Delhi District Court
State vs . Abdhesh Kumar Sc No. 338/17 Fir ... on 28 January, 2020
IN THE COURT OF SHRI ANIL ANTIL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
SC No. 338/2017
FIR No. 283/2017
PS Vasant Kunj (N).
U/s - 498A/304B IPC
State
Vs
Abdhesh Kumar
s/o Sh. Ramesh Prasad,
r/o Dary no. 59,
Masood Pur,
Vasant Kunj,
New Delhi.
Date of receipt of file in this Court : 25.08.2017
Date when arguments were heard : 28.01.2020
Date of judgment : 28.01.2020
Decision : Acquitted
JUDGMENT :-
1. Accused Abdhesh Kumar s/o Sh. Ramesh Prasad Singh has been sent to face trial for the offences punishable under section 304B/498A IPC, on the allegations of the State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 1 of 25 prosecution that during the period between the date of his marriage with deceased Smt. Ruchika on 22.06.2012 till the date of incident i.e. 22.05.2017, at her matrimonial home i.e. Dairy no. 59,Masood Pur, Vasant Kuj, New Delhi, a place within the jurisdiction of PS Vasant Kunj, North he being husband of deceased subjected her to cruelty and harassment in connection with demand of dowry within seven years of her marriage and soon before her death also, on the night of 22.05.2017 she was subjected to cruelty and harassment, and consequent to which she died by committing suicide, her death was other than normal circumstances within seven years of her marriage and thereby accused Abdhesh Kumar caused her dowry death and thereby committed offences punishable u/s 304B/498A IPC.
2. On the complaint dated 24.05.2017 of the complainant Ms. Vibha Devi, mother of the victim present case FIR no. 283/2017 under Section 304B/498A IPC in the present case was registered and after completion of investigation, charge sheet against accused Abdhesh Kumar was filed before the Court of concerned Learned Metropolitan Magistrate, who accordingly, took the cognizance of the offences u/s 304B/498A IPC.
3. After completion of the proceedings u/s 207 Cr.PC, Learned Metropolitan Magistrate committed the case to the Sessions Court vide order dated 18.08.2017. Thereafter, case was received by this court by way of assignment after committal on 25.08.2017.
State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 2 of 25
4. Story of the prosecution in brief is that on 22-05-2017, SI Munna was on emergency duty and vide DD no.32A at about 12.40p.m an information was received that a women had committed suicide at Dairy No. 59, Masoodpur Dairy, New Delhi ; on receipt of this information, he alongwith Ct. Yogesh reached there and after entering in the room situated at Ist floor, bearing Flat no. 1, part of building of Dairy no. 59, Masoodpur, New Delhi and found that a lady namely Ms. Ruchika, aged 23 years was lying dead on floor of the front room ; chunni was tied with the fan of the adjacent room ; knife was lying on the floor ; cut piece of the chunni was also lying there ; ( Kundi) of the main gate of the room alongwith one bolt was also lying there in broken condition ; husband of the deceased (accused) met him. 4.1 He stated that the accused alonwith Mr. Raju, care taker of the building had gone for the filling of cylinder at 11:03a.m. and came back at 12:15p.m ; door was bolted from inside ; after repeated calls door was not opened ; then he broke open the same and found Ruchika his wife had committed suicide by hanging herself by tying her neck with the help of chunni from one side and other side of the chunni was tied with the fan installed in the said room ; he cut the chunni with the help of knife but till that time she was expired ; he made call to the police at 100 number ; police reached there ; no suicide note was found ; crime team and Executive Magistrate was informed ; articles lying there were seized ; family member of deceased Ruchika was State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 3 of 25 informed about her death.
4.2 That on 24.05.2017 Smt. Vibha Devi, mother of deceased came to Delhi ; her statement was recorded by Sh. R.K. Singh, Executive Magistrate ; after completion of all the formalities SI was authorized for conducting the postmortem on the body of deceased and thereafter hand over the body of deceased Ruchika to his family members for cremation ; viscera was preserved and DD was kept pending for further decision.
