Delhi District Court
State vs Jitender on 30 October, 2023
IN THE COURT OF MS. SHELLY ARORA
ADDL. SESSIONS JUDGE05 (EAST)
KARKARDOMA COURTS, DELHI
SC No.358/2016
FIR No.540/2015
U/s 304B/498A/34 IPC
PS Preet Vihar
CNR No.DLET010005862015
State
Versus
Jitender
S/o Late Sh. Ram Naresh
R/o Vill. Tendura Tehsil Atarra,
Distt. Bandra, UP.
Date of institution : 23.10.2015
Date of Reserving judgment : 26.10.2023
Date of Pronouncement : 30.10.2023
Decision : Acquitted
JUDGMENT
1. Accused Jitender has been facing trial on the allegations that he harassed and caused death of her wife Sona @ Monika on account of nonfulfillment of dowry demand and thereby, SC No.358/2016 State vs Jitender 1 of 69 committed offence punishable under Sections 498A/304B/302 of Indian Penal Code.
BRIEF FACTS OF THE CASE
2. Succinctly, the facts of the case are that on 18.07.2015, at about 15.05 hours, a PCR call was received informing about death of a woman by suicide and that, her dead body has been taken to Cremation Ground, Gazipur, Delhi. The said information was reduced into writing vide DD No.18A and it was marked to SI R.S. Pandit. Thereafter, SI R.S. Pandit along with Ct. Rakesh reached Cremation Ground, Gazipur, where dead body of a woman was found whose name was revealed as Sona Devi (Age 23 years) W/o Jitender R/o H.No.63, 2nd Floor, Gali No.6, East Laxmi Market, East Guru Angad Nagar, Delhi. Accused Jitender being husband was also found present there, who also informed that their marriage was solemnized in the year 2013 and they have a child from their marriage. R.S. Pandit informed about the incident to SHO, PS concerned and SDM/ Tehsildar. SI R.S. Pandit took photographs of deceased through mobile phone on the instructions of Tehsildar and got preserved the dead body of deceased in the mortuary, Subji Mandi. Crime Team was also called at the spot. Case property i.e. Chunni which was allegedly employed to commit suicide, was also seized from Cremation Ground itself.
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3. On 19.07.2015, parents of deceased came to PS from where they were taken to Mortuary, Subji Mandi where Tehsildar recorded statement of Sh. Jagmohan, father of deceased and Mithai Lal brother of deceased. Inquest Papers U/s 176 Cr.P.C were prepared. After identification of dead body, postmortem of deceased body was got conducted. After postmortem, dead body was handed over to her relatives.
4. In his statement, Sh. Jagmohan alleged that marriage of his daughter/deceased Sona @ Monika was solemnized with accused on 18.05.2013 at village Tendura, Tehsil Atara, District Banda, UP. On 18.07.2015, at about 9.00 hours, Sona is stated to have allegedly informed her father on phone that accused and his father were beating her and she be called back to her parental house. It is also alleged that she told her parents about demand and harassment when she visited her parental home in June 2015. However, one hour later, fatherinlaw of her daughter/deceased Sona telephonically informed him that deceased Sona hanged herself while accused stated that deceased Sona had abdominal pain and thus, she was being rushed to Hospital but on the way she passed away. Thereafter, on 19.07.2015, complainant came to Delhi and met with police officers.
5. On the basis of statement of complainant, case FIR No.540/2015 was registered U/s 304B/498A/34 IPC and investigation of the SC No.358/2016 State vs Jitender 3 of 69 case was marked to Inspector Subhash Chandra, the IO of the case. Thereafter, accused Jitender was arrested in this case. IO collected postmortem report as per which the cause of death was opined as Asphyxia due to Antemortem hanging. During investigation, IO also collected PCR Call Form, Certificate U/s 65B of Evidence Act, relevant CDRs of mobile numbers of accused Jitender, complainant and Mithai Lal, brother of deceased. After completion of investigation, chargesheet was filed against accused U/s 498A/304B/34 IPC on 21.02.2008 and was committed to Sessions Court for trial vide order dated 25.04.2008.
CHARGE
6. On 22.02.2016, charge was framed against accused Jitender for commission of offence punishable under Sections 498A IPC, 304B IPC and 302 IPC. Accused did not plead guilty and claimed trial.
PROSECUTION EVIDENCE
7. In order to substantiate its allegation and prove the case, prosecution examined 21 witnesses.
8. PW1 HC Kamal is the Duty Officer who registered present FIR and proved copy of FIR as Ex.PW1/A and endorsement on the rukka as Ex.PW1/B. SC No.358/2016 State vs Jitender 4 of 69
9. PW2 is Lady HC Santosh Kumari who received a call from control room and lodged DD No.18A which is Ex.PW2/A.
10. PW3 Jagmohan is the complainant. He reiterated the allegations and proved his statement recorded by Executive Magistrate Ashwani Kumar on 19.07.2015 as Ex.PW3/A, statement regarding identification of dead body of deceased as Ex.PW3/B and handing over memo regarding dead body as Ex.PW3/C.
11. PW4 Mithai Lal is the brother of deceased Sona. He proved his statement recorded by Executive Magistrate Ashwani Kumar on 19.07.2015 as Ex.PW4/A.
12. PW5 Sushila is mother of deceased who has also leveled more or less similar allegations as alleged by PW3 and PW4.
13. PW6 Raj Kumar is maternal uncle of deceased. He deposed about dowry demands made during marriage and harassment caused.
14. PW7 is Dr. Asitesh Bajwa who examined the dead body of deceased and conducted postmortem. He opined the cause of death as Asphyxia due to AnteMortem Hanging and proved the postmortem report as Ex.PW7/A as well as subsequent opinion as Ex.PW7/B that the the ligature mark as mentioned in the Postmortem Report is possible by the ligature material i.e. Chunni.
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15. PW8 Deepak Mishra is the then Pandit of Cremation Ground, Gazipur, who examined the dead body of deceased at Shamshan Ghaat and found injury mark on her neck and informed accused that it was a police case. Thereafter, someone called police at 100 number.
16. PW9 is HC Rakesh (then constable) who deposed that on 18.07.2015, at about 3.00 pm, on receipt of DD No.18A, he accompanied SI RS Pandit to Cremation Ground, Gazipur where he saw injury marks on the dead body and name of the dead body was revealed as Sona Devi W/o Jitender and one Chunni was lying near the dead body and assisted SI RS Pandit in the investigation. He proved the seizure memo of Chunni which was seized in the Shamshan Ghaat as Ex.PW9/A.
17. PW10 Vijay Kumar is the uncle of accused, who deposed on 18.07.2015, he received information of hanging of Sona who was then rushed to Makker Hospital and Hedgewar Hospital, where she was eventually declared dead. Thereafter, they took dead body to house of Jitender and from there to Shamshan Ghaat, Gazipur where Pandit found ligature mark on the neck of dead body and asked him to call police. Thereafter, he made call at 100 number.
18. PW11 Ranjeet is also of uncle (mama) of accused. He proved the Customer Application form and his ID proof as Ex.PW11/A on SC No.358/2016 State vs Jitender 6 of 69 which, he procured one SIM and handed over the same to accused Jitender for his use.
19. PW12 is Ct. Narender Kumar deposited the Viscera to FSL.
20. PW13 is HC Krishan Vir who joined the the investigation on 19.07.2023 with IO Inspector Subhash Chand and proved Site Plan as Ex.PW13/A, Arrest Memo of accused as Ex.PW13/B and personal search memo of accused as Ex.PW13/C.
21. PW14 is SI Ravikant, Crime Team Member who deposed that he did not get any finger print at the spot because the crime scene was already disturbed as the dead body was already removed.
22. PW15 HC Satya Narain is the Photographer who took photographs of the spot. He proved photographs as Ex.PW15/A1 to Ex.PW15/A8 and its negative as Ex.PW15/B (colly).
23. PW16 is SI Sanjay Saxena, Incharge Crime Team who inspected the spot and prepared crime scene report Ex.PW16/A.
24. PW17 SI Harish Chander Pathak is the Nodal Officer (CPCR/PHQ). He proved Certificate U/s 65B as Ex.PW17/A and PCR Form as Ex.PW17/B.
25. PW18 Inspector Mahesh Kumar is Draftsman, Crime Branch, PHQ. He deposed that on 26.08.2015, he visited the scene of crime, took rough notes and measurements and on 03.09.2015, he SC No.358/2016 State vs Jitender 7 of 69 prepared scaled site plan Ex.PW18/A.
26. PW19 Surender Kumar is the Nodal Officer who proved Customer Application Form as well as CDR pertaining to mobile no.9971989097 issued to Ranjeet as Ex.PW19/A, Ex.PW19/B and Certificate U/s 65B of Evidence Act as Ex.PW19/C.
