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Delhi District Court

Sc No. 29/06 & 73/07 State vs . Anil Kumar & Anr. Page 1 Of 92 on 15 November, 2010

       IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
                         JUDGE ­01 (CENTRAL) DELHI

   SC No. 29/06 &73/07                                     FIR No.: 10/06

   ID No.:02401R0248282006                                 PS:  Prasad  Nagar

   ID No.:02401R0604892006                                 U/Sec498­A/304­B/  
                                                                   406/34 IPC

   State

           Versus

    1.Anil Kumar s/o Gopal Singh,

       R/o 16/1751, P.L.Road, Bala Nagar,

       Delhi.

    2. Premwati w/o Gopal Singh,

        R/o 16/1751, P.L.Road, Bala Nagar,

         Delhi.

    3. Deepu Bala d/o Gopal Singh,

            R/o 16/1751, P.L.Road, Bala Nagar,

        Delhi. 

    4.Lalita @ Nirmla w/o Duli Chand,

        d/o Gopal Singh,

            R/o A­32, Sahyog Vihar, Uttam Nagar,

        Delhi.

   Instituted on: 08.03.2006 & 11.07.2006.   


SC No. 29/06 & 73/07   State  Vs.  Anil Kumar & Anr.                       Page 1 of 92
       Judgment reserved on: 23.10.2010.

   Judgment pronounced on: 09.11.2010.

   J U D G M E N T

1. Four accused persons stood trial in this case on the charges for offences punishable under Sections 498­ A/306/34 Indian Penal Code (IPC), the gravamen being that they had subjected Chanda Kumari ("the deceased") to cruelty and harassment during the period from 3.2.2005 to 6.12.2005 at 6/175, I­ Bapa Nagar, Gali No. 3, Pyare Lal Road, New Delhi ("the matrimonial home of the deceased"), within the jurisdiction of PS Prasad Nagar ("the police station"), on account of non­ fulfillment of demands of dowry and for having abetted the suicide by the said Chanda Kumari, committed on 6.12.2005 by hanging herself by the neck with the help of a Chunni.

2. As per the prosecution case, Chanda Kumari was married to accused no.1 Anil Kumar (A­1) on 3.2.2005. Accused no.2 Prem Wati (A­2) is the mother of A­1 and thus, mother­in­law of the deceased. Accused no.3 SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 2 of 92 Deepu Bala (A­3) and accused no.4 Lalita @ Nirmala (A­4) are sisters of A­1 and, thus, sisters­in­law (Nanad) to the deceased. A­2 and A­3 (then unmarried) were living in the same household with A­1. A­4 was married and was living separately during the relevant period.

3. The prosecution case, briefly put, is that on 6.12.2005, Chanda Kumari was brought to Bali Nursing Home (hereinafter, " the nursing home" or "the hospital") on D.B. Gupta Road, Karol Bagh, New Delhi at 3.10 PM. When examined by Dr. Madhu Shukla (PW­6), Chanda Kumari was found to be already dead. The dead body had been brought to the said hospital by A­1 who gave the history as that of "Hanging". Medico Legal Case (MLC) was recorded (Ex. PW 6/A) by PW­6 with observation that there was a ligature mark on the throat. Information in this regard was conveyed by PW­6 to PS Prasad Nagar at 3.36 PM on telephone and came to be recorded as DD no. 37­B (Ex. PW 3/A) by the duty officer. Copy of the DD entry was handed over for necessary action to SI Bhagirath Singh (PW­14) who, SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 3 of 92 with Ct. Sohan Lal (PW­19), is stated to have gone to the nursing home where he collected the MLC.

4. On information conveyed by PW­14, Sh. M.K. Sharma, Sub Divisional Magistrate (SDM), Karol Bagh (PW­8) visited the nursing home where the dead body was lying. It is stated in the prosecution case that Smt. Kamla Devi, mother of the deceased (PW­1) was also present in the nursing home. The SDM recorded the statement (Ex. PW 1/A) of PW­1 and also the statement (Ex. PW 8/A) of A­1 in the nursing home and then issued an order (Ex. PW 8/B) directing the SHO PS Prasad Nagar to " have a inquiry in this case and informed accordingly". The then SHO PS Prasad Nagar marked the said matter to PW­14 SI Bhagirath Singh. PW­14 and PW­8 together prepared the death report (Ex. PW 8/D).

