Delhi District Court
- vs - on 1 July, 2008
1
IN THE COURT OF SH. DINESH KUMAR SHARMA,ADDITIONAL
SESSIONS JUDGE:DELHI
SESSION CASE NO. 55/2000
FIR NO. 87/94
POLICE STATION:BARA HINDU RAO
UNDER SECTION. 306/498-A IPC
DATE OF INSTITUTION:21.7.1995
DATE ON WHICH THE JUDGMENT HAS
BEEN RESERVED:- 4.6.2008
DATE ON WHICH THE JUDGMENT
HAS BEEN DELIVERED:01.7.2008
STATE
-VERSUS-
1. SHIV LAL KAKKAR
S/O DSAVI RAM
R/O 9975,NAWAB GANJ,DELHI
2. SANJAY KAKKAR
S/O LATE SH. BANSI LAL KAKKAR
R/O 9975,NAWAB GANJ,DELHI
2
3. SMT. KANTA KAKKAR (SINCE DEAD)
W/O LATE SH. BANSI LAL KAKKAR
R/O 9975,NAWAB GANJ,DELHI
JUDGMENT:
Sunena was married to Ajay Kakkar on 7th September,1989. Ajay belonged to a business family and was stated to be earning handsomely being partner in two firms. The family was also having a truck as a source of income. The relations between husband and wife were cordial. The sad part of the story is that Ajay Kakkar was having some mental problem for which he was under regular treatment. The couple was also not blessed with any child for which, as per record, they had been taking treatment. Besides this, allegedly, there was demand of dowry from the side of in-laws of Sunena, which was fulfilled by the brother and other relatives of the deceased from time to time. Prosecution has also pleaded that Ajay Kakkar was also divested of his share in the partnership firm deceitfully by the accused persons, which added to the agony of Sunena and she ultimately committed suicide on 6th July,1994. Sunena left behind a suicide note in her own hand. In the suicide 3 note, the deceased held liable her uncle father-in-law, her mother-in-law and one of her Devar (Bichwale Devar). On the information being received, the police reached on the spot and SDM was also called. SDM recorded the statement of Sh. Sanjiv Gulati, (brother of the deceased). A case FIR 87/94 under Section 304 B/34 & 498A/34 IPC was lodged. Accused Shiv Lal Kakkar, Sanjay Kakkar, Hemant Kakkar and Kanta Kakkar were arrested. Statement of witnesses were recorded. After investigation, the chargesheet was filed against the above mentioned accused persons under Section 304 B/306/498A IPC. Accused Hemant was discharged by my Ld. Predecessor vide order dated 7.8.1996 and charge under section 306/34 & 498A/34 IPC was framed against accused Shiv Lal Kakkar, Sanjay Kakkar and Kanta Kakkar. During the trial, accused Kanta Kakkar expired.
Prosecution examined 27 witnesses in support of their case. Accused persons in their statement under Section 313 Cr.P.C. denied all the allegations and submitted that they have been implicated falsely. The accused persons examined 11 defence witnesses in order to substantiate their plea taken during the trial.
The witnesses examined by the prosecution can primarily be classified into four categories.
PWs Sh. Sanjeev Gulati (PW-5), Sudershan Grover (PW-7), Praveen (PW-9), Smt. Seema (PW-11) and Mangal Sain (PW-21) are the relatives of the deceased.
4Dr. Rajneesh Diwan (PW-4) was the first one who reached on the spot being called by the members of the family of the deceased. He declared the deceased dead. Dr. C.B. Dabas (PW-6) had conducted the post mortem on the body of the deceased. Dr. Sharad Chaurasia (PW-23) proved the MLC of the deceased. Dr. K.P. Satpati (PW-24) is the Assistant Director, Toxicology, CFSL, Hyderabad who proved the CFSL report Ex. PW-6/B. Sh. S.S. Sidhu, SDM had conducted the inquest proceedings in the mortuary and gave permission for conducting the post mortem. Sh. Virender Kumar, SDM (PW-27) had visited the spot and recorded the statement of complainant. The endorsement made by him for registration of FIR has been proved as Ex. PW-27/A. SI Dharampal (PW-25) is the Investigating Officer. Remaining witnesses examined by the prosecution are the police officials and formal witnesses.
