Delhi District Court
State vs . Devanand on 29 July, 2016
FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI SC/58342/16 State Vs. Devanand S/o Sh. Laxmi Narayan R/o H. No. 326, Village Nangal Thakran, Delhi. FIR No. : 226/09 Police Station : Bawana Under Sections : 306/498A/506 IPC Date of committal to Sessions Court : 09.04.2010 Date on which judgment was reserved: 22.07.2016 Date on which Judgment pronounced : 29.07.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 19.11.2009 at about 2 pm, intimation was recorded in PS Bawana vide DD No. 19A (Ex.PW14/A) to the effect that one lady Kamlesh was got admitted in hospital by her husband with history of having consumed unknown poisonous substance. Said DD entry was entrusted to ASI Rajender Singh (PW17) for necessary action. Accordingly, ASI Rajender Singh alongwith Ct. Ashok Kumar (PW11) reached Pooth Khurd Hospital and collected MLC of Kamlesh who was declared unfit for statement. Accused met them in the hospital and informed that he got married with Kamlesh on 27.04.1993 and they were having three children State V/s. Devanand ("Acquitted") Page 1 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 out of said marriage. ASI Rajender Singh telephonically informed parents of Kamlesh, whereafter father of Kamlesh namely Balbir Singh (PW1) also reached the hospital, but he did not give statement on that day. However, on the next day, Balbir Singh gave statement (Ex.PW1/A) before ASI Rajender Singh, wherein he claimed to have given sufficient dowry articles including cash amount in the marriage of Kamlesh held on 27.04.1993. Even after marriage, there was demand of dowry from the side of accused who was unemployed. They were made to pay cash amount of Rs. 5000/ to the accused, who was habitual drinker and started beating Kamlesh for bringing money from her parent's house. Kamlesh had lodged several complaints in this regard. His daughter Kamlesh had taken loan of Rs. 10,000/ from Cooperative Bank for starting small departmental store, but accused snatched cash amount of Rs. 3000/ from her and spent the entire amount on consumption of liquor. On one occasion, accused had set the shop on fire and also hatched conspiracy to sell his ancestral land for which police complaint was also lodged by Kamlesh during her life time;
(ii). On the basis of said statement, FIR in question was got registered for the offence punishable U/s 306 IPC and investigation was entrusted to ASI Rajender Singh. During investigation, IO got postmortem examination on the dead body of deceased, whereafter dead body was handed over to the relatives. Thereafter, IO ASI Rajender Singh prepared State V/s. Devanand ("Acquitted") Page 2 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 rough site plan, recorded statements U/s 161 Cr.P.C. of relevant witnesses and arrested the accused. After completion of investigation, chargesheet was filed before the Court.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED
3. After hearing arguments on the point of charge, Court framed the charge for the offences punishable U/s 498A/306 against the accused, vide order dated 27.09.2010, to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined seventeen witnesses namely PW1 Sh. Balbir Singh, PW2 Dr. Yudhvir Singh, PW3 Smt. Santosh, PW4 Sh. Ashok Kumar, PW5 Sh. Shankar, PW6 Ms. Jyoti, PW7 Mr. Deepak Bhardwaj, PW8 Dr. Rishi Kumar Solanki, PW9 Ms. Rashmi, PW10 Sh. Jagbir @ Mukesh Kumar, PW11 HC Ashok, PW12 SI (Retd.) Karan Singh, PW13 Ct. Hanuman Raju, PW14 SI (Retd.) Prem Singh, PW15 HC Bacchu Singh, PW16 HC Brahampal Singh and PW17 ASI Rajender Singh, during trial.
5. Thereafter, statement U/s 313 Cr.P.C. of accused Devanand was recorded, during which all the incriminating evidence were put to him. However, he denied the same and claimed that he is innocent and has been falsely implicated in this case. His defence is of general denial. He claimed that sometime he used to take liquor. His wife and parents State V/s. Devanand ("Acquitted") Page 3 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 were against him due to said reason and that is why they lodged false complaints against him. However, the accused opted not to lead evidence towards his defence.
