Delhi District Court
Sc No. 57439/16; Fir No.233/12; Ps. ... vs . Rakesh Kumar & Ors. Page No. 1 Of 65 on 14 November, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................57439/16
FIR No. 233/12
PS Narela
U/s: 302/306/304B/498A/34 IPC
State
Versus
1. Rakesh Kumar
S/o Sh. Rai Singh,
R/o Gali No. 2, Vishvkarma Colony,
Gohana, Sonipat, Haryana.
2. Prem @ Premo Devi
W/o Sh. Rai Singh,
R/o Gali No. 2, Vishvkarma Colony,
Gohana Sonipat, Haryana.
3. Manju @ Meena
W/o Sh. Ravinder
R/o Lakshmi Nagar, Ujha Road,
Near Sinha Export, Panipat, Haryana.
4. Kamlesh @ Sneh Lata
W/o Sh. Dilbag
R/o Shamlo Kalan, District Jind,
Haryana.
Date of institution: 23.08.2012
Judgment reserved on: 23.10.2018
Judgment delivered on: 14.11.2018
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ORDER/JUDGMENT: All the accused persons namely Rakesh
Kumar, Prem @ Premo Devi, Manju @
Meena and Kamlesh @ Sneh Lata are
acquitted of the charge(s) u/S. 304B/34
& 498A/34 IPC, whereas accused
Rakesh Kumar also stands acquitted of
the charge(s) u/S. 302/306 IPC.
J U D G M E N T
1. Brief facts, as stated in the chargesheet are that on 04.05.2012,
DD No. 30A was marked to SI Manoj Kumar, who alongwith Ct.
Dinesh Kumar went to the place of occurrence i.e. H. no. 314, Pana
Udyan. Upon reaching at the spot, the aforesaid police officials found
a dead body of Suman Saini W/o Rakesh lying on a cot having
chunni tied over the neck of deceased. Upon inquiry, it was revealed
to the aforesaid police officials that the marriage of Suman had taken
place with one Rakesh around 2½ years ago. They also found one
suicide note at the spot and the said suicide note was seized by SI
Rakesh. Concerned SDM was informed and body of Suman Saini
was sent to the BJRM Hospital. The concerned SDM informed the
family members of deceased. On 07.05.2012, SDM recorded the
statement of the father of deceased namely Sh. Satbir Singh, which
reads as under:
"That his daughter Suman was married with Rakesh S/o
Ram Singh R/o Village Gohana, District Sonipat, Haryana
present address H. No. 314, near Dada Dairen walon ki
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chaupal, Pana Udyan, Narela, Delhi as per Hindu rites and
ceremonies on 07.12.2009. Four days prior to the
marriage, the mother of Rakesh and his elder sister Manju
demanded dowry and his daughter Suman had told this
fact to Rakesh and since that day inlaws of Suman
started harassing her, on the day of marriage as also
since marriage they had not treated his daughter Suman
like a daughterinlaw and they used to taunt his daughter.
He further alleged that upto 2 to 3 months of marriage,
Rakesh kept on taking the side of Suman, but thereafter
Rakesh along with his mother and both sisters namely
Manju and Sneh Lata, on the pretext of dowry started
harassing his daughter.
He also alleged that in the marriage of the cousin of
Rakesh which took place after two / four months he was
gifted with a car in the said marriage and since that day
Suman was being harassed for the demand of the car. He
also alleged that in order to make them understand, his
whole family came all the way from Chandigarh and made
them understand, but they had not paid any heed to the
same. He further alleged that in view of the aforesaid
demands, his daughter felt harassed. He further alleged
that his daughter gave a birth to a son on 25.09.2010 and
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after the said delivery they went to attend the ceremony
along with gift items worth Rs. 83,000/, but the inlaws of
his daughter were not happy and they demanded LCD TV.
He further stated that he had shown his inability to meet
the said demand and since then his daughter Suman was
being beaten and mentally tortured by her inlaws. He also
alleged that after the six months of the delivery, they
pressurized Suman for a job of JBT teacher and further
pressurized her that if she would not clear the selection
test for JBT teacher within a year, then Rakesh would
either give divorce to her or would kill her.
He also alleged that due to the said reason, his
daughter went under depression and he also sent his
mother to the house of Suman at Narrela, where his
mother resided with Suman for about two months, but
Rakesh had even ill treated his mother as well. He further
alleged that since last seven months, the minor son of
Suman was with them at Chandigarh, so that Suman
could concentrate on her studies. He also alleged that
whenever Suman failed to clear any paper, she was
beaten up. He also alleged that on 30.04.2012, his
daughter came to Narela from Gohana and on Friday i.e.
on 04.05.2012, at around 5:05 pm, Rakesh made a call and
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informed that Suman had committed suicide and the said
call was attended by his younger son Himmat Singh. He
also alleged that he had spent a sum of Rs Nine Lakhs in
the marriage of Suman and his daughter was a literate girl
and that she would not commit suicide. He raised
suspicion that his daughter must have been murdered by
her husband Rakesh and then she was shown to be
hanged".
2. On the basis of said statement, SDM made an endorsement and
marked the statement to the SHO, PS Narela. SHO, PS Narela who
in turn made an endorsement for registration of FIR and for marking
investigation to SI Manoj Kumar.
3. During investigations, SI Manoj Kumar prepared site plan and
recorded the statement of witnesses and also interrogated accused
Rakesh and effected his arrest on 09.05.2012. On 15.05.2012,
postmortem on the body of Suman was got conducted and the
medical board opined the cause of death of Suman as asphyxia as a
result of ante mortem hanging by a ligature. The board also opined
that injuries no. 2 to 8 and head injury were caused by blunt force
trauma. The board also opined injuries to be ante mortem in nature
and fresh in duration, however, viscera was preserved to rule out
intoxication. Further investigation was marked to Inspector Manoj
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Sharma, who had seized the list of dowry articles and also collected
admitted handwriting of Suman and sent the said admitted
handwriting and suicide note to FSL Rohini. During investigation,
accused Prem, Manju @ Meena and Kamlesh @ Sneh Lata were
granted anticipatory bail and they were formally arrested on
03.08.2012 for offence u/s 498A IPC. During investigation, offence
u/s 302 IPC was also added.
4. After completion of investigations, a chargesheet for offence(s)
punishable u/s 498A/304B/302 IPC was filed against the accused
Rakesh and for offence punishable u/s 498A IPC against accused
Prem, Manju @ Meena and Kamlesh @ Sneh Lata. Upon collection
of FSL result regarding viscera and handwriting, the same were also
filed in court.
5. On committal of the case to the Court of Sessions, vide detailed
order dated 07.02.2013, a charge(s) for offence(s) u/s 304B/498A/34
IPC was framed against all the accused persons and an alternative
charge(s) for offence(s) u/s 302 IPC or alternatively 306 IPC was also
framed against the accused Rakesh Kumar to which they pleaded
not guilty and claimed trial.
6. Thereafter, prosecution in support of its case has examined 20
witnesses :
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a) PW1 is Sh. Shakti Singh is the brother of deceased Suman
Saini, who has supported the case of the prosecution and deposed
about the specific roles of all the accused persons in the
commission of offence(s). He also identified all the accused
persons during his testimony. He also deposed to have made the
statement Ex. PW1/A before SDM concerned and received the
dead body of his sister vide receipt Ex. PW1/B.
b) PW2 is Sh. Satbir Singh, father of the deceased Suman, who
has also supported the case of the prosecution and deposed the
specific roles of all the accused persons in the commission of
offence(s). He also identified all the accused persons during his
testimony. He also deposed to have made the statement Ex.
PW2/A before SDM concerned and received the dead body of his
daughter vide receipt Ex. PW1/B and also identified the body of his
daughter vide identification statement Ex. PW2/B. He also
exhibited the seizure memo Ex. PW2/C in respect of one document
written to examination authorities K. V. School and one original
HDFC Bank receipt.
He also deposed to have produced the list of stridhan,
photocopy of bills of the dowry articles, which were seized vide
seizure memo Ex. PW2/D and dowry list as Ex. PW2/E. He also
exhibited the copy of bill of furniture, Samsung refrigerator and
warranty card of the cooler as Ex. PW2/F. He also exhibited the
admitted handwriting of his daughter on documents Ex. PW2/G
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and Ex. PW2/H. During his testimony, he also saw the suicide note
Ex. PW2/J and raised doubt on the said suicide note and deposed
that the same could have been got written by putting pressure on
his daughter.
c) PW3 is Ct. Dinesh Kumar who on 25.06.2012 collected exhibits
from MHCM vide RC No. 125/21/12 and deposited the same at
FSL.
d) PW4 is ASI Vinod Kumar i.e. duty officer who recorded DD No.
