Delhi District Court
State vs Bimlesh Sakhuja on 4 March, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN : ADDITIONAL
SESSIONS JUDGE (PILOT COURT):WEST: TIS HAZARI COURTS:
DELHI.
SC No.57106/2016
FIR No. 73/2009
U/s. 498A/304-B/34 IPC
P.S Janak Puri
In the matter of
State
versus
1 Bimlesh Sakhuja
W/o Kishan Lal Sakhuja,
2 Kishan Lal Sakhuja (since expired)
S/o late Sh. Ram Lal Sakhuja
3 Naresh Sakhuja
S/o Kishan Lal Sakhuja
All Resident of:
R/o B-1/138, Janak Puri,
New Delhi.
Date of Institution : 06-01-2012
Date of reserving Judgment : 13-02-2017
Date of pronouncement : 04-03-2017
Appearances
For the State : Ms. Reeta Sharma, Additional Public
Prosecutor.
For the Accused persons : Mr. Vikram Singh Saini, Advocate.
Sessions Case No. 57106/16 Page 1/21
JUDGMENT
Accused Bimlesh Sakhuja wife of Kishan Lal Sakhuja, aged 60 years and accused Kishan Lal Sakhuja son of late Ram Lal Sakhuja, aged 73 years, were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973, (Cr.P.C) submitted on 06- 01-2012 upon conclusion of investigation into First Information Report (FIR) No.73/2009 of police station Janak Puri for offences punishable under Section 498A/304-B/34 of the Indian Penal Code, 1860 (IPC). The name of accused Naresh Sakhuja son of Kishan Lal Sakhuja was kept in column no.12 of the police report under Section 173 Cr.P.C.
2 On the basis of police report, the Learned Additional Chief Metropolitan Magistrate (West) took cognizance of the offences and summoned all the three accused persons vide order dated 6.1.2012.
3 As per the prosecution story, on 7.3.2009, on receipt of DD No.51-B, Inspector (investigation) Ashok Kumar, Sub Inspector (SI) Kartar Singh and Constable Ashok Kumar, No. 898/W, reached at house no. B-1/138, Janak Puri, New Delhi, where dead body of one young woman was found lying on the bed in the rear room of the house. On enquiries, the name of the deceased came to be known as Dimple wife of Naresh Sakhuja, aged 28 years, who had got married in the month of April,2003. Therefore, the Crime Team and Sub-Divisional Magistrate (SDM), Patel Nagar, were called at the spot. The Crime Team inspected the scene of crime and took photographs. Sh. Joginder Singh, Executive Magistrate/Tehsildar, Patel Nagar, recorded the statements of Sh. Kamal Sessions Case No. 57106/16 Page 2/21 Kumar and Smt. Prem Lata, brother and mother of the deceased respectively, both resident of 125/10, Pratap Nagar, Delhi-7, who had reached at the spot.
As per the statement of Sh. Kamal Kumar, his sister namely Dimple (the deceased) was married to Naresh Sakhuja in the year, 2003 as per Hindu rites and ceremonies. At the time of marriage, dowry was given as per their capacity, however, there was no demand of dowry from the in-laws of deceased. Further, for the last 4 years, the deceased was not happy in her matrimonial home. Her mother-in-law Smt. Bimlesh Sakhuja and father-in-law Sh. K.L Sakhuja used to taunt her and trouble her in respect of the items given to her on the occasion of festivals etc. On 5.3.2009, Sh. Kamal Kumar celebrated the 'Chola' ceremony of his daughter in the Gurudwara, which the deceased had attended only for half an hour. While leaving from there, she was given one box of sweets and thereafter she had gone to her office situated at Rajiv Gandhi Bhavan, Lodhi Road, Delhi. In the evening, when she returned back to her matrimonial home, her mother-in-law Smt. Bimlesh Sakhuja taunted her about giving only one box of sweets and thereafter, the mother-in- law called his wife Smt. Manju and complained about not inviting them to attend the 'Chola Ceremony', consequent upon which his wife Smt. Manju apologised. Thereafter, Sh. Kamal Kumar made a call to father-in- law of the deceased and explained that the 'Chola Ceremony' was not celebrated on a large scale on account of serious illness of his Mausaji Sh. Roshan Lal Ahuja. Sh. Kamal Kumar also had a talk with the deceased on her mobile phone who told him that she was very disturbed. She also asked him to talk with Sh. Naresh Sakhuja, however, Sh. Naresh Sakhuja could not talk with him.