6. I have already heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Amicus Curiae Sh. Gajraj Singh Adv. on behalf of accused. I have also gone through the material available on record.
7. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES:
8. PW1 Sh. Balbir Singh & PW3 Smt. Santosh : Both these witnesses are the parents of deceased Kamlesh. They deposed on identical lines that deceased Kamlesh got married with accused Devanand on 27.04.1993, whereafter deceased started residing in her matrimonial house no. 326,Village Nangal Thakran, Delhi. They had given furniture, jewellery articles, etc. during marriage of their daughter. After 23 months of her marriage, it was revealed that accused was habitual drinker and he used to quarrel with his father on almost daily basis and used to demand money from him. When the parents of accused refused to give him money, he started demanding money from their daughter Kamlesh. Accused was unemployed and used to spend lot of money on consuming liquor. Accused used to beat their daughter when they did not use to fulfill his demand for paying money. Even father of accused used to ask them to come and take away their daughter, failing which accused would State V/s. Devanand ("Acquitted") Page 4 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 kill her. One day, father of accused had told to take their daughter back and also told that he (father of accused) had saved their daughter by snatching axe from the hands of accused who was threatening not to spare her in the night. They had lodged complaint in the PS and had also made PCR calls several times.
They further deposed that their daughter had taken loan of Rs. 10,000/ for opening grocery shop, but accused snatched Rs. 3000/ from her after giving beatings to her and spent the said money for consuming liquor. Not only this, he also put the said grocery shop on fire on one occasion after pouring kerosene oil. Kamlesh and her children were rescued by covillagers at that time. Accused was also got admitted in Deaddiction Centre for sometime but he used to threaten their daughter to remove her from his way. Kamlesh had lodged complaint in PS Bawana about 1½ months prior to the incident in question with regard to threat extended to her by accused and his sisters. They further deposed that on the date of incident, accused informed them that Kamlesh had consumed some poisonous substance. Their daughter Kamlesh died in the hospital. After postmortem, her dead body was given to them. She had left behind three children who were being brought up by them.
PW1 further deposed that his statement Ex.PW1/A was recorded by the police. He had identified dead body of his daughter Kamlesh, vide statement Ex.PW1/B and had received her dead body vide receipt Ex.PW4/C. He also exhibited police complaints dated 10.07.1995, 10.07.2001, 25.08.2002 and 06.08.2008 as Ex.PW1/C to Ex.PW1/F respectively. He also identified handwriting and signature of Kamlesh on inland letter Mark PW1/A written by her. Both these witnesses have been State V/s. Devanand ("Acquitted") Page 5 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 cross examined at length on behalf of accused.
9. PW4 Sh. Ashok Kumar: He is the elder brother of deceased. He also deposed more or less on identical lines as that of PW1 and PW3 whose testimonies have already been discussed in the preceding paras. He also deposed that his statement Ex.PW4/A was recorded by the police and he had identified the dead body of Kamlesh vide memo Ex.PW4/B and had received her dead body vide receipt Ex.PW4/C. He further deposed that accused was arrested by police from his house vide memo Ex.PW4/D in his presence. He also deposed that accused used to beat his sister and used to treat her with cruelty for not bringing and meeting his demand of dowry.