30A dated 04.05.2012 Ex. PW4/A.
e) PW5 is Ct. Harish Kumar i.e. crime team photographer who took
11 photographs of the dead body of deceased and exhibited the
said photographs as Ex. PW5/A1 to Ex. PW5/A11 and also
exhibited the negatives of the photographs as Ex. PW5/B1 to Ex.
PW5/B11.
f) PW6 is Sh. Gajraj Singh, who deposed that H. No. 314, Pana
Udyan is in the name of his brother, which was given on rent to
accused Rakesh. He also deposed that in the month of 2012, he
visited the said house and found the wife of accused Rakesh lying
dead on a cot and accused was weeping. Police met him and
noted down his name and address. He had also shown the place
of incident to the police.
g) PW7 is Smt. Kasturi, mother of the deceased Suman, who has
supported the case of the prosecution and has deposed about the
specific roles of all the accused persons in the commission of
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offence(s). She also identified all the accused persons during her
testimony.
h) PW8 is Dr. Chittranjan Bahera, who deposed that on
11.05.2012, a medical board of doctors was constituted who
conducted postmortem on the body of Suman comprising of Dr.
Vijay Dhankhar, Dr. Jatin Bodwal and himself and the postmortem
examination was conduced on 15.05.2012 and after postmortem,
postmortem report Ex. PW8/A was prepared. He also exhibited the
detail of the ligature material shown in a diagram sheet Ex. PW8/B.
He also exhibited the external injuries as mentioned in a schematic
diagram as Ex. PW8/C.
He also deposed that the cause of death of Suman was
asphyxia as a result of ante mortem hanging by ligature. He also
deposed that injuries no. 2 to 8 and head injury were caused by
blunt force trauma. He also deposed that all the injuries were ante
mortem in nature and fresh in duration. He also deposed that
viscera was preserved and ligature material after sealing was
handed over to IO. He also deposed that the ligature mark could
be possible by the ligature material found in the situ (neck) of
deceased examined at the time of surgery. He also deposed that
on receipt of request after receiving the FSL report in respect of
viscera Ex. PW8/D, a subsequent opinion Ex. PW8/E was given by
the medical board. He also identified one printed pinkish coloured
chunni as Ex. P1.
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i) PW9 is ASI Ishwar Singh, duty officer, who has recorded FIR Ex.
PW9/A, made endorsement Ex. PW9/B on rukka and handed over
the investigation to SI Manoj Kumar.
j) PW10 is SI Prem Singh i.e. incharge crime team, who had
inspected the place of occurrence and prepared crime team report
Ex. PW10/A.
k) PW11 is Inspector Manohar Lal, who took measurements and
prepared rough notes of the place of occurrence and thereafter
prepared scaled site plan Ex. PW11/A.
l) PW12 is HC Rajesh i.e. MHC (M) who has produced original
register no. 19 and exhibited entry at serial no. 247 as Ex.
PW12/A. He also produced register no. 21 and exhibited RC No.
105/21/12 and the original receipt as Ex. PW12/B and Ex.
PW12/C. He also deposed to have received FSL result Ex.
PW12/D.
m) PW13 is Sh. Rajender Prasad, who was posted as SDM Model
Town on 07.05.2012 and has deposed to have recorded the
statement Ex. PW2/A of Sh. Satbir Singh. He also deposed that on
the basis of said statement, he gave direction Ex. PW13/A to SHO,
Narela to register the case u/s 304B/498A IPC. He also deposed
that on the request of Sh. Satbir Singh, a medical board was
constituted. He also exhibited the inquest proceedings as Ex.
PW13/B and Ex. PW13/C. He also deposed to have recorded the
identification statements of Sh. Satbir Singh and Sh. Shakti Singh
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Ex. PW2/B and Ex. PW1/A respectively.
n) PW14 is Dr. Jatin Bodwal, who deposed that on 11.05.2012, a
medical board of doctors was constituted who conducted
postmortem on the body of Suman comprising of Dr. Vijay
Dhankhar, Dr. Chittranjan Bahera and himself and the postmortem
examination was conduced on 15.05.2012 and after postmortem,
postmortem report Ex. PW8/A was prepared.
He also exhibited the details of the ligature material shown in a
diagram sheet Ex. PW8/B. He also exhibited the external injuries
as mentioned in a schematic diagram as Ex. PW8/C. He also
deposed that the cause of death of Suman was asphyxia as a
result of ante mortem hanging by ligature. He also deposed that
injuries no. 2 to 8 and head injury were caused by blunt force
trauma. He also deposed that all the injuries were ante mortem in
nature and fresh in duration.
He also deposed that viscera was preserved and ligature
material after sealing was handed over to IO. He also deposed that
the ligature mark could be possible by the ligature material found in
the situ (neck) of deceased examined at the time of surgery. He
also deposed that on receipt of request after receiving the FSL
report in respect of viscera Ex. PW8/D, a subsequent opinion Ex.
PW8/E was given by the medical board. He also identified one
printed pinkish coloured chunni as Ex. P1.
o) PW15 is Dr. Vijay Dhankhar, who deposed that on 11.05.2012,
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in pursuance of the request of SDM Narela vide order Ex. PW15/A,
a medical board of doctors was constituted who conducted
postmortem on the body of Suman comprising of Dr. Chittranjan
Bahera, Dr. Jatin Bhartwal and himself and the postmortem
examination was conduced on 15.05.2012 and after postmortem,
postmortem report Ex. PW8/A was prepared. He also exhibited the
detail of the ligature material shown in a diagram sheet Ex. PW8/B.
He also exhibited the external injuries as mentioned in a schematic
diagram as Ex. PW8/C.
He also deposed that the cause of death of Suman was
asphyxia as a result of ante mortem hanging by ligature. He also
deposed that injuries no. 2 to 8 and head injury were caused by
blunt force trauma. He also deposed that all the injuries were ante
mortem in nature and fresh in duration. He also deposed that
viscera was preserved and ligature material after sealing was
handed over to IO. He also deposed that the ligature mark could
be possible by the ligature material found in the situ (neck) of
deceased examined at the time of surgery. He also deposed that
on receipt of request after receiving the FSL report in respect of
viscera Ex. PW8/D, a subsequent opinion Ex. PW8/E was given by
the medical board. He also identified one printed pinkish coloured
chunni as Ex. P1.
p) PW16 is Sh. Anurag Sharma, who had examined the exhibits
and prepared the FSL report Ex. PW16/A, whereby some more
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standard material for examination and comparison was demanded.
He also deposed that in response to the said report, the exhibits in
three sheets and one volume Ex. PW16/B, he again examined the
exhibits and prepared his detailed report Ex. PW12/B wherein he
had opined that the person who wrote the red enclosed writings
standard and marked A1 to A35 also wrote the red enclosed
writings similarly stamped and marked Q1.
q) PW17 is SI Manoj, initial IO, who on receipt of DD No. 30A Ex.
PW4/A alongwith Ct. Dinesh went to the spot and found one lady
namely Suman Saini lying dead on a cot and also found one
chunni tied in her neck. It was revealed to him that Suman Saini
was married to Rakesh 2½ years prior to the incident and one
suicide note was also found at the spot. PW17 seized the said
suicide note Ex. PW2/J vide seizure memo Ex. PW17/A. He also
called the crime team. He also informed SDM Model Town. He got
shifted the dead body to the mortuary of BJRM Hospital.
He also deposed that on 07.05.2012, concerned SDM
recorded the statement Ex. PW2/A of Sh. Satbir Singh and SDM
gave directions for registration of an FIR. He handed over the
statement of complainant alongwith endorsement of SDM to the
SHO, who got registered the FIR Ex. PW9/A vide endorsement Ex.
PW17/B. He also deposed to have prepared rough site plan Ex.
PW17/C. He also approached the Department of Health to
constitute a board for the postmortem examination of body of
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Suman. He also deposed that after postmortem, he seized the
exhibits vide memo Ex. PW17/D. He also deposed to have
arrested accused Rakesh vide memo Ex. PW17/E and conducted
his personal search vide memo Ex. PW17/F. He also deposed to
have joined investigations on 18.07.2012.
r) PW18 is Ct. Dinesh, who on receipt of DD No. 30A accompanied
SI Manoj to the place of occurrence.
s) PW19 is Ms. Kavita Goyal, Senior Scientific Officer (Chemistry)
who deposed to have examined the exhibits and prepared report
Ex. PW8/D.
t) PW20 is Inspector Manoj Sharma, who had conducted
investigation and seized the list of stridhan and other documents
vide seizure memo Ex. PW2/D. He also exhibited the stridhan
articles list as Ex. PW2/E, photocopy of warranty card Ex. PW2/F,
photocopy of furniture bill and of Samsung refrigerator as mark
PW20/A and PW20/B.