Sh. Kamal Kumar further stated that on 7.3.2009 around 1.45 p.m, there was a missed call of Sh. Naresh Sakhuja on his mobile phone and Sessions Case No. 57106/16 Page 3/21 afterwards his wife Smt. Manju made a call to him and informed that Dimple committed suicide. Later, his brother-in-law Sh. Naresh Sakhuja also informed him in this regard. Sh. Kamal Kumar alongwith his mother Smt. Premlata, uncle Sh. Manohar Lal and aunt Smt. Kiran Bala reached at the matrimonial home of deceased. In the mean time, he made a call to the police at 100 number. The police had already arrived there. The dead body of Dimple was lying on a bed in a room on ground floor and mother-in-law Smt. Bimlesh Sakhuja was sitting on a sofa in a normal condition. Sh. Kamal Kumar further stated that his sister Dimple would remain very upset in her matrimonial home due to the behaviour of her father-in-law and mother-in-law. She would also say that she was troubled so much that it was becoming very difficult to stay in the matrimonial home. However, she never expressed any desire to commit suicide. She was a progressive woman and wanted to progress in her life. The deceased was also beaten up by her mother-in-law Smt. Bimlesh Sakhuja around one month ago without any reason. Sh. Kamal Kumar further stated that his sister Dimple was killed by mother-in-law Smt. Bimlesh Sakhuja and father-in-law Sh. K.L. Sakhuja against whom legal action should be taken.
4 After recording the statement of Sh.Kamal Kumar and Smt. Prem Lata, the Executive Magistrate handed over the statements to SHO, Janak Puri, to take legal action as per law. Thereafter, FIR No. 73/2009 under Section 498A/304-B/34 IPC was registered and investigation was handed over to Inspector (Investigation) Ashok Kumar, the Investigating Officer (IO).
5 During the investigation, the I.O prepared the site plan of the spot and seized the Chunni with which deceased had hanged herself. He sent the dead body to Deen Dayal Upadhaya (DDU) hospital mortuary for postmortem. He also recorded the statement of the Sessions Case No. 57106/16 Page 4/21 witnesses. On 8.3.2009, after the postmortem, the I.O handed over the dead body of the deceased to Sh. Kamal Kumar, brother of the deceased. Jewellery of the deceased was also handed over to her mother Smt. Prem Lata. Thereafter, the I.O arrested Smt. Bimlesh Sakhuja and Sh. Kishan Lal Sakhuja and obtained opinion from the doctor regarding the Chunni with which deceased had committed suicide. He also obtained postmortem report, viscera report and clothes and seized them for sending to FSL. He also interrogated Sh. Naresh Kumar Sakhuja, husband of the deceased, however, no incriminating evidence could be found against him. The FSL result was also obtained. 6 After concluding the investigation, the I.O came to a conclusion that sufficient evidence had come on record against the accused persons Smt. Bimlesh Sakhuja and Sh. K.L. Sakhuja for commission of offences under Section 498A/304-B/34 IPC, however, in the absence of any evidence against Sh. Naresh Sakhuja, husband of the deceased, he was not arrested, and was kept in column no. 12 of the police report under Section 173 Cr.P.C (charge-sheet) that was prepared and filed in the court.
7 On the basis of charge-sheet, the learned Link Metropolitan Magistrate (West) after complying with the provisions contained in Section 207 Cr.P.C, committed the case to the Court of Session vide order dated 9.5.2012.