27. PW20 Inspector Subhash Chander is the IO of the case. He proved the site plan as Ex.PW13/A, arrest memo and personal search memo of accused as Ex.PW13/B and Ex.PW13/C, disclosure statement of accused as Ex.PW20/A and seizure memo of Chunni as Ex.PW20/B. He deposed that handed over the said Chunni along with request letter (Ex.PW20/C) to doctor concerned for opinion. He further deposed that after examination, Doctor returned the said chunni which was again seized vide seizure memo Ex.PW20/B. The witness further deposed that during investigation, he collected postmortem report, sent Viscera to FSL, Rohini for expert opinion and later on collected FSL result which is Ex.PW20/D. He also collected PCR form Ex.PW17/B. He further deposed that on 26.08.2015, Inspector Mahesh Kumar visited the spot and prepared scaled site plan Ex.PW18/A. He also collected photographs of the scene of crime as well as CDR and CAF of mobile No.9971989097which was being used by accused Jitender. After completion of investigation, he filed the chargesheet.
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28. PW21 SI Ram Shankar Pandit is the initial IO who on receipt of DD No.18A, reached at Shamshan Ghaat along with Ct. Rakesh and conducted initial investigation. He deposed to have informed SDM/Tehsildar who recorded statement of brother and father of deceased, on the basis of which, FIR was registered. Thereafter, prosecution evidence was closed.
STATEMENT OF ACCUSED
29. On 24.05.2019, all the incriminating material appearing in evidence against accused was put to accused in statement of accused u/s 313 Cr.P.C. wherein accused pleaded his innocence and stated that he has never demanded any dowry article or motorcycle before or after marriage from Sona @ Monika nor from her parents. She took the extreme step on 18.07.2015 by hanging herself and he was shocked to hear the news from Sanjay who was a cotenant in the same premises.
30. Accused examined himself u/s 315 Cr.P.C. as DW1 in his defence. Accused as DW1 gave a detailed deposition of his childhood, marriage, the marital issues encountered post marriage and what transpired on the date of incident. Thereafter defence evidence was closed and matter was posted for final arguments.
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ARGUMENTS
31. Final arguments were advanced by Ld. Addl. PP as well as Ld. Counsel for accused.
32. Ld. Addl. PP submitted that the prosecution has proved its case against the accused. Ld. Addl. PP further submitted that accused used to beat and harass the deceased due to nonfulfillment of dowry demand of motorcycle. It is further submitted that the prosecution has been able to prove its case against the accused. He argued that the prosecution witnesses have duly supported the prosecution case and there are no material inconsistencies in the testimony of prosecution witnesses. He also argued that accused has failed to give any reason as to why police was not informed about the death of woman and why was the body taken to cremation ground without informing and waiting for the family members of woman. He also argued that conduct of the accused is therefore, very doubtful and adds to the weight of prosecution story. Thus, it is submitted that the accused may be convicted for the offences charged with.
33. On the other hand, Ld. Defence Counsel argued that accused has been falsely implicated in this case. Accused never harassed the deceased nor ever illtreated her on account of dowry demand. It is argued that accused never demand any dowry from deceased or from her family members and he used to take proper care of SC No.358/2016 State vs Jitender 10 of 69 deceased. It is also submitted that there are several contradictions in the testimony of material witnesses and therefore, their testimonies ought not be relied. Thus, it is prayed that accused may be acquitted. In support of contentions, Ld. Defence Counsel has relied upon a case law reported as "Durga Prasad & Anr. Vs State of M.P., 2010 Crl. LJ 3419".
ANALYSIS
34. At the outset, to appreciate submissions and before discussion of testimony of material witnesses, the legal position in regard to the provisions of Section 498A, 302 IPC and 304B IPC is required to be elaborated.
35. Section 498A IPC stipulates as to what would constitute cruelty against wife and daughterinlaw as committed by her husband or his family members. Section 498A IPC reads as under: "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 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 health (whether mental or physical) of the woman; or SC No.358/2016 State vs Jitender 11 of 69
(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."
36. There are thus two limbs to define cruelty in this provision, one as harassment on account of or in order to get the dowry demand fulfilled and the other as any intentional conduct likely to cause injuries or danger to life, limb or health or which is likely to drive her to end life.
37. Section 304B IPC was inserted by Dowry Prohibition (Amendment) Act 1986 primarily for combating the menace of dowry death. It reads as under: [304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
38. Reading and understanding of section 304B IPC is incomplete without also considering the presumption as laid down in Section 113B of Indian Evidence Act which comes alive when prosecution substantiates and proves the ingredients of Section 304B IPC for accused to explain and prove his innocence. Section 113B Indian Evidence Act is reproduced hereunder to aid in further discussions.
SC No.358/2016 State vs Jitender 12 of 69 113B. Presumption as to dowry death. -- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman 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.
39. It is settled that Section 304B IPC and 498A IPC are not mutually inclusive and address two different offences. Although cruelty is a common factor, however, other essentials constituting offences vary, therefore, a person acquitted U/s 304B IPC can none the less be held guilty of commission of offence punishable U/s 498A IPC (Shanti vs State of Haryana : 1991 AIR 1226).
40. In the case Kashmir Kaur vs State of Punjab : AIR 2013 SCC 1039, Hon'ble Supreme Court referred to the principles laid down in respect of applicability of section 304B IPC in cases of K. Prema S. Rao and another V. Yadla Srinivasa Rao and others (2003) 1 SCC 217, Kaliyaperumal and another V. State of Tamil Nadu - (2004) 9 SCC 157, Devilal V. State of Rajasthan - (2007) 14 SCC 176, Ashok Kumar V. State of Haryana - (2010) 12 SCC 350 Pathan Hussain Basha V. State of A.P. JT 2012 (7) SC 432 and laid down the following essentials to constitute dowry death.
a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
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b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
c) Such death occurs within seven years from the date of her marriage.
d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
e) Such cruelty or harassment should be for or in connection with demand of dowry.
f) It should be established that such cruelty and harassment was made soon before her death.
g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.
h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
i) Therefore, the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.
j) However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.
k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law SC No.358/2016 State vs Jitender 14 of 69 is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.
l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied.
m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.
41. The above said principles have been placed reliance upon in a recent judgment reported as Satyawan vs State of UP : 2022 SCC Online All 443.
42. The commonality of the ingredients of two offences U/s 498A and U/s 304B IPC has been discussed by Hon'ble Supreme Court of India in the case of Baijnath & Ors vs State of MP, Criminal Appeal No.1097 of 2016, decided on 18 November 2016. Cruelty has not been defined in Section 304B IPC. The Explanation to Section 498A IPC assigns as to what would constitute cruelty to attract liability U/s 304B IPC. Cruelty is a common essential to both provisions that has to be proved. Relevant extract of the SC No.358/2016 State vs Jitender 15 of 69 judgment reads as under: (29) Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences.
(30) The expression "dowry" is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression "cruelty", as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry to reiterate is the gravamen of the two offences.
43. In the said case Baijnath (supra), presumption with respect to Section 113B Indian Evidence Act in the context and reference U/s 304B IPC has been discussed, relevant extract of which mentioned below: (32) Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.
Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
(33) A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct SC No.358/2016 State vs Jitender 16 of 69 and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
(34) The legislative premature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to glossover and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty. (35) This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113Bof the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab - (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana - (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao Vs. Yadla Srinivasa Rao - (2003) 1 SCC 217 to the effect that to attract the provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was SC No.358/2016 State vs Jitender 17 of 69 subjected to cruelty and harassment "in connection with the demand for dowry".
44. Presumption in terms of section 113B of Act 1 of 1872 is one of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. This presumption gets activated upon proof of a legislatively mandated prerequisite that the lady had been subjected to harassment or cruelty for or in connection with any demand of dowry by the accused in the reasonable contiguity of death.
45. Elaborating upon the concept of dowry demand, the Hon'ble Supreme Court of India in the case of Bachni Devi & Anr vs State of Haryana, Criminal Appeal No. 831 OF 2006, decided on 8th February 2011, observed that any demand for property or significant security with or in connection to marriage would fall within the meaning of dowry demand and the cause or rationale of any such demand would not make any difference.
