing his signature at point A and got the case registered. When they reached at the spot from Moolchand hospital, SHO called the Crime team. Crime team inspected the spot and took the photographs. After registration of FIR, investigation of the case was handed over to SI Mahipal.
16.1 PW11 further deposed that he had also deposited the pullanda in the malkhana and as per the directions of SDM, he moved an application Ex.PW11/E on 30.12.2011 to conduct the postmortem on the dead body of deceased. After postmortem, dead body was handed over to the father of deceased. Inder Kohli, brother of deceased had identified the dead body in the mortuary. PW11 correctly identified the scissor as Ex.P1, pair of gloves as Ex.P2 and pieces of chunni as Ex.P3 saying that same were seized from the spot.
16.2 PW11 was put certain court questions regarding condition of dead body when he saw it for the first time, to which he gave the answer that there were ligature mark on the neck of the dead body, eyes were closed but he did not remember the exact mark on the neck of the body. To a court question regarding the height of the room and the height of the fan installed in the room where dead body was found, PW11 replied that the height of the room was approximately 10 feet, the space between the fan and floor of the room was about 8.5feet and the object/furniture which he found just below the fan was a bed of 1.5 feet height.
17. PW12/Ct. Vilas Rao has deposed that on 29.12.2011, he FIR No.167/11 Page No.18/65 St. Vs. Rahul Verma etc. was posted as Constable in PS Defence Colony. On that day, he was on emergency duty from 8am to 8pm with ASI Devender Singh. Upon receipt of copy of DD No.12A, he alongwith ASI Devender Singh reached at Q.No.389, Sector-2, Type-2, Sadiq Nagar and came to know that one lady, who had attempted to commit suicide had been taken to Moolchand Hospital by her family members. He alongwith ASI Devender Singh reached at Moolchand hospital where the lady was already declared brought dead. They took the dead body to AIIMS and got it preserved. From the spot, one portion of chunni which was tied with the fan and other portion which was lying on the bed, one scissor and one pair of plastic gloves which were lying in the room, were sealed in a pullanda with the seal of DS and taken into police possession vide seizure memo Ex.PW11/C. PW12 identified said scissor, pair of gloves and two pieces of chunni as Ex.P1, Ex.P2 and Ex.P3 respectively and deposed that those were the same articles which had been seized from the spot. On being asked a court question as to who had made the 100 number call i.e. whether it was made by hospital authorities or in laws of the deceased, the witness replied that he did not know. PW12 further deposed that the door of the room where the suicide was committed was open. Bedsheet was not on the bed, one of the window of the room was broken towards outside. He further deposed that he could not say with certainty as to what was the length of the chunni before it was torn.
18. PW13/ Shri Pravesh Ranjan Jha is the SDM who conducted inquest proceedings. He deposed that on 29.12.2011, upon receipt of an information from PS Defence Colony regarding unnatural death of FIR No.167/11 Page No.19/65 St. Vs. Rahul Verma etc. a lady, who was taken to Moolchand hospital, he reached at Moolchand hospital, where Doctor on duty told him that the lady namely Pinki was declared brought dead. He examined the dead body and found ligature mark and directed police officer for preservation of dead body. Thereafter, he alongwith police officials reached at the place of occurrence i.e. flat no.389, Sector-2, Type-II, Sadiq Nagar. There were two rooms in the front side of the house, one room was behind those rooms adjacent to bathroom and kitchen. On the backside room double bed was lying. Half portion of the chunni was tied on the ceiling fan just above the double bed. Half portion of the chunni was lying on the double bed and one scissor was also lying there. One pair of gloves were also lying on the bed. As per his directions, police seized said items from the spot vide memo Ex.PW11/C. Thereafter, he came to his office and directed police officials to produce the relatives of the deceased in his office for recording their statements. On 29.12.2011, at about 8.30pm, Sh. Sohan Lal, father of the deceased came to his office alongwith his wife, son and elder brother Shri Chiranji Lal. He recorded the statement of Shri Sohan Lal as Ex.PW1/A, Shri Chiranji Lal as Ex.PW3/A, Inder Kohli as Ex.PW4/A, Anil Kumar Goel as Ex.PW13/A and that of Smt. Chander Kala as Ex.PW13/B. In the hospital, he conducted proceedings u/s 176 Cr.PC Ex.PW13/C and moved an application Ex.PW13/D for conducting the postmortem. On 29.12.2011, he directed SHO PS Defence Colony to investigate the matter and for appropriate action vide his endorsement Ex.PW13/E. He also sent the recorded statements alongwith the letter Ex.PW13/E to the SHO PS Defence Colony. Further that, on 05.01.2012, after receiving the FIR No.167/11 Page No.20/65 St. Vs. Rahul Verma etc. postmortem report, he sent the same to SHO PS Defence Colony vide his letter Ex.PW13/F.
19. PW14/Ct. Ajay Kumar had joined the investigation of present case on 30.12.2011 with SI Mahipal. As per his version, he with SI Mahipal had gone to the House No.389, Type II, Sector-II, Sadiq Nagar, New Delhi where IO made inquiries from the neighbourhood and recorded statement of Sandeep and Deshraj. IO also prepared site plan, interrogated accused Rahul Verma and arrested him vide arrest memo Ex.PW14/A. Rahul’s personal search was conducted vide memo Ex.PW14/B. Accused Rahul Verma also produced two mobile phones, one of make Samsung and other phone was of Nokia. Mobile phones were seized vide memo Ex.PW14/C and same were sealed in a pullanda with the seal of DS.
19.1 PW14 also identified two mobile phones make Samsung and Nokia as Ex.P1 & P2 respectively. He further deposed that IO had interrogated accused Rahul Verma and also recorded his statement vide Ex.PW14/D.
20. PW15/HC Arvind Kumar Dubey has deposed that on 29.12.2011, he was working as Duty Officer from 04.00 pm to 12.00 mid night. On that day, at about 11.35 pm, ASI Devender Singh handed over him a Rukka in Duty Officer Room. He recorded FIR of this case bearing No. 167/11 under Section 498A/304B/34 IPC. He proved on record the computer copy of FIR as Ex.PW15/A and his endorsement on rukka as ExPW15/B.
FIR No.167/11 Page No.21/65 St. Vs. Rahul Verma etc.
