Delhi District Court
State vs Dinesh Etc on 8 August, 2024
DLWT01-003123-2017
IN THE COURT OF SH. SUMEET ANAND
ASJ (FTC)-01(WEST)
TIS HAZARI COURTS: DELHI
SESSION CASE NO. 224/2017
CNR NO. DLWT01-003123-2017
STATE Versus 1) Dinesh
S/o Late Sh Shyam Sunder
R/o House no.17, Vijay Nagar,
Hisar.
2) Savitri
W/o Late Sh Shyam Sunder
R/o House no.17, Vijay Nagar,
Hisar.
Case received by assignment on: 11.04.2017
Arguments in matter concluded: 26.07.2024
Date of pronouncement: 08.08.2024
Final order: Acquittal
FIR No. 226/2015
Under Section. 498A/304B/34 IPC
P.S Uttam Nagar
SC 224/2017 STATE Vs. DINESH ETC
FIR no. 226/2015 PS (Uttam Nagar) Pages 1/52
DLWT01-003123-2017
JUDGMENT
CASE OF THE PROSECUTION IN BRIEF:-
1. The crucial fact giving rise to the registration of FIR No. 226/2015 at Police Station Uttam Nagar, under sections 498A/304B/306/506 of the Indian Penal Code, 1860 (hereinafter IPC) read with section 34 IPC, is the unnatural death of deceased Reena, by way of hanging, at House no. C-107, First Floor, Block, Mohan Garden, New Delhi (hereinafter the Place of Occurrence).
2. On 16.02.2015 at 11:25 am, DD No. 24A (Ex.PW15/A) was received at Police Station Uttam Nagar regarding death of a female by hanging at the place of occurrence. Upon the receipt of said information, PW15 (Retired SI Braham Prakash) along with PW13 (Ct Deepak) proceeded to the place of occurrence, where through the window they saw that a girl was hanging on the hook of the ceiling fan with chunni/duppata. According to their respective depositions the room of the place of occurrence was locked from inside.
3. As part of the investigation process, the crime team was called at the place of occurrence; and the door of the place of occurrence was forcefully broken open due to which the lock (chatkani) of the gate got broken and the door was opened.
4. Further, as part of the investigation process, the crime team inspected the place of occurrence; and recovered a 'Suicide Note' (Ex.PW1/X2) and handed over the same to the Investigating Officer SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 2/52 DLWT01-003123-2017 (PW15). The same was formally seized by the IO vide seizure memo Ex.PW1/1.
5. As deposed by PW15 in his testimony, it is the case of the prosecution, that after reading the suicide note ( Ex.PW1/X2) the Investigating officer came to know that the name of the deceased is Reena, Daughter of Brij Mohan; and Wife of Dinesh; and that she was married to Dinesh one year prior to the date of incident.
6. Accordingly, the Investigating Officer on becoming aware of these crucial facts informed SDM Rajouri Garden regarding the situation, who instructed the Investigating Officer to send the dead body to the mortuary of DDU Hospital. Accordingly, the dead body of the deceased was sent to the DDU Hospital by the Investigating officer through Constable Deepak (PW-13) where the inquest proceedings and the postmortem of the deceased were conducted before handing over the dead body of the deceased to the family members.
7. It is further the case of the prosecution that on 17.02.2015 at DDU Hospital, Executive Magistrate, Rajouri Garden, Sh. Surender Kumar (PW5) recorded the statement of one Vikram Kalra (PW-3) which is Ex.PW3/A; and after recording the statement Ex.PW3/A handed it over the same to the Investigating officer. It is on the basis of Ex.PW3/A the Investigating Officer prepared the Rukka Ex.PW15/B and handed over the Rukka and the complaint Ex.PW SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 3/52 DLWT01-003123-2017 3/A to the Duty Officer for the registration of FIR. Resultantly, the present FIR was registered on 17/02/2015 at 03:55 pm.
8. During the course of the investigation, the husband of the deceased namely Dinesh was arrested from District Hisar, Haryana on 17.02.2015 at 11pm at the instance of the Complainant (PW-3).
Subsequently, during the course of the investigation the mother-in- law of the deceased namely Savitri was also arrested on 20.03.2015. However, accused Vijay Kumar was not arrested.
9. After the completion of investigation chargesheet was filed in the court of Illaqa Magistrate on 19.05.2015 against accused Dinesh, Savitri and Vijay. At the time of filing of chargesheet the accused Dinesh and Savitri were running in Judicial Custody. Further, the court after taking cognizance of the offences summoned the accused Vijay and after supplying chargesheet to the accused persons in due compliance of section 207 Cr.P.C committed the case to the court of sessions for trial.
10. Subsequently, the Court of Sessions, vide its order dated 06.06.2017, framed charges under sections 498A IPC and 304B IPC, read with section 34 IPC against accused Dinesh (husband of deceased) and Savitri (mother-in-law of deceased); and in the alternative also charged both these accused persons for committing offence under section 306 IPC. Further, the Court charged accused Vijay (brother-in-law of deceased) under section 506 IPC.
SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 4/52 DLWT01-003123-2017
11. In order to prove its case beyond all reasonable doubts the prosecution examined the following 15 witnesses; viz.
(i) PW1 Sh Devi Dutt Landlord of house no.
C-107, Mohan Garden, New Delhi (Landlord of place of occurrence). (ii) PW2 Inspector Mahesh Kumar prepared the scaled Crime Branch site plan of the place of occurrence. (iii) PW3 Vikram Kalra brother of deceased/complainant . (iv) PW4 W/Ct Mukesh, Call operator who reeived DD no. 24A dated 16.05.2015 (v) PW5 Surender Kumar the then Executive Magistrate, Rampura West District who conducted the inquest proceedings and recorded the statement of brother of the complainant Vikram Kalra (PW3) on the basis of which FIR was registered. (vi) PW6 SI Kalyan Singh member of mobile crime team who found the suicide note at the place of occurrence and who prepared the crime team report. SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 5/52 DLWT01-003123-2017 (vii) PW7 ASI Subhash Chander From PS HTM Hisar who produced the record of involvement of accused Dinesh in 14 cases pertaining to PS HTM Hisar and other police stations in Haryana. (viii) PW8 Dharam Singh Identified the dead body of the deceased at DDU Hospital (ix) PW9 HC Ashok Assisted the IO in arrested the accused Dinesh (x) PW10 Sanjay Kumar Photographer who took the photographs of the postmortem proceedings of the deceased at DDU Hospital (xi) PW11 Dr R.K Chaubey Medical Officer Forensic Department, DDU Hospital. Identified the signatures of Dr Purender Pratap Singh (xii) PW12 W/Ct Rakhi Assisted the IO in arrest of accused Savitri (xiii) PW13 HC Deepak Assisted the IO investigation and shifted the dead body of the deceased body to the mortuary of SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 6/52 DLWT01-003123-2017 DDU Hospital (xiv) PW14 SI Sanjeev Kumar Photographer, Mobile Tema, who photographs of the place of occurrence from different angles. (xv) PW15 SI Bharam Prakash Investigating officer
12. The defence during the course of the prosecution evidence admitted the genuineness of the FIR registered, accordingly corresponding witness was dropped from array of witnesses and was not formally examined.
13. Further, in order to prove its case beyond all reasonable doubts the prosecution filed and relied upon the following documents; viz.