46. In regard to the terms "Soon before" in the case of Hira Lal & Others v. State (Govt. of NCT), Delhi, (2003)8 SCC 80, the Hon'ble Supreme Court has made the following observations: "The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304 B Indian Penal Code are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case SC No.358/2016 State vs Jitender 18 of 69 presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304 B Indian Penal Code and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
47. The expression "soon before death" was again deliberated in the case of Rajinder Singh vs State of Punjab [Crl. Appeal No.2321 of 2009 (DOD : 26.02.2015)], wherein Hon'ble Supreme Court indicated that the word 'soon' does not mean 'instant'. This expression was further clarified in the case of Satbir Singh & SC No.358/2016 State vs Jitender 19 of 69 Anr vs State of Haryana [Crl. Appeal Nos. 1735 1736 of 2010 (DOD : 28.05.2021)], wherein Hon'ble Supreme Court held that the expression "soon before death" cannot imply "exactly before death" and that there must be a live relationship between the dowry death and the cruelty or harassment inflicted by husband or relatives. The court also noted that there is no 'one size fit all' methodology applicable for defining the word "soon before" and same will have to be assessed depending upon the facts and circumstances of each case.
48. Imperative is to note the judgment rendered by Hon'ble Patna High Court in case of State of Bihar vs Nasruddin Mian @ Lalloo, Arising out of PS. Case No.47 Year2007, decided on 21 June 2021, wherein it is observed that the Courts and Judges should not be swayed by the horror of the crime or character of the offender when giving judgment rather must conduct a dispassionate review of evidence to hold convictions in these matters.
49. The legal position is well settled that on a joint reading of Section 113B of the Evidence Act and Section 304B IPC, it would reveal that there must be cogent material to show that soon before her death, the victim was subjected to cruelty or harassment by her husband or inlaws, and that too in connection with any demand for dowry, whereas the death occurred within SC No.358/2016 State vs Jitender 20 of 69 seven years of marriage otherwise than in normal circumstances which would create a deemed statutory presumption that it is accused who has caused her death and therefore, the burden shifts upon whim to disprove the charges against him.
50. The importance of careful scrutiny of evidence has been highlighted by Hon'ble Supreme Court of India in the case reported as Sunil Bajaj vs. State of M.P. : 2001 CrLJ (SC) 4700, wherein it was observed that the allegations of dowry death have to be carefully scrutinized keeping in view of the gravity of punishment.
51. In the case of Vipin Jaiswal Vs State of A.P. : 2013(3) SCC 684, the Hon'ble Supreme Court has observed that the allegations of cruelty have to be specific. The relevant para of this judgment reads as under: "In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, Indian Penal Code, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased."
52. In the recent case reported as Monju Roy & ors. Vs State of West Bengal 2015 (3) Recent Apex Judgments (R.A.J.) 472 the SC No.358/2016 State vs Jitender 21 of 69 Hon'ble Supreme Court has observed that for proving the offence under section 304B IPC, the harassment has to be proved alongwith demand.
53. In the case of Charan Singh @ Charanjit Singh vs State of Uttarakhand, 2023 SCC Online SC 454, Hon'ble Supreme Court held as under:
12. As the aforesaid case was also pertaining to dowry death, presumption under Section 113B of the Indian Evidence Criminal Appeal No. 447 of 2012 Act was also discussed in detail in paras 29 to 31 of the aforesaid judgment. The same are extracted below: "29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the SC No.358/2016 State vs Jitender 22 of 69 above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
31. The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be Criminal Appeal No. 447 of 2012 overeased to gloss over and condone its failure to prove credibly, the basic facts enumerated in the sections involved, lest justice is the casualty".
54. In the light of above settled proposition of law, facts of the case in hand will be analyzed to ascertain as to whether prosecution has led sufficient evidence to substantiate the ingredients to constitute offence with which accused has been charged so as to read/invoke presumption and shift the burden upon accused to explain/clarify.
55. Certain facts as admitted are enumerated for better clarity in discussion to follow. Accused was related to deceased as a husband. The two got married on 18.05.2013 at Village Tehdura, Tehsil Atra, Distt. Banda, UP. The woman died on 18.07.2015 at a rental accommodation in Laxmi Nagar, Delhi where she was residing along with her husband. It was an arranged marriage.
56. The blood relations including parents and brother of deceased have appeared as prosecution witnesses whose testimony would SC No.358/2016 State vs Jitender 23 of 69 provide the substance to assess the culpability of the accused towards death of accused.
DEATH WITHIN SEVEN YEARS
57. PW7 Dr. Asitesh Bajwa deposed that on 19.07.2015, he had conducted postmortem examination on the dead body of deceased. DD entry bearing No. 18A regarding receipt of information of deceased committing suicide has been proved on record by State vide Ex.PW2/A. By proving of death of deceased on 18.07.2015, it also stands proved that death of deceased was caused within seven years of her marriage which admittedly took place on 18.05.2013.
UNNATURAL DEATH
58. Cause of death of deceased has been proved on record by PW7 in Postmortem Examination Report State vide Ex.PW7/A as per which, cause of death of deceased has been determined to be 'Asphyxia due to AnteMortem Hanging'.
59. There can be two explanations, one that she hanged herself and another that she was killed by someone else. In any eventuality, it was not a death under normal circumstance. It is no ones case that the death occurred on account of any natural cause. There is no evidence that she was ill or had some life threatening disease which eventually caused her death. Although, accused allegedly informed father of deceased who appeared as PW3 that the SC No.358/2016 State vs Jitender 24 of 69 deceased has stomachache, however, PW7 Dr. Ashitesh Bajwa who conducted the postmortem examination has not made any reference to any other medical reason for the death of deceased Sona @ Monika. Thus, there is absolutely no evidence that she died of any infection or of any illness or any accident in the natural course. Even accused in his statement under Section 315 Cr.P.C has accepted that his wife died of hanging.
DOWRY DEMAND AND HARASSMENT
60. There are allegations against accused that he demanded motorcycle from his wife and subjected her to harassment in connection with demand of dowry.
61. Section 304B IPC itself stipulate that dowry shall carry the same meaning as stipulated in Section 2 of Dowry Prohibition Act 1961. Dowry means any property or valuable security given or agreed to be delivered either directly or indirectly (a) by one party to the marriage to the other party to the marriage or (b) by parent to either party to a marriage or by an other person to either party to the marriage or to any other person at or before or any time after the marriage, in connection with the marriage of a party but does not include dower or mehr in the case of persons to whom Muslim Personal Law (Shariat) apply. This section therefore, intends to cover all demands at any time before, at or after the marriage so far they were in connection with the marriage to a party. It is also settled that customary gifts SC No.358/2016 State vs Jitender 25 of 69 or payments given at the time of ceremony as prevalent in the society would not be covered under the expression of dowry (support drawn from Ram Singh vs State of Haryana : (2008) 4 SCC 17).
62. PW3 Jagmohan, PW4 Mithai Lal, PW5 Sushila and PW6 Raj Kumar are the primary witnesses produced on behalf of the prosecution to support the case against the accused. PW3 and PW5 are respectively parents of deceased whereas PW4 is his brother and PW6 is her maternal uncle (mama). All the aforesaid prosecution witnesses have affirmed in their examination in chief about demand of motorcycle by accused from the deceased Sona @ Monika.
63. As explained above, there can be three categorization of the periods/durations in which any such demand could have been made, (i) before marriage, (ii) at the time of marriage and (iii) after marriage.
64. PW3 father of deceased categorically admitted in cross examination by Counsel for accused person that no dowry demand was made prior to or at the time of marriage of his daughter Sona. His crossexamination to this effect is reproduced here for ready reference: ".....No dowry demand was made prior to or at the time of marriage of my daughter Sona. ..... It us correct that accused Jitender never made any demand of motorcycle SC No.358/2016 State vs Jitender 26 of 69 directly from me."
65. Similarly, PW5 Smt. Sushila, mother of deceased admitted during her crossexamination by Ld. Counsel for the accused that there was absolutely no demand of dowry from accused or his family before or at the time of marriage. Her crossexamination to this effect is reproduced here for ready reference: "...It is correct that before and at the time of marriage, there was no demand of dowry from accused or his family. ....It is correct that accused Jitender never made demand of vehicle directly to me."
66. PW4 Mithai Lal, however, testified that accused did not make the demand of motorcycle directly from him rather through mediator Lallu to his family members. He also deposed that accused made demand of motorcycle even prior to marriage, during marriage negotiations in his presence to his father and mother. Relevant portions of crossexamination is reproduced for ready reference: "...Such demand was made by him through mediator Lallu to my family members. Accused did not make the demand of motorcycle directly from me."
"....Accused made demand of the motorcycle even prior to marriage during marriage negotiations. Such demand was made in my presence by the accused to my father and mother."