21. PW-16/ Sh. Om Prakash Kohli was the mediator in the marriage of deceased. As per his version, the marriage was solemnized about 4 years ago. PW16 was knowing both Sohan Lal as well as accused Gyan Chand. At the time of marriage, there was no dowry demand though Sohan Lal had given house hold articles like TV, fridge, washing machine in the marriage of deceased. He further deposed that at the time of alleged incident i.e. at the time of death of the daughter of complainant Sohan Lal, he had gone to Maharashtra. When he came back from Maharashtra, he came to know that daughter of Sohan Lal had committed suicide. After the incident, he along with police official and Sohan Lal and his wife and son had gone to the house of accused person at Sadiq Nagar. From the house of Gyan Chand, some jewellery items containing gold set and other jewellery items were seized by the police in his presence. The articles were taken into possession vide memo Ex.16/A. Police also seized house hold articles containing gas cylinder, utensils, furniture, washing machine, fridge, almirah, motorcycle etc. These items were also seized by the police vide memo Ex.PW16/B. PW16 identified his signatures on all the memos at point A.
22. PW-17/Ct. Surender Rawat has deposed that on 17.2.12, he had been posted as Constable in PS Defence Colony. On that day, as per the direction of IO, he collected two sealed pullandas containing two cell phones from the MHC(M) and deposited the same in the office of FSL vide RC no. 5/21/12. Receipt of depositing the case property was handed over to MHC(M). So long as the case property FIR No.167/11 Page No.22/65 St. Vs. Rahul Verma etc. remained in his possession, it was not tampered with in any manner.
23. PW18/ Ct. Onkar Mal has deposed that on 19.12.2014, on the direction of MHCM, he had brought result of exhibits of present case from FSL Rohini and handed over the same to MHCM. The exhibits and result which he had brought from FSL Rohini were not tampered till they remained in his possession.
24. PW19/SI Amit Kumar had only filed the FSL report in respect of exhibits collected in this case, by way of supplementary chargesheet, hence, his testimony is not very relevant.
25. PW-20 is Dr. Virender Singh, the Assistant Director (Documents) at FSL, Rohini. As per his version, on 17.02.2012, one sealed parcel duly sealed with the seal of DS was received in his office from PS Defence Colony and was marked to him for inspection. The said parcel was containing :
1. One Nokia mobile phone model no. 7210C having IMEI No. 351962/03/603533/1 having SIM card of Vodaphone bearing no. 00406304122H1. SIM card was marked as SC1 and mobile phone was marked as MP1.
2. One mobile phone make Samsung Model No. C5212 (Dual SIM) having IMEI No. 353350/03/003235/5 and IMEI No. 353351/03/003235/3. The phone was marked as MP-2. Two SIM cards, one was of Idea and other wasof Vodafone bearing nos. 89910453010716880054 and 60010513815H3. Both these SIMs were marked as SC-2 and SC-3. This phone was also containing one FIR No.167/11 Page No.23/65 St. Vs. Rahul Verma etc. memory card of San Disc of 1 GB capacity. It was marked MC-1.
25.1 PW20 examined all the aforesaid exhibits. After examination, he found mark MP-1 was found containing data retrieved on 10 sheets which were marked by him as P-1 to P-10. These sheets are Ex. PW-20/P-1 to P-10. All these sheets bear his seal at point A. On examination of Ex. SC-1 to SC-3, it was found containing data which was retrieved on sheets marked by him as P-11 to P-23. Same is Ex. PW-20/P-11 to P-23. All these sheets bear his seal at point A.
25.2 On examination of Ex. Mark MC-1, it was found containing video’s which were converted by him in DVD and marked the said DVD as DVD-1 and the data recorded in the said DVD was named “Data of MC-1”. His detailed report in this regard is Ex. PW-20/A which bears his signature at point A. After examination, aforesaid exhibits were sealed with the seal of DOC FSL. Witness also identified the DVD Ex.PW20/B as the same which was prepared by him containing data of MC-1. It also bears signatures of witness on the DVD.
26. PW-21, Ct. Dev Raj is the photographer from Mobile Crime Team. He testified in his examination in chief that on 29.12.2011, he alongwith SI Naresh Kumar, Incharge Crime Team and HC Bhagwan Singh, Finger Prints Proficient had reached at H.No. 389, Sector-II, Sadiq Nagar. On reaching there, ASI Devender alongwith other police staff met them. Incharge Crime Team inspected the place of occurrence. On the directions of IO, he had taken nine photographs of FIR No.167/11 Page No.24/65 St. Vs. Rahul Verma etc. the place of occurrence. Negatives of those photographs were handed over to the IO and prints were got developed by the IO himself. Witness identified nine prints of photographs, lying on the record, which were taken by him as Ex.PW21/A-1 to Ex.PW21/A-9 and negatives as Ex.PW21/B-1 to Ex.PW21/B-9. He has further deposed that he had given the negatives to the IO on 09.01.2012 and his statement to this effect was recorded by the IO. They remained at the spot from 3.00 PM to 3.30 PM.
27. PW22/SI Mahipal Singh is the second IO of the case to whom the investigation was marked on 29.12.2011 after registration of FIR. During investigation, he made inquiries from the family members of the deceased Pinki @ Gauri. On 30.12.2011, at the instance of ASI Devender, he prepared site plan Ex.PW22/A. He examined Sandeep @ Sandy, who had informed the police and PW Deshraj, who took the deceased to the hospital and recorded their statements. Rahul, husband of the deceased was present in the house and the facts disclosed by the accused were recorded as interrogation report Ex.PW14/D. Accused Rahul was already arrested vide arrest memo and his personal search memo Ex.PW14/B was also prepared. Two mobile phones were also recovered from accused Rahul out of which, one was of Samsung and another of Nokia. Accused Rahul further told that mobile phone make Samsung belonged to him and mobile phone make Nokia was usually used by his wife. On checking, both said the mobile phones were found containing the messages. Both the mobile phones were sealed in a parcel with the seal of DS. Witness further deposed that since he was newly posted in that police FIR No.167/11 Page No.25/65 St. Vs. Rahul Verma etc. station, therefore, he used the seal of ASI Devender and took said phones into police possession vide seizure memo Ex.PW14/C. Said parcel of phones was deposited in malkhana and later on sent to FSL for analysis. PW22 also collected the postmortem report Ex.PW5/A. During investigation, he had also collected the call details of aforesaid mobile phones recovered from accused Rahul. He also arrested other two accused persons Gyan Chand and Smt. Madhu vide their arrest memos Ex.PW22/B & Ex.PW22/C respectively.
27.1 During investigation, it was revealed to PW22 that just prior to the death of deceased, she had sent a message through her mobile phone to her friend Jaspreet @ Monu stating that she had a quarrel with her husband on previous day and she was also beaten up by her husband therefore, she could not come to office. During investigation, one list of dowry articles Ex.PW1/B was given by the father of deceased. Istridhan articles were also recovered and taken into police possession vide seizure memo Ex.PW16/A and Ex.PW16/B. During investigation, IO/PW22 also recorded statements of witnesses, who had joined investigation with him and on completion of investigation, he filed the chargesheet in the court through SHO.