4.3 On 27.05.2017, Sh. R.K. Singh, Executive Magistrate handed over the statement of Smt. Vibha Devi with his endorsement for registration of the case ; on the basis of which present case FIR was registered under section 304B/498A IPC by PS Vasant Kunj (N) and investigation of case was assigned to SI Munna Kumar, he investigated the matter, recorded the statement of witnesses including family members and neighbours of deceased, collected the photographs of scene of crime, seized the copies of marriage photographs and marriage related documents.
4.4 On 30.05.2017 further investigation of the case was entrusted to SHO PS Vasant Kunj, who investigate the matter, arrested the accused, prepared Site plan, Inquest proceedings were conducted. Exhibits were sent to FSL. After completion of investigation, present charge-sheet was filed in the court for trial of accused.
5. The charge against the accused for the offences u/s State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 4 of 25 304B/498A IPC was framed by the learned predecessor of this court on 03.10.2017 to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
6. In support of its case prosecution has examined 12 witnesses out of 24 cited witnesses.
i) PW1 Smt. Vibha Devi deposed that she is housewife ;
have four children ; on 30.06.2012 married her daughter Ruchika (deceased) with accused Abdhesh Kumar in a temple at Darbangha, Bihar ; on 22.05.2017 received phone call between 12:30-01:00p.m that her daughtr Ruchika had been killed by Abdhesh Kumar ; she boarded train and reached to Delhi ; on 24.05.2017 she alongwith Sh. Vishwanath Singh (father in law) and Sh. Chandeshwar Singh (her cousin father in law) was taken to the the office of Sh R.K. Singh, Magistrate by the police, where her statement Ex PW1/A was recorded ; from there she went to AIIMS hospital ; she identified the dead body of her daughter vide identification memo Ex PW1/B.
- She deposed that accused used to harass and beat her daughter and pressurized her to transfer the village land in his name and some times used filthy language on phone calls.
- Witness was cross examined by learned counsel for the accused on behalf of accused at length.
ii) PW-2 Sh.Chandeshwar Singh deposed that on 24.05.2017 he alongwith his brother Mr. Vishwanath Singh came to Delhi as her grand daughter Ruchika committed suicide, they State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 5 of 25 visited Police Station Vasant Kunj (N) and handed over marriage photographs of Ruchika and Abdhesh Kumar to the IO vide seizure memo Ex PW2/A. PW-2 also handed over the receipt issued by temple regarding solemnization of marriage between Ruchika and Abdhesh Kumar, which was also seized by the IO vide memo Ex PW2/B and he also proved the photographs Ex PW1/P-1 to Ex PW2/P-3.
iii) PW3 Sh. Vishwanath Singh deposed that he is agriculturist and grand father of deceased Ruchika ; on 22.05.2017 on receipt of call about the death of his grand daughter he came alongwith Smt. Vibha Devi, mother of Ruchika to Delhi ; on 23.05.2017 he alongwith his brother Chandeshwar Singh handed over the photographs of his grand daughter to the IO ; on 24.05.2017 in his presence statement of Smt. Vihbha Devi was recorded by SDM/Tehsildar and after postmortem dead body of deceased was handed over vide dead body identification memo Ex PW3/A.
- Further he stated that he does not want to say anything else about the present case and also that when the investigating officer was inquiring about the incident he had stated he do not want to say anything else.
- He was cross examined by the learned Addl. PP as he was resiling from his earlier statement given to the police but nothing in favour of the prosecution or against the accused has come on record. In fact PW3 voluntarily stated during cross State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 6 of 25 examination that the statement before Executive Magistrate/ Tehsildar was given in a fit of anger by Ms. Vibha Devi (PW1) and he also signed the same in the same manner.
iv) PW 4 Smt. Kaushalya is independent witness and neighbour of accused. She deposed that on 22.05.2017 at about 12.30p.m. she saw accused Adhesh Kumar and another person namely Raju knocking at the door of his house and when it was not opened it was pushed forcefully, latch was broken and door was opened ; immediately thereafter Abdhesh Kumar screamed ; PW4 alongwith another neighbour Ms. Satyawati went inside the room and saw deceased Ruchika was hanging from the fan with chunni tied alongwith her neck. It was stated that accused brought her down ; he two daughters were also present there ; call at 100 number was made by accused. Ruchika was thereafter shifted to hospital.