This affirmation stands in absolute contrast with what his parents have independently deposed in the witness box that there was no demand made by accused before or at the time of marriage. There is no evidence to show that Lallu ever mediated SC No.358/2016 State vs Jitender 27 of 69 in marriage of accused with Sona or that how he was related to the two families and any other witness has not specified that he was ever involved in or during marriage negotiations. Lallu has not been produced a witness to lend support to allegations that accused raised demand through him at the time of marriage negotiation.
67. Similarly, PW6 in his crossexamination stated that demand of motorcycle was made prior to the marriage in the presence of Jagmohan, Sushila, Ram Sumair and himself by accused and his father. Again his testimony loses credibility as Jagmohan and Sushila as parents have already denied in their testimony, about any such demand made by accused person before or at the time of marriage. PW4 Mithai Lal did not utter a word against father of accused even when he asserted that demand of motorcycle was made during negotiations of marriage but PW6 Raj Kumar related as Mama to the deceased, also made allegations against father of accused. Therefore, it is evident that there is no basis to conclude any dowry demand or for that matter any demand of motorcycle was made by accused before or at the time of marriage of accused with Sona.
68. Accused was married to Sona for two years before she died. All the prosecution witnesses have admitted that marriage of accused and deceased was performed in the village where grandfather of SC No.358/2016 State vs Jitender 28 of 69 accused resided. PW5 admitted about factum of death of father of accused when he was only few years old. PW3 as father of Monika admitted that mother of accused remarried and lived in Delhi since about 13 years, along with her second husband and has two natural sons out of her second marriage while accused was brought up by his grandfather in his village. He also admitted that his grandfather was the mediator from the side of accused. Although the version of witnesses is at variance about the duration for which the two resided in the village, with father of deceased/PW3 admitting that the two resided for about one year in the village itself after the marriage, with mother claiming said period to be two months whereas PW4 and PW6 testified that accused along with Sona resided in the village for only few days after the marriage, still there seems to be no allegation of dowry demand for the duration that the couple resided in the village. It is not the case of prosecution that accused resided with his mother even after her remarriage. There is absolutely nothing stated against the grandfather by any witnesses with whom the two resided in the village in the entire prosecution case. There is no evidence about the frequency of visit of Sona to her parental place while she resided in the village and subsequently when the two shifted to Delhi. It is important to point that PW4 in his deposition stated that deceased Sona lived happily at her inlaws place for about 34 months after her SC No.358/2016 State vs Jitender 29 of 69 marriage and that the accused and his father started demanding motorcycle thereafter even while he stated that she resided in the village only for few days after marriage. This is more so as step father of accused Sh. Ram Pratap Verma resided in Delhi and not in the village against whom parallel deposition about demand of motorcycle has been made by PW3, PW4 and PW6.
69. For the period of stay in Delhi, it is not alleged by prosecution that accused and his wife used to reside in the house of his mother and step father. It is evident that accused along with his wife started residing in a rental accommodation in Laxmi Nagar, Delhi. PW5 Smt. Sushila admitted that mamamami of accused used to reside in a separate house. So there is no evidence on record to understand that accused along with deceased Sona used to reside along with mother and step father of accused or mama mami of accused in the same accommodation. During the course of arguments also, Counsel for accused specified that his mother and mamamami were residents of the same locality, may be a few lanes away but were not residing in the same accommodation.
70. There is absolutely no evidence to show the frequency of visit, if at all, by mother of deceased and step father or for that matter, maternal uncleaunt to the house of accused/deceased. There is also nothing to understand the nature of relationship shared by SC No.358/2016 State vs Jitender 30 of 69 accused with his mother especially after her remarriage or with the step father. There is no evidence as to whether they were at all in talking and visiting terms with each other or shared just a very formal relationship without any effective intervention and support in each other's lives. Qua stay in Delhi, apart from telephonic calls by deceased to parents, there is none produced like any cotenant or any neighbours, landlord or any person who could give a cue about nature of relationship between husband and wife. So the allegations basically revolved around telephonic calls made by deceased to her father which was the only medium of communication between two families.
71. PW3 in his deposition merely stated about demand of motorcycle from her daughter. There is absolutely no further specification or detail or any supported corroboration to the allegations. There are no substantiations like occasion, date, time manner and mode rather just sweeping general allegations against the accused about demand.
72. Similar is the stance of PW4 and PW5 that they were informed by deceased Sona about the demand of motorcycle by accused. At this stage, it is important to underline that PW3, PW4 and PW5, being parents and brother of deceased have admitted in their respective crossexamination that accused did not make any demand of motorcycle directly from any of them and it is only on SC No.358/2016 State vs Jitender 31 of 69 the basis of information by deceased that they got to know of any such demand raised by the accused person. There is no evidence that at any point of time, any of the aforesaid witnesses confronted accused or his grandfather about illegality of any such dowry demand or tried to pacify or sort out the difficulty. It is peculiar that the parents of deceased never went to the rental accommodation in Delhi. It is not even stated that they visited her at the time of her delivery in the month of September 2015. PW3 stated that she used to call him from the number of accused person and talked to him for about 5 minutes in period of few intervening days. Parents of deceased have not testified as to whether she reiterated that demand each time she made a call or whether they ever tried to reach out to her to sort out the situation at any point of time. PW4 Mithai Lal stated that he visited her sister once in the year 2014 and did not visit the house upon her death and therefore, he could not specify whether she died in the same house or not. There is no evidence of any letter written at any point of time by Sona to any one about complaining of the demand. There is also no evidence that she used to separately call her mother and brother and made allegations against her husband.
73. At this juncture, it is important to analyze as to what happened in June, 2014 when admittedly as deposed by all the prosecution witnesses and also by accused in his testimony that deceased SC No.358/2016 State vs Jitender 32 of 69 visited at her parental house. Although there is no direct denial but it is apparent that seemingly deceased visited and resided at her parental house for the last time before her death, in June 2014, that is about one year prior to her death. The prosecution witnesses and even the accused have admitted that the occasion was marriage of cousin of deceased in the village. PW3, PW4 as well as PW5 testified that deceased informed them of the demand of motorcycle by the accused when she visited her parental house. PW3 stated that she was left at her parents house by her husband for about two months while PW4 also reiterated the same in his examination in chief but clarified in cross examination that she came on 2nd of June 2014 and left back on 9th of June 2014. PW5 also admitted that accused had left her daughter at her house to attend the marriage of his sister's daughter and stayed there for about 10 days and taken back by the accused thereafter. It is thus evident that the woman visited and resided at her parental residence for at least few days with formal occasion of a marriage in family being in place. PW4 responded in crossexamination that any complaint was not made to the police or to Panchayat regarding the demand of motorcycle by the accused whereas PW3 talked about intervention of relatives to sort out the matter when accused was confronted, as a result of which he admitted his mistake which is why allowed to take her daughter to Delhi. There is no evidence as to whether SC No.358/2016 State vs Jitender 33 of 69 woman came to attend marriage from Delhi or shifted subsequently to Delhi after June 2014. There is nothing to ascertain as to since when accused shifted to Delhi and since how long was living in rented accommodation where woman died.
74. Similarly, PW6 also projected about a compromise having taken place in MayJune 2014 in the presence of accused, his father, his grandfather with father of deceased as well as in presence of some other persons including himself. PW6 also projected that accused had left her at her parental house stating that she was black in complexion and because of demand of motorcycle was not fulfilled. PW5 also stated that accused left her daughter at her house after beating her. Therefore, the context of marriage of cousin was somewhat subdued and projection was intended that there were oblique reason for accused to have left the deceased at her parental house in a state of rejection and to coerce her to pressurize her parents for fulfillment of his dowry demand of motorcycle. Intervention of relatives would necessariily mean that they confronted accused with the demand made and tried to sort out. All the witnesses have not talked in the same tone about intervention of the relatives or the compromise having taken place amongst the family members of both the sides or that said compromise was on account of/in context of any dowry demand. In fact, testimony of PW3 and PW4 are totally silent on the aspect of any compromise talk having taken place in June 2014.
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75. None of the witnesses have stated that dowry exchanged hands at the time of marriage of deceased with accused person. There is no mention of even ceremonial gifts given by parents of deceased to accused person on the occasion of marriage. There is absolutely no mention of any gifts or any customary amount or any demand raised by accused at the time of birth of their daughter. It appears to be a case of shift from no demand to a repeated demand of motorcycle as dowry. Further it can not be reconciled as to how a compromise can take place while a demand is being made. It is the compromise which can only be either to fulfill the demand or to confront and make the person withdraw from the demand. None of the above situation seem to be there. There is no evidence that they asked the accused to drop the woman at her parental house while they were repeatedly assumingly being informed that she is being harassed on account of dowry demand.