Statement of accused u/s 313 Cr.P.C.
28. After completion of investigation, statements u/s 313 Cr.P.C. of all accused persons were separately recorded wherein all the incriminating evidence which had come on record during trial was put to the accused persons but the same was denied by them as wrong and incorrect. They pleaded their innocence by stating that FIR No.167/11 Page No.26/65 St. Vs. Rahul Verma etc. they had never demanded anything from the deceased or her family members nor they ever harassed the deceased physically or mentally. They further pleaded that deceased, on the instigation of her family members, wanted to settle a nuclear family for which accused Rahul refused which was the prime reason of dispute between her (deceased) and accused Rahul. Accused Rahul also examined himself as DW1 in defence.
29. DW1/Rahul Verma is the husband of deceased who deposed that his marriage was solemnized with the deceased on dated 23.02.2011. The marriage was love cum arrange marriage. His wife was engaged to one Anil Kohli by her parents prior to his marriage with DW1, but that engagement was cancelled by her parents as Pinki was not happy and not ready for said marriage with Anil Kohli. DW1 further deposed that thereafter, their parents met with each other through mediator Shri Om Prakash Koli, who was known to both the families. His parents proposed for a simple marriage at a temple but that proposal was declined by deceased’s parents. After their marriage, he and Pinki went for honeymoon at Massourie and they were happy. DW1 further deposed that he and his family had also attended the retirement party of the uncle (Tauji) of his wife Pinki. They also attended the marriage of Vandana, cousin sister of his wife Pinki. Further that, after 2-3 months, Pinki raised a demand for nuclear family but he (DW1) took the matter on a lighter note. After that, Pinki requested him that she wanted to pursue higher education and purusant to her request, DW1 got her admitted in MBA FIR No.167/11 Page No.27/65 St. Vs. Rahul Verma etc. course. Fees receipts of the said MBA course have been placed on record as Ex.DW1/1 (running into two pages). Copy of the I card of the deceased of MBA course issued from Sikkim Manipal University is Ex.DW1/2. As per DW1, deceased had also prepared for the entrance examination for various government services and he used to take her to the centres for the said examinations. Copy of the Admit cards of the deceased is Mark DW1/3 (running into three pages). DW1 further deposed that he and Pinki had also attended the birthday function of her brother i.e. Inder Koli at her parental house. In August 2011, he and his family members also celebrated deceased’s birthday at their home and same was attended by deceased’s brother Inder Koli and her cousin sister. DW1 further deposed that Pinki had been constantly asking him (DW1) for a nuclear family and even her mother also asked him for separate accommodation for deceased saying that her daughter needs privacy. DW1 however, tried to convince deceased by saying that his mother was suffering from arthritis, therefore, he could not leave his mother in such condition but Pinki was adamant on her demand. DW1 further testified that he alongwith Pinki and her family members had also gone for a religious trip to Haridwar. Even at Haridwar deceased’s parents pressurized him for a nuclear family. After returning from Haridwar, Pinki told him that her mother was searching a rented accommodation for them (DW1 and deceased) near her house but he opposed her move. Before that Pinki also expressed her desire that she wanted to join back her job for which he and his family members had given their assent.
29.1 DW1 further deposed that in November 2011, parents of FIR No.167/11 Page No.28/65 St. Vs. Rahul Verma etc.
Pinki had a katha (religious ceremony) at their home which was duly attended by him as well as his family members and they also used to visit at the parental house of Pinki on festivals. Further that on 28.12.2011, Pinki entered into an argument with him for living separately as a nuclear family and after that she went for her office. After returning from her office, in the evening Pinki told him that her mother had already searched a rented accommodation for them near her parental house and from January 2012, he and Pinki had to shift to said rented accommodation but he refused for the same upon which deceased continued to argue with him the whole night. Even on the next morning, Pinki repeated her demand for nuclear family. Pinki also told him that she would not attend her office for that day. After that, on 29.12.2011, at about 11-11.30 am, DW1 left his home to purchase some plumbing material at Kotla Mubarakpur. He returned back to his home at about 1-1.30 pm. After reaching his home, he knocked the door of his bedroom for about 15 minutes but, Pinki did not respond. When DW1 inquired the reason from his family members, they told him that Pinki had not opened the door of her bedroom ever since he left the house. After that, he went to the backyard of his house and peeped inside his room from the window, he saw the deceased hanging from the ceiling fan of the room. After hearing hue and cry raised by DW1, his neighbour namely Sandeep also came there. However, before Sandeep reached there, he (DW1) had broken the window with the help of some iron object. Thereafter, DW1 took down the dead body of his wife from the ceiling fan and unlocked the door which was bolted from inside. With the help of one Deshraj, who was his acquaintance, DW1 took his wife to hospital. During investigation, FIR No.167/11 Page No.29/65 St. Vs. Rahul Verma etc. while he and his father were in police station, IO had taken his signatures on certain blank papers.
30. Prosecution witnesses as well defence witness were duly cross-examined by Ld. defence counsel and Ld. Prosecutor respectively and relevant part of their cross-examination shall be discussed in later part of this judgment.
31. I have given my thoughtful consideration to the rival contentions raised from both the sides and also carefully perused the entire record.
32. Ld. Defence Counsel Sh. Pradeep Nawani 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 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. 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 even the date or occasion when the alleged demand of Rs.3 lacs was made, FIR No.167/11 Page No.30/65 St. Vs. Rahul Verma etc. has not been disclosed by the family members of deceased. 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.
32.1 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
33. Per contra, Ld. Addl. PP Mr. Rakesh Mehta rebutted the arguments by submitting that admittedly, the deceased had died otherwise than normal circumstances within 7 years of her marriage with accused Rahul and by clinching evidence of parents, brother and one colleague of the deceased, prosecution has sufficiently proved on record that soon before her death, 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 FIR No.167/11 Page No.31/65 St. Vs. Rahul Verma etc. for which was framed in alternate are clearly drawn in favour of the prosecution and the 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 colleague soon before her death and in view of the fact that said conversation is concering 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. He further argued that the SMS which the deceased sent to her colleague i.e. PW7 Jaspreet Kaur, for informing her that she had a quarrel with her husband who also assaulted her is clear proof of the fact that soon before death deceased was subjected to cruelty, and said SMS has been duly proved on record by leading cogent evidence.
34. 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/34 IPC, Section 304- B/34 IPCand for Section 306/34 IPC in alternate.
34.1 Section 498A IPC:-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 FIR No.167/11 Page No.32/65 St. Vs. Rahul Verma etc. 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 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.
34.2 304B IPC. 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.
34.3 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 FIR No.167/11 Page No.33/65 St. Vs. Rahul Verma etc. 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.”
34.4 113-B. 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 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).