In his cross examination, he admitted that at the time of marriage between accused and his sister, there was no demand of dowry either from the side of accused or any of his family members. Whatever articles were given by them in the marriage, were out of their own will and without any demand or pressure from the side of accused and his family. He also admitted that sisters of accused, two of whom were already married, did not make any demand of dowry from them. He testified that there used to be minor quarrels between his sister Kamlesh and accused and those quarrels were of the nature which usually take place between husband and wife. He admitted that he did not see accused treating his sister with cruelty or giving beatings to her. However, accused was in the habit of taking liquor and he did not pay any heed to the repeated requests made by his sister for leaving the said habit. He also admitted that his father had lodged police complaints Ex.PW1/C to Ex.PW1/E at the instance of father of accused so that police should call State V/s. Devanand ("Acquitted") Page 6 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 and pressurize the accused to leave the habit of consuming liquor. He also admitted that contents of those police complaints were not correct and those complaints were lodged merely in order to teach a lesson to the accused, so that he may leave the habit of drinking liquor. He also admitted that his sister also lodged complaint Ex.PW1/F due to same reason. Not only this, he also deposed that his father had lodged written complaint Ex.PW1/A before police as he was in depression due to death of his sister Kamlesh. He also admitted that neither he nor his father handed over admitted handwriting of his sister Kamlesh to the police. He also admitted that letter Mark PW1/A was not received by him personally and complaint Ex.PW1/F was not lodged by Kamlesh in his presence.
10. PW5 Sh. Shankar: According to the case of prosecution, the accused had confided with this witness while they were admitted in Deaddiction Centre that he would kill his wife after being released therefrom and also that he had entered into sale agreement in respect of agricultural land for Rs. 25,00,000/ and had already received earnest money of Rs. 2,50,000/. However, this witness did not support the prosecution story during trial. He turned hostile and denied the contents of statement Mark PW5/A by claiming that no such statement was made by him before the police. He has not been cross examined by the accused despite grant of opportunity.
11. PW6 Ms. Jyoti , PW7 Mr. Deepak Bhardwaj & PW9 Ms. Rashmi: These three witnesses are children born out of wedlock of accused and deceased Kamlesh. All three of them have deposed on identical lines to the effect that accused was in the habit of taking excessive liquor and was not doing any job. The accused was facing State V/s. Devanand ("Acquitted") Page 7 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 financial crisis and under the influence of liquor, he used to beat their mother. After the death of their mother, they came to know that their mother had committed suicide by consuming some poisonous substance. After the death of their mother, they had been residing with their maternal grand parents.
All these three witnesses were cross examined on behalf of State as they were not supporting the prosecution story during trial. During their respective cross examination, all the relevant suggestions were put to them on the lines of prosecution story, but same were denied by them. They denied to have made statements U/s 161 Cr.P.C. Mark P 6, Mark P7 and Mark P9 respectively before the police during investigation. However, all three of them admitted that accused was got admitted in Deaddiction Centre for rehabilitation and was discharged therefrom after receiving treatment.
In their respective cross examination on behalf of accused, all these three witnesses admitted that their father never demanded any dowry from their mother. He used to demand money for purchase of liquor. They denied that their father never gave beatings to their mother.
12. PW10 Sh. Jagbir @ Mukesh Kumar: As per the case of prosecution, this witness was holding responsible position in Deaddiction Centre being run in the name of Chetna Foundation Nasha Mukti Kender, Auchandi, Delhi and he had issued the relevant certificate regarding treatment of accused in the said centre. However, he has not supported the case of prosecution during trial and denied his signature or handwriting on the document / Certificate Mark PW10/A. He also denied that accused was known to him or that accused was discharged from the State V/s. Devanand ("Acquitted") Page 8 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 said centre on 19.11.2009 or that he had handed over the said document to the police during investigation.
POLICE WITNESSES:
13. PW11 HC Ashok: He deposed that on 19.11.2009, DD no. 19A was marked to ASI Rajender, whereafter he alongwith ASI Rajender went to M.V. Hospital, Pooth Khurd, Delhi. ASI Rajender collected the MLC of Ms. Kamlesh W/o Devanand, who was opined unfit for statement by the concerned doctor. In the said hospital, he met Devanand i.e. husband of Ms. Kamlesh who stated to them that his wife had consumed some unknown medicine. He further deposed that ASI Rajender called the parents of Ms. Kamlesh through telephone and they stated to ASI Rajender that they would make statement lateron. He has not been cross examined by the accused despite grant of opportunity.