76. Further it is also evident as stated by PW2, PW3 and PW5 that they never cared to visit their daughter to take stock of the difficult situation she was allegedly facing at the hands of the accused person. There is no evidence that they ever tried to reach out to the grandfather or to the mother of accused to complain of any ill treatment being meted out to their daughter the lady for illegal demand. Similarly, there is no evidence that any authority including Panchayat or a meeting of elders of both families or SC No.358/2016 State vs Jitender 35 of 69 police authority were ever complained about any dowry demand. There are general allegations that deceased complained about the demand as well as harassment. Apart from date of incident, there is no evidence as to when the call was last made, to whom was it made and whether it contained the reiteration of only dowry demand.
77. Having discussed in detail about the dowry demand, next in line is the ingredient of cruelty or harassment of the woman at the hands of the accused made soon before her death. After May June 2014 that is more than one year prior to her death, no particular incidence has been cited by any of the prosecution witnesses till the date of death of woman.
78. The witnesses have used only the generic term of 'harassment' in their testimony without absolutely any specification whatsoever. It is stated at some stages that the accused resorted to beating as well to force or to harass the woman in connection with the non fulfillment of the dowry demand.
79. It is settled that there cannot be straitjacket formula to state that a particular duration would qualify as "soon before death". The idea is about establishing the connection between cruelty or harassment and the death and therefore, it must be construed as per its actual import which would further the object and cause of the law enacted. It is imperative that the prosecution is able to SC No.358/2016 State vs Jitender 36 of 69 show reasonable nexus between dowry demand and in turn cruelty or harassment inflicted upon her and her death. Therefore, it is not the actual time limit but the live and proximate link between act of accused and the unnatural death of the woman which would be the defining factor. It is just that the incident of cruelty alleged against the accused must not be so stale and inconsequential that by no means can it be stated to have any impact on the physical, mental and emotional being of victim at the time when she took the ultimate step to end her life.
80. In the case at hand, there is no incidence testified in particular about the demand made or the harassment caused after June 2014, when woman last visited her parental house to attend marriage of her cousin. PW3 testified that he received the call on the fateful day from her daughter at about 9.00 am that she was being beaten by her husband and her fatherinlaw and was asked to come to Delhi to take her away. PW3 also stated that he pacified her daughter that he would send Mithai Lal to bring back her home after 23 days. PW3 did not specify that this turn of events also happened at any point time prior to the occasion as well as that she asked her father to take her back or that she made call complaining about beatings given by accused. It is noteworthy that he did not state in his testimony about the beatings being given to her at the fateful time for nonfulfillment of dowry demand. The other witnesses only stated what was told SC No.358/2016 State vs Jitender 37 of 69 to them by PW3. It is admitted that they did not get to talk to the deceased when she last made call to her father who was admittedly not present at her own place when he received the call. There is no evidence that he insisted her daughter to make him talk to accused or her father who was allegedly present and beating the woman, to stop them from harassing his daughter. There is no independent evidence to show that the father of accused was present at the point of time when the call was made by deceased to her father.
81. PW19 appeared as Nodal Officer and placed on record the certified copy of CDR as Ex.PW19/B. A call was made from mobile number of accused to mobile number of father of deceased at about 8.40 am for about 21 seconds and subsequently from the number of father to number of accused at 10.29 am for about for about 30 seconds and then by number of accused to number of father at about 11.48 am for 57 seconds and again by mobile number of father to the mobile number of accused at 1.30 pm for zero seconds and again at about 4.15 pm for about 57 seconds.
82. PW3 stated that his daughter complained of beatings being given by accused and his father, when she made call to him on the fateful day. It is important at this juncture to look at the statement of accused recorded as DW1 upon his examination under Section SC No.358/2016 State vs Jitender 38 of 69 315 Cr.P.C. in the context being discussed here. DW1 testified that he over heard his wife talking to PW3 on phone, wherein, she stated that she had become a burden for all as neither her parents were coming to take her nor her husband was ready to drop her at her parental home and therefore, she would finish her life that day itself. It is thus evident that accused has not denied that a call was made by deceased on the date of incident to her father from the mobile phone of accused. There is no independent witness adduced by the prosecution to show that accused had beaten his wife on the date of incident which is why his wife made a call to her father. It is questionable that the deceased could use the phone of her husband to complain against her husband to her father while or just after he along with his father had allegedly or were still beating her. There is no statement of any other tenant recorded in this case who could tell as to whether accused had beaten her in the morning or was there any questionable conduct of accused noticed.
83. PW20, Inspector Subhash Chandra in his testimony has accepted that there are several rented rooms on the same floor in the same property where tenants were living. But, he did not record the statement of any of the tenants. He also stated in his cross examination that he did not even serve the notice under Section 160 Cr.P.C. upon any of the tenant. Therefore, testimony of PW3 is singular to affirm that too, on the basis of a distress telephonic SC No.358/2016 State vs Jitender 39 of 69 call, after which there is no proof that he immediately tried to reach out to her husband and to question that the woman was being beaten up or harassed minutes before or during the time when she called her father that she was being beaten up. As earlier stated, there is nothing to prove that father of accused was present at the time in the rented room of the accused when the woman was being beaten up or when she made a call to her father.
84. It is important to look at the statement of PW3 Ex.PW3/A, which became the basis for the registration of the FIR. In that statement also, the submission was about beating by accused and his father and she requested him to come to Delhi to take her back. In the statement Ex.PW3/A as well as in the testimony of PW3, he has not stated about the beatings being given for the sake of demand of motorcycle. This alleged demand is conspicuously missing from the statement Ex.PW3/A as well as from the testimony of PW3, who had attended the telephonic call last made by his daughter in context of happening on the fateful day when the woman died. Further, PW20 admitted that he had recorded the disclosure statement of accused. Although, this disclosure statement has no significance and is non admissible in view of Section 25 and 26 of Indian Evidence Act. However, it is the duty of Investigating Officer to collect evidence not only for establishing the guilt against accused persons but all relevant SC No.358/2016 State vs Jitender 40 of 69 essential to determine the truth whether or not these were supportive of prosecution case or not. PW20 admitted that accused told him about intimation of hanging by his wife deceased by one Sanjay. However, he also admitted that he failed to examine Sanjay as to whether he informed the accused about the factum of hanging by his wife. Similarly, no evidence has been adduced to confirm as to whether accused had reached or reported at his work place on the date of incident when he received telephonic information from Sanjay that his wife has hanged herself. Except bald, unsubstantiated, obscure statement, no evidence is available on record that the deceased was treated with cruelty soon before death in connection with dowry demand.
85. In the backdrop as discussed above, it is imperative to weigh what accused has testified as DW1 in the witness box. Accused chose to testify and did not opt to remain silent, for the prosecution to show or establish guilt against him. Section 315 Cr.P.C. is a provision where accused as a competent witness appears in witness box to explain/clarify the evidence against him. Certain observations as made by Hon'ble Supreme Court of India in respect of scope of Section 315 Cr.P.C. are enlisted below:
86. In Tukaram G. Gaokar Vs. R.N. Shukla : 1968 AIR 1050 the SC No.358/2016 State vs Jitender 41 of 69 Supreme Court observed that in a criminal trial, a person accused of an offence is a competent witness for the defence under Section 342A of the Criminal Procedure Code, 1898 (Section 315(1) of the Code of Criminal Procedure, 1973) and may give evidence on oath in disproof of the charges against him. It was further observed that when the accused does so out of his own volition, there is no violation of Article 20(3) of the Constitution which affirms that no person accused of an offence shall be compelled to be a witness against himself.
87. In State of Madhya Pradesh vs. Ramesh & Anr. [Crl. Appeal No. 1289 of 2005 (DOD 18.03.2011)], the Hon'ble Supreme Court observed that the statement of the accused made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecutions case, but it cannot be treated as evidence within the meaning of Section 3 of the Indian Evidence Act, 1872, as it is not recorded after administration of oath and the accused cannot be crossexamined. However, Section 315 CrPC enables the accused to give evidence on his own behalf to disprove the charges against him and once he enters into the witness box to take oath and to be crossexamined by the prosecution, he is a competent witness and his evidence can be considered and relied upon while deciding the case.
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88. In Dehal Singh vs. State of Himcahal Pradesh, [Crl. Appeal No. 1215 of 2005 (DOD : 31.08.2010)], the Supreme Court affirmed that if an accused appears as a defence witness to disprove the charges, his version can be tested by crossexamination and his deposition under Section 315 CrPC can be treated as evidence.
89. Earlier, in P.N. Krishna Lal vs. Govt. of Kerala : 1995 Supp (2) SCC 187, it was observed that Section 315 CrPC makes an accused person a competent witness who may give evidence on oath in disproof of the charges made against him. The accused can therefore waive his right under Article 20(3) of the Constitution and tender himself as a witness, if he chooses.