34.5 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.”
34.6 113-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).] FIR No.167/11 Page No.34/65 St. Vs. Rahul Verma etc. 34.7 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 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.
35. 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 Sohan Lal (father of deceased), Chanderkala ( mother of deceased), Chiranji Lal (under of deceased), Inder Kohli (brother of deceased) who have been examined as PW1 to PW4 respectively.
36. Before separately discussing the testimony of said material witnesses, I may mention here that it is an admitted position FIR No.167/11 Page No.35/65 St. Vs. Rahul Verma etc. of prosecution case that neither the alleged demand of money was ever raised by the accused persons directly from any of the family members of deceased nor deceased was ever subjected to any harassment, cruelty or ill treatment in their presence. As per prosecution case, about alleged demand of money and harassment, deceased had informed her parents. In view of Section 32 (1) of Indian Evidence Act, such statement made by the deceased concerning to any circumstances of transaction resulting in his/her death is admissible under law as dying declaration but, due caution is required to be taken before relying upon said testimony as the court has to first satisfy that such testimony qualifies the essential requirements of said provision for making it admissible for the purpose of evidence.
37. PW1 Sohan Lal, father of deceased in his examination in chief says that deceased was constantly harassed for Rs. 3 lacs as her in laws used to demand Rs. 3 lacs for buying a house at Noida. As per PW1, in October, 2011, deceased became pregnant. However, accused started demanding Rs. 3 lacs and used to ask deceased to approach her parents to arrange money. PW1 made only a general statement that accused used to harass deceased for Rs. 3 lacs without disclosing as to how and in what matter deceased was allegedly subjected to harassment by her husband or in laws. Though, PW1 alleged that pregnancy of deceased was terminated by accused without their information but he nowhere alleged that said medical termination of pregnancy was without deceased’s consent or that it was against her wishes. As per PW1, deceased Pinki was though FIR No.167/11 Page No.36/65 St. Vs. Rahul Verma etc. residing with her parents at her parental home since 2nd or 3rd of month but on 28th, her husband took her daughter directly from her office on the assurance that he pad pacified his parents and they would not raise any demand for money but thereafter, they (deceased’s parents) had received a phone call from deceased who told them that she had been still harassed for Rs.3 lacs. But again, nothing has been disclosed by PW1 as to how the accused used to allegedly harass his daughter and on what date, time or occasion they received said alleged call from deceased.
38. From the perusal of cross examination of PW1, it is clear that after Roka ceremony with accused Rahul in May, 2009, parents of deceased got the arrangement of deceased fixed with some other person but again, in October, 2010, they initiated the talks of marriage of deceased with accused Rahul because after Roka ceremony, accused Rahul and deceased came closer and started loving each other. However, PW1 categorically denied the suggestion that it was under deceased’s pressure, they had to get the deceased married with accused Rahul. Here, I may mention that PW2, who is the mother of deceased, in her cross examination however, gave a contrary version as she admitted that second Roka ceremony of deceased with accused Rahul was performed under the pressure of deceased.
39. PW1 however, admitted that accused Rahul had got deceased admitted for MBA. He also admitted to have invited accused persons for katha ceremony at their residence i.e. at the parental FIR No.167/11 Page No.37/65 St. Vs. Rahul Verma etc. home of deceased. PW1 also admitted to have not disclosed in his statement recorded before SDM (Ex. PW1/A) or in his statement recorded u/s 161 Cr.P.C., regarding any demand of Rs.3 lacs or regarding medical termination of pregnancy of deceased or regarding alleged use of ATM card of deceased by accused Rahul but, he denied that he had introduced said facts in his examination in chief as an after though under legal advise.
40. Though, as per prosecution case, just after 2-3 months of deceased’s marriage, accused started harassing her, but the version of PW1 however, shows that accused family was having cordial relations with deceased’s family, as they used to frequently visit each other on different occasions like Holi on 19.03.2011, at birthday of deceased’s brother Inder on 02.06.2011 and on the retirement party of deceased’s uncle i.e. PW3 on 31.03.2011. Deceased with her husband i.e. accused Rahul had accompanied the entire family of PW1 for a religious tour in Haridwar from 28.10.2011 to 31.10.2011. Various photographs of said occasions were placed on record as Ex. PW1/D1/D2 & PW2/D3 which were duly admitted by PW1 as well as his wife PW2 when they were confronted with the same in their cross- examination.
41. From the cross-examination of PW1, it is also clear that ancestral house of accused persons was at 2-3 minutes walking distance from the house of sister of PW1 namely Maya, but still deceased had never complained to her Bua regarding her alleged harassment at the hands of her in laws despite the fact that FIR No.167/11 Page No.38/65 St. Vs. Rahul Verma etc. deceased’s Bua Maya used to occasionally visit the matrimonial house of deceased.
42. In his cross-examination, PW1 also admitted the fact that mediator Om Prakash, PW1 and his (PW1’s) brother Chiranjee Lal (PW3) were members of Kohli Cooperative Society for last 15-20 years and even the distance between deceased’s parental house and that of her matrimonial house was also just 2 km. In said circumstances, it is highly improbable that deceased’s parents were kept in dark about accused Rahul’s vocation or income as alleged.
43. Before proceeding to consider testimony of PW2, I may mention here that PW1 in his statement Ex. PW1/A recorded before SDM on the very same date of incident which forms the basis of present FIR, has though alleged that her daughter was harassed and assaulted on account of dowry but, there is no mention of any alleged demand of money in the entire statement. In Ex. PW1/A, he has simply stated that the accused were not happy with the dowry given in the marriage and just after a month, they started harassing her and on account of said behaviour of accused persons, the deceased had come to her parental house where she stayed for a month and she was taken back to her matrimonial home by her husband directly from her office on 28.11.2011. Thereafter, her daughter informed them on telephone that her husband had assured her that neither he himself nor his parents would quarrel with her. As is apparently clear, there is no mention in the entire statement regarding any demand of money or any harassment in furtherance thereof or even with regard to FIR No.167/11 Page No.39/65 St. Vs. Rahul Verma etc. alleged medical termination of pregnancy of the deceased. To said extent, PW1 appears to have improved his version and upon being confronted with said improvements during the course of cross- examination, PW1 was unable to give any sufficient reason for not disclosing said material facts to the SDM in his first statement. There is no whisper in his entire statement Ex. PW1/A about any alleged demand of money raised by the accused persons for buying any house in Noida or forcing the deceased to seek a job after marriage. It is nowhere alleged in said statement Ex. PW1/A or even in his testimony before the court that deceased was ever taunted, abused or assaulted on account of her having not brought Rs. 3 lacs or in order to pressurize her to bring said money from her parents. None of the family members of deceased, examined in this case as PWs has come out with any specific instance of cruelty or harassment allegedly meted out to the deceased either in their own presence or their having been informed about it by the deceased.