5. The dead body was later shifted to Maulana Azad Medical College (MAMC) mortuary. On 7.12.2005, the dead body was identified in the said mortuary by A­1 (vide Ex. PW 8/C) and by Dinesh Kumar, (PW­4), brother of the deceased (vide Ex. PW 4/A). It was then SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 4 of 92 subjected to post­mortem examination by Dr. Sunil, Sr. Resident (PW­27) of Department of Forensic Medicines, MAMC. As per the post­mortem report (Ex. PW 27/A) of Dr. Sunil, he had found a ligature mark, brownish hard parchment like, obliquely placed over front, right side and back of neck placed above the thyroid cartilage, varying in breadth from 2.2 to 3.6 cm. The deceased was found at the time of death to be pregnant with 4­5 months old foetus. The autopsy doctor reserved his opinion as to the cause of death as viscera, preserved at the time of post­mortem examination, required to be subjected to chemical analysis to rule out common unknown poisoning. It may be added here that as per the viscera report (Ex. PW 26/C) of Forensic Science Laboratory (FSL), later received, no poisonous substance could be detected.

6. It is the prosecution case that on no objection given by A­1, the dead body was handed over to the parental family of the deceased for cremation.

7. During the police action, PW 14 SI Bhagirath Singh is stated to have seized Chunni (used as ligature) and SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 5 of 92 recorded DD­51­B (Ex. PW14/A) at 8.35 PM on 6.12.2005 placing on record the development that had taken place till that point of time. It may be added here that according to the prosecution case the steps taken on 6.12.2005 included a visit to the scene of occurrence by SI Ashok Kumar (PW­17) of the Crime Team of Central District who prepared a report (Ex. PW17/A) in this regard. Further, photographer Ct. Mahesh (PW­16), member of the Crime Team took three photographs (Ex. PW 16/A­1 to A­3), mainly to show the ceiling of the room, from the hook in which the ligature was allegedly affixed.

8. No action other than recording of DD no.51­B (Ex. PW 14/A) was taken by the police, pursuant to the order dated 6.12.2005 (Ex. PW 8/B) of the SDM. It came out during the course of trial that the SDM issued a memo (Ex. PW 8/X) on 2.1.2006 directing the SHO PS Prasad Nagar to investigate the case and report the progress to him within 24 hours. On 4.1.2006, the SDM issued yet another order (Ex. PW 8/G) also addressed to SHO PS Prasad Nagar referring to the statement of Smt. Kamla SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 6 of 92 Devi, asking him to take action against the in­laws of the deceased as per law and submit a report within three days. It appears that SHO PS Prasad Nagar, in response, submitted through the ACP Karol Bagh (Sh. P.S. Kushwaha, now Addl. DCP, who was called as court witness no.1), a request in writing seeking "specific directions", mainly on the ground that it was not clear as to what was the cause of death and as to under which penal provision, action had been directed to be taken and further because the persons responsible for the death of Chanda Kumari had not been named in the report (of SDM). On receipt of this communication, the SDM passed another order on 7.1.2006 (Ex. PW 8/F) inter alia directing registration of FIR and investigation for offences under Sections 498­A and 304­B IPC.

9. Upon receipt on 9.1.2006 of the order (Ex. PW 8/F) of the SDM dated 7.1.2006, SHO PS Prasad Nagar directed registration of FIR and investigation through Inspector Raj Rani Sharma (PW­26), who was posted as Addl. SHO in the police station. Pursuant to this, FIR SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 7 of 92 (Ex. PW 13/A) came to be recorded and investigation taken up.