90. In Raj Kumar Singh @ Ralu @ Batya vs. State of Rajasthan :
AIR 2013 SC 3150, the Supreme Court observed that an adverse inference can be drawn against the accused only, and only if the incriminating material stood fully established and the accused is unable to furnish an explanation when examined as a witness under Section 315 CrPC. The case would therefore turn upon appreciation of the evidence of the accused also.
91. Accused as DW1 has given detailed deposition about his background, his childhood and the circumstance in which he married Sona @ Monika. He deposed that his father in law did not give anything in dowry. It is noted that none of the prosecution witness have stated a word about any dowry articles SC No.358/2016 State vs Jitender 43 of 69 having been exchanged during the marriage. PW5 Smt. Sushila, admitted in her crossexamination that her husband had gone to another village for labour work when he received the last call which clearly tells about the financial condition of father of the woman and which has been testified about by DW1 as well. His deposition that he resided with his grandfather in the village itself post marriage as he used to even prior to marriage, as his mother had remarried long back and he was brought up by his grandfather, which assertions have been duly admitted by his fatherinlaw in his deposition.
92. DW1 has testified as to how he got suspicious of involvement of his wife with another person living few houses away from the parental house of the woman. He has given a detailed and natural narration which appeared in sync with other circumstantial evidence. He has explained how he questioned his wife but was not satisfied with the answer. He has also explained as to how he asked his parents in laws also about as to who that person was but they also tried to brush away the entire thing stating that the person concerned was in their relations and how he was not convinced with the response when he weighed the explanation against the conduct of his wife with that person which he had witnessed.
93. It is note worthy that none of the blood relations of the deceased SC No.358/2016 State vs Jitender 44 of 69 stated about any of her visits to parental place after marriage. DW1 has stated that he had left his wife at her parental place in June 2014 on the occasion of marriage ceremony of her cousin upon her asking as even prior to that she had stated that she did not want to live with him. So, there was a formal occasion when woman was expected to come and that she did not have to look for any excuse or any indulgence from the accused to visit her parental home. DW1 has testified that a meeting was arranged between his grandfather and parents in laws at her parental home after which he was asked by his motherinlaw to take his wife to Delhi and settle there, which would hopefully change the behaviour of his wife and that he followed the advice. He emphasized that he loved his wife. There is absolutely nothing in the testimony of PW3, father of the woman and PW4 Mithai Lal brother about any compromise talks or any intervention. However, PW5 stated that the matter was put on table and was sorted out with the intervention of relatives to which accused accepted/admitted his fault and took her to Delhi. PW6 Mama of the woman also talked about a compromise having taken place in the month of MayJune 2014 in the presence of parents of the woman, accused and his grandfather. Therefore, there is some contextual corroboration to the testimony of the DW1. Even in the prosecution evidence considering that there is no alternative explanation of that compromise and also considering that there SC No.358/2016 State vs Jitender 45 of 69 was no reason for the father or brother of woman to hide or twist that, if that happened as that would have strengthened their deposition and would tilt the case against the accused person.
94. DW1 has testified that he started residing in Delhi, since August 2014. PW4 also stated that he visited the rental house in the year 2014 but he could not specify any date or month. There is no counter evidence adduced on behalf of prosecution to suggest that the accused was residing in Delhi right after marriage or few months after marriage or one year after marriage or only since August 2014.
95. PW20 has admitted that he did not examine the landlord Jafrudin during investigation of the case to understand when accused along with his wife started residing there or to testify about their public conduct or about any untoward incident, which he heard or witnessed, at any point of time during their stay in the rental house. DW1 explained that he joined Haldiram Shahdra Delhi, upon coming to Delhi. Although there is no documentary evidence to that effect, however, there is no investigation either on the point of his employment. He has not been crossexamined on this aspect by Ld. Addl. PP.
96. DW1 Jitendra has testified in detail that he intimated his parents in law upon insistence of his wife to marry Rajanati but they pacified him that they would make her understand. He also SC No.358/2016 State vs Jitender 46 of 69 categorically deposed that his wife warned him to leave her at her parental home few days prior to 18th of July 2015, to which he made her understand and told her that she may call her brother or her father to take her back or he would drop her as and when he gets an off from his work. He has further explained as to how even on 18.07.2015, he over heard his wife calling her father to take her back else she would take the drastic step. He also narrated as to how he insisted her to pay heed to their infant daughter and remove from her mind any such thought of committing suicide and that he would certainly drop her to her parental home 23 days thereafter. The above chain of circumstance does not appear unusual or unnatural and reflect events rolling from each other and look well placed in the puzzle of events without having to look for answers in the tale produced on behalf of prosecution.
97. DW1 has been put to crossexamination by Ld. Addl. PP but he did not put a single question on the relationship which he shared with his wife or the cause of tiff between them or that he made dowry demand of motorcycle from the woman and harassed her because of which she died. The only question which was asked was about the mobile phone of other guy Rajanati about which he could not specify as his mobile phone was already seized by the police officials and as he personally had never met Rajanati. PW4 and PW5 admitted that this person Rajanati resides in the SC No.358/2016 State vs Jitender 47 of 69 village few paces away from their village house which has been so testified by DW1 as well. It is also noted that PW3, father of the woman denied his knowledge about any such person. There is no independent evidence indicative of any occasion for accused to know Rajanati and there is nothing to show as to how he come to know about that person living in the neighborhood of her parentsinlaws house, which point has been corroborated by PW4 and PW5, in their respective testimony. PW20 Insp. Subhash Chander (IO) has admitted that he chose not to examine this person Rajanati during investigation to understand the correctness or truthfulness of the assertion made by the accused and whether he had some role or some information to offer which could offer clarity into the commission of offence.
98. Evidence adduced on behalf of prosecution has been analyzed in detail qua the ingredients requisite to establish the commission of any offence by the accused. Accused chose to appear in the testimony box and testified to disprove the charges leveled against him and also allowed himself to be crossexamined. There is no dispute that the woman died an unnatural death within seven years of marriage but the prosecution was under an obligation to show that she was subjected to harassment on account or in connection with demand of dowry in proximate period, having live link with the demand which had a definitive impact on mental equilibrium of the woman and impacted her to SC No.358/2016 State vs Jitender 48 of 69 take immediate steps. Although all the blood relations of the woman deposed that there was demand of motorcycle and she was harassed therefor but that cannot be the end of story, else there would be no need for crossexamination. The material aspects which cumulatively would inculpate accused of causing death of his wife suffer from inconsistencies and obscurity. Mere statements without any substantiations which do not explain, rather raise doubts on the story cannot be relied to convict the accused person. It is not stated that any dowry articles were exchanged at the time of marriage. It is not proved that there were any demands made before marriage and for the years post marriage. There are general and vague allegations of demand of motorcycle having no specifications/ substantiations. Any police complaint was never made. There is cosmetic investigation in this case with only statements of blood relations of woman without any attempt to join any unrelated or contextually relevant person who could have materially contributed in fairness of investigation and would have added credibility to it.
99. It is settled that discrepancies are bound to occur due to various factors like faulty investigation, lapse of memory, passage of time but the court is duty bound to determine after sifting the entire evidence to separate truth from untruth or embellishment or improvements to see whether the residuary evidence is sufficient to convict the accused.
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100. The evidence adduced on behalf of prosecution suffers from material inconsistencies and unexplained gaps in the story, benefit of which must go to the accused. Neither the prosecution has been able to show by cogent and convincing evidence that there was dowry demand by accused nor has been able to prove that there was harassment by accused for or in connection with dowry demand. It is settled that prosecution is under an obligation to lead evidence to show the fulfulment of essentials of Section 304B IPC in order to invoke statutory presumption against the accused who shall then have to refute it. The testimony of DW1 has to be read in its own import in an attempt to disprove the charges leveled by prosecution and its evidentiary value as per the settled legal principles has to be weighed against the projection made by prosecution to prove the allegations against the accused.