44. Even mother of deceased, who has been examined as PW2, also came up with a general allegation saying that after marriage, the accused persons started harassing her daughter PInki on account of demand of money. Further that, deceased was pressurized to join back her employment which she had left at the time of her marriage. As per her version, accused Rahul used to retain the whole salary of deceased with him and used to give her meager amount and did not allow her to retain sufficient balance in her mobile phone.
FIR No.167/11 Page No.40/65 St. Vs. Rahul Verma etc.
45. PW2 further deposed in her examination in chief that her daughter used to tell her that whenever she (deceased) would ask her husband i.e. accused Rahul to live separately, he used to ask the deceased to bring Rs. 3 lacs for taking a separate home or to ask her parents to give them (couple) a room in their two room house at Wazir Nagar, which was already on rent. PW2 further stated that accused Gian and Madhu asked accused Rahul to leave deceased at their house (parental house of deceased) as they (deceased’s parents) were not able to pay Rs. 3 lacs to accused. She further deposed that when deceased became pregnant and was unwell, she was dropped by her husband at her parental home, though even from there, deceased used to go for her job and it was her husband who used to pick and drop her for her job. On 20 th November, deceased was taken by her husband for conducting some test but instead, accused got her child aborted in some clinic at Lajpat Nagar without her knowledge as she (deceased) was unconscious because of the injection given to her.
46. Here, I may mention that IO had not made any investigation in this regard as no such fact regarding abortion of deceased was disclosed by her parents at the time of their statements recorded before SDM and said fact came to be disclosed by parents of deceased only at the time of their examination in the court.
47. As per PW2, Pinki was left at her parental home on the same very day after abortion i.e. on 20.11.2011 and she stayed there till 28th and on 28th November, Rahul took the deceased back to her FIR No.167/11 Page No.41/65 St. Vs. Rahul Verma etc. matrimonial home by assuring that his parents would not raise any demand for money but, deceased informed them that her mother in law had however, again commented that why Rahul had brought Pinki back to her matrimonial home. Thereafter, Pinki never visited her parental home.
48. The above deposition of PW2 nowhere indicates that the deceased was ever subjected to any kind of harassment or cruelty in furtherance of alleged demand of money by any of the accused persons. If the testimony of PW2 is read as a whole, it rather suggests that Pinki i.e. the deceased came to live at her parental home in the month of November because at that time, she was pregnant and was unable to do the household work singly because her mother in law was suffering from arthritis and therefore, her husband in order to avoid any inconvenience to deceased sent her to her parental home and even from there, he used to help the deceased in commuting to the office as he used to pick and drop her from her parental home for her job.
49. Careful perusal of deposition of PW2 also reflects that on 10.11.2011, accused Rahul and Gian Chand had attended a Katha ceremony at parental house of deceased and at that time Pinki was already at her parental house and prior to that, deceased and her husband had gone for a religious tour at Haridwar between 28.10.2011 to 31.10.2011 with parental family of deceased.
50. PW2 also admitted that accused Rahul had got deceased FIR No.167/11 Page No.42/65 St. Vs. Rahul Verma etc. admitted for MBA and she (deceased) had also appeared in SCC examination from her matrimonial home and her husband used to arrange for filling of forms for said examination. PW2 also admitted that all the accused with deceased had visited them for attending retirement party of Chiranjee Lal (brother in law of PW2) and marriage party of Vandana (niece of PW2) and her son Inder Kohli had also gone to deceased’s matrimonial house for celebration of deceased’s first birthday after her marriage on 02.08.2011.
51. The above circumstances nowhere suggests that deceased was feeling harassed on account of the conduct of her husband or in laws rather it appears that the two families were enjoying cordial relationship. Small discords in the joint families relating to the sharing of responsibilities of the household work etc. are not uncommon and even in the instant case, it appears that since the deceased had started working after her marriage with accused Rahul, she was unable to bear all the responsibilities of the household chores especially when she was not having any helping hand as even her mother in law was ill as she was suffering from arthritis and for said reason deceased had insisted her husband to live separately.
52. Though in her cross-examination, PW2 denied the suggestion that her daughter wanted to live separately with accused Rahul as a nuclear family but, in her examination in chief, she has made candid admission to the effect that when her daughter had asked her husband Rahul to live separately, then her husband asked her to bring Rs. 3 lacs to take a separate home. The said deposition of FIR No.167/11 Page No.43/65 St. Vs. Rahul Verma etc. PW2 makes it apparently clear that deceased did not want to live in a joint family and wanted to shift to a separate accommodation with her husband alone. The deposition of PW2 also reflects that mother in law of deceased i.e. accused Madhu was suffering from arthritis and was unable to do the household work and therefore, the whole burden of household work was upon the deceased. Even a cousin sister of deceased’s husband namely Ginny who used to live with them, also did not use to help the deceased.
53. From the above circumstances, it appears that deceased was not willing to stay in the joint family and used to ask her husband to live separately. Even as per the defence taken by the accused persons, on the preceding night of alleged incident, deceased had insisted her husband to shift to a rented accommodation near her parental house and when her husband did not agree for the same , they entered into a fight.
54. It is pertinent to note here that as per PW2, deceased and her husband Rahul had visited to Haridwar with deceased’s parental family and after coming back from there, deceased fell sick as she was pregnant and she was left at their home by Rahul as her mother in law used to comment that if deceased had fallen ill, who would do the household work. From said statement, it appears that since the deceased was working even at that time, her husband showed concern about her health because his own mother was suffering from arthritis and therefore, in order to avoid any kind of hassles to the deceased in the matrimonial home on account of her ill health, he left FIR No.167/11 Page No.44/65 St. Vs. Rahul Verma etc. the deceased to her parental home for few days and even from there he used to pick and drop her for her job. From the deposition of the parents of deceased, there is nothing to suggest that in the month of November, deceased was left at her parental home on account of any illegal demand or any harassment in furtherance thereof.
55. At one point, PW2 in her examination in chief deposed that it was deceased’s husband who asked her to bring Rs. 3 lacs to take a separate home that too when deceased asked him to live separately, showing that demand of Rs.3 lacs was raised only by husband. But, in her subsequent examination, PW2 deposed that in November, after staying at her parental home for 8 days deceased returned to her matrimonial home with her husband on the assurance of her husband that his parents would not raise any demand of money indicating that the demand for money was raised by the in laws. On the other hand, in the statement Ex. PW1/A of the father of deceased made to SDM on 29.12.2011, there is no whisper of any such demand of money as he deposed that the deceased joined back her matrimonial home on 28.11.2011, on the assurance of her husband that neither he nor his parents would quarrel with her. In said statement Ex. PW1/A, PW1 nowhere mentioned that reason of alleged quarrel was any demand of money or a house.