- She further deposed that accused and his wife since deceased were having cordial relations with each other ; she never saw them fighting and that in fact two three days prior to the incident entire family celebrated the birthday of one of his daughter ; and that deceased Ruchika were living happily with the accused.
- She was cross examined by the learned counsel for accused and she admitted that she never heard of Abdhesh demanding any article, money or dowry from the deceased or her parents ; nor any such complaint was ever made by the deceased State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 7 of 25 or her parents or relatives to her ; and that she has not seen the accused harassing the deceased in any manner whatsoever demanding dowry.
v) PW5 Smt. Satyawati, neighbour of accused and again independent witness. Her deposition is identical to the lines of PW5 admitting her presence at the spot at the time of alleged incident and admitted the facts deposed by PW4 qua the accused and his friends forcibly breaking open the door of the house and thereafter seeing the deceased hanging by fan with the chunni tied.
- She also deposed with respect to the fact that there was no demand of any article or dowry by the accused from the deceased or her parents, nor there was any complaint made to her, and the deceased and accused were living happily.
- She was cross examined and discharged.
vi) PW6 Sh. Chander Dagar is the owner of the house, where the accused and his wife were tenants into his premises. His deposition is hearsay primarily based upon what was told to him by others that wife of accused Abdhesh Kumar had committed suicide. He was witness to the articles seized by the IO i.e. knife with which chunni was cut, chunni itself, one Samsung mobile phone and screw alongwith latch seized vide memo Ex PW6/A to Ex PW6/D respectively.
- His cross examination was nil though opportunity was granted.
State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 8 of 25
vii) PW7 Sh. Raju, caretaker of the tenanted premises where the incident had taken place. In his deposition he admitting his presence at the spot alongwith accused and the fact that at about 12.00noon on 22.05.2017 when he heard accused Abdhesh Kumar knocking at the door of his room he also went there and found the door locked inside and thereafter they both forcibly pushed open the door by breaking the latch. His further deposition is also identical to the testimony of PW4 and PW5 regarding thereafter seeing the deceased hanging by the fan with her chunni.
- On some points he was cross examined by learned Addl. PP but during the cross examination he had denied that he had seen the accused and deceased quarelling with each other or that accused had threatened to leave his wife in her village.
- He was not cross examined by the learned defence counsel despite being given opportunity.
viii) PW8 H.C. Subhash Yadav, was part of the investigation carried out by SI Munna Kumar. He deposed to the facts that on the date of incident he alongwith Ct. and SI Munna reached the place of incident ; accused met there ; on interrogation accused confessed that a quarrel had taken place between him and his wife with respect to piece of land belonging to his mother in law and he had thereafter beaten his wife on this issue. He has proved on record arrest memo and personal search memo. He was cross examined and discharged.
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ix) PW-9 Ct. Yogesh has also deposed on identical lines to PW8.
x) PW10 SI Munna Kumar deposed that on receiving DD entry Ex PW10/A he alongwith PW9 reached at the spot and saw one lady was lying dead on the floor inside the room, one piece of chunni was lying near the body and another piece of chunni was tied with the sealing fan in another room. He informed the crime team and family members and Tehsildar regarding the incident.
- Crime Team incharge SI Ajay reached the spot, took photographs and prepared his report. He has proved on record the articles seized during investigation which were duly sealed in a pullanda and sealed with the seal of MK. Seal thereafter was handed over to Ct. Yogesh. At that time owner of the house Sh.Chander Dagar, PW6, was also present.