101. As discussed above, detailed narrations of events in testimony of DW1 which is natural and well woven which is why it is able to convincingly answer the reasonable queries while trying to understand the prosecution story. The evidence on the part of prosecution appears to be made up, shaky and is thus, not natural and therefore, not convincing. The testimony of DW1 gives an insight into the relationship between accused and deceased which is primarily under consideration in the present matter. Most of the major prosecution witnesses are family members who can be SC No.358/2016 State vs Jitender 50 of 69 called related witnesses. It is settled that their testimonies cannot be discarded merely because they are related by blood or relation with the deceased however, that would require careful scrutiny to attach credit worthiness to it or to base conviction on it. As stated above, accused admitted that the woman called her father in the morning at 9.00 am but he had an entirely different story to project against what father stated. Moreso, there is no evidence recorded of any other tenant living in the adjacent rooms which could provide insight as to what possibly happened in the morning. It is also strange that the father after hearing that his daughter was being beaten, asked her to bear with it and that he would send his son after 23 days without any immediate step to stop the wrong doing. There is no evidence that he tried to reach to the father of accused or to the mother of accused and there is no evidence that father of accused was present in the house of accused when the call was made. Therefore, against the circumstances of the entire case, the explanation tendered by DW1 as to what happened in the morning and what he heard, his wife talking to her father appears much more convincing, real and natural than what PW3 deposed against the accused. There was no statutory requirement on the part of the accused to enter into witness box but he chose to and voluntary opened himself to face crossexamination, knowing fully well the consequences thereof and that same shall be read against him and therefore, his SC No.358/2016 State vs Jitender 51 of 69 version specially when it could not be demolished by cross examination by Ld. Addl. PP has to be given due weightage. In case of Mahinder Kumar & Anr. vs. The State [Crl. Appeal No. 744/2001 (DOD 09.05.2017)], Hon'ble Delhi High Court, has held that equal weightage has to be given to the testimony of all the witnesses irrespective of whether they are produced on behalf of prosecution or defence or court witnesses and has observed as under :
"In the considered opinion of this court, depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses."
102. In view thereof, it is held that the prosecution has not been able to prove the dowry demand on the part of the accused or any harassment done by him for and in connection with the dowry demand. Prosecution has not produced clinching evidence to eliminate all doubts to bridge all gaps to prove that all essentials necessary to constitute commission of offence existed. The prosecution has not been able to convincingly project and prove the allegations apart from a bald, general/obscure statement of dowry demand without any corroboration in independent SC No.358/2016 State vs Jitender 52 of 69 material particulars. As two primary ingredients are not made out, accused cannot be burdened with any liability to prove otherwise. The presumption does not get activited against accused for him to disprove the accusation. Accused is held not guilty of commission of offence punishable under Section 304B IPC.
103. Having discussed the ingredients of Section 304B IPC, it has already been held that there was no harassment on account of dowry demand, which also answers one arm of cruelty as laid down in Section 498A Cr.P.C. for which also, accused has been facing trial, however, it is left to be examined whether accused can be held guilty of any wrongful conduct or act likely to cause grave injury or cause danger to life, limb or health of woman or drive her to commit suicide.
104. In Smt. Raj Rani vs. State (Delhi Administration) : AIR 2000 SC 3559, Honble Apex Court held that while considering the case of cruelty in context of provisions of Section 498A IPC, the court must examine that allegations/accusations are of very grave nature and should be proved beyond reasonable doubt. Petty or trifle disagreements or quarrels cannot be termed as cruelty to attract provisions of Section 498A IPC. It is settled that cruelty can be mental, physical and emotional and each case has to be decided in its own conspectus. The word "willful" contemplates SC No.358/2016 State vs Jitender 53 of 69 a deliberate behaviour on the part of the offender for it to fall with the import of this section.
105. Actual intention or knowledge on the part of the offending spouse as to whether his action or inaction would cause physical, mental, emotional danger or injury to the health of a woman would be an important factor. Also the scale would be that a person possessing ordinarily intellectual capabilities.
106. In the case at hand, there is no direct evidence that the accused used to beat or used to taunt or used to illtreat the woman. There were two injures on the person of woman, one abrasion at the back of left elbow joint and another bruise at the back of left forearm at middle as described by PW7 Dr.Asitesh Bajwa but it cannot be stated that these were only attributable to act of beating and is not explainable by any other means. The deposition of prosecution witnesses as blood relations of woman do not show any conduct on the part of accused which could be termed as willful act or conduct to hold accused guilty.
107. DW1 stated in his statement that he loved his wife and that he never raised any demand. He has admitted that there used to be frequent quarrels between the two and that she had made it clear that she did not want to live with him. A woman is entitled to right to decide whether to marry and not to marry a person and similarly whether she wants to cohabit with her husband or not SC No.358/2016 State vs Jitender 54 of 69 after marriage, subject to legal confines. Accused has described how he got to know from different events as well as from the conduct of woman, during the course of their marriage that there was somebody else whom she wanted to marry and her parents did not support her decision.
108. It is also quite evident that deceased was not happy with her marriage to accused. There is no evidence as to what was her mental state or emotional state at the time when she was got married to the accused person and it is not clear whether she ever told her family that she wanted to marry someone else. So the point of struggle was not that she did not want to marry the accused but that she wanted to marry someone else. She found her self caged and probably could not see any life at the end of the tunnel and lost all hopes. She was eventually not given the right to decide for herself or her life rather the decisions were simply imposed upon her against her will. As can be understood from testimony of DW1, he naturally disapproved, opposed her relationship and also confronted the family members of the woman and even followed the advise of his motherinlaw to give his marriage another chance. It is evident that the lady was pregnant when they decided to shift to Delhi so that she is able to change her mind with the change in place as well as with her child in her own lap, burdened with the maternal duties. It appears that even the child could not dissuade her mind and SC No.358/2016 State vs Jitender 55 of 69 therefore, there was no dilution in her behaviour rather she became more resolute with the passage of time. It is not a matter of one day or one moment to take any decision but it is certain that she was not happy with the turn of events in her life and probably she realized that what others had decided for her life was not acceptable to her. It is evident that it was not due to any conduct on the part of the accused but because she just did not want to be with him as his wife or as the mother to his child for reason that she aspired and expected a different life with another person which she saw no possibility to achieve. Prosecution has thus failed to prove that accused inflicted cruelty on her during their cohabitation to attract culpability for offence punishable under Section 498A IPC.
109. Accused has also been charged with commission of offence punishable u/s 302 IPC. Section 300 stipulates as to when culpable homicide would constitute murder, punishable under Section 302 IPC. Extract of Sections 300 IPC and 302 of IPC read as under: "300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- 2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- 3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be SC No.358/2016 State vs Jitender 56 of 69 inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
302.Punishment for murder.--Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine."
110. On the basis of analysis of testimonies of prosecution witnesses, what is to be examined is an act on the part of accused to cause death, done with intention or knowledge that it is likely to cause death or an act to knowledge of accused that it could be so dangerous that it could cause death of accused, can be attributed to accused to hold him liable. Unlike Section 304B IPC, there is no presumption which can be invoked against accused and thus, prosecution is under an obligation to prove existence of ingredients to constitute offence punishable u/s 302 IPC beyond all reasonable doubt by producing clinching evidence.
111. No witness has been produced who spotted the accused committing any act/beating his wife. Accused was with his wife that morning and left for his work place as deposed by him. No evidence has been brought in by prosecution to show that some quarrel or some tiff happened between the couple that morning or that he was present and gave beating to her and hanged her.
SC No.358/2016 State vs Jitender 57 of 69 There is no evidence that he did not show for his work place that day. There is no evidence that Sanjay did not spot the woman hanging where he heard the child consistently/relentlessly crying inside the room. There is no evidence that room was not locked from inside and accused had all the occasion to commit an act. There is no direct evidence of any previous act on the part of accused that he illtreated his wife or that he used to often beat her or used to get uncontrollably angry that he could get wayward and act compulsive. It is natural for accused being husband to be present with his wife and here is nothing which can be categorized as unnatural conduct on his part which could make his move suspicious or which could impute motive to accused to his act. So, there was none present with husband and wife that morning apart from their eight months old daughter who could testify in this respect. There is no investigation either of any coteant/neighbourers or any other person who could explain about any unnatural activity witnessed that morning which might lend explanation and clarity to the occurrence. If at all, the admitted factors are seen from the prism of circumstantial evidence, still it cannot be stated that the circumstances proved lead an inescapble conclusion proof of guilt against accused.
112. In the case of Sharad Birdhi Chand Sarda vs State of Maharashtra, 1984 AIR 1622 decided on 17 July, 1984, Hon'ble Supreme Court of India has laid down the the golden principles SC No.358/2016 State vs Jitender 58 of 69 with regard to conviction in a case which rests entirely on circumstantial evidence extract of which is produced as under: "A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
113. The above said principles have been placed reliance upon in a recent judgment reported reported as Boby vs State of Kerla, SC No.358/2016 State vs Jitender 59 of 69 Criminal Appeal No.1439 of 2009 decided on January 12, 2023, wherein Hon'ble Supreme Court of India further observed as under :
"It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused 'must be' and not merely 'may be' guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved". It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused."