He also deposed to have seized the admitted handwriting of
deceased vide memo Ex. PW2/C. He also exhibited the admitted
handwriting i.e. examination authority letter KVS New Delhi as Ex.
PW2/G and account opening form as Ex. PW2/H. He also deposed
to have seized the cover of the marriage card Ex. PW17/G vide
memo Ex. PW17/H. He also deposed to have deposited the
suicide note and admitted documents to FSL Rohini. He also
deposed to have formally arrested accused Prem, Kamlesh @
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Snehlata and Manju @ Meenu vide arrest memos Ex. PW20/A, Ex.
PW20/B and Ex. PW20/C respectively and recorded their
disclosure statements Ex. PW20/D, Ex. PW20/E and Ex. PW20/F
respectively. He also deposed to have added offence u/s 302 IPC
in investigation. He also deposed to have received the FSL result
regarding the viscera and obtained subsequent opinion regarding
cause of death. He also deposed to have received the FSL report
in respect of the handwriting of the deceased. He also deposed
that again suicide note alongwith other admitted handwriting of
deceased was sent to FSL Rohini as per the court direction and he
received the FSL result and submitted the same in court.
It is the case of the prosecution that one suicide note was
recovered from the spot and the same was seized by SI Rakesh
and the said suicide note has been exhibited during trial as Ex.
PW2/J. The contents of the said suicide note are reproduced as
under:
"Mujhe maaf kar dena jaanu. Aaj mai hamesha ke
liye apni nazron mei gir gayi. Aaj ke baad mai
apse kabhi nazar nahi mila sakungi, isliye mai jaa
rahi hun, apki zindagi se hameshahamesha ke
liye, please yeh kisi se mat kehna, yeh kya hua
aur kya nahi".
Goodbye.
I Love You Always.
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Apki Mannu.
As per the FSL result Ex. PW12/D dated 30.11.2012 prepared by
Sh. Anurag Sharma, Assistant Director (Documents), FSL Rohini, Delhi,
it has been mentioned that "The person who wrote the red enclosed
writings stamped and marked A1 to A35 also wrote the red enclosed
writings similarly stamped and marked Q1 (suicide note).
7. Vide order dated 25.08.2017, the prosecution evidence was
closed.
8. Thereafter, statement of accused persons u/s 313 Cr.P.C. were
recorded separately in which the entire incriminating evidence
appearing against the accused persons was put to them, in which the
defence of the accused persons was that they had been falsely
implicated in the present case. They further stated that the deceased
had committed suicide out of guilt, as she was having illicit relation
with cousin brother of accused Rakesh Kumar namely Sunil @ Sonu,
Manju @ Meena and Kamlesh @ Snehlata. However, they chose to
lead evidence in their defence.
9. In support of their defence, the accused persons have examined
DW1 Smt. Kanta Devi, Principal, MCD Primary School, Narela, DW2
Sh. Yashpal, DW3 Sh. Sunil @ Sonu and DW4 ASI Anand Singh.
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Thereafter, vide statement dated 21.11.2017, Ld. Defence Counsel
for the accused persons closed defence evidence.
10. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP for the State and
Sh. Pradeep Rana, Ld. Counsel for all the accused persons and also
gone through the brief synopsis filed by Ld. Defence Counsel for the
accused persons.
11. It was contended by Ld. Counsel for the accused persons that
there are material contradictions in the testimonies of PW1 Shakti
Singh (the brother of the deceased), PW2 Satbir, complainant / father
of the deceased, PW7 Kasturi, mother of the deceased. From the
facts elucidated during their crossexamination, it is established that
there was no demand of dowry made by accused at any point of time
whether of car, LCD or of any other article. In fact, accused Rakesh
had opened a bank account in the name of the deceased and was
also bearing expenses of tuition / coaching classes for teaching
course.
It is also argued that it has come in the crossexamination of
above witnesses that the deceased always wants to become a
teacher even prior to her marriage. It is further argued that accused
Manju @ Neema and Kamlesh @ Snehlata are the married sisters,
who were married much before the marriage of the present accused
with the deceased and they were living in their matrimonial houses
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separately. It is also stated that the grandmother of the deceased
who had allegedly stayed at the matrimonial house of the deceased
was not deliberately examined, as she was the best witness to say
what was the conduct of the accused persons qua the deceased.
Therefore, it is stated that there is no evidence that accused persons
treated the deceased with cruelty or harassed her in relation to the
deand of dowry soon before her death. Therefore, it is stated that no
offence u/S. 498A/304B/34 IPC is made out.
Regarding charge(s) u/S. 302/306 IPC, it is argued that the the
suicide note left by the deceased after the incident has been proved
to be in the handwriting of the deceased, in which she has clearly
admitted that she had fallen in the eyes of the accused Rakesh and
she cannot face him, therefore, she was taking away her life and he
should not tell anyone what had happened. Therefore, it is stated
that this suicide note clearly exonerates the accused Rakesh and it
shows that the deceased had taken away her life due to remorse. It
is also stated that the suicidal death has also been proved by the
post mortem report, in which the cause of death has been given as
ante mortem hanging.
It is also stated that the accused had examined two material
witnesses in his defence namely DW2 Yashpal, who had admittedly
as per the PCR form placed on the record and as per the admission
of the IO Inspector Manoj Sharma had made a call at 100 number, as
also DW3 Sunil @ Sonu with whom the deceased was having illicit
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affair and when the accused Rakesh on the date of the incident came
back due to certain circumstances to his house from school to take
back a register regarding which defence has also examined DW1
Smt. Kanta Devi, the Principal of MCD Primary School, Narela where
the accused Rakesh was working at that time, who has also proved
the relevant movement and attendance register, which are Ex.
DW1/A and Ex. DW1/B respectively.
The accused Rakesh saw as per the defence version, both of
them in compromising condition and due to this he got angry and in
the ensuing scuffle she got pushed away and was hit on the wall and
she fell on the table and received injuries. The said quarrel between
the deceased DW3 and the accused Rakesh was also witnessed by
DW2 Yashpal, who is an independent witness, who had made a call
at 100 number and who was living just opposite to the house of the
deceased. Therefore, it is stated that the deceased had taken her life
due to remorse felt by her due to her illicit relations, which are also
corroborated by the suicide note. Therefore, it is stated that no
offence u/S. 302/306 IPC is also made out against the accused
Rakesh. Ld. Defence counsel has also relied upon the following
judgments in support of his contentions :
a) K.R.J. Sarma Vs. R. V. Surya Rao & Anr. Criminal Appeal No.
1605 of 2007, decided on 01.04.2013;
b) Gurdeep Singh Vs. State of Punjab & Ors. Criminal Appeal
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No. 1085 of 2003, decided on 25.08.2011;
c) Shindo Alias Sawinder Kaur & Anr. Vs. The State of Punjab
Criminal Appeal No. 1902 of 2010, decided on 31.03.2011;
d) Jasvinder Saini & Ors. Vs. Stat (Govt. of NCT of Delhi)
Criminal Appeal No. 819 of 2013 (Arising out of SLP (Crl.) No.
8738 of 2011), decided on 02.07.2013;
e) Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 2010 (4)
Criminal Court Cases 053 (SC);
f) M. Srinivasulu Vs. State of A. P. MANU/SC/7892/2007;
g) Deepa Bajwa Vs. State & Ors. MANU/DE/1086/2004;
h) Giani Ram Vs. State MANU/DE/1021/2008.
12. On the other hand, Ld. Addl. PP for the State strongly
controverted the above contentions and has argued that all the
material prosecution witnesses i.e. PW1 Shakti Singh (the brother of
the deceased), PW2 Satbir, complainant / father of the deceased,
PW7 Kasturi, mother of the deceased have clearly supported the
prosecution version that all the accused persons immediately after
the marriage of the deceased with the accused Rakesh started
harassing her for the demands of dowry including car, LCD and other
articles.
It is also argued that the complainant had also given the articles
worth Rs. 80,000/ during the pilia ceremony after the birth of son to
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the deceased on the demands of the accused persons, who were yet
not happy and they used to harass the deceased consistently. It is
also argued that the accused Rakesh used to tell and force the
deceased to clear JBT teacher's exam and in case she did not clear
the same, she would either be killed or he would divorce her. It is
also stated that the testimonies of all the material witnesses is
cogent, consistent and trustworthy and there are no material
contradictions in the same. Therefore, it is stated that the prosecution
has been able to establish beyond any reasonable doubt that the
accused persons treated the deceased with cruelty and harassed her
in relation to the demands of dowry soon before her death, therefore,
all of them are liable to be convicted u/S. 498A/304B IPC.