The accused persons examined eleven defence witnesses. Sh. Sandeep Malik (DW-1) and Sh. Anand Ram (DW-2) are the friends of accused Sanjay KAKKAR. Sh. Salim (DW-3) had gone to the Airport to call accused Sanjay, after the incident had taken place. Sh. Anil (DW-4) is also a witness to the same fact. Sh. Suriner Kumar (DW-5) deposed regarding the fact that accused Sanjay was employed with him from1990 to 1994. Sh. Nava (DW-6) is an official of Royal Nepal Airlines who was summoned to produce the record. However, the witness was not able to produce the record.
5Dr. Anandi Lal (DW-7) proved the prescription slip of Ajay Kakkar as DW-7/A. The witness deposed that as per prescription, treatment was given to Ajay Kakkar as he was suffering from some mental disorder. Dr. Sudhir Chander (DW-8) has also proved the prescription slip of Ajay Kakkar. He stated that as per prescription slip, patient was referred to him as a case of primary infertility as azoospermia. Dr. Chander deposed that till the patient Ajay Kakkar remained under his treatment, he was not capable to produce child. Dr. Ajay (DW-9) also deposed regarding the fact that Ajay Kakkar was under his treatment for primary infertility from May,1993 to March,1994. He also proved the record as DW-9/A1 to A9. Dr. Santosh (DW-10) and Dr. Usha (DW-11) were also examined so as to prove the fact that deceased remained under their treatment for infertility.
Ld. APP for the State has argued in detail that there is sufficient material on record to prove that accused persons incited the deceased to commit the suicide. It has been argued that the deceased has left a suicide note making specific allegations against accused persons and there is no reason to disbelieve the suicide note left by the deceased. It has further been argued that prosecution witnesses have also deposed consistently that accused persons used to harass the deceased for the purpose of dowry and they also deceitfully divested her husband of his share in the business and all this led the deceased to commit suicide.
6Per contra, Sh.S.D.R. Sethi, Ld. Counsel for the accused Sanjay and Sh. Anil Aggarwal Ld. Counsel for accused Shiv Lal have argued vehemently that prosecution has miserably failed to prove its case against the accused persons. It has been submitted that there is not even iota of material on record to indicate that the accused persons have done any positive act so as to instigate the deceased to commit the suicide. It has been argued that evidence brought on record does not even fulfill the ingredients of Section 306 IPC. The statements of the prosecution witnesses have been read out in detail and the contradictions appearing in their testimony have been pointed out.
I have heard Ld. Addl. Public Prosecutor for the State, Ld. Counsel for the accused persons and have perused the record carefully.
Section 306 IPC reads as under:-
"Abetment of suicide- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find."
Bare perusal of this section makes it clear that in order to held a person guilty under this Section, it must be proved by the prosecution that accused had aided and abetted the commission of suicide. The ingredients of abetment have been defined in Section 107 IPC. Section 107 IPC provides as under:-
7"Abetment of a thing - A person abets the doing of a thing who -
Firstly - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any acts or illegal omission, the doing of that thing"
Perusal of Section 107 IPC indicates that a person abets the doing of a thing if he instigates any person to do that thing, secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy or and in order to the doing of that thing; or thirdly, the person has intentionally aided any act or illegal omission.
It has been held in the catena of judgments that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In order to hold a person guilty, it must be proved that accused has played an active role so as to instigate or aided the doing of a thing. An insulting or abusive behaviour may not be sufficient to constitute abetment of commitment of suicide. Such a behaviour can only be held sufficient if it is proved that accused has intended by such act the consequences of suicide The act or conduct of the accused must be intended 8 to drive the accused for commission of suicide. Mere persuasions in the mind of the deceased to commit the suicide is not enough. The test may be that it is not what the deceased felt, but what the accused intended by his/ her act.
In matrimonial cases, before invoking Section 306 IPC, the prosecution is required to prove that deceased had been subject to cruelty within the meaning of Section 498-A IPC. If these facts are proved only then presumption in terms of Section 113 A of Evidence Act could be attracted.