114. The conduct that accused did not wait for parents of the woman has been heavily relied by prosecution that he had mischief in his mind and he was guilty therefore he was trying to hide. It is admitted by accused as DW1 that he did not inform police, however, he deposed that he telephonically informed his father inlaw when he received call from him that she has hanged herself. PW 10 deposed that Jitender alongwith him took his wife to Makkar Hospital and then to Hedgewar Hospital where SC No.358/2016 State vs Jitender 60 of 69 doctors declared her brought dead after which her body was brought back to rented accommodation. PW10 has deposed that he intimated police about cause of disagreement between Jitender and his wife that the woman wanted to marry someone else. It is noted that there is absolutely no investigation on this aspect despite admitted by IO in his testimony that accused so stated in his statement/examination by the police. It is clear that IO failed to examine Rajanati to weigh the version put forth in favour of accused. PW3 also deposed that he was informed by father of accused after one hour of receipt of call from her daughter that she has hanged herself. DW1 deposed that he called his fatherin law at about 11.45 a.m. when doctors at hospital declared her dead and told him that she has died. As per call data records, as call for about 57 seconds is shown to be made from number of accused to his fatherinlaw at about 11.48 a.m. which has not been testified by PW3. PW3 however, has stated that he called accused after receiving a call from his father about death of his daughter to which accused also stated that she died on way to hospital. Therefore, it does not appear that accused was really hiding and just wanted to clear his hands away or was so guiltful that he just wanted to cremate the body at the earliest. It is not in doubt that he was under an obligation to inform police when he got to know of hanging by his wife. Also, his testimony that he took body of woman to cremation ground on the insistence of his SC No.358/2016 State vs Jitender 61 of 69 landlord as he was celebrating Eid does not appear very convincing but this standalone aspect can be taken to be relevant as conduct u/s 8 Indian Evidence Act but that in itself would not suffice and cannot be the basis of holding accused guilty of committing murder of his wife. This conduct has to be considered in conjunction, in distinction and in the backdrop of other evidence which has come on record. There were people/relatives present apart from accused at Shamshan Ghat and eventually police was informed by uncle of accused PW10 Vijay. An abrasion and a bruise present on left arm cannot be directly linked to act of accused in the absence of any evidence and those injuries cannot be stated to be sufficient to cause death of woman. There is nothing to proe that she was forcibly hanged by accused to kill her. Cause of death has been assigned to be Asphyxia due to AnteMortem Hanging. So, there is no evidence that she had multiple bruises on her body which indicate that she was beaten just before her death. There are no signs of struggle visible on the body as per the postmortem report. Considering the cause of death medically assigned, it cannot be stated that the accused first killed her and then simply hanged her body.
115. There is thus neither any direct nor indirect evidence to hold accused guilty of murder of his wife. Prosecution has not been able to produce any evidence relating accused to offence punishable u/s 302 IPC.
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116. It is evident as well as admitted by accused that woman died of hanging. The only alternative explanation to forcible hanging is that she hanged herself to commit suicide. Although, accused has not been charged with offence of any abetment to suicide but culpability of accused in respect of this offence is being examined as it involves the same nature of facts and evidence and as such would not be prejudicial to interest of accused. What is to be examined is whether accused can be held liable to have abetted the commission of suicide by woman. Section 306 IPC makes abetment of suicide punishable. It reads as under :
"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."
117. Abetment in turn has been defined u/s 107 IPC, which is reproduced hereuder for better understanding :
"Section: 107. Abetment of a thing.A person abets the doing of a thing, whoFirst.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 SC No.358/2016 State vs Jitender 63 of 69 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.
Explanation 2.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."
118. In Bhupendra vs. State of MP : 2014 CrLJ 546, Hon'ble Supreme Court of India has examined that whether an offence under Section 304B and 306 together would be attracted in a case and was of the opinion that Section 306 of IPC is much broader in its application and takes within its fold one aspect of Section 304B of the IPC. These two Sections are not mutually exclusive. If a conviction for causing a suicide is based on Section 304B of IPC, it will necessarily attract Section 306, however, the converse may not be true.
119. Section 113A Indian Evidence Act raises presumption against the accused in case of suicide by a married woman within seven years of marriage, if prosecution is able to show that she was subjected to cruelty within the meaning of Section 498A IPC. Section 113A of Indian Evidence Act is reproduced hereinunder for ready reference :
"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 SC No.358/2016 State vs Jitender 64 of 69 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."
120. In Pinakin Mahipatray Rawal Vs. State of Gujarat : 2013 (3) Mad LJ (Crl) 700, Hon'ble Supreme Court has observed as under :
"Section 113A only deals with a presumption which the Court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being illtreated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when 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 as per the terms defined in Section 498A IPC, the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498A IPC is on the prosecution."
121. In Satish Shetty vs. State of Karnatka : AIR 2016 SC 2689, Hon'ble Supreme Court has held that once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498A, in our view only in a rare case, SC No.358/2016 State vs Jitender 65 of 69 the Court can refuse to invoke the presumption of abetment, if other requirements of Section 113A of the Evidence Act, 1872 stand satisfied.
122. The ingredients of presumption u/s 113A of Indian Evidence Act are similar to those u/s 113B Indian Evidence Act except that it deals with suicide by a woman and has no ingredients of demand of dowry, however, it gets invoked only when it is shown by prosecution by cogent evidence that her husband had subjected her to cruelty within the meaning of Section 498A IPC. As already discussed in the proceedings paras, it has been held that prosecution has failed to prove that accused committed cruelty by harassing her in order to coerce her to fulfill demand of dowry or indulge wilfully in any thought after, intentional or planned act, being aware of the consequences which it might entail and which pushed her to circumstance in which she could no longer bear being tormented and eventually found death an easier path than being in the house or company of accused. Considering therefore in this case, the presumption would not be invoked against accused as basic ingredients constituting cruelty are not made out.
123. Considering the nature of evidence which has come on record, there is nothing which can show encouragement or incitement on the part of accused to the woman to commit suicide, rather SC No.358/2016 State vs Jitender 66 of 69 he was persuading her that she should think of their daughter and let bygones be bygones and focus on their future instead so he tried to rather pacify her. Bringing her to Delhi to change her mind as she was pregnant with his child was also one such step. There is no evidence of any persistent conduct on the part of the accused that he created such circumstance which reasonably gave rise to certainty of leading to this consequence. There is no evidence that he intended to push the woman or create such circumstances by positive act or thought after omission that she eventually killed herself. It was rather easy for accused and for accused to simply let her be or to leave her at her parental home as she herself wished but he tried to make amends rather than simply shifting the burden upon parents of his wife. Expecting him that he should have/ought to have let her go away and do what she wanted to or what she had decided for herself is rather very subjective criteria and cannot by any means be stretched as exculpatory against accused. Further, as discussed above already, no dowry demand can be stated to be attributable against accused. Thus, prosecution has not been able to bring any cogent and convincing evidence in the form of any positive act to show that accused intentionally instigated or aided the woman to commit suicide.
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CONCLUSION
124. What happened is extremely unfortunate. A young woman of 23 years of age was so dissatisfied, so angry, so hopeless that even a few months old toddler could not give her any inspiration to hold on or to give her life another chance or may be to steer clear the difficulties and make her mark. But question here is whether accused, who as stated during arguments, is still taking care of his child after death of his wife, could be held responsible of her death within legal contours. On the basis of above made discussion, it is held that prosecution has acted only on premise of death of woman within seven years and that, accused did not promptly inform the police as the basis of entire case without examining as to what caused or compelled the woman to do what she resorted to. Any alternative hypothesis has not been tested or tried or even investigated during the investigation. It appears that the entire venture of investigation was carried out only to reach at a premedidated result without examining as to what actually happened and why so. There are so many loose ends in the investigation which needed to be tied and weaved to bring out a clear picture of truth behind the death of woman irrespective of culpability of accused in that context.
125. In view of above discussion, this court is of the considered view that prosecution has failed to establish the allegation that SC No.358/2016 State vs Jitender 68 of 69 accused demanded dowry from his wife and harassed her for nonfulfilment of demand or to coerce her to fulfill the demand in the course of such harassment, he also had beaten her soon before her death and eventually killed her or even abetted her to commit suicide. The charges against accused are not legally sustainable. Accused Jitender is hereby acquitted of the charges for commission of offence punishable under Section 304B IPC, 498A IPC, 306 IPC and 302 IPC.
126. File be consigned to Record Room after due compliance of Section 437A Cr.P.C. Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2023.10.30 16:39:04 +0530 (Shelly Arora) Additional Sessions Judge05 East/Karkardooma Courts/Delhi Announced in the open court on this 30th day of October, 2023 SC No.358/2016 State vs Jitender 69 of 69