Regarding the charge(s) u/S. 302/306 IPC, it is stated that
number of ante mortem injuries have been found on the body of the
deceased as per the post mortem report and even some of them are
grievous and dangerous in nature. Therefore, it is stated that due to
the said ante mortem injuries, the deceased was compelled and
instigated to commit suicide as she was left with no other alternative,
as she was given severe beatings by the accused Rakesh.
It is also argued that the entire story of DW2 and DW3 regarding
the illicit affair of the deceased with DW3 is concocted and after
thought in order to save the accused from law. It is stated that the
SMSs placed on the record by DW3 have not been proved to have
been sent by deceased therefore, the said piece of evidence is
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worthless. Therefore, it is stated that the prosecution has also been
able to make out a case u/S. 302/306 IPC.
13. I have gone through the rival contentions.
14. With regard to the charge u/s 304B/498A IPC, the law in this
regard has been laid down in the judgment 2009 Cr. LJ 3034, as
under :
26. Section 304B IPC deals with dowry death
which reads as follows:
304B. Dowry death (i) 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
subsection, 'dowry' shall have the same meaning
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as in Section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).
(ii) 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.
2. The provision has application when death
of a woman is caused by any bums 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 relatives of
her husband for, or in connection with any
demand for dowry. In order to attract application
of Section 304B IPC, the essential ingredients
are as follows:
(i) The death of a woman should be caused by
burns or bodily injury or otherwise than under a
normal circumstance.
(ii) Such a death should have occurred within
seven years of her marriage.
(iii) She must have been subjected to cruelty or
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harassment by her husband or any relative of her
husband.
(iv) Such cruelty or harassment should be for
or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to
have been meted out to the woman soon before
her death.
3. Section 113B of the Evidence Act is also
relevant for the case at hand. Both Section 304B
IPC and Section 113B of the Evidence Act were
inserted as noted earlier by Dowry Prohibition
(Amendment) Act 43 of 1986 with a view to
combat the increasing menace of dowry deaths.
Section 113B reads as follows:
113B. Presumption as to dowry deaths. When
the question is whether a person has committed
the dowry death of a woman and it is shown that
soon before her death such woman had been
subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the court shall presume that
such person had caused the dowry death.
Explanation. For the purpose of this section,
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'dowry death' shall have the same meaning as in
Section 304B of the Indian Penal Code (45 of
1860).
4. The necessity for insertion of the two
provisions has ben amply analysed by the Law
Commission of India in its Twentyfirst Report
dated 10.08.1988 on "Dowry Deaths and Law
Reform". Keeping in view the impediment in the
preexisting law in securing evidence to prove
dowryrelated deaths, the legislature thought it
wise to insert a provision relating to presumption
of dowry death on proof of certain essentials. It
is in this background that presumptive Section
113B in the Evidence Act has been inserted. As
per the definition of "dowry death" in Section
304B IPC 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".
Presumption under Section 113B is a
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presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the
court to raise a presumption that the accused
caused the dowry death. The presumption shall
be raised only on proof of the following
essentials:
(i) 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
IPC).
(ii) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(iii) Such cruelty or harassment was for, or in
connection with any demand for dowry.
(iv) Such cruelty or harassment was soon
before her death.
5. A conjoint reading of Section 113B of the
Evidence Act and Section 304B IPC shows that
there must be material to show that soon before
her death the victim was subjected to cruelty or
harassment. The prosecution has to rule out the
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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 expression "soon before"
is very relevant where Section 113B of the
Evidence Act and Section 304B IPC are pressed
into service. The prosecution is obliged to show
that soon before the occurrence there was
cruelty or harassment and only in that case
presumption operates. Evidence in that regard
has to be led in by the prosecution. "Soon
before" is a relative term and it would depend
upon the circumstances of each case and no
straitjacket formula can be laid down as to what
would constitute a period of soon before the
occurrence. It would be hazardous to indicate
any fixed period, and that brings in the
importance of a proximity test both for the proof
of an offence of dowry death as well as for
raising a presumption under Section 113B of the
Evidence Act. The expression "soon before her
death" used in the substantive Section 304B IPC
and Section 113B of the Evidence Act is present,
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with the idea of proximity test. No definite period
has been indicated and the expression "soon
before" is not defined. A reference to the
expression "soon before" used in Section 114
Illustration (a) of the Evidence Act is relevant. It
lays down that a court may presume that a man
who is in the possession of goods soon after the
theft, is either the thief who has received the
goods knowing them to be stolen, unless he can
account for his possession. The determination
of the period which can come within the term
"soon before" is left to be determined by the
courts, depending upon facts and circumstances
of each case. Suffice, however, to indicate that
the expression "soon before" would normally
imply that the interval should not be much
between the cruelty or harassment concerned
and the death in question. There must be
existence of a proximate and live link between
the effect of cruelty based on dowry demand and
the death concerned. If the alleged incident of
cruelty is remote in time and has become stale
enough not to disturb the mental equilibrium of
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the woman concerned, it would be of no
consequence.
27. In view of the provision(s) under section
304B IPC r/w 113B of the Evidence Act, it has to
be seen, whether the evidence lead by the
prosecution in the present case succeeds on the
touch stone of the said provisions, so as to make
out the culpability of the accused persons.
15. In this regard, the testimonies of PW1 Shakti Singh, brother of the
deceased, PW2 Satbir, father of the deceased and the complainant
as well as PW7 Kasturi, mother of the deceased are relevant.
16. It is the admitted case of the prosecution as well as defence
which is also borne out by the other evidence on record including the
statement of accused persons u/s 313 Cr.P.C. and the defence
arguments that the marriage of the deceased Suman Saini took place
with accused Rakesh on 07.12.2009. It is also admitted case that the
deceased died on 04.05.2012.
It has also been proved and has not been disputed by the
postmortem report Ex. PW8/A and the subsequent opinion after
obtaining the viscera report Ex. PW8/D that the cause of death in this
case was asphyxia, as a result of ante mortem hanging. Therefore, it
is also not disputed that the death of the deceased Suman Saini took
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place other than under normal circumstances within seven years of
her marriage.
17. The only bone of contention with regard to the present charge u/s
498A/304B IPC is, whether the deceased soon before her death was
subjected to cruelty of harassment by her husband and or any other
relative of her husband for or in connection with demand of dowry.
18. In this regard the relevant testimonies of above material
witnesses is being discussed as under:
PW1 Shakti Singh in his testimony in his examination
inchief has stated that accused Premo Devi asked his
mother to let her talk to deceased and she congratulated
they had purchased a car for them. Thereafter, his sister
called accused Rakesh if cost of car is demanded they will
not marry. Said fact of car was told by accused Manju
Devi. On the day of marriage, accused Manju objected to
decoration said it was not good. His younger brother and
sister told her. When they (deceased) reached matrimonial
home they were not welcomed by anyone. Accused
Rakesh remained silent for two months after that started
taunting regarding quality of dowry articles. After 34
months, there was marriage of cousin brother of accused
Rakesh, who got car in marriage.
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Thereafter, accused persons started taunting that a
village girl had brought car why not her. His sister gave
birth to a child. After 40 days, they went to her house with
gold chain, gold ring, locket and other articles amounting to
Rs.83,000/. At that time, accused Manju and Sneh
demanded LCD. When they refused to give LCD, accused
Rakesh gave beating to deceased. Thereafter, all the
accused persons started harassing mentally the deceased.
Accused Rakesh had put pressure on his sister that she
should get a job as JBT and also threatened in case, she
did not get job within a year, then he would either kill or
leave her.
These facts were told to him by deceased whenever
she used to visit. As and when she used to fail in exams,
accused persons used to give beatings to her and abuse
her. Thereafter, his grandmother started living in the house
of accused Rakesh to look after the small child and so that
she could study properly. Thereafter, they brought their
nephew to their house about seven months prior to
incident, so she could study properly. On 24.04.2012,
deceased met in a marriage in Chandigarh, she told
accused were harassing her, as they were still demanding
LCD and car.
PW1 was subjected to crossexamination, in which it
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was found that he had made number of improvements in
his examinationinchief vis a vis his earlier statement
recorded u/s 161 Cr.PC. All these improvements were duly
confronted to him in his crossexamination by drawing his
attention to those parts of statement. PW1 has further
stated that accused Rakesh returned Rs.49,000/ taken
from him by money transfer. He further stated in his cross
examination, he cannot tell name of the cousin of accused
Rakesh, who got Alto car in marriage, as they had not
attended the marriage, his father had handed over the bills
of items purchased for peeliya ceremony to the IO.