(i) E-challan along with Hash Value Certificate (ii) Ex.PW1/A seizure memo of rent agreement entered between deceased and PW1 and verification form of the tenant. (iii) Ex.PW2/A scaled site plan of place of occurrence i.e. house of Devi Dutt S/o Paras Ram, first floor, house no. C-107, (backside), Mohan Garden Uttam Nagar, New Delhi. (iv) Ex.PW3/A complaint made by PW3 (Vikram Kalra) based on which SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 7/52 DLWT01-003123-2017 FIR was registered. (v) endorsement of IO on Ex.PW15/B the complaint Ex.PW3/A for registration of FIR. (vi) Ex.PW3/B Dead body identification memo (vii) Ex.PW3/C Dead body handing over memo (viii) PW4/mark A Print out of PCR call; (ix) Ex.PW5/A Inquest report of the deceased (x) Ex.PW5/B request letter for postmortem of the deceased; (xi) Ex.PW6/A Crime team report (xii) Ex.PW7/A record of involvement of accused Dinesh in 14 cases in district Hisar; (xiii) Ex.PW8/A dead body identification memo (xiv) Ex.PW9/A arrest memo of accused Dinesh (xv) Ex.PW9/B personal search memo (jamatalashi) of accused Dinesh; (xvi) Ex.PW6/DX Mark A, three photographs showing Mark B and Mark C deceased hanging; (xvii) Ex.PW10/A to (total 19 photographs of Ex.PW10/A18 postmortem of deceased) (xviii) Ex.PW14/B1 to (total 14 photographs) of place Ex.PW14/B14 of occurrence showing some papers, photographs lying on a bed and deceased hanging from the ceiling; (xix) One brown colour envelope on SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 8/52 DLWT01-003123-2017 which PW14 A1 to A14 dated 10.01.2023 is written containing negatives of the photographs (xx) 12 other photographs showing a broken kundi deceased handing from ceiling, a document lying on bed and postmortem of deceased are also on record but on which no exhibit is marked; (xxi) Ex.PW11/A postmortem report of deceased Reena (running into 4 pages) (xxii) Ex.PW12/A arrest memo of accused Savitri (xxiii) Ex.PW12/B personal search memo of accused Savitri; (xxxiv) PW15/A DD no. 24A dated 16.02.2015 received at PS Uttam Nagar; (xxxv) Ex.PW15/B disclosure statement of accused Savitri (xxxvi) Ex.PW15/C disclosure statement of accused (xxxvii) Ex.PW15/D seizure memo of sample seal (xxxviii)Ex.PW15/D Site Plan (xxxix) Mark B dated tenant verification form; 29.01.2018 (xl) Ex.PX FIR no. 226/15 PS Uttam Nagar under section 498A/304B/34/109 IPC (xli) Mark A dated rent agreement between PW1 29.01.2018 and deceased; (xlii) Ex.PW1/X2 Suicide note SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 9/52 DLWT01-003123-2017 (xliii) Ex.PW1/X1 seizure memo of articles from place of occurrence; (xliv) Ex.PW1/B seizure memo of Chunni and lock (xlv) Mark A dated Receipt of deposit of dead body 25.05.2023 at DDU Hospital mortuary (xlvi) Mark PW1/1 dated Mark PW1/1 dated 21.12.2021 21.12.2021 collectively
14. After the completion of prosecution evidence, the statement of all the accused persons was recorded under section 313 Cr.P.C, wherein all the incriminating evidences against them, appearing during the prosecution evidence, were put to them affording an opportunity to give their explanation, if any. The accused persons pleaded their innocence and claimed false implication. However, despite opportunity they did not lead any defence evidence.
15. Subsequently, detailed final arguments were addressed. The defence argued with vehemence that the prosecution has miserably failed to prove the guilt of the accused persons beyond all reasonable doubts; and accordingly prayed for the acquittal of all the accused persons. On the other hand, the prosecution asserted that deceased has died an unnatural death within a period of 7 years of her marriage, and therefore the presumption under section 113B of the Indian Evidence Act, 1872 (hereinafter Evidence Act) stands established, which has not been rebutted during the trial, as the SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 10/52 DLWT01-003123-2017 accused persons did not lead any defence. Accordingly, the prosecution prays for conviction of all the accused persons.
16. This court has perused the entire record and has considered the arguments advanced by the prosecution and defence.
17. Accused Dinesh (husband of the deceased) and accused Savitri (mother-in-law of deceased) are charged with section 304B IPC and Section 498A IPC; and in alternative they are charged with offence under section 306 IPC.
18. This court first proceeds to deal with charges under sections 304B IPC and 498A IPC qua accused Dinesh and Savitri. Sections 304 B and 498A IPC read as under:
304B. Dowry death.--
Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.
-- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 11/52 DLWT01-003123-2017
19. Thus, the essential ingredients for establishing the offence punishable under section 304 B IPC are;
a) There is a married lady;
b) The married lady has died an unnatural death including death by burn or by bodily injury or by poisoning etc;
c) The death has occurred within 7 years of marriage;
d) It is found that soon before the death the married lady was subjected to cruelty or harassment for, or in connection with any demand for dowry by her husband or any of his relative.
498A. Husband or relative of husband of a woman subjecting her to cruelty.--
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-- For the purpose of this section, "cruelty" means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 12/52 DLWT01-003123-2017 her or any person related to her to meet such demand.
20. Thus, the essential ingredients for establishing the offence punishable under section 498A IPC are;
a) There is a married lady
b) She is subjected to cruelty
c) Such cruelty is shown to have been committed by her husband or by the relative of the husband.
21. A conjoint reading of sections 304B and 498A IPC reflects that in order to attract the rigor of these sections a very essential ingredient, common to both the sections, is the commission of 'act of Cruelty' on a married woman by her husband, or any relative of the husband.
22. Whereas, section 498A ICP, simplicitor, makes the act of commission of cruelty on a married woman as a punishable offence, section 304B IPC in addition to the proof of fact of commission of cruelty on a married woman, also requires proof of unnatural death of the married woman within 7 years of marriage, and the fact that soon before her death she was subjected to cruelty or harassment in connection with demand of dowry.
23. Although section 498A IPC gives a clear explanation as to what amounts to Cruelty, but no such explanation for the term 'Cruelty' is appended to section 304B. However, keeping in view the very objective sought to be achieved by these two sections, and the historical background leading to incorporating of these SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 13/52 DLWT01-003123-2017 provisions, by way of an amendment in the IPC, it is safe to import the explanation of 'Cruelty' appended to section 498A for the purpose of dealing with section 304B as well.
24. In order to establish the commission of offences under sections 304B IPC and 498A IPC by the accused Dinesh and Savitri, the entire case of the prosecution rests upon two most crucial evidences, i.e. the suicide note recovered from the place of occurrence and the testimony of PW-3 (Vikram Kalra) brother of the deceased.