Now coming to Section 498 A IPC. Section 498-A IPC interalia reads as under:-
"498-A 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 be extend to three years and shall also be liable to fine"
The necessary ingredients of Section 498 A are as under:-
(1) The woman must be married;
(2) She must be subjected to cruelty or harassment; and (3) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.9
Though, cruelty has not been defined specifically, however, it may be stated as a treatment which may cause reasonable apprehension in the mind of the wife that accused persons may cause harm and injury to her life. It differs from person to person depending upon the intensity and sensitivity of an individual. Even the continuous taunting or teasing may amount to mental cruelty. Before proceedings further, it would also be desirable to have a look at Section 107 IPC. Section 107 IPC reads as under:-
"Abetment of a thing - A person abets the doing of a thing who -
Firstly - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any acts or illegal omission, the doing of that thing"
The necessary ingredients of Section 107 IPC are:-
(i) Instigating a person to commit an offence; or
(ii) by engaging in a conspiracy to commit it; or
(iii) by intentionally aiding a person to commit.10
In Hira Lal Jain Vs. State, 2001 Crl. L.J. 1212 , our own Hon'ble High Court while dealing a case under Section 306 IPC interalia held as under:-
"From a reading of the clause 'firstly' of S. 107 of the Indian Penal Code, it is clear that a person who instigates another to do a thing, abets him to do that thing. A person is said to instigate another when he goads, provokes, incites, urges forward or encourage another to commit a crime. A serious question that has arisen in this case is whether there is any material suggesting that the petitioner had incited the deceased to commit suicide? The fact that a suicide note was recovered and from the contents thereof it certainly cannot be said that the petitioner had goaded, provoked, incited, urged or encouraged the deceased to commit suicide. There being no material on record to show that the ingredients of the offence of abetment have been satisfied the framing of charge under S. 306 of the Indian Penal Code against the petitioner was bad in law"
In Netai Dutt Vs. State of West Bengal, JT 2005 (3) SC 46, it was interalia held as under:-
"... ... that an offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime,"the parameters of abetment' have been stated in Section 107 of the Indian Penal Code. Section 107, according to the Supreme Court states that " a person abets the 11 doing of a thing; or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, or the person should have intentionally aided any act or illegal omission" in the case before the Supreme court, a suicide note was involved, but the court came to the conclusion that in the suicide note there was no reference of any act or incident whereby the appellant therein was alleged to have committed any willful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag to have committed suicide"
It has been held in catena of judgments that "instigate" indicates to incitement or urging to do some drastic or unadvisable action. It has been held that mens-rea must be present for holding a person liable for instigation. Mere encouragement may not amount to aiding or abetting. The encouragement may be intentional or unintentional. As I have discussed above, the instigation must be intentional and the accused must have rendered effective aid for the commission of suicide. The question as to life or death was philosophically examined by Hon'ble Justice H.L. Anand in Brij Lal and Anr. Vs. State, 1986, Vol.I, RCR 10. I am tempted to reproduce the same. It interalia reads as under:-
"The problem of life and death has for generations engaged the mind of the lay and the learned alike. It is enigmatic and baffling. Is death the end of the life or its real beginning.12
The question has been answered differently.
Different people have reacted differently to the problem. Millions have lived or at least tried to live what they considered to be fully because life must come to an end. Others have failed to live well for fear of death. Yet there are others who believe life which is meant for higher pursuits has been wasted in "mere living". Death is inevitable yet mortals behave as if they were immortals. But even if death is inevitable very few people are prepared to face it. We all do not even recognise its inevitability. That deems to be clear from normal human action and behaviour. But there may be those who may live in the hope of "dying in dignity". That is what philosophy is all about. Death by choice is, however, rare.
That is the privilege of self realized souls or perhaps great philosophers. Death by choice in such cases is even enthroned by certain oriental religions, including Hindusim. That is an act by which, on the realisation of the self, the soul leaves the body of its own volition. But there may be death to escape the life of indignity, humiliation, torment or harassment. Such death is not a voluntary or rational act. It is purely involuntary brought about by a variety of objective conditions, which are oppressive degrading, and disgusting to a point that the victim chooses to take his own life. Law recognises a right to die so long as the right is effectively exercised. An abortive attempt to take life is, however, penal: a successful attempt at self destruction is not. But where an act of suicide is 13 not a voluntary act but is committed under the compulsion of adverse circumstances, the law punishes those who could be held responsible for bringing it about, directly or indirectly, either by active suggestion or by creating objective conditions which drive the victim to it, but only if these are intended to achieve the desired object. A philosphic suggestion or an intemperate and indiscreet eruption in fit of anger could not constitute an act of abetment. An act of abetment must be intended to operate on the mind of the victim so as to lead him to disaster."
It was further held that:
" If a person is guilty of abetment or not would depend on how one answers these questions and these questions could be effectively answered not only with reference to the last words of the victim, which may or may not be unbiased, but also material with regard to the background of the victim, the state of the environments in which the act was committed and the conduct of the suspect at the time of the commission of the act and subsequent thereto....There is a growing public awareness of citizens' rights and of the deficiencies of the systems with the resultant public agitation over acts of misuse, abuse and improper use of executive power and of instances of harassment or indifference to public grievances by the law enforcement agencies.