56. From the above discrepant version of PW2, it is not clear who actually raised the alleged demand of Rs.3 lacs. Even otherwise, the alleged demand even if believed to have been raised by accused Rahul, the same was raised only when deceased asked him to live FIR No.167/11 Page No.45/65 St. Vs. Rahul Verma etc. separately. For the purpose of buying a separate accommodation, if the husband asked deceased to arrange Rs. 3 lacs from her parents, that will not amount to a demand of dowry within the meaning of Section 2 of Dowry Prohibition Act.
57. Admittedly, husband of deceased was staying with his parents in a government accommodation and admittedly deceased had been asking him to live separately, then in such a situation, if the husband told her to ask her parents to allow them to live in their house which deceased’s parents were owning at Wazir Nagar, the same will not amount to a dowry demand. Though a wife has all the right to be maintained by her husband but, it is never beyond the means, status and resources of her husband. If the husband was not capable of arranging a separate accommodation and in such a situation if his wife was still insisting him for a separate home, the act of the husband to ask his wife to bring Rs. 3 lacs for arranging a separate home for her, shall not amount to dowry demand within the meaning of Section 304B IPC.
59. For establishing the cruelty or harassment within the meaning of Section 498A IPC, the harassment or cruelty must be unabated, incessant, persistent and grave in nature and same must be with intention to force woman to commit suicide or to fulfill illegal FIR No.167/11 Page No.46/65 St. Vs. Rahul Verma etc. demand of dowry. Every act of cruelty or harassment is not made a crime u/s 498A IPC. A solitary incident cannot be interpreted to be sufficient evidence of cruelty or harassment attracting Section 498A because in that case, incessant, persistent and sufficiently grave cruelty as is likely to drive a woman to a point of desperation leaving her with no option except to think about suicide will be absent. The cruelty and harassment envisaged u/s 498A IPC must be unabated, continuous or recurring and one or two incidents casually taking place, will not be sufficient to attract said provision of law. In Indrasing M. Raol vs. State of Gujarat, II (2002) DMC 239, it was held by the Hon’ble Gujarat High Court that:-
“17. A woman would prefer to end her life, if continuous or recurring unabated harassment or cruelty grave in nature, is intolerable or unendurable. Highly sensitive, impulsive, reckless, or touchy woman may on one incident end her life, but that exception to the rule is not envisaged by the section. It should also be stated that after marriage sometimes emotional disorder is created, and that results into frustration and pessimism. A woman sometime becomes psychotic and develops tendency to end her life. A woman being highly sensitive and sentimental, or reckless, or if tired of her life either because her dreamt expectations are not satisfied or found to be the mirage, or for any other reason may become dejected and desperate and may develop suicidal tendency, and end her life. The duty of the Court is also to make necessary endeavour to ascertain why the husband or his relatives had as alleged turned up their nose at the victim and resorted to coarse cruelty, divorcing civility, delicacy and refinement. Having regard to the facts and circumstances on record, if Court finds that the misdeed or wrong on the part of the accused is the compelling reaction of the real or unjust or fancied provocative act of the victim, i.e., abetted counter-action or wrong, the same even if uncivil or Barbaric will not fall within the ambit of cruelty envisaged by Section 498-A, for required intention would be lacking although the same may attract any other penal provision. In short, therefore, intention to drive the woman to commit suicide being the essential ingredient, the FIR No.167/11 Page No.47/65 St. Vs. Rahul Verma etc. endeavour of the Court must be to find out having regard to the facts and circumstances on record, what the intention of the accused was? I will, therefore, proceed to ascertain what could be the intention of the appellant when he, on mid- night as alleged, behaved stormily or roughly, though it is clear that the alleged solitary incident will not attract Section 498A.”
60. In the instant case, except the general allegation of harassment, there is absolutely nothing in the testimony of prosecution witnesses as to how and in what manner the deceased was subjected to harassment by the accused persons. There is no allegation in the testimony of any of the family members of deceased that deceased was subjected to any such cruelty physical or mental in furtherance of demand of dowry or with an intention to drive her to commit suicide.
61. Even the SMS allegedly sent by deceased to her colleague PW7 Jaspreet Kaur at her mobile, on which prosecution has heavily relied upon to show “cruelty soon before death” nowhere mentions that the alleged assault/beatings which deceased was given by her husband, was in furtherance of demand of dowry. There is nothing to suggest why the couple had a quarrel on the fateful day. The SMS reads “Mere husband ke saath mera Jhagra ho gaya or mujhe marra bhi”. Though the message mentions that she was hit by her husband but, it does not disclose the manner of alleged assault on her nor that what was the reason of their quarrel. Postmortem report Ex. PW5/A is not indicative of any external marks of injury on the dead body of deceased.
FIR No.167/11 Page No.48/65 St. Vs. Rahul Verma etc. 62. Except in said SMS, there is absolutely no other
circumstance brought on record by the prosecution to show that deceased was ever beaten up in any manner by any of the accused persons either on account of demand of dowry or on any other account during her stay in the matrimonial house. Except bald allegations of harassment or cruelty, there is no specific allegation in this regard in the testimony of any of the family members of deceased. Even PW3 Chiranji Lal has raised bald, unspecific and general allegation of harassment that too is nothing but a hearsay evidence because as per his statement Ex. PW3/A, Pinki used to complain about her harassment at the hands of her husband and in laws to her father Sohan Lal. Whereas, PW3 though in his examination before the court alleged that the accused had raised demand of a house and cash of Rs.3 lacs for the purpose of purchasing a house but, there is no whisper of any such allegation in his statement Ex. PW3/A recorded before SDM.
63. I have also perused the testimony of deceased’s brother Inder Kohli who has been examined as PW4. As per his deposition, her sister used to call him after marriage and informed that her father in law, mother in law and brother in law had been harassing her on account of dowry. It is interesting to note that none of the other family members had uttered a word against the brother in law of the deceased and it was PW4 who first time came up with the allegation even against the brother in law. He further deposed in his examination in chief that deceased used to tell him that whenever deceased told her husband about said conduct of her in laws, even FIR No.167/11 Page No.49/65 St. Vs. Rahul Verma etc. her husband, her husband scolded her and used to suspect her. Further, on the occasion of Rakshabandan when the deceased visited their house, she complained about displeasure of accused persons on account of insufficiency of dowry given in her marriage.