25. This court first proceeds to deal with and appreciate the evidentiary and probative value of the suicide note of deceased Reena. The suicide note is Ex.PW1/X2. The same is in Hindi. The English translation of Ex.PW1/X2 is as under;
"I Reena Kalra, I am today finishing my life. I wanted to live but I am dying because of my husband and my in-laws. My life was going on very well. I was doing a course from VLCC where Dinesh was also doing a course. With great difficulties I had arranged money/funds for doing VLCC course. My father died due to cancer. My mother is suffering from paralysis. My brother is also financially weak. I want to do something in my life that is why I did the course. I became friend with a boy Dinesh who was also doing course at same place and thereafter the sequence of talking between us on phone started. While we were talking with each other, Dinesh asked me for marriage. We both loved each other thereafter I said Yes. I told Dinesh, if he wants to marry me then he should talk to my family members. Dinesh said that SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 14/52 DLWT01-003123-2017 after a few days he will come to Delhi and talk to my family members. After coming to Delhi, Dinesh came to my house and talked to my family members regarding marriage. I had convinced my family members for my marriage with great difficulties. Dinesh told my family members that his parents (mother and father) are living separately for last 10 years with his brother and sister-in-law and that he is living with his mother and his mother remains very ill, therefore he needs to get married quickly. Dinesh told me that date of marriage is to be fixed at the earliest. So therefore, I told my family members and got 15th February fixed as date of marriage. We also invited all our relatives and the preparations for the marriage commenced. In the meanwhile, Dinesh said to me that his mother wants to meet me and because she is unwell therefore she cannot come here and therefore Dinesh asked me to take permission from my family members and accompany him and go to Hisar at his home. In the meanwhile brother of Dinesh, namely Naveen along with his family come to my home to meet me and they liked/chose me and after convincing my family members I went with Dinesh for two days to Hisar. After going there the mother of Dinesh also accepted me. Mother of Dinesh asked me to stay with her for few more days so therefore mother of Dinesh took permission from my family members and said that as she is unwell so therefore let Reena stay there for a few days. After going there I and Dinesh made physical relation. He said don't worry now we are going to get married and after 10 days I came back to my home. After two days Dinesh came to my home in Delhi and he said that he wants to tell the truth of his life to me SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 15/52 DLWT01-003123-2017 because now we both are getting married. He told me that he is already married and after two months of his marriage, his wife left him and that he divorced his wife. After hearing all this I was destroyed/shattered from within, but I composed myself and asked Dinesh that why he did not tell me all this earlier, but till then the circumstances had changed and became such that, instead of marrying Dinesh I had no other way out because the date of marriage was fixed and all relatives were informed and before marriage, I had stayed in Dinesh's house for 10 days and because I had started to love Dinesh a lot. Now Dinesh only had become my life, therefore I forgave his mistake.
I bowed down before my love and I withheld this fact from my family members otherwise the dignity and respect of my family would get ruined and then they would never let me marry Dinesh. But I loved Dinesh a lot and we got married according to all religious customs. What I wanted, after a few days of going there the entire family members of Dinesh accepted me as their daughter-in-law. After 1 month Dinesh's mother started troubling me again and again every time started taunting me for bringing less dowry. I was now being treated like a servant. I told about this to my husband then the took side of his mother only. After a few month I came to know such a truth that I became a living dead. I came to know from the daughter of sister of Dinesh that my marriage with Dinesh is not his second marriage, but it is the third marriage of Dinesh. His first wife was Poonam and second wife was Manju. That I was also told that Manju and Dinesh are still not divorced and divorce case B going on. After SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 16/52 DLWT01-003123-2017 hearing all this, I was taken a back. Then I talked to sister of Dinesh Madhu then she told me that all this is true. Then I asked Dinesh that why did he spoil my life. After this the behaviour of Dinesh as well changed and he started consuming more liquor. After drinking liquor he used to beat me. I withheld all this from my family members because I loved Dinesh a lot but his love was fraud/fake which he gave to Poonam and Manju. After this the relations and everything kept on deteriorating only. I tried a lot to protect/save/balance this relation but the work of Dinesh and his family members was to destroy the life of girls. Now the beatings of Dinesh and in feeding other ladies with hands in front of me also started. That lady was his tenant. I was unable to tolerate all this and opposed all this, then Dinesh and his mother started beating me. Then I told the entire thing to my brother and told him the entire truth. Then my brother came to the house of Dinesh at Hisar but Dinesh ran away from there. Then my brother asked my mother-in-law that why they did this and withheld the truth from us that your son had already done two marriages earlier. Then mother of Dinesh said not only twice, but & will get my son married 10 times and you take away your sister from here. Then my brother brought me to Delhi. After that my 'Mausa' and 'Mausi' called Dinesh and his brother and asked them to come to Delhi and explain why all this happened. Then brother of Dinesh made apology and sought forgiveness and said that now his brother (Dinesh) will change for good. But all this was a deceit of those people. He said that he will take a house on rent in Delhi and live in Delhi. Despite the fact that so much had happened I still wanted to SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 17/52 DLWT01-003123-2017 live with Dinesh only because I truly loved him and I did not want to loose Dinesh under any circumstances. Then we both took a house on rent. But despite this issue did not end. Dinesh used to came to the house only for 5 days and after making some excuses he used to leave.
My salary was Rs.10,000/-. I used to do all my work and live in this money only because Dinesh did not used to give me any money for expenses. But I was even happy in this because my togetherness with Dinesh was everything to me.
One day Dinesh told me that he going to Hisar for a few days and he will return, but he did not return. When I called him and asked him to return then he said that he does not want to live with me. That as much he wanted to use me, he has used me and that now he is over with me like he was over his earlier two wives. Then I talked to sister and brother-in-law of Dinesh then they started to abuse me. Then brother-in- law of Dinesh namely Vijay threatened me to kill me and he also said that they had killed wife of their brother by burning her and that he would do the same to me.
While at the time of leaving, Dinesh made a film/movie of his physical relations with me and upon my asking that why he is making a movie he said that when you will come in my mind then I will see this movie. I am writing all this because even my family members do not know about all this. I wanted to live but Dinesh ruined my life because he defrauded me. I tried a lot to carryon this relationship and make Dinesh understand but he does not talk to me. This person has ruined life of three girls. I beg SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 18/52 DLWT01-003123-2017 Courts/Justice (kanoon) with folded hands that Dinesh, his mother and his brother-in-law Vijay are the reason for my death. All three of them must be punished. Today it is 06 months since Dinesh had left, but these days I was living, thinking about Dinesh but he did not understand. Today, I am ending my life. I tried to talk to Dinesh but he switched off his mobile phone. I love him a lot that's why during my lifetime I cannot get him punished for the fraud he has played upon me. I want that after my death Dinesh and his family members are given stricter than strict punishment, so that life of no other girl is ruined. He put a blot of a married woman on my life which I cannot bear. And I am seeking forgiveness from my family members and I am leaving them forever. Rest the entire history of his sins is available with my family members.
I LOVE U Dinesh
Reena
(Signature)
I beg Delhi Justice/Court (kanoon) with folded hands that it must punish people like these so that they do not ruin life of anyone else. I Reena Kalra Reena (signature) I am recording my voice statement in my phone because I
26. At this juncture it is imperative to discuss the relevancy of a suicide note. It is the settled principle of law, as enunciated by the SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 19/52 DLWT01-003123-2017 Hon'ble Apex Court in the judgment of Kantilal Martaji Pandor Vs State of Gujrat AIR 2013 SC 3055 that, "the letters written by the deceased wife disclosing circumstances under which she committed suicide are admissible under section 32(1)". Undoubtedly a suicide note being relevant as a dying declaration carries a high evidentiary value, but it is required to be proved like any other relevant fact; and corroborated in material particulars with the proved and established facts of the case in order to assign the requisite probative value to it.
27. The most essential aspects related with respect to evidentiary and probative value of the suicide note are the proof of the facts that the suicide note is in the handwriting of the deceased, the timing of writing, and the timing and the place of recovery of the suicide note.