8 On 15-10-2012, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused persons, charge was framed against the accused persons for commission of offence punishable under Section 498A/306/34 IPC. The charge so framed was read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
9 To bring home the afore-mentioned charges to the accused Sessions Case No. 57106/16 Page 5/21 persons, the prosecution got examined H.C Ami Lal (PW-1), Shri Kamal Kumar (PW-2), Smt. Prem Lata (PW-3), Smt. Manju (PW-4), Sh. Mohan Lal (PW-5), Inspector Ashok Kumar (PW-6), Sh. Joginder Singh (PW-7), Dr. Adesh Kumar (PW-8), SI Jai Singh (PW-9), Dr. Komal Singh (PW-10), Woman constable Beena (PW-11), constable Sanjay (PW-12), constable Ashok Kumar(PW-13), SI Kartar Singh (PW-14) and Woman ASI Krishna (PW-15).
10 The prosecution also relied on documents tendered into evidence i.e copy of store room register for entry at serial No.3217 ( Ex.PW.1/A), copy of store room register for entry at serial no.3528 (Ex.PW.1/B) copy of Road Certificate register (Ex.PW.1/C), statement of Sh.Kamal Kumar (Ex.PW.2/A), identification statement of dead body (Ex.PW.2/B), arrest memo of accused Bimlesh Sakhuja (Ex.PW.2/C), arrest memo of accused Sh. K.L Sakhuja (Ex.PW.2/D), personal search memo of accused Smt. Bimlesh Sakhuja (Ex.PW.2/E), personal search memo of accused Sh. K.L. Sakhuja (Ex.PW.2/F), statement of Smt. Prem Lata (Ex.PW.3/A), her statement under Section 161 Cr.P.C (Ex.PW.3/DA), identification of the dead body (Ex.PW.5/A), receipt of dead body to her relative (Ex.PW.5/B), site plan of the spot ( Ex.PW.6/A), seizure memo of Chunni (Ex.PW.6/B), seizure memo of viscera, blood and clothes (Ex.PW.6/C), application to obtain postmortem report and opinion (Ex.PW.6/D),death report (Ex.PW.7/A), FSL report (Ex.PW.8/A),FIR (Ex.PW.9/A), endorsement on Tehrir (Ex.PW.9/B), detailed postmortem report (Ex.PW.10/A) and DD entry no.51-B, dated 7.3.2009, P.S Janak Puri (Ex.PW.15/A). 11 On 12.11.2015, separate statements of accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they have been falsely implicated Sessions Case No. 57106/16 Page 6/21 in the present case. The accused persons did not desire to lead evidence in their defence.
12 Accused Kishan Lal Sakhuja expired during the proceedings of the case and the proceedings qua him was abated vide order dated 28.5.2016.
13 I heard the arguments advanced by Ms. Reeta Sharma, Ld. Addl. PP for the State and Shri Vikram Singh Saini, Ld. Counsel for the accused persons. I have also perused the entire material available on record.
14 During the course of arguments, it was submitted by the Ld. Addl. PP for the State that all the ingredients to constitute offence under Section 498A IPC and Section 306 IPC have been established by the prosecution against both the accused persons. Ld. Addl. PP for the State referred to explanation (a) of Section 498A IPC and Section 113 A of the Indian Evidence Act, 1872 (the Evidence Act)to argue that as per the testimony of PW-2 & PW-3, the willful conduct on the part of accused persons was there which drove the deceased to commit suicide. Further, relying upon judgment dated 09.01.2015 passed by the Hon'ble Supreme Court in Criminal Appeal no. 1592 of 2011 titled as Sher Singh @ Partapa V. State of Haryana, it was submitted that the prosecution was obliged to only "show" that the deceased had committed suicide within a period of seven year from the date of her marriage and she was subjected to cruelty by her husband or his relative and, therefore, the present is a fit case to raise presumption under Section 113A of the Evidence Act to presume that the suicide committed by the deceased was abetted by both the accused person. Ld. Addl PP for the State also referred to the testimonies of PW-2, PW-3 and PW-4 to argue that in view of presumption available under Section 113A of the Evidence Act, the onus to dislodge the prosecution case shifted to the accused persons which Sessions Case No. 57106/16 Page 7/21 could not be discharged by them. Further, the accused persons failed to demonstrate what were the circumstances which compelled the deceased to take the extreme step of suicide or the deceased was not mentally strong. The accused persons also failed to furnish any plausible explanation in their statements under Section 313 Cr.P.C why the deceased committed suicide. It was therefore, submitted that the prosecution succeeded in establishing its case against both the accused persons beyond reasonable doubt.