- He recorded the statement of witnesses, got conducted PM of the deceased from AIIMS ; Viscera of deceased was seized by the doctor and box was handed over to him Ex PW10/A, mother of deceased and grand father were produced before Tehsildar for recording statement, Site Plan was prepared; the photographs of marriage of deceased and accused alongwith receipt of temple where marriage was solemnized were taken and proved on record vide Ex PW2/P-1 to Ex PW2/P-3 and Ex PW2/P-4 respectively. He also proved on record two pieces of chunni, knife, Samsung mobile phone, screw and latch recovered State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 10 of 25 from the site vide Ex PW10/P-1, P-2, P-3, P-4 respectively. Thereafter further investigation was handed over to Insp. Rajesh Kumar.
- He was cross examined by the defence counsel and discharged.
- Pertinently, in the cross examination he admitted some of the witnesses present at the spot had narrated to him that the accused used to take care of his deceased wife very well.
xi) PW11 Insp. Rajesh Kumar is the subsequent IO who had after investigation mainly collected the PM report of the deceased, viscera sample/ report from RFSL, PCR form, CDRs of mobile phones of deceased. He also made inquiries from the sister of the accused Ms. Vandana Singh but nothing incriminating surfaced against her and accordingly she was put in Column No.
12. Charge sheet was thereafter filed by him.
- He was cross examined and discharged. xii) PW12 Sh. R.K.Singh, Tehsildar/Executive Magistrate
who had recorded the statement of mother of the deceased Ex PW1/A bearing his signatures. He stated that grandfather of deceased Sh. Vishwanath Singh was also present alongwith mother of deceased and confirmed the statement made by her and thereafter had also signed the said statement at point B. He stated that Form 25-35 1B ExPW10/C bearing his signature at point A was filled by him and that he gave authorization to the IO to get the PM of the deceased conducted from the concerned State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 11 of 25 department/hospital.
- He was cross examined by defence counsel and discharged.
- He admits on the day of incident he did not visit the spot and the facts and the inquiry thereafter conducted by him seems to have been merely on the basis of information given by police officials.
7. Statement of accused was recorded under section 313 Cr.P.C in which he denied all the allegations of prosecution and stated that he is innocent, has nothing to do with the present case, never demanded any dowry articles from his deceased wife or his family members and/ or caused any kind of harassment to her and did not prefer to lead evidence in his defence.
8. I have heard the arguments of learned counsel for the accused as well as learned Addl. PP for the State and have gone through the record of the case carefully.
9. Learned Addl. PP for the State argued that even though the public witness did not support the case of prosecution but on the basis of circumstantial evidence and the fact that deceased Ruchika died soon before the seven years of her marriage, and reading the facts in conjunction with 113 of the Evidence Act presumption against the accused is to be drawn and he should be convicted for the offence punishable under section 304B IPC.
10. On the other hand, learned counsel for accused State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 12 of 25 argued that the prosecution has miserably failed to proved its case against accused, and during the examination of material witnesses deposed that after the marriage deceased Ruchika was residing happily with her husband/accused Abhdesh Kumar, there was no demand of dowry and her husband never harassed her. He further argued that even the land lord and the care taker who are the public witnesses have deposed that they have not heard any voice of quarrel between the deceased and accused. It is argued by learned counsel that in the absence of any thing incriminating against the accused he is entitled to acquittal and he relied upon the following judgments :-
1. Baijnath and Ors. Vs State of Madhya Pradesh, Criminal Appeal no. 1097/2016 (Arising out of SLP (Crl.) No. 9718/2014).
2. Hans Raj Sharma and Ors. Vs State Govt of NCT of Delhi, Crl.A. No. 339-41/2005, decided on 02.03.2010.
3. Mahavir Kumar and Ors. Vs State, Crl.A. 611/1999, decided on 16.05.2014.
Relevant Provisions:-
Both the parties relied upon following provisions of law:-
(i) Section 304B IPC r/w section 113B Indian Evidence Act.
(ii) Section 498A IPC.
State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 13 of 25
(iii) Section 306 IPC, 107 IPC and section 113A Indian Evidence Act.