19. Now, adverting to the testimony of PW2 Satbir, the father of the
deceased and the complainant. He in his examinationinchief has
stated that his sons Himmat and Shakti went to leave the deceased
in her matrimonial house after marriage, however, they came back
and told accused Manju and Kamlesh and motherinlaw had
misbehaved with the deceased and had not even asked for a cup of
tea.
After four months of the marriage of their daughter, there was
marriage of cousin of Rakesh, a car was given in the said marriage
as dowry. After that, the motherinlaw and sisterinlaws started
taunting saying an unemployed person had got a car, whereas
Rakesh had only got a motorcycle.
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Four days prior to the marriage of deceased, his wife had
telephonic conversation with accused Premo Devi. Thereafter,
accused Manju talked to deceased and congratulated her for car, on
which she got surprised saying that only motorcycle had been
arranged for the marriage. In the meanwhile, deceased also
overheard during the said conversation that accused Kamlesh was
complaining about non giving of good blankets and khes. It is also
stated that his daughter was misbehaved after marriage due to non
fulfillment of demand of dowry, despite various meetings the accused
persons did not mend their ways. His daughter gave birth to a child
on 26.09.2010. He spent Rs.83,000/ on the peeliya ceremony, but
accused persons were not satisfied and they were demanding LCD.
She was tortured for not bringing dowry and accused Rakesh
was pressing for job of teacher in Delhi, as she had done JBT, he
used to pressurize her either to pass exams failing which he will
divorce or kill her. He sent his mother to the house of deceased to
look after her son, she remained there for three months. During those
three months, the accused persons used to misbehave with her.
When on 22/23.04.2012, his daughter came to his house, she
told that accused Rakesh used to reprimand her for not studying and
clearing exams as also demanding more dowry, which was also been
demanded by his motherinlaw and sisterinlaws.
On 02.05.2012, his daughter had a talk with his wife on phone
and she told that sisterinlaws and motherinlaw were pressurizing
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her for not bringing car and dowry.
20. The said witness was also subjected to crossexamination, in
which it was found that he had made number of improvements in his
examinationinchief vis a vis his earlier statement made to the SDM
Ex. PW2/A. All these improvements were duly confronted to him in
his crossexamination by drawing his attention to those parts of
statement.
In his crossexamination, PW2 has stated that none of his family
members attended the marriage of cousin of accused Rakesh, nor
can he tell date, nor name of chacha, nor can tell which car was
received or make, thereof he had not stated to the SDM that his
daughter told him regarding harassment in lieu of car and cruelty,
due to this he had also not told SDM that accused Manju
congratulated his daughter 4 days prior to marriage having
purchased car for her.
He further stated that they had not made prior complaint to the
police regarding demand of car and that it was correct that accused
Rakesh and deceased were residing in Narela. He further stated that
he was not aware whether accused Manju and Snehlata @ Kamlesh
were married prior to marriage of deceased. He further stated that it
was correct that deceased alongwith accused Rakesh had shifted to
Punjabi Bagh after one month of marriage. He further stated that it
was correct that in his presence, LCD was not demanded. He had
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not given bills of items given in pilliya ceremony. His daughter had
cleared TET exams after marriage.
He further stated in his crossexamination that he does not know
whether accused Rakesh had opened bank account of Suman. He
further stated that was correct that deceased was taking coaching
classes prior to her death and fees of the same were paid by
accused Rakesh. He further stated that prior to incident, accused
Rakesh got admitted his daughter for B.Ed. in Gohana. He further
stated that it was correct that deceased wanted to become teacher
even prior to marriage. He further stated that it was correct that she
had cleared HTET and CTET exams and Delhi exams for teacher.
21. Similarly PW7 Kasturi Devi, mother of the deceased had deposed
in her examination in chief that :
Four days prior to marriage, she had telephonic
conversation with accused Premo Devi. Thereafter,
Manju (accused) talked to deceased demanding good
and new blankets instead of bed sheets. She further
deposed that other sister Kamlesh also raised similar
demand after marriage.
She further deposed that deceased was
maltreated for not meeting demand of blankets,
tortured as well after four months of marriage of son
of chacha Rakesh took place in which he got a car.
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She further deposed that thereafter they started
harassing her, demanding car. Her daughter was
blessed with son. They spent Rs. 80,000/ on Pilia
ceremony. Accused persons were not satisfied with
said expenses. She further deposed that Rakesh
also demanded LCD. However, they expressed their
inability to do so. She further deposed that her
daughter was pressurized to do JBT tacher job. They
threatened if she failed to get a job, she would either
be killed or sent back to home. She further deposed
that she was facing mental torture at the hand of
accused persons due to non meeting of demands.
She further deposed that he sent his motherinlaw to
the matrimonial house of deceased to take care of
son of deceased to facilitate her study, but accused
persons kept on torturing and harassing her.
She further deposed that on 03.05.2012, she
talked with her daughter, but she was sounding very
low. She never found her so troubled prior to that in
any talks. She further deposed that she told her on
10.05.2012 there was exam and her life was on
stake. She also told Rakesh had given beatings to
her for not brining sufficient dowry and not leaving
exams. She further deposed that she was also being
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harassed by other accused persons for not brining
sufficient dowry.
In her crossexamination, she deposed that no
previous complaint was made against accused
persons from the marriage till the death of her
daughter. She further deposed that they went to
accused persons to make them understand, but the
accused persons did not mend their ways.
She does not remember the name of chacha of
Rakesh or the son of his chacha, whose marriage
was solemnized after the marriage of accused. She
further deposed that she does not know the model or
make of the car received by the son of chacha of
accused Rakesh in his marriage. She further
deposed that pilia was sent after 23 days of birth of
the child. She further deposed that they had not
handed over the bills of the articles given in Pilia to
the IO.
The witness after seeing pay in slip mark A put
to her in crossexamination stated that said amount
was given as loan to accused persons, which they
had returned. She further deposed that her son was
operated in March 2012 at Chandigarh. She further
deposed that the deceased had withdrawn Rs.
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6,000/ from ATM of hospital. Accused had opened
her account in SBI. She further deposed that
accused Rakesh used to provide coaching classes to
her daughter. He also got her admitted to B.E.D.
course. Her daughter wanted to become teacher,
even prior to marriage and Rakesh in order to
facilitate her used to provide her coaching classes in
Narela.
She further deposed that her motherinlaw
stayed at the house of Suman for two months. She is
not a witness in this case. She further deposed that
she knows Meena Devi D/o. Fateh Singh who had
filed a dowry case against them. She further
deposed that Meena Devi was wife of his son Himmat
Singh.
22. PW20 Inspector Manoj Sharma, IO has deposed regarding the
investigations as were carried out by him during the course of the
present case. He was also subjected to crossexamination, in which
he stated as under :
It is correct that as per investigations the
complainant had come to know the death of his
daughter on 04.05.2013 at 5:00 PM. But he did not
make any statement to police or SDM till
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07.05.2012. He further admitted that it is correct
that all the bills and list of articles were pertaining to
the period prior to the marriage and no bill or list of
articles were provided after the marriage period. He
further deposed that he told the complainant to
furnish bills pertaining to Pilia ceremony of Rs.
83,000/, but he submitted that he will submit the
same in the Court. He further deposed that he tried
to search for the person who made PCR call and he
was found, but does not remember whether he
recorded his statement or not.
He further deposed that the call was made by
one Yashpal from no. 9811369066. He further
admitted that it is correct that said particulars are
mentioned in PCR form. He had gone to school
where accused was working at that time to find out
whether accused was present at the school at that
time or not. He further deposed that he had not
given any notice to Principal in order to get
attendance register. He further deposed that it is
correct that he never inquired or met the mother of
complainant, whether she resided at the matrimonial
house of Suman for 23 months and what was the
behaviour of accused persons during said stay. He
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further deposed that he had not obtained the CDR
of the mobile phone of Suman bearing no.
9015680504 and of the accused for the purposes of
investigations.
23. PW17 is SI Manoj, who went to the spot on receipt of DD No. 30A
and who carried out initial investigations on 04.05.2012 and also
found the suicide note near the dead body, called the crime team,
informed the SDM, got post mortem done. Further on 07.05.2012, he
produced the complainant Satbir Singh in the office of SDM, who
gave written complaint Ex. PW2/A to the SDM on the basis of which
endorsement was made by the SDM for the registration of the
present FIR.
The above witness was also crossexamined. He in his cross
examination stated that he had not made any investigations in the
school, where Rakesh was working. He had not made any
investigations in respect of any alleged failure in TGT Exam by
deceased. He had not made any investigations regarding receiving
of car by the uncle of accused Rakesh in his marriage nor he had
inquired about any specific date of Pilia ceremony or that date on
which relatives of deceased had gone with the articles to the house
of the accused persons.