15 Per contra, counsel for the accused persons submitted that all the allegations leveled by the prosecution are vague in nature. Neither the deceased nor any of her family members ever lodged any complaint before any authority and there was no complaint by the deceased immediately preceding her suicide. Further, the prosecution witnesses PW-2 and PW-3 tried to depose about proximity which was never in existence. They also improved upon their statements recorded under Section 161 Cr.P.C and accordingly, their testimonies are not reliable. Learned counsel for the accused also relied on judgment dated 27.03.2014 passed by the Hon'ble Supreme Court in criminal appeal no. 696 of 2009 titled as Mangat Ram V. State of Haryana to argue that there are no material available on record to raise presumption under Section 113 A of the Evidence Act, and a woman may attempt to commit suicide due to various reasons such as depression, financial difficulties, disappointment in love, tired of domestic worries, acute and chronic ailments and so on, which need not be due to abetment. It was, therefore, submitted that the prosecution failed to bring the guilt home to the accused persons, who deserves acquittal.
16 I have given my thoughtful consideration to the arguments advanced by Ms. Reeta Sharma, learned Addl. P.P for the State and Sh. Vikram Singh Saini, learned counsel for the accused persons.
Sessions Case No. 57106/16 Page 8/21The substantive offences which the accused persons have been charged with are referred as under:
306. Abetment of suicide- If any person commits suicide, whoever, abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
498A. Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation- For the purpose of this section, "Cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
It is also useful to quote the definition of abetment as defined in IPC and presumption under Section 113A of the Evidence Act which are as under:
107. Abetment of a thing- A person abets the doing of a thing, who-
First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the Sessions Case No. 57106/16 Page 9/21 doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.
113A. Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation - For the purpose of this section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).
17 From the facts and circumstances of the present case and in view of the above-mentioned legal provisions, the points for determination emerging in the present case, are as under:
1 Whether the deceased Dimple was subjected to cruelty by the accused persons in the matrimonial home.
2 Whether the deceased Dimple was driven to commit suicide on account of cruelty meted to her by the accused persons.
3 Whether the deceased Dimple committed suicide within seven years of her marriage.
4 Whether the accused persons, by their acts and omissions, abetted the suicide of deceased Dimple.
18 To prove its case, the prosecution got examined 15 prosecution witnesses. The foundation of the prosecution case was laid down upon Sessions Case No. 57106/16 Page 10/21 the testimonies of Shri Kamal Kumar (PW-2), brother of the deceased, Smt. Prem Late (PW-3), mother of the deceased and Smt. Manju (PW-4), sister-in-law (Bhabhi) of the deceased.
19. PW-2 proved his statement Ex.PW.2/A which was given to the Executive Magistrate Shri Joginder Singh (PW-7) wherein he stated that at the time of marriage there was no demand of dowry from the in- laws of the deceased and the dowry articles were given as per their capacity. PW-2 further stated that Smt. Bimlesh Sakhuja, mother-in-law of the deceased used to taunt as and when some articles were used to be given to her as she was not happy with the articles given. The mother- in-law also used to harass and beat the deceased. Deceased was employed in Airport Authority of India as an Executive who would go to her office five days in a week and would remain at the matrimonial home every Saturday and Sunday. PW-2 further stated that the deceased used to complain that on Saturdays and Sundays, due to mental and physical harassment by her in-laws she would consider that she was living in a hell.