This is partly because of the environment of populism generated by some of the political 14 measures at the Centre and in the Sates. The public awareness and the suspectibility of the public to agitational approach to problems, though a healthy sign in a democratic set up, poses its own peculiar challenge in that executive action, which should normally be just, fair and reasonable, having regard to the legal requirements and the objective situation, tends to deteriorate into executive excess under public pressure either to assnage justified or unjustified public sentiment or to seek justifiable or unjustifiable public approbation for wholly irrelevant and extraneous purposes. What may justify public condemnation or the morally improper need not necessarily be legally actionable or be culpable in criminal law or call for police intervention. What may justify registration of a criminal case may or may not justify sending up of the suspects for trial. What may justify sending up of a suspect for trial may or may not justify framing of a charge and the reason for framing of a charge does not necessarily justify a conviction on the charge at the trial. Each of these have their own legal requirements as also situation justification. It may and often happens, that police action is initiated in response to public agitation, even though such action may not be legally justified. Thus, prosecutions may be and have been launched merely because there was a popular upsurge for it because the event excited public condemnation or sympathy or sentiments of compassion. Once a prosecution is filed, even 15 courts have not lagged behind in moulding relief as a response to possible public reaction either to assuage sentiments and even for public acclaim in controversial matters. These are instances of both executive and judicial populism, which must be condemned unreservedly even though they may not arise out of any motivation of personal gain or even personal prejudice. The moral side of an action or the social reaction of an order or an event is not altogether irrelevant, but could not legitimately from the only basis of any legal action, whether executive, legislative or judicial, which must be based on all relevant and material consideration Extension of the creed of populism in the realm of executive, legislative or judicial action must be discouraged in any system based on the concept of rule of law, even though one may have no control over it in a purely political field."
.
In Sohan Raj Sharma Vs. State of Haryana 2008 JCC 1166, the Hon'ble Supreme Court while dealing a case under Section 306 IPC interalia held as under:-
"Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing More active role which can be described as instigating or aiding the doing of a 16 thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC."
In State of West Bengal Vs. Orilal Jaiswal (AIR 1994 SC 1418) the apex Court observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the court should be not satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge 17 or on bring about by persuasion to do any thing.
The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.
In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-
wife with cruelty is not enough"
In the background of this legal position let us examine the evidence led by the prosecution in the present case.
The star witness Sh. Sanjiv Gulati i.e. brother of the deceased in his testimony deposed on oath that his sister was married to Ajay Kakkar on 7th September,1989 according to Hindu rites. At the time of marriage sufficient dowry was given. He further stated that at the time of marriage, an impression was given that Ajay is partner in two firms and his monthly income is Rs. 15,000-20,000/- per month. It was also told that family owns a truck also. PW-5 further stated that after around two years of marriage, 18 accused Kanta Kakkar(since died) sent Ajay Kakkar mentioning that they have to buy another truck. PW-5 stated that he had to help him in getting the loan sanctioned and also paid Rs. 50,000/- in cash. PW-5 stated that thereafter, accused Kanta Kakkar sent Ajay Kakkar to him and he had paid Rs. 30,000/- to him. It also came in the testimony of PW-5 that he paid Rs. 10,000/- to the deceased through his maternal uncle for setting up of a separate kitchen. PW-5 stated that about three months prior to death of Sunena, accused Shiv Lal Kakkar got signed one dissolution deed from Ajay Kakkar and since then there were quarrels in the family. PW-5 stated that he also paid Rs. 50,000/- in cash to Kanta Kakkar for settlement of the dispute, and it was amicably settled that Ajay Kakkar and Sunena would be made owner of a firm. However, the accused persons did not fulfill their promise. On the day of incident, while Sunena was getting ready for going to the shop, the accused persons gave beatings to the deceased and on the same day in the evening Sunena committed suicide. PW-5 identified the suicide note Ex. PW-5/B written by the deceased. It came in the testimony of PW-5 that Ajay Kakkar was suffering from mental depression even prior to the marriage.
PW-7 Sh. Sudarshan Grover also in his testimony deposed that Kanta used to harass and demand dowry from the deceased. He also stated that Ajay Kakkar was divested of his shares in the business However, it was 19 further agreed by the accused persons that Sunena and Ajay Kakkar will be given back their shares.