28. In case at hand, as per the case of prosecution the suicide note Ex.PW1/X2 has been recovered by the crime team from the place of occurrence. PW1 is also a witness to the recovery and seizure of the suicide note. However, mere recovery of Ex.PW1/X2 from the place of occurrence does not suggest or prove that it is written by the deceased. In order to prove beyond all reasonable doubts that the suicide note is written in the handwriting of deceased it is imperative that the suicide note is compared/examined with the admitted/proved handwriting of the deceased by an expert; and the onus to prove that the suicide note is SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 20/52 DLWT01-003123-2017 in the handwriting of the deceased rests upon the investigating authorities and prosecution.
29. In the case at hand the investigating authorities have taken no burden whatsoever to establish, or even remotely suggest that Ex.PW1/X2 is in the handwriting of deceased. Ex.PW1/X2 has not been sent to FSL for its examination with the admitted/proved handwriting of the deceased. There is no endeavor whatsoever by the investigating authorities to recover any document purportedly to be written in the handwriting of deceased which could have been compared with Ex.PW1/X2.
30. The fact that Ex.PW1/X2 has been written by the deceased finds itself engulfed further in the clouds of doubts on the basis of the fact that the brother of the deceased Vikram Kalra (PW3) could not bring out with certainty, during his cross-examination, that what was the actual educational qualification of the deceased. In answer to a specific question PW3 admitted that deceased was only second- class pass, which creates a reasonable doubt upon the writing capabilities of the deceased.
31. Furthermore, the investigating authorities did not endeavor to collect any document purported to be written by the deceased from her place of occupation. Ex.PW1/X2 also bears the signatures of deceased at two places. However, the investigating authorities did not even collect the signatures of the deceased from her place of occupation for comparison.
SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 21/52 DLWT01-003123-2017
32. Furthermore, although the investigating authorities recovered the suicide note from the place of occurrence, but no pen with which the suicide note is written was recovered from the place of occurrence. This casts a reasonable doubt at the timing of the writing of Ex.PW1/X2. Similarly, Ex.PW1/X2 is written on pages; and the note book from which the pages on which Ex.PW1/X2 is written has not been recovered from the place of occurrence. The absence of recovery of these two articles, i.e. a pen and a notebook from the place of occurrence cast a doubt over the nexus / link between the place and time of writing the suicide note with the of commission of suicide.
33. Furthermore, although there are around 19 photographs of the place of occurrence placed on record by the prosecution, however there is not even in a single photograph in which the deceased hanging with the hook of the ceiling fan and the suicide note kept on the bed can be seen together. Likewise, not even in one single photograph the content of the document, shown to be kept on bed of the place of occurrence is ascertainable or readable to suggest that it is Ex.PW1/X2. This casts a serious doubt on the very recovery of the suicide note from the place of occurrence.
34. Moreover, at the end of Ex.PW1/X2 it is mentioned that "I am recording my statement in my phone" and the police also recovered a phone from the place of occurrence, however no endeavor were made to recover such statement, if any, recorded in that phone. The phone was not also not sent to FSL for its forensic SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 22/52 DLWT01-003123-2017 examination. This lapse too again by the investigating authorities compels this court to look at the recovery of the suicide note with suspicion.
35. Accordingly, on the basis of above done discussion, this court is of the opinion that placing reliance on the suicide note EX PW 1/X2 is a dangerous proposition as the same does not stands proved as per law during the course of the trial; and the fact that Ex.PW1/X2 is written by the deceased is not established beyond reasonable doubts and the very recovery of the Suicide note is covered under clouds of doubts. Accordingly, the essential ingredients for attracting section 304B IPC and 498A IPC does not stand established in this case on the basis of the alleged Suicide note of the deceased.
36. Now this court proceeds to discuss the testimony of PW-3 (Vikram Kalra), the brother of the deceased on whose complaint Ex.PW3/A the FIR is registered; and to appreciate and ascertain whether on the basis of the testimony of PW-3 the essential ingredients of section 304B IPC and 498A IPC stand meted out in this case or not.
37. PW-3 in his testimony recorded before the court has deposed that on the evening of 15.02.2014, marriage between his sister Reena (deceased) and Dinesh was solemnized according to Hindu Rites and ceremonies. In the entire cross-examination of PW3 the fact of marriage between the deceased Reena and accused Dinesh SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 23/52 DLWT01-003123-2017 has not been disputed or discredited. Accordingly, the fact of marriage between deceased Reena and accused Dinesh stands proved.
38. Further, there is no dispute with respect to the relationship between accused Dinesh, co-accused Savitri being mother of Dinesh; and co-accused Vijay being brother-in-law of accused Dinesh. Accordingly, it stands established on record that accused Dinesh was husband of the deceased Reena and co-accused Savitri and Vijay are the relatives of the deceased Reena.
39. Furthermore, there is no question or suggestion by the defence to PW3, in his cross-examination, regarding the date of marriage of deceased Reena and accused Dinesh. Accordingly, it stands established that the marriage between deceased Reena and Dinesh was solemnized on 15.02.2014.
40. Further, from the testimony of PW3 as well as from the testimony of PW-8, who identified the dead body of deceased Reena, it stands established that the deceased was indeed the sister of PW-3 who was married to accused Dinesh. Moreover, it is not the case of the defence that the wife of accused Dinesh has not expired on 16.02.2015. As such it is crystal clear and duly established that deceased Reena expired within the period of 1 year from her marriage, i.e. on 16.02.2015. Accordingly, another essential ingredient to attract Section 304 B IPC that the death of the married woman, under unnatural circumstances, should have SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 24/52 DLWT01-003123-2017 occurred within 7 years of the marriage also stands established in this case.
41. Further, on the basis of the testimony of PW11 as well as on the basis of Ex.PW11/A which is the postmortem report of deceased Reena, it stands established beyond doubts that the deceased died an unnatural death otherwise than under normal circumstances. Ex.PW11/A categorically records that "the cause of death is Asphyxia caused by ante mortem ligature hanging and the manner of death is suicide.
42. Moreover, the fact of unnatural death of deceased Reena by way of hanging by the neck with the hook of ceiling fan also stands proved and established through the photograph Ex.PW14/B1 to Ex.PW14/B14. Moreover, from the cross-examination of the relevant witnesses it can be safely inferred that the manner of death of the deceased Reena by suicide is not under dispute by the defence.
43. As such on the basis of above-discussion it is manifest that the fact of marriage of deceased Reena with accused Dinesh, and her death under unnatural circumstances within the period of 7 years of the marriage stands clearly established; however in order to prove the offence under section 304 B IPC and to raise the presumption of dowry death under section 113B of the Indian Evidence Act, other crucial fact, that, the deceased 'soon before her death' was subjected to cruelty or harassment for, or in connection SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 25/52 DLWT01-003123-2017 with demand for dowry by her husband or by any of his relatives needs consideration. The commission of acts of Cruelty with the deceased by her husband and the relatives of the husband also needs consideration to prove the offence of section 498A IPC.
44. Cruelty can either be physical or mental. It is a relative term. It is held by the Hon'ble Apex Court in the judgment of GV Siddaramesh Vs State of Karnatka 2010(3) SCC 152, that, "what may constitute cruelty for one may not constitute cruelty for another person". The question that whether a married woman has been subjected to cruelty is a pure question of fact and depends on facts and circumstances of each case. It is the onus of the prosecution to bring on record and prove as per law distinct circumstances which prove the act of commission of cruelty on a married woman.