PW-2 further deposed that on 4th or 5th March,2009, there was a Chola ceremony of his daughter at the Gurudwara and deceased could come there for about 15/20 minutes. At the time of her departure from there, PW-2 had given one box of sweets to her. She had gone to her office and after she reached at her matrimonial home in the evening, his wife Smt. Manju Gandhi (PW-4) received a call from mother-in-law Smt. Bimlesh Sakhuja who complained as to why they were not invited for the Chola ceremony and she would not accept box of sweets and would return the same. His wife explained that due to illness of Mausaji Sh. Roshan Lal Ahuja, a cancer patient, no big programme was organised for the Chola ceremony. Smt. Manju (PW-4) apologized to Smt. Bimlesh Sakhuja and had also talks with father-in-law Sh. K.L. Sessions Case No. 57106/16 Page 11/21 Sakhuja. Smt. Manju (PW-4) narrated these facts to PW-2, who thereafter, contacted the deceased on her mobile, when she stated that she was quite perturbed and disturbed and he should talk with her husband Naresh Kumar.
PW-2 further deposed that on 7.3.2009, at about 1.45/ 2 p.m, when he was present near Shastri Nagar Metro station, he received a call from his wife that Dimple committed suicide. There was already a missed call in his mobile from his brother-in-law Naresh Kumar. PW-2 also received another call from his brother-in-law who also stated that Dimple committed suicide. Thereafter, PW-2 had gone to his residence and took along his mother Smt. Premlata, his uncle Sh. Manohar Lal and aunt (Taiji) Smt. Kiran Bala and reached at the matrimonial home of the deceased. PW-2 also made a call at 100 number. After reaching matrimonial home of deceased, a police vehicle was found stationary outside the house. The dead body of deceased was lying on a bed inside a room at the ground floor. Smt. Bimlesh Sakhuja was sitting on a sofa in normal condition, whereas Sh. Kishan Lal Sakhuja was sitting alongwith one person who appeared to be an advocate. Sh. Naresh Kumar was standing outside the house. PW-2 further deposed that his sister used to complain about harassment at the hands of her in-laws and mother-in-law Smt. Bimlesh Sakhuja had also beaten her on many occasions.
PW-2 identified the dead body of deceased vide identification statement Ex.PW.2/B, one Kada of gold was taken out from the dead body and handed over to them.
PW-2 was cross-examined,wherein he stated about the marriage between the deceased and accused Naresh to be an arranged one. He also stated that whenever he used to visit at the matrimonial home of deceased immediately after her marriage, her mother-in-law used to Sessions Case No. 57106/16 Page 12/21 comment upon or taunt at dowry articles. Out of wedlock of deceased Dimple and accused Naresh Sakhuja,one girl child namely Bhavika was born who is living with accused persons.
20 Smt. Prem Lata (PW-3) deposed that after the marriage of her deceased daughter with Naresh Sakhuja, whatever gifts/items that were used to be given were not found sufficient by the in-laws of Dimple. Two days prior to her death, deceased had come to her residence as there was Chola ceremony at the Gurudwara. Deceased was given a box of sweets while leaving and after attending her office, she returned to her matrimonial home in the evening. PW-3 further stated that on the next day, mother-in-law of deceased made a call to her daughter-in-law namely Manju (PW-4) and asked as to why they were not invited for Chola ceremony and complained that nothing had been given. PW-3 further stated that her deceased daughter was fed up with her mother-in-law and used to make complain that the Saturdays and Sundays were hell for her and she was being harassed by her mother-in- law for the last six years. PW-3 had also received call from accused Naresh on 7.3.2009 at about 1.30 p.m who informed that Dimple has committed suicide. PW-3 alongwith Kamal Kumar (PW-2) went at the matrimonial home of deceased. She also proved her statement Ex.PW.3/A which was recorded by the SDM.
In her cross-examination, PW-3 stated that police officials recorded her statement on the same day when her daughter expired. Her statement was also recorded by the SDM. She further stated that before 7.3.2009, she had not made any complaint before the police. Her deceased daughter was employed while living at her matrimonial home. PW-3 was confronted with her statement Ex.PW.3/A, wherein her statements regarding Chola ceremony and call to her daughter-in-law Manju (PW-4) by accused Bimlesh Sakhuja was found not recorded. She Sessions Case No. 57106/16 Page 13/21 was also confronted with her statements Ex.PW.3/A and Ex.PW.3/DA, wherein the fact of deceased being fed up with her mother-in-law, harassment by mother-in-law for the last six years and Saturdays and Sundays being hell for her were found not recorded. 21 Smt. Manju (PW-4) deposed about the marriage of her school time friend Dimple with accused Naresh Kumar Sakhuja on 28.4.2003. She also stated that deceased was not happy at her matrimonial home and used to tell her on mobile that she was being harassed mentally and physically by her husband and in-laws. The in- laws also used to beat the deceased. PW-4 only stated that on 7.3.2009, a call was received to the effect that Dimple committed suicide.