14. PW12 SI (Retd.) Karan Singh: On 27.12.2009, further investigation of the present case was marked to him. He deposed that on 03.02.2010, Ct. Bachu Singh had collected sealed pullanda containing viscera of deceased from MHC(M) vide RC No. 7/21/10 and deposited the same at FSL, Rohini and after completion of investigation, he prepared the chargesheet.
15. PW13 Ct. Hanuman Raju: He deposed that on 20.11.2009 at about 3 am, he had shifted dead body of one lady namely Kamlesh from M.V. Hospital, Pooth Khurd to the Mortuary of BJRM Hospital. He further deposed that in the morning hours, ASI Rajender had visited Mortuary of BJRM Hospital and got conducted postmortem on the dead body of deceased Kamlesh, whereafter, he alongwith ASI Rajender State V/s. Devanand ("Acquitted") Page 9 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 returned back to PS. He has not been cross examined by the accused despite grant of opportunity.
16. PW14 SI (Retd.) Prem Singh: He deposed that on 19.11.2009, W/ASI Bhagwani Devi received an information from Duty Constable Ayub Khan of M.V. Hospital regarding admission of Ms. Kamlesh by her husband Devanand, with alleged history of having consumed unknown poison. W/ASI Bhagwani Devi lodged DD No. 19A in Roznamcha and handed over copy thereof to ASI Rajender Singh. He proved attested copy of DD No. 19A as Ex.PW14/A. He was also working as Duty Officer in the intervening night of 20/21.11.2009. He has also proved factum regarding recording of FIR No. 226/09 in PS Bawana. He proved computerized copy of said FIR as Ex.PW14/B and his endorsement as Ex.PW14/C made on the rukka. He deposed that after registration of FIR, he had handed over copy of FIR and rukka to ASI Rajender Singh, to whom investigation was entrusted as per the order of SHO. He has not been cross examined by the accused despite grant of opportunity.
17. PW15 HC Bacchu Singh: He deposed that on 03.02.2010, he had collected one sealed pullanda alongwith sample seal from HC Braham Pal, the then MHC(M), vide R.C. No. 7/21/10 and deposited the same in the office of FSL, Rohini. He further deposed that copy of acknowledgment was handed over to MHC(M) on the same day by him. He further deposed that there was no tampering with the sealed pullanda by anyone till it remained in his custody. He has not been cross examined by accused despite grant of opportunity.
18. PW16 HC Brahampal Singh: He was the MHC(M) of PS State V/s. Devanand ("Acquitted") Page 10 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 Bawana. He has proved factum regarding deposition of case property of this case in Malkhana on various dates. He deposed that on 20.11.2009, ASI Rajender had deposited four sealed pullandas sealed witih the seal of Casualty MB Hospital Pooth Khurd alongwith one sample seal, in Malkhana vide entry at serial no. 207 of register no.19. He proved copy thereof as Ex.PW16/A. He further deposed that on 03.02.2010, aforesaid four sealed pullandas were sent to FSL Rohini through Ct. Bacchu Singh vide RC No. 7/21/10. He made endorsement in this regard in register no. 19 at portion A to A against entry at serial no. 207. He exhibited copy of R.C. No. 7/21/10 as Ex.PW16/B and the acknowledgment issued by FSL as Ex.PW16/C.