PW-9 Naveen Grover stated that after marriage the couple lived happily for two and half years. He also deposed regarding the taking away of share of Ajay Kakkar by the accused persons deceitfully. In the cross- examination by the Ld. APP the witness stated that accused Shiv Lal Kakkar and Devar of Sunena starting harassing her for bringing dowry. In the cross- examination this witness also admitted that Ajay was under going some treatment for some mental problem.
PW-11 Seema, wife of brother of deceased also deposed that deceased had told her that Ajay Kakkar was having some mental problem and was under going treatment. She also deposed that Sunena told her that accused Shiv Lal Kakkar and Kanta Kakkar and Sanjay Kakkar used to make demand for money.
PW-21 Mangal Sain another relative of the deceased also deposed regarding demand of dowry by the mother-in-law of the deceased and harassment of the deceased at the hands of accused Shiv Lal Kakkar and brother-in-law of the deceased. In the cross examination PW-5 admitted that accused Sanjay was student at the time of marriage of deceased. He expressed his ignorance about the fact that whether Sanjay Kakkar and Kanta Kakkar has any business interest in the firms. It also came in the cross examination of PW-5 that deceased was living peacefully with her husband till the date of 20 incident. PW-5 also admitted in the cross-examination that deceased was living separately with her husband on the second floor, whereas accused Shiv Lal Kakkar and Kanta Kakkar were residing on the first floor. It was also admitted that no formal complaint was made to the police regarding the alleged harassment to the deceased at any time prior to the incident. However, he stated voluntary that he called the PCR several times. It also came in the testimony of prosecution witnesses that a sum of Rs. 50,000/- was paid to the accused persons for the settlement of the dispute regarding share of Ajay Kakkar in the firm.
Sh. Sudarshan (PW-7) in the cross-examination stated that the talk about readmission of Ajay Kakkar as a partner or owner took place around one and half month prior to the date of incident. He also admitted in the cross examination that in his presence no demand was raised by the accused persons. PW-7 also admitted in the cross-examination that accused Shiv Lal had a separate residence. PW-9 Naveen Grover in the cross examination stated that he had not given any money to Sunena separately. He stated in the cross examination that main cause of quarrel was business discord and the harassment by the mother-in-law. He also stated voluntary that Sunena committed suicide because of the business trouble as well as due to the harassment by mother-in-law. Smt. Seema (PW-11) in her cross examination also stated that accused had not demanded money in her presence. It also came in her evidence that marriage of Sunena was performed even before her 21 marriage. She also admitted in the cross examination that Sunena was taking treatment for pregnancy. She also admitted that Sunena used to remain depressed as she was not able to conceive as well as because of mental illness of her husband. PW-21 in his cross examination also admitted that in his presence accused Shiv Lal Kakkar had a separate residence. It was also admitted that in his presence no amount was paid to deceased. On careful perusal of the testimony of these witnesses, one thing is clear that primarily the allegations of demand of dowry are against Kanta Kakkar who is no more in this world. In respect of the demand, as allegedly made by the accused persons, there are four instances of payment of money. Firstly, at the time when a truck was purchased by the accused persons. Secondly, at the time for the purchase of tyre of truck and payment of installment and thereafter Rs. 10,000/- was paid for setting up a separate kitchen and finally Rs. 50000/- was paid to Kanta Kakkar for the settlement of business disputes. As far as accused Sanjay Kakkar is concerned, there are no specific allegations against him regarding demand of dowry. The allegations made against him are general in nature. The allegations against accused Shiv Lal Kakkar are that he deceitfully got a dissolution deed signed from Ajay Kakkar which resulted in the loss of his share in the business.
As I have discussed above, in order to held a person guilty for abetment, it must be proved on record by way of positive evidence that accused persons have played a positive role and intended that the victim 22 must be driven to the suicide. It must be proved that accused persons brought the deceased to such a situation where except suicide there was no other alternative. Besides the testimony of above said prosecution witnesses, the prosecution has relied heavily upon the suicide note. Perusal of the suicide notes indicates that deceased held the accused persons liable for commission of suicide. She stated that these accused persons were harassing her for the last five years and now it had became un-tolerable . She stated that her husband and her brother were with her. She also informed in the suicide note that her husband is suffering from mental problem for the last around 8 years and, therefore, he has no say in the house. The deceased further stated in her note that her uncle father-in-law had deceitfully taken the 50% shares of her husband and without telling her husband, got his signatures. She stated that on account of this, there is a problem for the last 20 days. The deceased concluded that these three accused persons have harassed her for the last five years and therefore, they should be punished after her death.