PW-4 was not cross-examined on behalf of the accused persons. 22 On an analysis of testimonies of PW-2, PW-3, and PW-4, it is clear that there was no demand for dowry by the accused persons at the time of marriage of accused Naresh Sakhuja with the deceased Dimple. Deceased Dimple was never taunted upon or beaten up by the accused Bimlesh Sakhuja in presence of PW-2. PW-2 though deposed about deceased Dimple complaining to him of mental and physical harassment meted out to her by her in-laws, the fact remains that PW-2 could not specify any particular incident or manner of alleged harassment. The testimony of PW-2 regarding such mental and physical harassment is accordingly vague and devoid of any material particular. Further, the testimony of PW-2 about her wife Smt. Manju (PW-4) receiving a call from accused Bimlesh Sakhuja, expressing her displeasure for not being invited for Chola ceremony, remains in the realm of hearsay evidence which is not admissible in evidence. Moreover, Smt. Manju while deposing as PW-4 did not utter a single word in this regard.
Sessions Case No. 57106/16 Page 14/21Even, when PW-2 contacted his deceased sister after the Chola ceremony, she only stated that she was perturbed and did not complain about anything. She merely asked him to have a talk with her husband accused Naresh Kumar.
The deposition of PW-2 about verification of economic, financial and social status of the accused persons before the marriage was arranged, coupled with the fact of there being no demand of dowry at the time of marriage leads to an interference that alleged ill-treatment and harassment of the deceased over whatever articles/gift would be given to the accused persons was less probable which could not be even "shown", leave aside "proving" the same beyond reasonable doubts. The deceased was working as an Executive at the Airport Authority of India which also shows that no undue restrictions were imposed on her by her in-laws nor was she compelled not to go outside her matrimonial home and not to pursue her career. Furthermore, in his cross- examination, PW-2 categorically deposed that accused Bimlesh Sakhuja used to comment or taunt upon the dowry articles when he used to visit the matrimonial home of deceased Dimple immediately after her marriage which goes to indicate that there might be some displeasure shown by accused Bimlesh Sakhuja on the gifts items received in the marriage in the year 2003 but there is no evidence available on record to establish that such displeasure continued throughout till the sad demise of the deceased in March,2009.
23 The testimony of PW-3 is also devoid of any particular and specific incident about any alleged harassment being meted out to the deceased by the in-laws on Saturdays and Sundays. Rather, PW-3 majorly improved upon her statements Ex.PW.3/A given to the SDM and statement Ex.PW.3/DA. PW-3 deposed only about accused Bimlesh Sakhuja and did not even level any allegation against the accused Kishan Sessions Case No. 57106/16 Page 15/21 Lal Sakhuja or Naresh Sakhuja. It is noteworthy here that accused Naresh Sakhuja was neither arrested nor chargesheeted by the I.O. as no sufficient evidence could be collected against him during investigation. 24 The testimony of PW-4 is also bereft of any particular incident or manner of causing mental and physical harassment to the deceased by the accused persons. PW-4 did not depose anything about having any talks with accused Bimlesh Sakhuja after the Chola ceremony though both PW-2 and PW-3 testified about such talks held between accused Bimlesh Sakhuja and PW-4. Interestingly, PW-4 stated about the harassment caused by both accused Bimlesh Sakhuja and Naresh Sakhuja, whereas PW-2 and PW-3 did not utter a single allegation against accused Naresh Sakhuja.