19. PW17 ASI Rajender Singh: He is the IO of this case. He has deposed about the relevant investigation carried out by him in this case. He deposed that after receipt of DD no. 19A (Ex.PW17/A) on 19.11.2009 at about 2 pm, he alongwith Ct. Ashok went to Pooth Khurd Hospital and collected MLC of Kamlesh who was opined unfit for statement. Accused met them in the said hospital and informed, on enquiry made by him, that his wife Kamlesh had consumed some unknown medicine. He informed parents of Kamlesh through telephone, whereafter Balbir Singh who was father of Kamlesh, visited the hospital. No eye witness met him even at the place of occurrence. DD no. 39A (Ex.PW17/B) regarding death of Kamlesh in the hospital, was received during night hours, on which he alongwith Ct. Hanumanta again went to said hospital and collected relevant documents from the concerned doctor. On 20.11.2009, he recorded statement Ex.PW1/A made by Balbir Singh State V/s. Devanand ("Acquitted") Page 11 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 and after carrying out inquest proceedings, he got postmortem examination on dead body of Kamlesh carried out. He prepared rukka Ex.PW17/F and got the FIR registered. He seized blood sample and gastric samples produced by Ct. Ayub Khan, vide memo Ex.PW17/G and also seized sealed pullanda containing viscera alongwith sample seal produced by concerned doctor before him, vide memo Ex.PW17//H. He had also prepared rough site plan Ex.PW17/J of the place of occurrence at the instance of Ashok (brother of deceased) and also arrested the accused from his house, vide memo Ex.PW4/D. In his cross examination, he testified that despite efforts made for recording statement of neighbours of matrimonial house of Kamlesh, no person came forward to make the statement. He denied the relevant suggestions put to him on behalf of accused.
MEDICAL WITNESSES:
20. PW2 Dr. Yudhvir Singh: This doctor was deputed by Medical Superintendent M.V. Hospital to appear and depose on behalf of Dr. Ajay Keshri as he had seen him writing and signing during the course of his duty. He deposed that patient Kamlesh W/o Devanand was examined by Dr. Ajay Keshri. He exhibited her MLC as Ex.PW2/A bearing the signature of Dr. Ajay Keshri at pointA. After examination, the patient was referred to Department of Medicine. He has not been cross examined by the accused despite grant of opportunity.
21. PW8 Dr. Rishi Kumar Solanki: This witness had conducted postmortem examination on the dead body of deceased Kamlesh W/o Devanand in BJRM Hospital on 20.11.2009, who was brought with alleged history of unknown poisoning on 19.11.2009 at State V/s. Devanand ("Acquitted") Page 12 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 around 1.25 pm vide MLC No. 3358/09 and was declared dead at about 10.36 pm. He proved his detailed report bearing no. 1313/09 dated 20.11.2009 as Ex.PW8/A during trial. He deposed that viscera was preserved and after sealing it, same was handed over to the investigating agency. After going through the FSL Report dated 20.07.2011 (Ex.PW8/B) prepared by Dr. Linga Raj Sahu, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi, he deposed that since on chemical and TLC examination, Ex.1A, 1B and 1C were found to contain organophosphorous pesticides, in his opinion, the cause of death of Kamlesh was due to consumption of aforesaid material/substance. He has not been cross examined by accused despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED
22. While opening the arguments, Ld. Additional PP referred to the testimonies of prosecution witnesses examined during trial and the documentary evidence brought on record. He heavily relied upon the testimonies of PW1 Balbir Singh, PW3 Smt. Santosh and PW4 Ashok Kumar (parents and brother of deceased), in order to bring home his point that all the said three public witnesses have supported the prosecution story during trial to the effect that accused had subjected Kamlesh to cruelty in connection with demand of dowry and he used to give beatings to her during her lifetime. He further submitted that accused was habitual drinker and was totally unemployed. He argued that since accused had been compelling Kamlesh to bring money from her parents and did not use to do anything, his said acts of beatings and consuming liquor forced her to commit suicide. For the said purpose, he also relied upon medical evidence in the form of MLC (Ex.PW2/A), Autopsy Report (Ex.PW8/A) State V/s. Devanand ("Acquitted") Page 13 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 and Viscera Report (Ex.PW8/B). He pointed out that as per viscera report, the deceased was found to have consumed organophosphorous pesticides (Dichlorvos). He further argued that deceased had written inland letter (Mark PW1/A) to her father during her lifetime describing her ordeal at the hands of accused during her lifetime. He also relied upon the police complaints (Ex.PW1/C to Ex.PW1/E) lodged by PW1 Sh. Balbir Singh with Police Authority as also to the police complaint (Ex.PW1/F) lodged by deceased herself with Police Authority on 06.08.2008 i.e. few months prior to committing suicide. He therefore, urged that accused should be convicted in this case.