PW6 is Gajraj Singh, he has deposed that house no. 314,
Panna Udyan, Narela was rented out to accused Rakesh, which was
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in the name of his brother.
24. Another witness is PW18 Ct. Dinesh, who went to the spot along
with PW17 SI Manoj Kumar on receipt of DD no. 30A on 04.05.2012.
He has also admitted in his crossexamination that it was correct that
the IO did not verify who had made the call at 100 number in his
presence.
25. It would also be relevant to discuss the defence witnesses
examined by the accused persons in support of their defence.
26. DW1 is Smt. Kanta Devi, Principal MCD Primary School, Panna
Udyan, Narela. She has deposed as under :
"I have brought the summoned record of in
respect of accused Rakesh S/o Late Sh. Rai Singh,
who was teaching in the abovesaid school since
17042012 to 04052012.
At the date of incident i.e. 04052012 the accused
Rakesh was present in the school premises from
morning till about 5:15 PM. The copy of the
Teachers' attendance register dated 04052012 is
Ex. DW1/A (OSR).
The accused Rakesh had gone to his home to
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bring some files and registers which he had
forgotten and he had made the entry for the same
in the movement register of the school dated 04
052012, where it is clearly seen that the accused
had left school at 2:40 PM and had only returned at
about 3:20PM by giving the aforesaid reasons.
The copy of the staff movement register dated 04
052012 & 05052012 i.e. from Sr. No. 1071 to
1120 is Ex DW1/B (Colly. 2 pages) (OSR)."
27. Nothing has come out in her crossexamination, which could
show that her testimony was not believable or trustworthy, as her
testimony was backed by official documents maintained in the course
of her official duties.
28. DW2 is Yashpal, the caller, who had made the call at 100
number, which fact had also been admitted by the IO PW20
Inspector Manoj Sharma that one Yashpal from mobile no.
9811369066 had made a PCR call regarding the incident.
He, in his testimonial deposition has deposed as under :
"The accused Rakesh had shifted in the
house in front of my house in the month of
July, 2011 along with his family. They used to
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live peacefully and we had not seen any
quarrel between the family members during
their stay.
On 04052012, at about 2:303:00 PM, I
heard some noise of quarrel from the house of
the accused. I saw there from my balcony that
the accused Rakesh, his wife i.e. deceased
Suman and one unknown person aged about
2022 years ( which I later got to know that he
was the cousin brother of the accused Rakesh
namely Sunil @ Sonu, who is present in the
court today) were quarreling and fighting with
each other. Thereafter, I went to their home
where I saw the wife of the accused was
sitting in a corner holding her face with her
hands and crying. The accused Rakesh was
also shouting and crying by saying that " Mai
Barbad Ho Gaya and Mai Kahin Muhu Dikhane
Ke Layak Nahi Raha".
I stopped the accused and his cousin
brother Sunil @ Sonu from fighting and told
them that everything would be all right and
thereafter asked them to solve their issue
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peacefully later on.
Thereafter, the accused Rakesh and his
cousin brother had left from their home and I
also came to my home. At about 5:306:00
PM, I heard noises of shouting of the accused
Rakesh that " Mai Barbad Ho Gaya, Mera Nash
Ho Gaya". After listening the noise I went to
the home of accused and saw that the wife of
the accused Rakesh was hanging from a
ceiling fan with a Chunni. Thereafter, I made a
call to police on 100 number from my phone
number 9811369066.
The copy of the PCR form obtained through
RTI is Marked DW2/A After confirming the
same over the phone, the police reached the
house of accused Rakesh and upon searching
the place of incident, the police had found one
suicide note which they had seized in front of
me, which I can identify if shown to me.
He was also subjected to cross
examination in which he had admitted that he
had not made a complaint before the Court or
police officials that on 04.05.2012 at about
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2:30 - 3:00 pm, accused Rakesh, his wife
Suman and another person Sunil @ Sonu were
quarreling with each other. However, at the
same time, his presence near the spot is
supported by the PCR form Ex. PW2/A, which
document he had obtained under RTI."
29. DW3 is Sunil @ Sonu, who in his testimonial deposition before
the Court has deposed as under :
"The accused Rakesh is my cousin
brother. I used to visit his home regularly. He
got married in the year 2009 to the deceased
namely Smt. Suman Saini. As due to cordial
relations and regular visits I and my Bhabi
( deceased Suman Saini) fell in attraction
with each other and we started to meet and
talk over the phone in the absence of her
husband i.e. accused Rakesh.
On the date of incident i.e. on 04052012
at about 8:30 AM, I received a message from
the deceased Suman, (the phone number of
whom I had saved by the name of Sanjay
Delhi), that do not come today as her
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husband has some work at home and he
would not be going to school to teach on
that date and that we will meet in the next
week and please do not get angry over it.
Then at about 9:45 to 10 AM, I received
another message asking me to come over.
Then at about 12:3012:45 PM, I had reached
the deceased home and then at about 2:45
PM the accused Rakesh reached home and
saw me and the deceased in a compromising
position. Over which the accused Rakesh
got angry and started quarreling and fighting
with me, during that scuffle the deceased
tried to stop us but by mistake she was
pushed away where she got hit on the wall
and then she fell on the table and cot kept
there.
She had got hurt on her face which she
was holding after she fell. Upon hearing the
quarrel one of the accused neighbour had
come and had inquired as to what had
happened upon which the accused Rakesh
had replied by saying that "Mai Kisi Ko Muhu
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Dikhane Ke Layak Nahi Raha". After that the
neighbours told us to solve the matter
afterwards and not to quarrel or fight and
that he consoled that everything would be
right. After which the accused Rakesh
threatened that he shall tell about the whole
incident and our illicit relationship to my
family and also to the parental family of
deceased.
Thereafter, we both left from the home of
the accused Rakesh where he said to me
that now I am going to the school and when I
would return in the evening then I would talk
to your parents about it. Thereafter, I went
to my home and the next day I came to know
that my Bhabi Suman had committed
suicide, thereupon I felt guilty about that and
I confessed everything to my parents. Then,
on 10052012, I had met the police official
and had told everything about my illicit
relationship with the deceased and also
about the incident of 04052012 after which
the police had also recorded my statement.
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On 08102012, I had written an apology
letter to my brother i.e. accused Rakesh
which is Ex. DW3/A.
Further chief is deferred on the request
of counsel of the accused persons as he
wants to exhibit certain SMSs received on
his mobile phone containing two SIM
numbers 8529935770 in my name & 94668
45429 in the name of Sh. Sultan Singh, my
father. The aforesaid both the numbers were
being used by me in my mobile phone.
In his further chiefinexamination on
26.10.2017, he has deposed as under :
"I have brought the mobile phone which I
was using at the time of incident and I have
also brought the print out of the certain
SMSs received on my mobile phone
containing the SIM number 9466845429 in
the name of Sh. Sultan Singh, which I used.
The same are Ex. DW3/B Colly (3 pages).
The certificate u/s 65 B of the Evidence Act
regarding the prints taken from the mobile is
Ex. DW3/C."
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30. DW4 ASI Anand Singh in his testimonial deposition before the
Court has deposed as under :
"I am a summoned witness and I was called to
bring the original PCR form of the PCR call made
by the mobile no. 9811369066 dated 04052012.
Vide order No. 1060710609/HAR/PCR dated
19.10.2015, the Deputy Commissioner of Police
Control Room, Delhi has ordered to destroy the
old records of PCR for the period from 01012012
to 30062012. The copy of abovesaid order is
Ex. DW4/A.
Document Ex. DW4/B i.e. PCR Form received
from RTI is put to the witness who submits that I
cannot identify such PCR Form as 10 to 15
thousands PCR Forms are issued a day.
31. From the analysis of the testimonies of the above material
prosecution as well as defence witnesses, certain important facts
have emerged, as it has come in the crossexamination of PW1
Shakti Singh, PW2 Satbir, PW7 Kasturi Devi that there is no
evidence available on the record that any car was given in the
marriage of chacha of the accused Rakesh as neither the model
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number nor the make thereof or date of marriage has been specified
by any of the above witnesses.
32. PW17 First IO SI Manoj has stated in his crossexamination that
he did not investigate regarding the receipt of car by the son of the
uncle of Rakesh. Further, the prosecution has failed to prove that
any gifts amounting to Rs. 83,000/ were given in the pilia ceremony
on the occasion of birth of child to the deceased and accused
Rakesh. As the complainant PW2 in his crossexamination has
stated that he has not given any bills of items given in pilia ceremony.