25 In the afore-discussed circumstances, in my considered opinion the testimonies of PW-2,PW-3 and PW-4 upon which the case of the prosecution was predicated, are not sufficient to establish that the deceased was being ill-treated and harassed at her matrimonial home by the accused persons and that's too, to such an extent that she had no other alternative left, but to commit suicide.
26 The other set of prosecution witnesses pertaining to the investigation conducted also point out towards lopsided investigation conducted by the Investigating Officer. For instance, it is not clear as to who had brought down the dead body of the deceased and the Chunni Ex.PA which was used for the purpose of hanging was sufficiently strengthen to bear weight of the dead body. Dr. Komal Singh (PW-10) who had conducted the postmortem on the dead body of deceased vide postmortem report Ex.PW.10/A merely opined about the cause of death being suicidal antemortem hanging. PW-10 also did not depose anything about the strength of Chunni Ex.PA. Then, as per the testimony of PW-2 and PW-3, their statements Ex.PW.2/A and Ex.PW.3/A Sessions Case No. 57106/16 Page 16/21 respectively were recorded by the SDM at the spot, whereas Executive Magistrate Sh. Joginder Singh (PW-7) deposed that PW-2 and PW-3 had come to his office in the evening and after making enquiries from them, he recorded their statement Ex.PW.2/A. SI Kartar Singh (PW-14), on the other hand, deposed that the Tehsildar after inspecting the spot recorded statement of brother and mother of the deceased on the spot. 27 H.C Ami Lal (PW-1) deposed regarding store room register entries Ex.PW.1/A and Ex.PW.1/B regarding deposition of sealed parcels, envelope and sample seal. He had also sent sealed parcels and sample seals to FSL, Rohini, vide RC No. 6/21/09 Ex.PW.1/C. He received two sealed parcels and one sealed envelope on 9.9.2010 and handed over FSL result to the I.O. Further, on 17.3.2009, one sealed parcel was sent to DDU hospital through Inspector Ashok Kumar and on 1.04.2009 SI Kartar Singh deposited one sealed parcel and sample seal of DDU hospital. PW-1 stated that the case property was not tampered with till it remained in his possession.
28 Sh. Mohan Lal (PW-5) identified the dead body of his niece Dimple vide identification statement Ex.PW.5/A and also received the dead body for funeral rites vide memo Ex.PW.5/B. 29 Inspector Ashok Kumar (PW-6) could not be examined-in- chief completely for want of case property. Vide order dated 18.12.2013, his name was deleted from the list of witnesses as he had expired due to a heart attack. Therefore, part examination-in-chief of PW-6 cannot be read in evidence.
30 Dr. Adesh Kumar (PW-8) deposed regarding two sealed parcels received for chemical examination whereupon he examined the exhibits and gave his report Ex.PW.8/A bearing his signatures at point A. 31 SI Jai Singh (PW-9) had recorded the FIR Ex.PW.9/A and had handed over the copy of FIR and original Tehrir after making Sessions Case No. 57106/16 Page 17/21 endorsement Ex.PW.9/B. 32 Woman Constable Beena (PW-11) had conducted personal search of accused Bimlesh Sakhuja and witnessed her arrest memo Ex.PW.2/C and personal search memo Ex.PW.2/E. 33 Constable Sanjay (PW-12) had received original Tehrir and computerised copy of FIR No.73/2009 to hand it over to SI Kartar Singh at the spot.
34 Woman ASI Krishna (PW-15) had recorded the information regarding suicide vide entry no.51-B Ex.PW.15/A. 35 Constable Ashok Kumar (PW-13) and SI Kartar Singh (PW-14) both joined the investigation with the I.O. and remained present at the time of making arrest of accused Bimlesh Sakhuja and K.L. Sakhuja. They also witnessed arrest and personal search memo Ex.PW.2/C to Ex.PW.2/F. PW-14 had also taken the sample pullanda from the police Maalkhana to FSL, Rohini, he obtained the result from the FSL and final report qua cause of death. PW-14 also stated in his cross-examination that there was no evidence collected against accused Naresh Sakhuja, warranting his arrest and therefore, he was kept in Column No.12 of the chargesheet.