23. Per contrar, Ld. Amicus Curiae appointed on behalf of accused argued that the entire onus to prove the charges against the accused, was upon the prosecution. Ld. Counsel submitted that the degree of proof was higher in view of the gravity of charge, but the prosecution has failed to discharge the said burden beyond pales of reasonable doubt. Ld. Defence Counsel referred to the relevant portions of the cross examination of PW4 (brother of deceased), whereby he has admitted that all the aforesaid police complaints were lodged by his father Balbir Singh and his sister Kamlesh in order to pressurize the accused to leave the habit of drinking liquor. Ld. Defence Counsel also submitted that PW4 has admitted during cross examination that there was no demand of dowry whatsoever from the side of accused either at the time of marriage or thereafter. He also relied upon testimonies of all the three children i.e. PW6 Ms. Jyoti, PW7 Deepak Bhardwaj and PW9 Ms. Rashmi of deceased, in order to bring home his point that said witnesses have not supported the case of prosecution during trial. He, therefore, State V/s. Devanand ("Acquitted") Page 14 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 urged that reasonable doubt is created in the case of prosecution, benefit of which should be given to the accused.
24. Section 306 deals with abetment of suicide and Section 107 deals with abetment of a thing. They read as follows: "306. Abetment of Suicide: If any person commits suicide, whosoever 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.
107. Abetment of a thing. A person abets the doing of a thing, who First. Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. - A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation. 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
25. This section has to be read with Section 113A of Evidence Act, 1872 which reads as under: "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 State V/s. Devanand ("Acquitted") Page 15 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 marriage and that her husband or such relative of her husband has 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 purposes of this Section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860)."
26. The legal position as regards Section 306 IPC which is long settled was reiterated by Hon'ble Supreme Court in the case of Randhir Singh Vs. State of Punjab, (2004) 13 SCC 129 in para 12 as follows: "12. Abetment involves a mental process of instigating a person or intentionally aiding that person is 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 thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC."
27. Further in the case of Kishori Lal Vs. State of M.P., (2007) 1 SCC 797, Hon'ble Apex Court gave a clear exposition of Section 107 IPC when it observed as follows in para 6: "6. Section 107 IPC defines abetment of a thing.
The offence of abetment is a separate and distinct offence provided in IPC. 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 provide, incite, urge on or bring about by persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence State V/s. Devanand ("Acquitted") Page 16 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 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."
28. This view was reiterated in Amlendu Pal @ Jhantu Vs. State of West Bengal, (2010) 1 SCC 707 by observing as under "12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess in the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put on an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegations of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said person must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
14. The expression 'abetment' has been defined under section 107 IPC which I have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in the clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides State V/s. Devanand ("Acquitted") Page 17 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 that if the act abetted is committed pursuant to and in consequence of abetment then the offence is to be punished with the punishment provided for the original offence".
29. Therefore, the issue that arises for consideration is whether any of the aforesaid clauses of Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC. This aspect of the matter was considered in Mahavir Kumar and Ors. Vs. State, MANU/DE/1321/2014 by observing as under: "53. In the absence of direct evidence, it is to be seen whether presumption U/s. 113A of Indian Evidence Act can be drawn or not.