45. According to the explanation appended to section 498A IPC, which can be also imported to section 304B IPC the nature of cruelty or harassment must be of such a degree which is capable of driving a woman to commit suicide, or to cause grave injury or danger to her life, limb or health. It is held by Hon'ble High Court of Bombay in Tukaram Changdeo Kanade Vs State of Maharashtra CRA No. 839 of 1988 decided on 20 th January, 2018 that, "Loosing of normal frame of mind is required for establishing cruelty." It is also held by the Hon'ble High Court of Bombay in Neeraj Subhash Mehta Vs State of Maharashtra, reported in 2017 SCC OnLine Bom SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 26/52 DLWT01-003123-2017 62 that, "Cruelty implies harsh and harmful conduct with certain intensity and persistence."
46. The litmus test to ascertain the act of cruelty is the 'test of reasonableness'; i.e. whether under the established facts and circumstances a reasonable person / woman would lose her normal frame of mind or not; and while applying this test of reasonableness regards must be given to the intensity and persistence of the acts constituting cruelty.
47. The testimony of PW-3 depicts in detail the manner and circumstances under which the marriage of the deceased was solemnized with accused Dinesh. These details conclude with a paragraph in the testimony of PW-3, wherein he has deposed that, "At about 7 PM the Bidai ceremony was held and my sister alongwith Dinesh and other persons left for Hisar. My sister and Dinesh visited my house after 7 days of marriage and after staying for about 1 day they again returned to Hisar." Up to this point in the testimony of PW-3 there is no ounce of averment which even remotely suggest any kind of demand for dowry or harassment or cruelty whatsoever.
48. In the succeeding paragraph PW-3 has deposed that, "after about one month my wife received a call from my sister and she told my wife that she was facing problems in her matrimonial home and has been harassed by her in laws. She told my wife to visit her matrimonial home and settle the disputes in Hisar in the presence of SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 27/52 DLWT01-003123-2017 her in laws. My wife apprised me about the said call of my sister ." Now, this portion of deposition by PW-3 is directly hit by 'Rule of Hearsay' and the same being directly falling under the rule of Hearsay deserves to be discarded.
49. According to the 'Rule of Direct and Best Evidence', the fact that the wife of PW-3 received a phone call from the deceased Reena, in which she allegedly told about the problems she was facing in her matrimonial home ought to have been deposed and proved by wife of PW-3 herself and not by PW-3 on her behalf.
50. Furthermore, PW-3 has further also deposed that, "on the next day he along with his wife and one of his friend namely Hari went to matrimonial house of his sister in Hisar ", where he saw the deplorable condition of his sister. However, the wife of PW-3, who is a material witness in this case has not been examined by the prosecution. The non-examination of wife of PW-3 compels this court to raise an adverse inference against the prosecution that if the wife of PW-3 would have been called for deposition it would have revealed facts not favorable to the prosecution.
51. Further PW-3 in his testimony has deposed that, " We reached Hisar at about 6AM in the morning but Dinesh was not found present in the house. His mother and one other lady were present at the house. I repeatedly called Dinesh to come to his house so that we can discuss with him but he did not come. I witnessed that the condition of my sister was miserable. She was looking weak and SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 28/52 DLWT01-003123-2017 tired. She was made to live in a room without any amenities. She was made to live an animal like life in the said room on the ground floor. She was not allowed to enter into the kitchen and prepare meal. She was not allowed to use the toilet in the house and same was used to be locked. My sister had to go to the toilet of government school in the same street in front of her matrimonial house."
52. In continuation, PW-3 further in his testimony has deposed that, "I called Dinesh as to why my sister was so badly ill-treated. But he switched off his mobile and did not come to his house. I went upstairs in the first floor of the house where his mother was living along with one lady. I asked mother-in-law of my sister as to why my sister was harassed and maltreated by them. Upon this her mother-in-law told me that they were running three parlours in the name of Shehnaz in Hisar and they are indulged in prostitution and women trafficking. She further told me that why he did not enquire about their said business. She told me that if my sister agrees to indulge in the said two professions then she could happily live in their house. She further told that this is not the first time his son married with my sister. Earlier also Dinesh had married twice. One case was filed by his earlier wife against them which was pending in Kaithal Haryanna. I do not know whether the said case was filed by his first / second or third wife. Not only this, there were about 18 criminal cases including extortion, cheating and murder against them. After this conversation I went to the local police station in SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 29/52 DLWT01-003123-2017 Hisar to lodge a complaint against them. The police official did not accept my complaint by saying that lodging of my complaint would be useless as they are hardened criminals. The police advised me to take back my sister along with me so that I could save her life. I brought back my sister to Delhi. I got my sister medically treated for her ailments."
53. A careful consideration of testimony of PW-3 from the commencement, where he has stated about the circumstances under which the deceased got married to the accused Dinesh, till the portion where PW-3 has stated that after witnessing the miserable condition of his deceased sister at her matrimonial home, he brought her to Delhi with him from Hisar, is considered to be true and correct, still the averments regarding cruelty and harassment to the deceased are sans any demand for dowry, as there is no ounce of deposition in the testimony of PW-3 which depicts, or even remotely suggests any demand of dowry for or in connection of marriage between the deceased and accused Dinesh.
54. In continuation, PW-3 further in his testimony has deposed that, "in the meantime I tried to be in constant touch with Dinesh and requested him to come to Delhi and start his matrimonial life in Delhi as my sister was deeply in love with him. Dinesh switched on his mobile only after about one month when I brought my sister with me. I talked to Dinesh on phone and told him that I want to meet him. Dinesh came to Delhi and met me and my family members at TDI Mall, Rajouri Garden, Delhi. We wish to discuss SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 30/52 DLWT01-003123-2017 on all the issues with him. He admitted his family business as narrated by his mother and told us that he could not mend his ways or he could not remove himself from the said business. But on our insistence Dinesh told us that he would try to live with my sister in Delhi. After one month Dinesh came to Delhi and took a rented accommodation in Kailash Colony, New Delhi. He stayed there only for two days with my sister. Thereafter, he left on the pretext of going to Assam but then he never came back. About three months elapsed but he did not return. My sister continued to reside in that rented accommodation only. In that period of three months, my sister and Dinesh used to talk on phone but Dinesh kept on giving excuses of not returning to Delhi. We waited for Dinesh. In the said period my sister also visited Hisar so that she could meet Dinesh but he was not found there. I told my sister what to do what Dinesh is not returning to her. I suggested my sister to start living with us. As my sister was not given any support to meet her household expenses by Dinesh, she came to reside with me in Tagore Garden in December, 2014. My sister told me that she would try to become economically independent by doing some job and requested me to arrange a separate accommodation for her. She was still hoping that Dinesh would come. I arranged a rented accommodation in Nawada, Delhi for her. She started residing there since January, 2015. My sister was very depressed due to the situation she had faced. The cheating and fraud committed by her in laws became intolerable for her and she was not able to cope with SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 31/52 DLWT01-003123-2017 the circumstances of her life. She was losing hope day by day. I was not able to help her to the extent I wanted to because my mother was paralyzed and due to my own family obligations. Due to the conditions created in her life by her husband and his family members she committed suicide on 15.02.2015. my statement was recorded by the police on 17.02.2015 which is EX PW3/A which bears my signatures at point A.