PW7 Kasturi Devi has also stated in her crossexamination that
pilia was sent after 28 days of birth of the child but they had not
handed over the bills of the articles given in the pilia to the IO. The
IO PW20 in his crossexamination has stated that it was correct that
all the bills and list of articles were pertaining to the period prior to the
marriage and no bill or list of articles were provided by the
complainant after the marriage period. He had asked the
complainant to furnish bills pertaining to pilia ceremony of Rs.
83,000/, but he stated that he will submit the same in the Court.
Therefore, the prosecution has also failed to prove the spending of
huge amount in pilia ceremony as well as further demand by the
accused persons in this regard.
It has also come in the testimonies, i.e. in the examination in
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-51-
chief of PW1, PW2 and PW7 that rather the accused himself bought
a car for the deceased prior to the marriage. If the accused was
demanding dowry, there was no reason, why would he purchase or
arrange a car for the deceased ever prior to the marriage.
33. PW2 in his crossexamination has stated that he does not know
whether accused Rakesh had opened bank account in the name of
deceased, however, he had stated that it was correct that deceased
was taking coaching classes prior to her death and the fees of the
same were paid by the accused Rakesh and it was also correct that
prior to the incident, accused Rakesh admitted his daughter for B.Ed.
in Bawana. It was correct that deceased wanted to become teacher
even prior to her marriage.
Similarly, PW7 in her crossexamination has stated that accused
Rakesh had opened the account of deceased in SBI. The accused
used to provide coaching classes to her daughter and he also got her
admitted in B.Ed. class. Her daughter wanted to become teacher,
even prior to marriage and accused Rakesh in order to facilitate her
used to provide coaching classes in Narela.
PW1 in his crossexamination made number of improvements viz
aviz his earlier statement recorded u/S. 161 CrPC. He also stated
accused Rakesh returned back Rs. 49,000/ taken from him by
money transfer. However, he stated that the same was loan
extended to him of Rs. 50,000/ which he had returned.
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PW7 also admitted in the crossexamination that no previous
complaint was made against the accused persons from the date of
the marriage till death of their daughter.
34. From the above circumstances, it appears that accused Rakesh
had opened a bank account in the name of the deceased from which
she also withdrew some amount at the time, when PW1 was sick and
he had also returned back Rs. 49,500/ to PW1 which he had taken
as a loan from him and he was even paying for facilitating the
coaching classes for B.Ed. to be done by the deceased and the
mother and the father of the deceased have deposed that she
wanted to become teacher even prior to her marriage. Therefore,
from these circumstances, this fact that the accused was forcing the
deceased to do B.Ed. or clear the exams failing which she would be
killed or divorced does not stand proved. It is also not proved that
the accused was forcibly harassing her to clear the B.Ed. and other
teacher's exam. Further, if the accused would have been greedy, he
would have never returned the loaned amount to his brotherinlaw or
would have paid for the coaching expenses for the teaching
competition courses.
PW17 in his crossexamination has also stated that he had not
made any investigation in respect of any alleged failure in TET
examination by the deceased, rather PW2 stated in his cross
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-53-
examination that it was correct that deceased had cleared HTET and
CTET Exams and Delhi Exams for teacher.
35. Further, PW7 in her crossexamination had admitted that her
motherinlaw i.e. the grandmother of the deceased had stayed at the
house of the deceased for 2 months. She is not a witness in this
case. Further, IO PW20 in his crossexamination has admitted that it
was correct that he never inquired or met the mother of the
complainant, whether she resided at the matrimonial house of
deceased 23 months and what was the behaviour of the accused
persons during said stay.
The said witness, the mother of PW2 and the grandmother of the
deceased was the most material witness, who was not examined as
a witness by the IO, as she was the live witness who had actually
stayed in the matrimonial house of the deceased for 2 months and
would have seen the behaviour of the accused persons day in and
day out regarding the alleged cruelty and harassment. She would
have been the best witness to depose about these facts, yet she was
not examined for the reasons best known to the IO.
36. Further PW20 IO has admitted in his crossexamination that as
per the investigation the complainant had come to know about the
death of his daughter on 04.05.2012 at 5:00 PM, but he did not make
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-54-
any statement to the police or SDM till 07.05.2012. Therefore, this
delay also impinges upon the probative force of the prosecution
evidence, as the chances of deliberations and making false
accusations due to said delay also cannot be ruled out.
37. Further PW2 in his crossexamination has stated that it was
correct that accused Rakesh and deceased were residing in Narela
and it was correct that accused Rakesh had shifted to Punjabi Bagh
after one month of marriage. Therefore, it appears that the accused
Rakesh was residing separately with the deceased.
PW2 in his crossexamination also stated that he was not aware
whether Manju and Sneh Lata @ Kamlesh were married prior to the
marriage of deceased. Further, in the charge sheet the addresses of
the said accused persons are that of Panipat and District Jind,
Haryana respectively. It was not disputed in the evidence anywhere
that those sisters were not married at the time of the marriage of the
deceased with the accused Rakesh.
38. Further, in the judgment reported as Anu Gill Vs. State & Anr.
92(2001) DELHI LAW TIMES 179, it has been held as under :
"8. Now coming to the offence under Section 498
A, IPC. After her marriage complainantrespondent
No. 2 started living with her husband who was SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 54 of 65 -55- never posted in Delhi. Admittedly petitioner was employed in Ministry of Finance at the time of marriage of the complainant. The petitioner was married in 1997 and since then she is living in her own matrimonial home. Allegations made by the complainant that her husband used to misbehave with her, at the behest of the petitioner are totally vague, inherently improbable and unworthy of credence. From these allegations even a strong suspicion cannot be inferred. Even the statements recorded during investigation do not furnish the requisite material so as to make out the prime facie case under Section 498A, IPC against the petitioner."
The facts of the said judgment are squarely apposite to this case as admittedly the present Manju @ Meena and Kamlesh @ Sneh Lata were the residents of Panipat and Jind respectively, which are far away from Delhi or the matrimonial house of the deceased which was in Narela, Delhi. Therefore, it is hard to imagine that they would have been meddling in daily matrimonial affairs of deceased from such a distance. Therefore, their involvement in the present case appears to be improbable and remote. Even otherwise, there is a general tendency in matrimonial cases to rope in all the relatives of the deceased, especially the married daughters. Therefore, there is no evidence on the record to infer their involvement in the present case.
SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 55 of 65 -56-
39. From the above cumulative circumstances as a whole, no conclusive evidence has been lead by the prosecution on the record that soon before the death of the deceased, she was subjected to cruelty or harassment by her husband or other relatives of the husband in connection with demand of dowry. Therefore, prosecution has failed to prove charges u/S. 304B/498A IPC.
40. Regarding the charge(s) u/S. 306 / 302 IPC, as per the post mortem report Ex. PW8/A and the subsequent opinion Ex. PW8/E, the cause of death after going through the viscera and FSL report was opined as asphyxia, as a result of ante mortem hanging by ligature, therefore, the death being of homicidal nature is clearly ruled out by the above finding given by the Board of Post Mortem experts. However, as per the said post mortem the following 2 to 8 ante mortem injuries were also found on the body of the deceased :
"... 2) Contusion of size (1x1) cm, reddish blue in color, present on the inner aspect right side lower lip.
3) Contusion of size (1.5x1.5) cm, reddish blue in color, present on the inner aspect right side upper lip.
4) Contusion in area of (7x5) cm, reddish blue in color, associated with swelling, present on the right side of face involving the lateral part of right eye brow, right side forehead, lateral, lower and medial part of right eye.
SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 56 of 65 -57-
5) Contusion of area of (3x1) cm, reddish blue in color, present 0.3 cm below the lower eye lid margin of left eye on medial aspect.
6) Contusion of area of (3x3) cm, reddish blue in color, present left arm anterior aspect in middle 1/3rd.
7) Abrasion in an area of (5x5) cm, reddish in color, present over the right thigh lateral aspect in upper part.
8) Abrasion of size (0.2x0.2) cm, reddish in color, present over the base of right thumb finger at dorsal aspect."
41. The defence version, as propounded by DW1, DW2 and DW3 also gels with the suicide note Ex. PW2/J, which reads as under :
"Mujhe maaf kar dena jaanu. Aaj mai hamesha ke liye apni nazron mei gir gayi. Aaj ke baad mai apse kabhi nazar nahi mila sakungi, isliye mai jaa rahi hun, apki zindagi se hameshahamesha ke liye, please yeh kisi se mat kehna, yeh kya hua aur kya nahi".
Goodbye.
I Love You Always.
Apki Mannu.
42. The same was found to be in the handwriting of the deceased, as per the report of the handwriting expert Ex. PW12/D, which has been SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 57 of 65 -58- proved by PW16 Sh. Anurag Sharma, therefore, it has been conclusively proved that the suicide note was left by the deceased, explaining the circumstances surrounding her death.