Section 304B 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.
Hon'ble Supreme Court in the case of Sunil Bajaj Vs State of MP (2001) 9 SCC 417, after noticing the provisions of section 304B IPC had opined that in order to establish an offence u/s 304B IPC, following ingredients must be established before any death can be termed as dowry death:-
(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
(2) Such death must have occurred within 7 years of her marriage.
(3) Soon before her death, the woman must have been State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 14 of 25 subjected to cruelty or harassment by her husband or by relatives of her husband.
(4) Such cruelty or harassment must be for or in connection with demand of dowry.
In the case of Mahavir Kumar Vs State (supra) relied upon by learned defence counsel. While discussing the scope of section 304B IPC, Hon'ble High Court of Delhi held :-
16. This section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on the husband or in-laws though they did not in fact caused the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine.
Normally, in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, evidence may be direct or circumstantial or both. But in case of an State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 15 of 25 offence under Section 304B IPC, an exception is made by deeming provision as to the nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution.
17. Section 113B of the Evidence Act is also relevant for the case in hand. Both section 304B IPC and Section 113 of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B of the Evidence Act, 1872 reads as under:-
"113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman 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.
State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 16 of 25 Explanation - For the purpose of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)".
18. As per the definition of "dowry death" in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment "for or in connection with the demand for dowry". While considering these provisions, Hon'ble Court in M. Srinivasulu Vs State of A.P., (2007) 12 SCC 443 has observed thus:
"8.4... The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B Indian Penal Code.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death."
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19. A perusal of section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that "soon before her death" the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.
(Emphasis supplied) In the case of Baijnath and Ors. Vs State of MP (supra) the Hon'ble Apex court discussed the conjoint effect of the sections 304B IPC and 113B Indian Evidence Act, holding :-
(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 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 State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 18 of 25 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 refuse 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 gloss-over 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 113B of 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 Sindo 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 State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 19 of 25 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 subjected to cruelty and harassment "in connection with the demand for dowry".
(Emphasis supplied) Section 498A IPC reads as under:-
498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section, "cruelty" means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 20 of 25 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 of 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.
11. In the case at hand it is an unfortunate incident where the victim/wife of the accused has died under unnatural circumstances but the fact remains, the prosecution has miserably failed to prove that the victim was subjected to cruelty or harassment by her husband or any other relative soon before the death or even otherwise, the mandatory and essential ingredients for applicability of the presumption u/s 113B of Evidence Act as well as for substantive provisions under section 304B and 498A IPC remained not proved.
12 In fact during arguments, learned Addl. PP for the State fairly conceded to the fact that their being some vague statement in the testimony of PW1 qua the transfer of land, besides that none of the public witnesses PW3, PW4 and P5 have stated anything incriminating against the accused persons. It was fairly admitted that all the public witnesses in fact have supported and testified in favour of the accused to depose that deceased Ruchika and her husband/accused Abdhesh Kumar were living happily and there were no quarrel as such between State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 21 of 25 them.
13. Un-disputedly the victim(wife ) died within the seven years of the marriage i.e. after five years of her marriage but no iota of evidence is there to show the deceased Ruchika was pestered for dowry either by the husband or by any of his relatives and in facts of the case, presumption under 113 is also not attracted.
14. There is nothing on record to indicate that it was a case of dowry death. PW-1 to some extent stated that accused Abdhesh Kumar used to harass and beat her daughter but she failed to state any reason as to why he used to harass and beat her, though lateron, it was stated that accused also used to pressurize her daughter to get the village land belonging to her transferred in his name but importantly the entire testimony of PW1 and other witnesses is completely silent with respect to any demand of dowry or any demand in connection with marriage or otherwise.
- In fact, PW3 the grand father of the deceased during his statement voluntarily testified that statement given by PW-1 was in anger, and he also, subsequently signed the same in anger as their daughter had expired. Nothing is deposed to state that the deceased was ever harassed by the accused or subjected to cruelty for not fulfilling the demand of dowry.