55. Now, even if the entire testimony of PW-3, as reproduced hereinabove, is believed to be true in its entirety without even considering the cross examination of PW-3, it is manifest that the testimony of PW-3 is absolutely shorn of facts constituting demand of dowry. Even at the sake of repetition it is expedient to reiterate herein once again that section 304B IPC requires proof of cruelty or harassment to a married woman, soon before her death, by her husband or any relative of her husband for, or in connection with, any demand for dowry. In absence of proof of fact that the cruelty or harassment to the married woman was in connection to the demand of dowry, section 304B IPC will not be attracted. Reliance is placed on the Narwinder Singh Vs. State of Punjab (2011) 2 SCC 47, wherein the Hon'ble Apex Court has held that, "Cruelty or harassment sans any dowry demands which drives the woman to commit suicide attracts the offence of 'abetment to suicide' under section 306 of the Indian Penal Code, 1860 and not under section 304B IPC which defines the offence and punishment for 'dowry death".
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56. After the completion of testimony of PW-3, on 02.04.2018, he was cross examined by Ld. Additional Public Prosecutor for the state. A direct / leading question was put to PW-3 that, " is it correct that your sister has been harassed by the accused persons on account of demand of dowry?"
57. To this specific direct / leading question, PW-3 replied that, "yes, my sister was subjected to cruelty. They raised a demand of Rs 10,00,000/- from my sister on the pretext of starting business. Accused persons used to say to my sister either to earn by indulge herself in prostitution or bring the aforesaid amount of Rs. 10 lacs from us."
58. The cross examination of PW-3 highlights various material improvements made by PW-3 in his testimony recorded before the court in comparison to his complaint made to the police Ex.PW3/A, based on which the FIR was registered. As far as the issue of demand of Rs. 10,00,000/- as raised by PW-3 in his examination in chief before the court is concerned, the same also does not corroborate in material particulars with his previous statement Ex.PW3/A, based on which the FIR is registered.
59. As per his testimony recorded in the court, PW-3 deposed that, the demand of Rs. 10,00,000/- was made from the sister of PW-3 on the pretext of starting the business, but in the FIR, it is stated that, 'whenever we tried to talk to anyone regarding Dinesh they used to say that they have no concern with him, and Later on SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 33/52 DLWT01-003123-2017 when we tried more then the family members of Dinesh told us that if we give Rs. 10,00,000/- to them for putting in their business then they can think of keeping the deceased Reena'. This reflects a clear contradiction and leaves a doubt that whether the demand of Rs. 10,00,000/- was actually made from deceased Reena while she was in her matrimonial home; or the demand was made from the family members of the deceased after the deceased had come out of her matrimonial home and was living with her family members.
60. In Rajinder Singh Vs State of Punjab AIR 2015 SC 1359 the Hon'ble Apex Court held that, "We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in section 2 of the Dowry Prohibition Act, 1961 at or before or at any time after the marriage which is reasonably connected to the death of the married woman, would necessarily be in connection with or in relation to marriage unless, the facts of a given case clearly and unequivocally point otherwise". Henceforth, it is imperative to prove during the trial for offences under section 304B IPC that the cruelty or harassment meted out to the deceased was in connection with this demand of dowry. In the case at hand even if it is presumed for a moment that indeed a sum of Rs. 10,00,000/- was demanded from the deceased, or her family members by the accused, but still there is nothing on record which shows or connects that such demand is reasonably connected with the death of the deceased. Moreover, the facts reflect immense time SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 34/52 DLWT01-003123-2017 lapse between various crucial events which are discussed in the later part of this judgment.
61. In addition to the inconsistency between the statements of PW-3 regarding the demand of Rs. 10,00,000/-, both the versions relating to the demand of dowry are very vague and general in nature and lack specifics. Both the versions do not even specify as to who in particular from the accused persons, or from the side of in-laws of the deceased Reena made the demand for dowry. There is nothing on record, or in the testimony of PW-3 which directly suggests, or even remotely indicates that the demand of dowry of Rs. 10,00,000/-, as alleged, was a persistent one; and the cruelty as alleged by PW-3 in his statement towards the deceased Renna was in consequence of demand of dowry of Rs. 10,00,000/-.
62. Moreover, as far as the cruelty or harassment to the deceased Reena is concerned, PW-3 in his testimony has stated that the deceased was made to live like an animal in the matrimonial home, and she was not allowed to use the toilet in the house and had to use the toilet in the government school; but except for the mere averments of PW-3 in this regards there is no other evidence to establish these facts. The statement made by PW-3 with regards to the harassment meted out to the deceased has not been even corroborated by his wife and friend, who as per the testimony of PW-3 accompanied him to Hisar, where PW-3 found such deplorable condition of the deceased.
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63. Moreover, PW-3 in his testimony has deposed that after he brought the deceased to Delhi, which was somewhere around in March, 2014 as per the calculations of dates and timing, he got her medically treated for her ailments. However, no medical record, whatsoever, regarding the treatment given to the deceased has been placed on record. Moreover, there is no medical or ocular evidence of any person to establish that the deceased Reena was subjected to beatings in her matrimonial home, or that she was not allowed to use the toilet in the matrimonial home and was made to use the toilet of a government school.
64. Furthermore, there is nothing material on record to show that the marriage of accused Dinesh with the deceased was his third marriage; and that the accused Dinesh was not legally divorced from his second wife. There is no testimony of any material witness, or any documentary proof of such marriage of the accused Dinesh. Accordingly in the absence of any proof of such facts they cannot be taken to be tantamounting to commit cruelty or harassment qua the deceased Reena to the extent which drives her to take the extreme step of causing her own death by suicide.
65. Furthermore, the prosecution has relied upon various cases pending against the accused Dinesh at district Hisar. However, as the purpose of proving these pending cases is to impute and reflect the bad character of the accused, accordingly the same is not relevant in terms of Section 54 of Indian Evidence Act as no evidence of good character of accused has led. It is the statuary SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 36/52 DLWT01-003123-2017 principle of law that evidence of bad character of accused can be accepted only after evidence of his good character is led.
66. Accordingly, the alleged suicide note written by the deceased Reena having been regarded as non-reliable; and considering the testimony of PW-3, this court is of the view that the prosecution has failed to conclusively disclose any sort of persistent cruelty or harassment to the deceased Reena which in ordinary circumstances, considering the principle/Rule of Reasonability will leave a woman with no other option, but to end her life by committing suicide. The prosecution has also failed to prove on record any harsh and harmful conduct with certain intensity and persistence qua the deceased by the accused persons so that the deceased would loose her normal frame of mind compelling to taken extreme steps of committing suicide.
67. Accordingly, based upon the above-done discussion this court comes to the conclusion that the prosecution has failed to establish any cruelty or harassment upon the deceased by the accused persons in connection with demand of dowry as the very crucial elements necessary to attract the rigor of section 498 A IPC and 304B IPC does not stand establish in this case.
68. Although this court has come to a conclusion that the prosecution has failed to establish Cruelty or Harassment to the deceased Reena by her husband or her in-laws for demand of dowry in connection with marriage and therefore sections 304 B IPC and SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 37/52 DLWT01-003123-2017 498A IPC does not stand attracted in this court, however still before coming to the final conclusion it is expedient to discuss another crucial aspect of this case, which relates to another essential ingredient to attract section 304B IPC, i.e. 'Soon before death'. Discussion of this aspect is also relevant to dispel the attraction and application of section 113B of the Indian Evidence Act.
69. The term 'soon before her death', as used under section 304B IPC is not statutorily defined. In Tarseem Singh vs State of Punjab AIR 2009 SC 1454, the Hon'ble Apex Court while dealing with the phrase "soon before her death" observed that there should be a reasonable, if not direct nexus between the death of the married woman and the dowry related cruelty, or the harassment inflicted upon her. Further, in Sher Singh vs State of Haryana AIR 2015 SC 980, the Hon'ble Apex Court while dealing with phrase "soon before her death" also observed that "we are aware that the word "soon" finds place in section 304 B, but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an abrasion of the past, but it should be the continuing cause for the death."