64. It is interesting to note that neither in his statement Ex. PW4/A made to the SDM on 29.12.2011 nor in his deposition recorded before the court, PW4 disclosed anything about any demand of Rs.3 lacs or a house at Noida by the accused persons nor there is any specific allegation relating to cruelty or harassment. Though in the statement Ex. PW4/A it was alleged that the husband used to physically assault her whenever deceased complained about the conduct of her in laws in taunting her for not bringing sufficient dowry but, his deposition in the court is totally silent about any such allegation. The allegation of harassment are bald and general as neither the manner of harassment has been disclosed nor any specific instance has been mentioned by PW4 in his deposition. Rather in his cross-examination, he admitted to have celebrated his birthday on 02.06.2011 with accused Rahul at the parental home of the deceased, his having joined the deceased and her husband in birthday celebration of deceased on 02.08.2011 at her matrimonial home at Sadiq Nagar and further the deceased and the accused Rahul fhaving joined them in the religious trip to Haridwar in the month of October, 2011. He also admitted various photographs of said occasions which were shown to him by the defence counsel during his cross examination, as Ex. PW4/D2, D3 & D4.
FIR No.167/11 Page No.50/65 St. Vs. Rahul Verma etc.
65. The above deposition of PW4 rather shows that the two families were at good terms and even the couple had been enjoying warm relationship as the husband had been taking due care of his wife i.e. the deceased even at the time when she was staying at her parental home, as it was he, who used to pick and drop her for her job. It was husband only who got the deceased admitted for MBA and used to take her to examination centre for appearing in different exams.
66. It is vehemently argued on behalf of complainant/prosecution that on fateful day, deceased was subjected to beatings by her husband in furtherance of demand of money, which compelled the deceased to take extreme step of suicide. In this regard, prosecution has relied upon the testimony of PW7 & PW8 (friend of deceased Jaspreet and employer Anil Kumar Goyal) who have deposed regarding deceased having sent a message on the mobile phone of PW7 informing her that she had a quarrel with her husband and her husband had also hit her. It is further argued that the said text message sent by deceased from her mobile phone to mobile phone of her friend has been duly proved in view of the version of PW7, PW8, PW20 and IO/PW22 and the FSL report Ex. PW20/A & B.
67. However, as already noted above, said text message Ex.PW7/A nowhere mentions that a quarrel had occurred in furtherance of any unlawful demand of dowry. In said message, deceased wrote ” Mere husband ke sath mera Jhagra ho gaya hai aur FIR No.167/11 Page No.51/65 St. Vs. Rahul Verma etc. mujhe maara bhi”. It nowhere shows that how she was hit or beaten up by her husband or whether it was just a slap and fist blow or with some object, nothing is clear from the text message. Considering the fact that neither the postmortem report is indicative of any external injury showing any physical assault on the deceased nor the prosecution has brought on record any cogent evidence to prove any previous history of physical assaults, the said SMS is not sufficient to show that the deceased was subjected to any physical cruelty of the extent envisaged u/s 498A IPC, for raising any presumption of Section 113A of Indian Evidence Act for attracting the provisions of Section 306 IPC.
68. The general allegation of harassment without describing the exact conduct of accused will not be sufficient to attract the provisions of Section 498A or 304-B IPC. In this regard, I also refer 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.”
69. 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 FIR No.167/11 Page No.52/65 St. Vs. Rahul Verma etc. have committed the offence” and “must have 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.
70. As per postmortem report Ex.PW5/A, except a ligature mark pointing upward and one old scar over mid forhead, no other external antemortem injury was found present over the body of deceased and cause of death was asphyxia due to ante mortem hanging and time since death was about a day prior to postmortem. As autopsy, as per PM report started at 11:55 am on 30.12.2011, it suggests that death had occurred at about 12:00 am on 29.12.2011. There is nothing on record to show that viscera of deceased was preserved by the Autopsy surgeon for chemical analysis so as to rule out the possibility of concomitant intoxication or poisoning.
71. As regard the allegations of mental cruelty meted out to deceased by her husband in leaving his job just after few months of marriage, asking deceased to seek job after marriage, aborting the deceased’s pregnancy without her consent and knowledge, not providing her with the sufficient money for meeting her day to day expenses and also raising doubt that she was having extra marital affairs, I may mention that on careful reading of testimony of PW1 to PW4 as well as their statements recorded before the SDM, their depositions in this regard are found materially discrepant and do not corroborate with each other and as such not found sufficient for FIR No.167/11 Page No.53/65 St. Vs. Rahul Verma etc. attracting the above provisions.
72. In the context of Section 306 IPC, charges for which were framed against the accused in alternate, it would be useful to refer the judgment of Hon’ble Supreme Court in Randhir Singh vs. State of Punjab MANU/SC/0881/2004 : (2004) 13 SCC 129wherein it was held that “abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also, it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence u/s 306 IPC.
73. The marital discord or differences between husband or wife or any quarrel with the husband or in laws would not by itself, without anything more be sufficient to attract the provisions of Section 306 r/w Section 107 IPC. The burden of proof is not altered by Section 113 A of Indian Evidence Act, as held by Hon’ble Apex Court in AIR 1998 SC titled as State of West Bengal vs. Orilal Jaiswal & Ors. wherein, it was held that in a criminal trial however, intriguing may be the facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realms of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after introduction of Section 498A IPC and Section 113Aof Indian Evidence Act.
FIR No.167/11 Page No.54/65 St. Vs. Rahul Verma etc.
74. Here, it is also pertinent to note that even in Ex. PW1/A, the statement of Sohan Lal, recorded by SDM on 29.12.2011, which formed basis of present FIR, he simply stated that accused persons were not happy with the dowry given in the marriage and just after one month of marriage, they started harassing their daughter and on account of said behaviour, his daughter came to her parental home in the month of November, 2011 and after staying there for about one month, she was taken to her matrimonial house by her husband on the assurance that neither he himself nor his parents would quarrel with her. There is not a single utterance of any demand for money or any harassment in furtherance thereof.
75. 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.
76. 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 deceased was pressurized to bring money for fulfillment of her desire of a separate home is not sufficient unless it is proved that deceased was put to some harassment mental or physical on account of said reason.
FIR No.167/11 Page No.55/65 St. Vs. Rahul Verma etc.
77. As regard the deposition of Ms. Jaspreet Kaur (PW7) although there is no legal bar in relying upon her testimony relating to her having received a written communication from the deceased vide SMS Ex. PW7/A on her mobile phone from deceased’s mobile phone, immediately soon before deceased death, especially when the same was concerning the circumstances of transactions which resulted into deceased’s death, but, as noted above, even said SMS nowhere suggests what was the cause of quarrel between the couple and how and in what manner she was allegedly assaulted because the postmortem report is not indicting any external injury on the body of the deceased nor there is any history disclosed even by the family members of deceased to suggest that deceased was ever subjected to physical assaults on any occasion after her marriage, either by the husband or his parents. The SMS also does not mention anything about any illegal/unlawful demand of dowry or that the alleged quarrel or assault by the husband of deceased was in furtherance of any such demand.