- PW4, PW5 and PW7 are independent and eye witnesses, being the neighbour of the victim, to the case of the State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 22 of 25 prosecution. All the said three witnesses testified before the court that they had never seen the accused Abdhesh Kumar and his deceased wife Ruchika quarreling with each other on the issue of dowry demand or therefrom. It was admitted during cross examination that they had not heard any demand of article or money etc by the accused Abdhesh Kumar from his deceased wife, nor any such complaint was ever made by her to them, nor ever made in their presence. And that they have not seen accused Abdesh Kumar harassing his wife for any reason whatsoever.
- As noted above, they also deposed that three days prior to the incident accused and his wife had celebrated the birth day of their daughter and that both were living happily married life.
- All the three eye witness have further testified that door of the room where the incident had taken place was latched from inside and accused with the aid of PW7 Sh. Raju had forcibly broken it open, when it was not opened from inside after continuous knock by the accused. It was also testified that when they entered the room they saw deceased was hanging by fan with her chunni tied around her neck.
- MLC Ex PW13/A and Postmortem report Ex PW10/C of deceased also does not indicate any external injuries marks on her body.
- In facts as deposed by eye witnesses and appreciating the documents placed on record no foul play can be attributed to State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 23 of 25 the accused Abdhesh Kumar for the unfortunate and drastic step taken by the deceased.
15. It is a settled law that prosecution has to stand on its own legs and has to prove its case against the accused beyond reasonable doubt, by leading relevant and cogent evidence however, it is evident that prosecution has failed to discharge the said onus to prove the present case as the material witnesses of the prosecution i.e. PW1 to PW7, have not supported the case of prosecution against the accused. Reiterating, all the material and eye witnesses have consistently deposed that accused Abdhesh Kumar and his deceased wife Ruchika were living happily and there was no demand of any dowry. The ingredients which are necessary to constitute the offence under section 304B/498A IPC, alleged against the accused, are not satisfied and even the presumption of section 113-B of Evidence Act 1972 is also not attracted in view of the above discussion or from the statement of witnesses examined by the prosecution.
16. Appreciating and analyzing the facts of the case accused is liable to be acquitted in the present matter for the offences u/s 304B/498A IPC. Accused Abdhesh Kumar is thus acquitted in the present case for the offences punishable u/s 304B/498A IPC. The bail bonds of accused is cancelled and his surety is discharged.
17. Case property, if any, is confiscated to State and be disposed of as per rules.
State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 24 of 25
18. File be consigned to record room after completion of all other necessary formalities.
Announced in the open court On the 28th day of January,2020 ( Anil Antil ) Addl. Sessions Judge -04, New Delhi District, Patiala House Courts, New Delhi 28.01.2020 State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 25 of 25 State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 26 of 25 IN THE COURT OF SH. ANIL ANTIL, ASJ-04: PHC,NEW DELHI DISTRICT: PATIALA HOUSE COURTS : NEW DELHI SC No. 356/19 FIR No. 298/2013 PS: Delhi Cantt.
u/s 498A/406/328 IPC State Vs. Roop & Ors. 27.01.2020
Present: Sh.S K. Kain, Ld. Addl. PP for the State.
Accused is present on bail with learned counsel Sh. Raj Kumar.
Arguments heard on the point of charge and record perused.
As per the case of the prosecution, Smt. Manju made a complaint to the police on 17.05.2013 stating that she was married with Roop ( husband/accused) on 21.10.2012 and after that she resided with Basant ( brother in law/co-accused) and Maya ( wife of accused Basant/co-accused ) at their house at Najafgarh Delhi ; they used to harass and beat her and demand a sum of Rs. 2 lakhs for construction of house ; financial help of Rs. 1 lakh was made by her parents but they were not satisfied, they still insisted her to pay a sum of Rs. 1 lakhs ; on her refusal to pay the said amount she was beaten; after that she alongwith her husband started residing at T-22, Old Nangal, Delhi Cantt, Delhi but on the provocation of co-accused persons her husband used State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 27 of 25 to beat her and even not provided food and othe things including medicine in case of her ill health ; her parents tried to made understand Roop, her husband, but all went in vain.