70. In Mustafa Shahadal Shaikh Vs State of Maharashtra 2012 AIR (SCW) 5308; and in Yashoda Vs State of Madhya Pradesh 2004 (3) SCC 98; and in Ramakant Mishra @ Lalu vs State of U.P. 2015 (3) SCALE 186 the Hon'ble Apex Court has consistently held that, "in other words, there must be existence of a proximate and SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 38/52 DLWT01-003123-2017 live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence".
71. 'Proximity Test' is the litmus test to appreciate that whether it can be held that the deceased was subjected to cruelty or harassment, in connection with demand of dowry, 'soon before the death' or not. The 'Proximity Test' normally implies that, depending upon the peculiar facts and circumstances of each case, the interval between the cruelty or harassment in connection with the cruelty and the death of the deceased should not be such wide so as to suggest that the imprint of cruelty or harassment faded away from the mind of the deceased.
72. From the above-referred judgments dealing with phrase 'soon before her death' and in light of the proximity test for ascertaining the real import of the term soon before the death, it can be inferred that the interval between the alleged cruelty or harassment in connection with dowry and the death of the deceased must not be such which either directly suggests or even remotely implies that there may be some other cause / reason, other than the cruelty or harassment for the unnatural death of the deceased
73. A revisit to the testimony of PW-3 conjointly read with testimony of PW1 suggests some very significant timelines and SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 39/52 DLWT01-003123-2017 facts that are relevant to appreciate the phrase 'soon before the death', in this particular case, which is an important essential ingredient, vis-à-vis cruelty or harassment in connection with demand of dowry to attract section 304B IPC. The timelines of events from the date of marriage of the deceased and accused Dinesh till the date of unnatural death of the deceased are as follows; viz.
a) Deceased Reena was doing a course in VLCC, Kirti Nagar, New Delhi in the year 2014.
b) Accused Dinesh was also doing hair designer course in the same year.
c) During the said period the deceased Reena came in contact with accused Dinesh.
d) Deceased Reena introduced PW-3 to Dinesh, his brother Sonu and brother-in-law of Dinesh namely Vijay in the year, 2014.
e) The said persons came in January, 2014.
f) After about three days of the above visit, Dinesh again came to my house alone and requested PW-3 to send deceased Reena to Hisar with him.
g) On the next day deceased Reena, accused Dinesh and younger brother of PW-3 Rajiv Kalra left for Hisar in the month of January, 2014 SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 40/52 DLWT01-003123-2017
h) They stayed there for about 2 days. Thereafter, both deceased Reena and younger brother of PW-3 returned to Delhi.
i) Next week Dinesh alongwith his Bhabhi namely Babita and his elder brother Sonu and their maternal uncle visited house of PW-3.
j) The date of marriage was fixed for 15.02.2014.
k) On 15.02.2014 marriage between deceased Reena and Dinesh solemnized according to Hindu rites and ceremonies.
l) At 7 PM on 15.02.2014 Bidai ceremony was held and the deceased left with accused Dinesh and other persons for Hisar.
m) After 7 days deceased Reena and Dinesh visited the house of PW-3.
n) After about one month, (possibly on 22.03.2014) the wife of PW-3 received a call from deceased Reena who told her that she is facing problems in her matrimonial home.
o) On the next day PW-3 along with his wife and one of his friend went to the matrimonial home of deceased at Hisar. On that very day he brought the deceased Reena back to Delhi with him. Hence, possibly somewhere around 23.03.2014 the deceased Reena came out of her matrimonial house.
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p) Dinesh switched on his mobile phone only after about one month when PW-3 brought deceased Reena to Delhi.
q) Thereafter, Dinesh came to Delhi and met PW-3 and his family members at TDI Mall, Rajouri Garden, Delhi.
r) After one month Dinesh came to Delhi and took a rented accommodation in Kailash Colony. He stayed there for two days only with the deceased Reena and thereafter left on the pretext of going to Assam, but he never came back.
s) About three months elapsed by the did not return. My sister continued to reside in that rented accommodation only.
t) In December, 2014 deceased Reena came to reside with PW-3.
u) PW-3 arranged a rented accommodation for deceased Reena in Nawada, Delhi and she started residing there since January, 2015.
v) On 15.02.2015 deceased Reena died an unnatural death by suicide.
74. From the above enumerated timeline of events, as gathered from the testimony of star witness of the prosecution PW-3, it is apparent that since around 23.03.2014 the deceased was out of her matrimonial home. That, she was not in touch with any of her in- laws thereafter. That she was only in touch with accused Dinesh over phone for a while which also ended thereafter, and as per the SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 42/52 DLWT01-003123-2017 calculation of dates and timelines, the deceased last stayed with accused Dinesh in a rented accommodation for two days in Kailash colony somewhere around May, 2014. That, since December, 2014 till January, 2015 she was residing with PW-3 and since January, 2015 she was residing in a rented accommodation arranged by PW-
3.
75. From the above-done discussion and the timeline of events noted herein above it is manifest that the deceased Reena was out of the control and influence of her husband Dinesh and her mother-in- law Savitri for a significant period of time. Even if it is presumed that she was subjected to cruelty or harass with respect to the demand of dowry in her matrimonial home, still between such events, if any and the actual date of death of deceased there is a significant time gap. Moreover during this time gap some very crucial events have taken place which clearly reflect existence of a massive interval between the cruelty or harassment to the deceased, if any and the dates of her death.
76. Since 23.03.2014, the deceased Reena was out of her matrimonial home and was in control and custody of her brother PW3. Soon before her death she was residing with her brother PW3 in his home. Moreover, immediately before her death she was residing in the place of occurrence which was arranged by her brother PW3. Moreover, the deceased was not residing at the place of occurrence alone. She had rented the place of occurrence along with one Mohd Saleem Ahmed.
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77. It is manifest from the testimony of PW1 i.e. landlord of place of occurrence, who has placed on record document i.e. Mark A which is the rent agreement executed between PW1 and deceased Reena which clearly suggest that the place of occurrence was rented by the deceased Reena along with Mohd Saleem Ahmed.
78. There is no investigation whatsoever with respect to this person namely Mohd Saleem Ahmed who had rented the place of occurrence along side deceased Reena.
79. These crucial aspects directly suggests that there is no nexus between the death of deceased Reena which took place on 16.02.2015 and the dowry related cruelty or harassment inflicted upon her by the accused persons, if any. Even if it is presumed that deceased Reena was subjected to cruelty or harassment in connection with dowry by the accused persons, still considering the time period during which she was out of her matrimonial home and the fact that soon before her death she was residing with someone in a rented accommodation makes the demand of dowry, if any stale, and an abrasion of the past, and the same cannot be constituted to be a continuing cause of death of deceased Reena.
80. Accordingly by application of the proximity test in the case in hand this court is of the view that another essential ingredient necessary to attract section 304 B IPC i.e. the deceased is subjected to cruelty or harassment soon before her death in relation to demand of dowry does not stand meted out in this court.
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81. Accordingly, as the prosecution has failed to show that soon before the death the deceased was subjected to cruelty or harassment for, or in connection with, any demand for dowry, accordingly therefore there is no occasion for this court to raise the mandatory presumption of dowry death under section 113 B of the Indian Evidence Act. Henceforth, the question of accused persons to rebut this presumption during trial does not arise at all.