The prosecution has based its case upon the fact that deceased was harassed by the accused persons and further the share of her husband was taken away deceitfully. Besides the testimony of prosecution witnesses, the main plank of the prosecution case is suicide note. As I have discussed above, the cruelty is a relative term and it differs from case to case. The question is whether the evidence led by the prosecution is sufficient to prove that accused 23 persons made demand for dowry and inflicted cruelty and harassed the deceased on her failure to meet its demand.
I have gone through the entire prosecution evidence. The prosecution has not proved any specific demand of dowry qua accused Shiv Lal Kakkar and accused Sanjay Kakkar and has also not been able to prove that accused Kanta Kakkar made the demand of dowry in furtherance of common intention with the accused persons I consider that the prosecution has also not been able to prove that the accused persons committed any cruelty upon the deceased. Besides this, it is also to be noted down that the suicide note produced by the prosecution does not bear any date or time, therefore, no finding can be returned regarding the fact that whether suicide note was written immediately before the incident or the deceased had written the same at any earlier point of time. The investigation in this case has also not been conducted in a desired manner. The investigating agency did not collect any evidence regarding the accounts of the firm. It has also come in the evidence of prosecution witnesses that the dissolution deed was got signed around three months back and it was in the knowledge of the deceased at least one and half month before the date of incident. The talks were going on between the family for the settlement of the dispute. Even at the cost of brevity, it may be repeated that in order to convict a person under Section 306 IPC, it must be proved that accused persons intentionally committed an act, which resulted in the commission of suicide by the deceased. The prosecution has also not led 24 any evidence that accused Sanjay Kakkar is the same person, whom the deceased has mentioned in her suicide note. The first and foremost principle of the criminal justice system is that the prosecution is required to prove its case beyond reasonable doubt. The evidence led by the prosecution should be cogent and clear. The defence has made out a case consistently that Ajay Kakkar was suffering from mental problem and the couple was not blessed with a child even after five years of marriage. The fact that both were taking treatment for this indicates that they wanted to have a child. The defence has brought all this fact by way of documents and the same have duly been proved on the record. Prosecution has not been able to prove on the record by way of clinching evidence that accused persons aided or abetted the commission of suicide by the deceased. Even the prosecution witnesses have deposed that the main cause for committing the suicide was the business discord and the harassment by mother-in-law. The fact that Ajay Kakkar i.e. husband of the deceased was not even cited as prosecution witness is indicative of the fact that he was suffering from serious mental disorder.
In Chanchal Kumari Vs. Union Territory, Chandigarh, AIR 1986 SC 752 it was held that so far as the offence under Section 306 IPC about the abetment to commit suicide is concerned, there should be dependable evidence with regard to actual abetment by the accused. If the dependable evidence is not there, the accused would be entitled to acquittal. In such cases it would not be sufficient for the prosecution to prove that there was 25 repeated quarrel between the parties. The knowledge or intention of the accused persons are required to be proved by way of positive evidence. The prosecution is required to prove that instigation by the accused persons was so directed, co-related and proximate with the act of suicide. It is required to prove that such act of committing suicide was only on account of such instigation.
It is also to be seen in the present case that the prosecution has examined the witnesses who were closely related to the deceased. The Apex Court has cautioned about the value to be given to the oral evidence of such witnesses. It has been held that the witnesses who are close relative of the deceased and have natural grievance against the accused as they think that the accused persons are responsible for the deceased committing suicide.
In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, it was interalia held as under:-
"Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally, have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even 26 unconsciously the love and affection for the deceased would create a psychological hatred against purposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated, may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it"
In the present case a young lady lost her life at the prime of her age but the court while discharging the judicial function cannot allow emotions and sentiments to come into the judicial pronouncement. The court is required to decide the cases strictly on evidence.
I consider that in view of the discussion made herein above, the prosecution has miserably failed to prove its case against the accused persons. In view of the discussions made herein above, the accused persons are acquitted. Bond cancelled, sureties discharged.
File be consigned to record Room.
ANNOUNCED IN OPEN COURT (DINESH KR. SHARMA)
27
TODAY ON: 1ST JULY,2008 ADDL.SESSIONS JUDGE:DELHI