36 In the light of above-referred analysis of the prosecution witnesses, it is evident that there are no positive evidence available on record to point out towards the wilful conduct of the accused persons whereby subjecting the deceased Dimple to harassment and cruelty. The prosecution could not establish any proximate or remote acts of omission or commission on the part of the accused persons that can be construed to be a direct or indirect cause or factors compelling the deceased to commit suicide. In fact, there is no reference of any specific incident about any act of cruelty meted out to the deceased whereupon the deceased might have been compelled to take the extreme step to commit Sessions Case No. 57106/16 Page 18/21 suicide.
37 As far as the reliance placed by Ld. Addl. P.P for the State on Sher Singh @ Pratapa (supra) case is concerned, suffice it to say that the cited judgment lays down that the word "shown" mentioned in Section 304-B IPC read with Section 113B of the Evidence Act connote "prove" meaning thereby the burden of proof weighs heavily on the husband to prove his innocence by dislodging his deemed culpability, beyond reasonable doubt but this has to be preceded only by the prosecution proving the presence of three facts i.e (i) the death of a woman in abnormal circumstances, (ii) within seven years of her marriage, and (iii) the death had a live link with cruelty connected with any demand of dowry. However, such is not the requirement under Section 306 IPC read with Section 113A of the Evidence Act. Therefore, the judgment in Sher Singh @ Pratapa (supra) case is not applicable to the facts of the present case.
38 The ratio laid down in Mangat Ram ( supra ) case applies squarely to the facts of the case wherein also it was laid down that the presumption under Section 113A of the Evidence Act would not automatically apply and the court may presume, having regard to all the other circumstances of the case that such suicide had been abetted by her husband which would indicate that raising such presumption is discretionary and depends upon all other circumstances pointing towards the culpability of the accused.
39 In the matter of an offence under Section 306 IPC abetment must attract the definition prescribed in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentionally aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Sessions Case No. 57106/16 Page 19/21 Section 107 IPC that in order to make out the offence of abetment of suicide necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide or has intentionally aided by act or illegal omission, in the commission of the suicide. 40 As analysed above, none of the afore-mentioned ingredients of offence under Section 306 IPC and offence under Section 498A IPC could be proved by the prosecution beyond reasonable doubts. The observations of the Hon'ble Supreme Court vide judgment dated 2.12.2016 in Crl. Appeal No. 1135/2006, tittled as 'Gurcharan Singh V. State of Punjab, are relevant and are reproduced as under:
"Remoteness" of the culpable acts or omission rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus, criminalises the sustained incitement for suicide.
41 Further, with reference to Section 113A of the Evidence Act, it was underlined in Pinakin Mahipatray Rawal V. State of Gujarat (2013) 10 SCC 48, that the burden of proving the pre-conditions permitting the presumption as ingrained therein, squarely and sigularly lay on the prosecution. The prosecution has to establish beyond reasonable doubt that the deceased had committed suicide on being abetted by the person charged under Section 306 IPC.
42 In the light of above-mentioned judicial pronouncements, facts and circumstances, I am of the considered opinion that the evidence led by the prosecution do not establish role of any of the accused persons Sessions Case No. 57106/16 Page 20/21 for subjecting the deceased to cruelty or abetting her to commit suicide so as to return a finding of guilt against them under Section 498A IPC or under Section 306 IPC. That the deceased committed suicide within seven years of her marriage, is not disputed, however, in view of the afore-discussed facts and circumstances, rest of the points for determination are decided in favour of the accused persons. Resultantly, both the accused persons namely Smt. Bimlesh Sakhuja and Sh. Naresh Sakhuja, deserve acquittal of the charge under Section 498A/34 IPC and 306/34 IPC and are acquitted as such.
43 Bail bonds of both the accused persons stand discharged.
44 Bail Bonds under Section 437A Cr.P.C were furnished by the accused persons with photo and residential proof of the surety vide order dated 23.02.2017.
File be consigned to Record Room.
(Pronounced in the open Court (Kuldeep Narayan)
on 04.03.2017). Additional Sessions Judge
Pilot Court : West: THC
Delhi
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