82. Accordingly, based on above done discussions accused Dinesh and Savitri are hereby Acquitted from charges of offences under sections 304B and 498A IPC as the essential ingredient to attract the rigor of these provisions does not stand established in this case beyond reasonable doubts.
83. Now, this court proceeds to discuss the charge of offence under section 306 IPC qua accused Dinesh and Savitri for which they have been alternatively charged.
84. Section 306 IPC reads as under;
306.Abetment of Suicide.- if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
85. Thus, the basic ingredients to constitute an offence under section 306 IPC are,
a) Suicidal death of a person
b) Abetment of such suicidal death SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 45/52 DLWT01-003123-2017
86. Abetment is defined under section 107 of the IPC and it reads as under;
107. Abetment of a thing- A person abets the doing of a thing, who-
First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.- a person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
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 facilitate the commission thereof, is said to aid the doing of that act.
87. The scope and ambit of section 107 IPC and its co-relation with section 306 IPC has been discussed repeatedly by the Hon'ble Apex Court in various judgments. In the case of S.S. Cheena Vs. Vijay Kumar Mahajan and Anr. (2010) 12 SCC 190 the Apex Court observed that, "abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 46/52 DLWT01-003123-2017 committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under section 306 IPC there has to be a clear mensrea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such position that he committed suicide."
88. Further, the Hon'ble Apex Court in the case of Mariano Anto Bruno & another Vs The Inspector of Police 2022 SCC OnLine SC 1387 observed that, "it is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegations of harassment without there being any positive action proximate to the time of occurrence on part of the accused which led or compelled the person to commit suicide, conviction in terms of section 306 IPC is not sustainable."
89. In Naresh Kumar Vs State of Haryana (C.A. No. 1722 of 2010) SLP NO. (Criminal) 8873/2008 the Apex Court observed that, "had there been any clinching evidence of incessant harassment on account of which the wife was left with no other option but to put an end to her life, it could have been said that the accused intended the consequences of his act, namely, suicide. A person intends a consequence when he (1) foresees that it will happen if the given series of acts or omission continues, and (2) SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 47/52 DLWT01-003123-2017 desires it to happen. The most serious level of culpability, justifying the most serious levels of punishments, is achieved when both these components are actually present in the accused's mind (a "subjective" test"".
90. Whenever the question of abetment of suicide of a married woman arises, and it is shown that the deceased has committed suicide within 7 years of her marriage, as is the situation in the case at hand, the courts resorts to raising the presumption laid under section 113A of the Indian Evidence Act.
91. Section 113A of the Indian Evidence Act reads as under, 113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman has been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A if the Indian Penal Code (45 of 1860)."
SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 48/52 DLWT01-003123-2017
92. In Naresh Kumar Vs. State of Haryana Criminal Appeal No. 1722 of 2010 and SLP NO. (Criminal) 8873/2008, the Apex Court also observed that, "this court has held that from the mere fact of suicide within seven years of marriage, one should not jump to the conclusion of abetment unless cruelty was proved. The court has the discretion to raise or not to raise the presumption, because of the words 'may presume'. It must take into account all the circumstances of the case which is an additional safeguard."
93. In the same case it is also held that, "in the absence of any cogent evidence of harassment or cruelty, an accused cannot be held guilty for the offence under section 306 of IPC by raising presumption under section 113A".
94. In the same case it is also held that, " in the cases of accusation for abetment of suicide, the court should look for cogent and convincing proof of the act of incitement to the commission of suicide and such an offending action should be proximate to the time of occurrence. Appreciation of evidence in criminal matters is a tough task and when it comes to appreciating the evidence in cases of abetment of suicide punishable under section 306 of the IPC, it is more arduous. The court must remain careful and vigilant in applying correct principles of law governing the subject of abetment of suicide while appreciating the evidence on record. Otherwise it may give an impression that the conviction is not legal but rather moral. "
SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 49/52 DLWT01-003123-2017
95. This court has already come to a conclusion in this case, as discusses above while dealing with culpability of accused Dinesh and Savitri for offences under section 498A IPC and section 304B IPC that the prosecution has failed to prove beyond all reasonable doubts that the deceased was subjected to any cruelty or harassment by the accused persons.
96. Moreover, this court has also come to the conclusion that there is a significant time gap between the date when the deceased was brought out of her matrimonial home by her brother and the date of actual commission of suicide by the deceased. This significant time gap breaks all/any nexus between the cruelty or harassment, if any, with the fact of commission of suicide by the deceased.
97. Furthermore, there is nothing on record to show that since the deceased came out of her matrimonial home till the date of her alleged suicide she was in contact or under influence of the accused persons/her in-laws. As such there is no question of instigating or intentionally aiding the deceased by the accused persons in committing suicide. There is nothing material on record to even remotely suggest any positive act on the part of accused persons leading to instigation or aiding the deceased in committing suicide. As such the prosecution has clearly failed to bring on record any aspect which reflects mensrea or actusrea qua the accused persons for death of deceased by suicide.
SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 50/52 DLWT01-003123-2017
98. As this court has already come to a conclusion that at the time of death of the deceased by suicide she had rented an accommodation with one Mohd Saleem Ahmed and was possibly residing in his company as the rent agreement of the place of occurrence was prepared between PW1 (landlord of place of occurrence) and deceased Reena and Mohd Saleem Ahmed. Accordingly, even if it is presumed that deceased was subject to cruelty of harassment in her matrimonial home, still due to the time lapse there is no positive action attributable to the accused persons proximate to the time of commission of suicide by the deceased capable of compelling, the deceased to take the extreme step.
99. Lastly, as after taking into account all the circumstances of the case at hand it can be safely concluded that there is no cogent evidence of harassment of cruelty on record qua the deceased proximate to the time of suicide, accordingly there is no occasion for this court to raise the discretionary presumption against the accused persons by virtue of Section 113 A of the Evidence Act.
100. In the absence of any clinching evidence of incessant harassment qua the deceased by the accused persons which left her with no other option but to put an end to her life by suicide, the prosecution has failed to prove the case under section 306 IPC beyond reasonable doubts. Accordingly no culpability can be fastened on the accused persons for abetting the suicide of the deceased Reena.
SC 224/2017 STATE Vs. DINESH ETC FIR no. 226/2015 PS (Uttam Nagar) Pages 51/52 DLWT01-003123-2017
101. Accordingly accused Dinesh and Savitri are acquitted for offences under section 306 IPC.
102. As far as allegations under section 506 IPC qua accused Vijay are concerned, there is no averment regarding any allegation against accused Vijay in the entire testimony of PW3, whatsoever, capable to attract or even remotely suggests attraction of sectin 506 IPC qua accused Dinesh.
103. This court has already refused to place any reliance on the suicide note allegedly written by the deceased in which it is stated that accused Vijay threatened to kill the deceased by burning her alive like other bride of accused Dinesh. Accordingly, section 506 IPC qua accused Vijay does not stand established and accused Dinesh is acquitted for offence under section 506 IPC.
104. As all the accused persons stands acquitted of all the charges, therefore nothing else survives in this case, file be consigned to Record Room after due compliance. Digitally signed by SUMEET ANAND SUMEET Date:
ANAND 2024.08.14
16:00:13
+0530
Announced in Open Court (Sumeet Anand)
on 08.08.2024 ASJ (FTC)-01, West, THC, Delhi
SC 224/2017 STATE Vs. DINESH ETC
FIR no. 226/2015 PS (Uttam Nagar) Pages 52/52