54. Unlike Section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113A of the Indian Evidence Act. Under Section 113A of the Indian Evidence Act the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband and inlaws (in this case) had subjected her to cruelty. Even if these facts are established, the Court is not bound to presume that the suicide had been abetted by her husband. Second 113A givens a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband and inlaws does not automatically give rise to the presumption that the suicide had been abetted by her husband and inlaws. The Court is required to look into all other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the State V/s. Devanand ("Acquitted") Page 18 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar Vs. State of Chhatisgarh, (2001) 9 SCC 618, wherein Hon'ble Supreme Court observed: "The provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in laws and incriminating evidence was usually available within the four corner of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression " may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression " the other circumstances of the case" used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the State V/s. Devanand ("Acquitted") Page 19 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in section 113A is defined in section 4 of the Evidence Act, which says "Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
30. In the matter titled as State of West Bengal Vs. Orilal Jaiswal and Anr. (1994) 1 SCC 73, Hon'ble Apex Court has observed as under: "We are oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A IPC and section 113A of the Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. Lord Denning in Bater Vs. Bater, 1950 (2) All E.R 458, 459 has observed that the doubt must of a reasonable man and the standard adopted be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter.
31. In Gangula Mohan Reddy Vs. State of Andhra Pradesh, (2010) 1 SCC 750, Hon'ble Supreme Court, observed as under: State V/s. Devanand ("Acquitted") Page 20 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 "In State of West Bengal Vs. Orilal Jaiswal & Ors., (1994) 1 SCC 73, this Court has cautioned 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 the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty".
32. In Mahendra Singh Vs. State of MP, 1995 SCC (Cri.) 1157, Hon'ble Supreme Court observed that it is common knowledge that the words uttered in a quarrel or in spur of moment or in anger cannot be treated as constituting mens rea. In the said case, the appellant said to the deceased to "to go and die" and as a result of such utterance, the deceased went and committed suicide. However, Hon'ble Supreme Court observed that no offence under Section 306 IPC read with Section 107 IPC was made out since there was no element of mens rea.
33. In Bhagwan Das Vs. Kartar Singh & Ors., (2007) 11 SCC 205, it was held that quite often there are disputes and discord in the matrimonial home and wife is harassed by husband or by her inlaws, this, however, would not by itself and without something more attract Section 306 IPC read with Section 107 IPC."
34. Having judged the facts of the present case and the testimonies of prosecution witnesses examined during trial on the anvil of State V/s. Devanand ("Acquitted") Page 21 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 the principles laid down in the afore noted decisions rendered by Hon'ble Apex Court as well as by Hon'ble High Court, I am of the view that the prosecution has failed to establish the charges against the accused beyond shadow of doubt. As regards the offence punishable U/s 498A IPC, it may be noted that the prosecution has to establish the fact that accused had subjected his wife i.e. Kamlesh to cruelty. The 'explanation' attached to section 498A IPC clearly provides that the expression 'cruelty' means: "(a) any willful conduct of the nature as is likely to drive the woman to commit suicide or to commit great injury or danger to life, limb or health of 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 on account of failure by her or any person related to her to meet such demand. Thus, the willful act or conduct on the part of accused ought to be the proximate cause for bringing home the charge U/s 498A IPC.
35. Now adverting back to the facts of the present case. No doubt, PW1 Balbir Singh and PW3 Smt. Santosh (parents of deceased) have testified during trial that they had given sufficient articles at the time of marriage of Kamlesh with accused. However, the testimonies of both the said witnesses go to show that they never claimed to have been coerced by accused to give cash or any kind of dowry to him. They nowhere deposed that deceased Kamlesh was subjected to cruelty in connection with demand of dowry. Rather, said two witnesses have testified that accused was since unemployed and used to spent a lot of money on consumption of liquor and when his father declined to provide financial help for the said purpose, the accused started demanding money from Kamlesh in order to purchase liquor. Both the said witnesses State V/s. Devanand ("Acquitted") Page 22 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 deposed that accused used to give beatings to Kamlesh whenever she did not use to meet his demand for giving money for purchase of liquor. Even otherwise, both the said witnesses in their respective cross examination have admitted that there was no demand of dowry whatsoever either from the accused or from any of his family members at the time of his marriage with Kamlesh and whatever articles were given by them in the said marriage, same were out of their own freewill and without any demand or pressure from accused. They also admitted that even on the occasions of birth of all the three children, accused and his family members did not raise any demand and whatever gifts were given by them at that time, same were out of their own freewill. Both the said witnesses further admitted that whatever quarrels which used to take place between accused and deceased, were of the nature as usually take place between husband and wife and they themselves did not see accused treating their daughter with cruelty or giving beatings to her. They have also admitted that the police complaints Ex.PW1/C to Ex.PW1/E were lodged by PW1 at the instance of father of accused, so that police may pressurize accused to leave the habit of drinking liquor as the father of accused was having good relations with police officials. Even deceased had also lodged police complaint Ex.PW1/F, in order to teach lesson to the accused. Even otherwise, the said police complaints have not been proved during trial in accordance with law of evidence. The relevant record from concerned police stations have not been summoned by prosecution for proving originals of the said police complaints. There is nothing on record to suggest as to what was the final outcome of those police complaints. The perusal of contents of said police complaints State V/s. Devanand ("Acquitted") Page 23 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 would even otherwise show that main grievance of complainant(s) was about the bad habit of consuming excessive liquor and giving beatings to his wife by the accused under the influence of liquor. Same is not sufficient to bring the facts of the present case within the ambit of offences punishable U/s 498A/306 IPC.