She further narrate that on 10.05.2013 her husband came from his duty at about 10:30p.m. and asked her to serve food ; she served the same ; on her back, her husband mixed poison in her food and after eating, he started quarelling with her on the pretext of not providing him financial help, snatched her mobile phone and locked the door from inside ; after some time she felt unwell but she was not allowed to make a call or go outside the room.
On the next morning when her husband left the room for duties, she made a call to her parents as well as to the police. Her family members came and got her admitted in the hospital, police contacting him and recorded his statement.
After completion of investigation charge sheet for the offence punishable under section 498A/406/328 IPC was filed by the PS Delhi Cantt for trial.
Arguments of learned counsel for the accused persons as well as learned Addl. PP for State heard and record perused.
Perusal of the record reveals that there are material discrepancies in the statements made by the complainant qua the alleged incident of stupefying substance mixed in her food as is evident from her complaints dated 17.05.2013, 11.05.2013 and 11.06.2013.
State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 28 of 25 complainant herself made her complaint in Hindi writing to the police on 17.05.2013 and prior to that after the day of incident on 11.05.2013 he statement was recorded by SI Jagmohan of PS Delhi Cantt That attending circumstances as put forth by the complainant in her subsequent and improved complaint dated 17.05.2013 qua the facts stated therein and gap between intake of the said substance in food and her visit to the SJ hospital for treatment of the same does not inspire confidence.
More the so, in backdrop of the fact that there is no medial evidence on record to suggest intake of any poison or any stupefying, intoxicating or unwholesome drug to the victim Smt. Manju Devi, with an intent to cause some hurt to her or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that thereby they will cause hurt.
It is also pertinent to note that doctor who examined complainant had advised her Gastric Lavage test/ procedure but there is nothing on record to indicate that thereafter the same was got conducted or not, or any other test to indicate the presence of any poisonous/ or any other substance.
In the light of my above discussion, I have no hesitation to say that no grave suspicion arises against the accused Roop that he administered or caused to be taken any poison or any stupefying, intoxicating or unwholesome drug to the victim Smt. Manju with an intent to cause some hurt to her or with intent to State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 29 of 25 commit or to facilitate the commission of an offence or knowing it to be likely that thereby he will cause hurt and in that circumstances charge for an offence punishable under section 328 IPC can not be sustained against the accused Roop accordingly, stands discharged for the offence punishable u/s 328 IPC.
It is also made clear that there is no inciriminating material qua the offence u/s 328 IPC against the co accused persons namely Basant and Mayawho are put in column no. 12, they are accordingly discharged for the offence punishable u/s 328 IPC.
No other offence exclusively triable by the Sessions Court is made out against accused persons.
In these circumstances the case file is remanded back to the court of learned CMM, PHC, New Delhi District, New Delhi who may either keep the file himself or may assign it to any other learned MM in the New Delhi District, PHC, New Delhi for further proceedings as per law. Accused Roop is directed to appear before the court of ld. CMM, PHC, New Delhi District, New Delhi on 01.02.2020 at 02.00 p.m. Ahalmad is directed to send the file complete in all respects to the court of ld. CMM, PHC, NDD, New Delhi as per rules.
Order accordingly.
Before parting it is worth to mention that no opinion is State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 30 of 25 expressed qua the allegations of offences u/s 498A/406 IPC against accused Basant and Maya who are put in column no. 12 of the charge sheet by the IO, and the trial court shall be at liberty to consider their case on merits as per material available on case file.
Announced in open court Delhi Dated 27.01.2020 ( Anil Antil ) Addl. Sessions Judge -04, New Delhi District, Patiala House Courts, New Delhi 27.01.2020 State Vs. Abdhesh Kumar SC no. 338/17 FIR No.283/17 u/s 498A/304B IPC Page no. 31 of 25