10. During the course of investigation, PW­26, the investigating officer (IO) recorded statements of witnesses, collected documents including list of dowry articles (Ex. P­4 and P­5), seized the dowry articles vide seizure memo (Ex. PW 1/D) and photographs of the marriage (Ex. P­3 collectively).

11.It is alleged in the prosecution case that in the course of harassment and cruelty meted out to the deceased in the matrimonial home, A­3 had even made a demand of some gifts by giving the list (Ex. P­1) in her own handwriting. The said list was seized and sent to FSL for opinion of the handwriting expert with specimen handwriting of A­3. It is stated that the opinion (Ex. PW 26/E) of FSL has confirmed that A­3 is the author of the said document.

12. On the conclusion of investigation, charge sheet was laid in the court of Metropolitan Magistrate (MM) on 8.3.2006 seeking trial of A­1, A­2, A­3 and A­4 for offences under Section 498­A/ 304­B/406/34 IPC. After SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 8 of 92 compliance with the provisions of Section 207 Cr.P.C., the MM committed the case for trial to the Sessions Court vide order dated 10.4.2006. On 11.7.2006, supplementary charge sheet was filed mainly on the basis of the FSL report regarding authorship of document Ex.P­1. This charge sheet was also made over to the Sessions Court by the MM vide order dated 17.7.2006.

13. My Ld. Predecessor considered the question of charge on 8.5.2006. He found charge made out for offences under Sections 498­A/306/34 IPC. He was of the opinion that one of the essential ingredients for the offence punishable under Section 304­B IPC, viz. the deceased having been subjected to cruelty for and in connection with demand of dowry soon before her death, was missing in the case. He, thus, declined to frame a charge for the said offence. It appears that the State did not challenge the said order and the same thus attained finality.

14.Charges were accordingly framed on 8.5.2006 against all the four accused who pleaded not guilty. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 9 of 92

15. In the course of trial, the prosecution examined the following 27 witnesses:­

(i) Smt. Kamla Devi, (PW­1),

(ii) Ms. Krishna, (PW­2),

(iii) W/HC Kaushal, (PW­3),

(iv) Sh.Dinesh, (PW­4),

(v) Smt. Manju, (PW­5),

(vi) Dr. Madhu Shukla, (PW­6),

(vii) Ct. Dharam Pal, (PW­7),

(viii) Sh. M.K.Sharma, (PW­8),

(ix) Sh. Gautam Kumar, (PW­9),

(x) Sh. Parvesh Kumar, (PW­10),

(xi) HC Hari Ram, (PW­11),

(xii) Sh. Devi Singh, (PW­12),

(xiii) HC Manvir, (PW­13),

(xiv) SI Bhagirath Singh, (PW­14),

(xv) Sh. Ashok Kumar, (PW­15), (xvi) Ct. Mahesh, (PW­16), (xvii) SI Ashok Kumar, (PW­17), (xviii) W/ASI Renu, (PW­18), (xix) Ct. Sohan Lal, (PW­19), (xx) SI Mahesh Kumar, (PW­20), SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 10 of 92 (xxi) Ct. Thakur Singh, (PW­21), (xxii) Dr. Ashish Kumar Duggal, (PW­22), (xxiii) Sh. Deepak, (PW­23), (xxiv) Ram Kumar, (PW­24), (xxv) SI Jaipal Singh, (PW­25), (xxvi) Inspt. Raj Rani Sharma, (PW­26) and (xxvii) Dr. Sunil, (PW­27),

16. The prosecution rested its case on 8.7.2009 where after statements of the four accused persons were recorded under Section 313 Cr.P.C. by my Ld. Predecessor. The accused persons denied the evidence mainly about they having subjected the deceased to harassment or torture on account of illicit demands for dowry or having abetted her suicide. On being asked, they opted not to lead any evidence in defence.