43. The testimony of DW2 Yashpal, the neighbourer of the deceased and the accused Rakesh, whose name also appears in the PCR form DW2/A and which has also been proved by DW4 as DW4/B, and the IO PW20 in his crossexamination has admitted that it was correct that the PCR call was made by one Yashpal from no. 9811369066. Therefore, the testimony of DW2 is backed by the very document of the prosecution itself. However, for the reasons best known to the prosecution, the said witness was not examined in support of the prosecution case, therefore, the only inference which can be drawn is that the prosecution had deliberately not projected the true version before the Court.
DW2 despite being a natural witness and the neighbourer was not examined despite his name being mentioned in the PCR form. Further, the grandmother of the deceased, as discussed above has also not been examined, who had stayed at the matrimonial house of the deceased for 2 months, as she would have been the best witness to depose about the conduct of the accused persons towards the deceased.
SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 58 of 65 -59-
44. As per the official documents, produced by DW1 which is a movement register from the MCD Primary School, Narela, which is a Government School, it appears that the accused had left the school briefly on 04.05.2012 at 2:40 PM and returned at about 3:20 PM. Thereafter, from the testimonies of DW2 and DW3, a strong inference can be drawn is that the deceased was caught by accused Rakesh with DW3 in a compromising position, due to which a fight broke out between the accused and DW3, which would be a natural reaction of any reasonable man in such kind of situations, where a spouse has been caught in a compromising position by another spouse, then it is quite natural that the other spouse will be filled up with rage and the spouse at fault would be filled with the feeling of remorse.
In such a quarrel which took place, which was also witnessed by an independent witness namely DW2 Yashpal, the neighbourer, it is very probable that the deceased was pushed in the scuffle, as she tried to stop them in the fight and in the said scuffle, she got hit on the wall and also fell on the table and cot kept there, due to which she may have received the ante mortem injuries mentioned above in her post mortem report.
The defence version is further believable due to the fact that no weapon was used in the said fight between DW3 and accused Rakesh, nor it is a case of the prosecution that any weapon was used SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 59 of 65 -60- in such fight. Further, this fact whether the injuries were caused by the accused or DW3 or due to the scuffle between the accused and the DW3 and the striking of the deceased against the wall and the cot during the said scuffle has not been investigated at all by the IO. Therefore, the defence version appears to be more probable regarding the receipt of ante mortem injuries by the deceased.
It appears from the reading of the suicide note that the deceased felt deep remorse on her act of infidelity, due to which she committed suicide, which ultimately lead to her death. The act of the accused was not the direct and proximate cause of the death of the deceased. Therefore, there is no element of instigation, abetment, aiding, goading by the accused Rakesh abetting the suicide of the deceased, as the act of the accused does not fall under the definition of abetment u/S. 107 of the IPC, in view of preposition of law laid down by the Hon'ble Supreme Court in the judgment II(2006)DMC 382, of the Hon'ble Delhi High Court wherein it has relied upon the judgment of Hon'ble Supreme Court in Mahendra Singh Vs. State of M.P. 1995 Supp.(3)SCC 731, it is clear that to make out an offence U/s 306 IPC, the prosecution has to firstly prove that the person accused of the offence has instigated any person to do that thing. Secondly, the said person engages with one or more persons in any criminal conspiracy for committing of that particular thing.
Thirdly, the said person intentionally aids by any act or illegal SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 60 of 65 -61- omission for doing of that particular thing and the word `instigate' literally means to provoke, incite, urge on or bring about by persuasion to do any particular thing by the deceased and that in the cases of alleged abetement of suicide, there must be proof of direct or indirect acts of incitement to the commission of offence and the mere fact that the husband treated the wife with cruelty is not enough and merely on the allegations of harassment, conviction U/s 306 IPC can not be sustained.
Further, it is settled law laid down in the aforesaid judgment that presence of mens rea is necessary part of instigation and the words "uttered in a quarrel or in the spur or moment can not be taken to have been uttered with mens rea".
45. Now, what is net probative force of the prosecution case as a whole after this wholesome discussion. That is to say it is time to weight or analyze the probative force of entire mass of prosecution or defence evidence, which has been let in. Since the Evidence Act only speaks mainly about the rules of admissibility of evidence i.e what kind of evidence is safe, due to prudence and experience, therefore should be let in, or which is not, due to long drawn experience like hearsay which should be discarded.
Therefore, Evidence Act mainly speaks about the admissibility or non admissibility of evidence. Now, once the entire evidence is let in, SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 61 of 65 -62- what is force or weight which has to be given to a particular piece or item of evidence. Then, to the entire cumulative force of evidence taken as a whole. After considering the counter pulls or countervailing evidence which pulls down the weight of prosecution evidence or supports the defence evidence. The answer to the same can only be found in the principles of mathematical probability which are used to analyze the happening or non happening of any event on such probability scale.
46. In view of the above discussion given, considering the entire mass of prosecution and defence evidence discussed on the record, how likely is this evidence given that accused persons in furtherance of their common intention harassed and committed cruelty upon the deceased Suman on account of demand of dowry soon before her death, who died otherwise than in normal circumstances within seven years of her marriage or that the accused Rakesh committed the murder of said Suman by intentionally killing her or that accused Rakesh abetted the commission of suicide by deceased Suman, which can be termed as likelihoodI(propositionI) or how likely is this evidence given that accused persons in furtherance of their common intention had not harassed and had not committed cruelty upon the deceased Suman on account of demand of dowry soon before her death, who died under normal circumstances within seven SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 62 of 65 -63- years of her marriage or that the accused Rakesh did not commit the murder of said Suman by intentionally killing her or that accused Rakesh did not abet the commission of suicide by deceased Suman, which can be termed as likelihoodII(propositionII). The probative force of this likelihood method depends upon the relative sizes of the two likelihoods i.e likelihoodI and likelihoodII.
47. How much stronger is this evidence depends how much propositionI is greater than propositionII or vice versa. If likelihood propositionII is much greater than likelihood propositionI given the mass of entire evidence lead on the record by the prosecution or defence then the accused is likely to be acquitted & vice versa, the accused is liable to be convicted, if both are equal then it can be said that both of them have equal probative value.
48. In view of the above discussion, it is apparent that the probative force of propositionII i.e likelihoodII is much greater than the likelihoodI or propositionI, that is to say that the probative force of the evidence lead on the record in favour the propositionII is much much greater than propositionI i.e likelihoodII which favours the innocence of the accused.
SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 63 of 65 -64-
49. On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the evidence lead on record taken as a whole is touching the point of uncertainty. It can be given 3 or 4 points on such scale of '10' i.e 30% or 40% probability '1' being the certainty or 100% (which though can never be achieved in reality). On such kind of evidence, it cannot be safely concluded that the accused persons in furtherance of their common intention had harassed and had committed cruelty upon the deceased Suman on account of demand of dowry soon before her death, who died under normal circumstances within seven years of her marriage or that the accused Rakesh committed the murder of said Suman by intentionally killing her or that accused Rakesh did abet the commission of suicide by deceased Suman.
The prosecution had to prove its case beyond reasonable doubt and on said scales, therefore, it should be touching the point of certainty if not one, it should have been somewhere around 8 or 9 points on the scale of 0 to 1 that is to say in the range of 80% and 90% which is not the case in hand as the probabilities of the defence version appears to be having slightly higher probative force than that of the prosecution evidence. Therefore, on such kind of inconclusive evidence, accused persons cannot be convicted.
To sum up :
50. From the aforesaid analysis of evidence, the probative force of SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 64 of 65 -65- the prosecution evidence as a whole is touching the point of uncertainty on the scales, where probability of happening of any event is assessed or measured, whereas the defence version is having higher probative force, which is greater than that of the prosecution evidence. On such kind of inconclusive evidence, accused persons cannot be convicted. As a consequence, all the accused persons namely Rakesh Kumar, Prem @ Premo Devi, Manju @ Meena and Kamlesh @ Sneh Lata are acquitted of the charge(s) u/S. 304B/34 & 498A/34 IPC, whereas accused Rakesh Kumar also stands acquitted of the charge(s) u/S. 302/306 IPC. Their previous bail bonds are cancelled. Previous sureties stand discharged. Original document(s), if any be returned after cancelling the endorsement(s), if any on the same, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
51. The Accused persons have already furnished their bail bonds in compliance of Section 437A Cr.P.C, which will remain valid for a period of six months from today, as per the provisions of Section 437A CrPC.
File on completion be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal) th on 14 day of Nov. 2018 Addl. Sessions Judge02,North Rohini Courts, Delhi 14.11.2018 SC No. 57439/16; FIR No.233/12; PS. Narela State Vs. Rakesh Kumar & Ors. Page No. 65 of 65