36. PW4 Ashok Kumar (brother of deceased) has also admitted the aforesaid facts during his cross examination. The fact that accused used to consume liquor, has been corroborated by testimonies of all the three children as PW6, PW7 and PW9, of deceased. However, none of the said three witnesses deposed anything with regard to the allegation that accused had subjected their mother to cruelty in connection with demand of dowry. All the said three witnesses simply deposed that accused used to beat their mother only whenever he used to drink excessively. Said three witnesses being children of deceased, were the best person to throw ample light on the controversy in issue as they were residing in the same house alongwith accused and deceased. Their testimonies, therefore, carry greater force and credibility as compared to the testimony of PW1, PW3 & PW4. Thus, the said conduct on the part of the accused does not fall within the ambit of term 'cruelty' as provided in Explanation appended below Section 498A IPC. The accused cannot be convicted for the offence U/s 498A/306 IPC merely because he was heavily drinker and used to beat Kamlesh under the influence of liquor.
37. There is another important aspect involved in the matter. Deceased got married with accused on 27.04.1993 and she is shown to have committed suicide on 19.11.2009 i.e. after a long span of more than 16 years from the date of her marriage with accused. Had the alleged act of accused in giving beatings to deceased under the influence of excessive State V/s. Devanand ("Acquitted") Page 24 of 25 FIR No. 226/09; U/s 498A/306/506 IPC; P.S. Bawana DOD: 29.07.2016 liquor been the sole reason which led her to commit suicide, she would have done so within first few years of her marriage, which is not the case here. Rather, she is found to have committed suicide by consuming some unknown poisonous substance after the long and considerable gap of more than 16 years of her marriage with accused. The accused was unemployed and deceased was facing financial hardship in bringing up her children, who had already attained some level of maturity by the time, she had committed suicide. There may be various reasons including financial hardship being faced by deceased, the stigma which might have attached due to habit of consuming liquor on the part of her husband, to settle the carrier of her children, etc. which might have compelled her to commit suicide. It is also relevant to note that it was the accused who himself had taken deceased Kamlesh to M.V. Hospital, Pooth Khurd on 19.11.2009 and disclosed the alleged history of poisoning as mentioned in MLC Ex.PW2/A. Had it been the case where accused was totally indifferent and careless towards the deceased or had instigated or abetted in the commission of suicide, he would have not taken her to the hospital for providing medical treatment in order to save her life.
38. In the light of aforesaid discussion, Court is of the view that the prosecution has failed to bring home the guilt of accused Devanand in respect of the offences punishable U/s 498A/306 IPC, beyond shadow of doubt. Hence, he is hereby acquitted of the said charges by giving him benefit of doubt. File be consigned to Record Room after compliance of Section 437A Cr.PC.
Announced in open Court today
On 29.07.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
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