17. When the matter was at the stage of final arguments, it was noticed that the case presented a peculiar situation. It appeared from the material on record that the police initially was hesitant in registering a case for investigation while SDM was not coming out with clear SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 11 of 92 findings in his inquiry or specific directions to the police. It was thus found that the procedure followed, not only by the SDM but also by the police functionaries gave rise to anxieties which required to be addressed. In these circumstances, PW­8 (SDM) and PW­14 (initial Inquiry Officer of Police) were re­summoned vide order dated 11.5.2010 along with the then SHO (now ACP Surender Singh) and the then ACP ( Court witness no.1).

18.Ld. Addl. PP was requested vide order dated 11.5.2010 to ascertain from the concerned department in the Govt. of N.C.T. of Delhi ( GNCTD) as to whether any rules have been framed/prescribed, or orders/instructions issued by the Government for the purposes of Sections 174/176 Cr.P.C. He informed on 29.5.2010 that no such rules have been framed/ prescribed nor any such order/instructions issued by the Government.

19. PW­8, PW­14 and Court Witness no.1 were examined on 29.5.2010 in above light. Inspt. Surender Singh, the then SHO (Now ACP) appeared and was examined as court witness no.2 on 05.06.2010. In terms of further SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 12 of 92 order dated 29.05.2010, DCP (Head Quarter) of Delhi Police was also called and examined as court witness no.3 on 25.08.2010.

20. After the further statements of PW­8 and PW­14 and examination of court witnesses no.1 to 3, as above mentioned, further statements of accused persons were recorded under Section 313 Cr.P.C. in which they reiterated their earlier denial of the prosecution evidence and pleaded that they had been falsely implicated on the basis of concocted story and evidence of interested witnesses. The accused persons at this stage again declined the opportunity to lead defence evidence.

21.I have heard Shri R.K.Tanwar, Addl. PP for the State and Sh. Jagdish Singh, advocate for the accused persons. I have gone through the record.

22.Chanda Kumari had died an untimely death due to hanging by neck in circumstances which required inquiry under Section 174/176 Cr.P.C. For this purpose, PW­8 Sh. M.K. Sharma, SDM was called. The SDM had recorded the statement of Smt. Kamla Devi vide Ex. PW 1/A on 06.12.2005. Kamla Devi is mother of the SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 13 of 92 deceased woman. In the said statement, she had made allegations of illicit demands by the in­laws of the deceased and she being subjected to cruelty after her marriage on 03.02.2005. After recording the said statement, the SDM had directed SHO Prasad Nagar "

to have a inquiry in this case and informed accordingly".

This direction in writing of the SDM was made over by SHO Prasad Nagar to PW­14 SI Bhagirath Singh. No case was registered immediately. Later, the complainant Kamla Devi met the SDM with a delegation of some ladies and protested against inaction. On this, the SDM issued another order to SHO PS Prasad Nagar on 4.1.2006 directing him " to take action" against the in­ laws of the deceased "as per law" and to submit a report within three days. In response to this, the SHO PS Prasad Nagar submitted a request in writing to the SDM raising certain queries, particularly about the earlier order of SDM not indicating as to what action and under what provisions of law and against whom it was to be taken. Against this background, the SDM passed an order on 07.01.2006 (Ex. PW 8/F) taking exception to the queries raised by the SHO and directing SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 14 of 92 investigation for offences under Section 498­A and 304­ B IPC on the basis of statement of Kamla Devi. It was on this order dated 07.01.06 sent through DCP ( Central) that the case in hand was registered.

23. In her statement Ex. PW 1/A, Smt. Kamla Devi (PW­1), the mother of the deceased had told the SDM (PW­8) on 6.12.2005 that the deceased was married with A­1 on 3.2.2005, with the consent of both families, after the engagement ceremony (sagai) one year prior to the marriage. She stated that in the sagai ceremony, 35 guests from the side of groom had come and at the time of marriage 250 persons had joined the baraat. She claimed that both ceremonies were performed as per her financial capacity and she had given dowry on which she had spent about Rs. 2.25 lacs, the resultant loan liability of which was still to be discharged. She alleged that on the last date of February, 2005, A­1 had sent the deceased with the demand of Rs. 5,000/­ since that amount was to be paid towards the photo album of the marriage. She stated that she had some how given the said amount of money. According to her statement, SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 15 of 92 demands were made by the in­laws of the deceased on all festivals after marriage which she had satisfied to ensure that her daughter was not unhappy. She alleged in the statement that both sisters­in­law and the mother­ in­law (referring to A­2 to A­4) would occasionally make complaints and pass sarcastic comments and harassed the deceased who used to tell about this behaviour whenever she visited the parental home. According to her, the deceased always said that her father­in­law was a good person who never talked to her improperly.