78. 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-B IPC. In other words, the offence shall be deemed to have been committed by fiction of law once the prosecution proves the other FIR No.167/11 Page No.56/65 St. Vs. Rahul Verma etc. 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 of course, the deemed fiction would introduce a rebutable 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 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.
79. 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 FIR No.167/11 Page No.57/65 St. Vs. Rahul Verma etc. 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.
80. 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 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. However, said question has already been decided herein above while dealing with the charges of offence under Section 498A IPC wherein, it has been held that prosecution has miserably failed to prove that the deceased was subjected to any cruelty or harassment at the hands of accused persons.
81. Secondly, as already noted above, there is no cogent or reliable evidence even with regard to alleged demand of Rs.3 lacs, but even otherwise, it was not in connection with the marriage of deceased. As per prosecution own case, the same was raised by deceased’s husband only when deceased insisted him for a separate house as she was not willing to live in the joint family with her in laws. As per PW1’s own version, deceased’s husband was a man of insufficient means as he was unemployed at the time of death of deceased. In said circumstances, even if it is believed that FIR No.167/11 Page No.58/65 St. Vs. Rahul Verma etc. deceased was asked to bring money for a separete home, same cannot be treated as demand of ‘dowry’ within the meaning of Section 304B IPC especially in the light of judgment in Appasaheb & Anr. vs. State of Maharashtra (supra) wherein it was held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses cannot be termed as a demand for dowry within a meaning of Section 304-B IPC. Here the husband was not willing to leave his parents and it was the deceased who had been insisting him for a separate accommodation and it is only for fulfillment of deceased’s desire for a separate accommodation, if the husband asked her to arrange money from her parents or to ask them to arrange for them (couple) for some alternative accommodation, the same cannot be treated as a demand for dowry within the meaning of Section 304B orSection 498A IPC.
82. 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.
83. In the backdrop of said circumstances, prosecution failed to establish even the charges of Section 304 B IPC against any of the accused persons.
84. Now, comes to the question of consideration of charges of FIR No.167/11 Page No.59/65 St. Vs. Rahul Verma etc. Section 306 IPC. In the judgment of Hon’ble Supreme 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, 498AIPC 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.”
85. 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 FIR No.167/11 Page No.60/65 St. Vs. Rahul Verma etc. committed by the accused under Seciton 498-A IPC is on the prosecution. The Court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide.
86. Whereas, in the instant case neither the cruelty within the meaning of Section 498A IPC has been established on record by the prosecution so as to seek presumption of Section 113A of Indian Evidence Act, nor there is any other circumstances on record to indicate that accused had abetted the suicide. The alleged conduct of accused in harassing the deceased by raising demand of money for a separate house, 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.
87. 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.”
FIR No.167/11 Page No.61/65 St. Vs. Rahul Verma etc.
88. 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 basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
89. In the instant case, accused Rahul examined himself as DW1 wherein he has stated that after 2-3 months, Pinki raised a demand for nuclear family but he (DW1) took the matter on a lighter note. After that, Pinki requested him that she wanted to pursue higher education and pursuant to her request, DW1 got her admitted in MBA course. DW1 further deposed that Pinki had been constantly asking him (DW1) for a nuclear family and even her mother also asked him for a separate accommodation for deceased saying that her daughter needs privacy. DW1 however, tried to convince deceased by saying that his mother was suffering from arthritis, therefore, he could not leave his mother in such condition but Pinki was adamant on her demand. DW1 further testified that he alongwith Pinki and her family FIR No.167/11 Page No.62/65 St. Vs. Rahul Verma etc. members had also gone for a religious trip to Haridwar. Even at Haridwar deceased’s parents pressurized him for a nuclear family. After returning from Haridwar, Pinki told him that her mother was searching a rented accommodation for them (DW1 and deceased) near her house but he opposed her move. Before that Pinki also expressed her desire that she wanted to join back her job for which he and his family members had given their assent.
90. DW1 further deposed that on 28.12.2011, Pinki entered into an argument with him for living separately as a nuclear family and after that she went for her office. After returning from her office, in the evening Pinki told him that her mother had already searched a rented accommodation for them near her parental house and from January 2012, he and Pinki had to shift to said rented accommodation but he refused for the same upon which deceased continued to argue with him the whole night. Even on the next morning, Pinki repeated her demand for nuclear family. Pinki also told him that she would not attend her office for that day. After that, on 29.12.2011, at about 11- 11.30 am, DW1 left his home to purchase some plumbing material at Kotla Mubarakpur. He returned back to his home at about 1-1.30 pm. After reaching his home, he knocked the door of his bedroom for about 15 minutes but, Pinki did not respond. When DW1 inquired the reason from his family members, they told him that Pinki had not opened the door of her bedroom ever since he left the house. After that, he went to the backyard of his house and peeped inside his room from the window, he saw the deceased hanging from the ceiling fan of the room. After hearing hue and cry raised by DW1, his FIR No.167/11 Page No.63/65 St. Vs. Rahul Verma etc. neighbour namely Sandeep also came there. However, before Sandeep reached there, he (DW1) had broken the window with the help of some iron object. Thereafter, DW1 took down the dead body of his wife from the ceiling fan and unlocked the door which was bolted from inside. With the help of one Deshraj, who was his acquaintance, DW1e took his wife to hospital. During investigation, while he and his father were in police station, IO had taken his signatures on certain blank papers.
91. The defence plea also find supports from the testimony of PW10 Sandeep who has also deposed that he had never seen any fight between the couple and even on the fateful day, when he heard noise coming from the accused’s house he reached to the house of accused Rahul where he found Pinki was on the bed and all family members were crying.
92. From the above material on record, I am of the considered view that there was no abetment on the part of accused persons in commission of suicide by the deceased as alleged by the prosecution. The defence plea that fight occurred on account of deceased’s consistent demand for separate accommodation also seems probable in view of deposition of deceased’s mother wherein she also admitted that her daughter had been asking her husband for separate accommodation. As such, 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 presumption of Section 113A of Indian Evidence Act nor the material on record is sufficient to even FIR No.167/11 Page No.64/65 St. Vs. Rahul Verma etc. make out a case of abetment within the meaning of Section 107 IPC.
93. Having regard to above discussion, prosecution has miserably failed to bring home the guilt against any of the accused for any of the alleged offences. Accordingly, all accused persons 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. are taken on record. File be consigned to record room.
Announced in open Court on 12.07.2018 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi Digitally signed John by John Doe Date:
2018.07.13 Doe 16:15:36 +0530 FIR No.167/11 Page No.65/65 St. Vs. Rahul Verma etc.