24. As per Ex. PW 1/A, PW­1 also told the SDM that one Pravesh (PW­10), cousin of A­1 (son of the sister of A­2) was also living in the matrimonial home of the deceased for about a year. According to her, the deceased had informed her that A­2 and A­3 used to take exception to she (the deceased) talking to Pravesh (PW­10) and would question her as to what was her relation with him and as to why she should speak to him.

25. According to this statement of PW­1, except for the demand of Rs.5,000/­ made by A­1 for photo album, he had never made any demand for cash or other articles. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 16 of 92 She suspected that her daughter was harassed so much that it was possible that she may have committed suicide by hanging or may have been killed and thereafter hung by the in­laws.

26. In the statement Ex. PW 8/A of A­1 recorded on 6.12.2005 by the SDM (PW­8), he had stated that the deceased was pregnant with four months child and that his relationship with her and with his in­laws was cordial. According to him, the deceased had returned to the matrimonial home with him at 10 AM on 5.12.2005, after dinner at her parental home. According to him on 6.12.2005, the deceased had cooked food and after breakfast he had gone to his work at about 10 AM and when he returned at 3.00 PM for lunch, he straight way went to the second floor and knocked at his bed room door but found it closed from inside. When the door was not opened, he looked inside through the window and found his wife (deceased) hanging from the hook of the ceiling fan. He claims to have broken the door open at which stage Pravesh (PW­10 had also arrived and, with his help, he had brought the deceased down. He had SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 17 of 92 found that the deceased had used her chunni as ligature. He tried to revive the deceased but with no effect. In the meantime, his father and younger brother also came and, with their help, the deceased was taken to Bali Nursing Home where she was declared brought dead. He claimed there had never been any quarrel between him and the deceased and he was taking proper care of her, though on account of pregnancy she had been keeping slightly unwell.

27. PW­1 during her statement in the court testified along the lines of her statement Ex. PW 1/A. She deposed about marriage of the deceased with A­1 on 3.2.2005 preceded by sagai ceremony performed one year prior to the marriage. She spoke about both the functions having been arranged by her beyond her financial capacity and she having incurred expenditure of about Rs. 2.25 lakhs. She stated that she had given dowry articles including jewellary, furniture, TV, washing machine etc.

28. PW­1 deposed that soon after the marriage the accused persons had started demanding money and SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 18 of 92 had sent the deceased to her to bring Rs. 5000/­ for the marriage album which request she had complied with. She stated that A­1, A­2, A­3 and A­4 used to pass comments and would harass the deceased because of insufficient dowry and gifts given not up to their expectations. She stated that on each festival the deceased used to be sent to her house along with list of items (demanded) and which she used to arrange and give. She stated that the comments made by accused persons included their dissatisfaction about Fridge and Motor cycle not having been given and furniture given being substandard. She stated that the deceased was denied proper food by A­2 to A­4 and the deceased used to be thrown out of the house after being given beatings by all the accused. According to her, this conduct was brought to her notice by the deceased who had also told her that on one occasion A­3 had even spit in the ear of the deceased on which the deceased had cried.

29. PW­1 further stated that the deceased had told her about Pravesh (PW­10) also living in the matrimonial SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 19 of 92 home and that whenever she would talk to him, the accused persons would start suspecting her character and taunt her as to what was her relation with the said person. She attributed remarks in this regard to A­2, A­3 and A­4. According to her, the deceased had told her that she would talk with Pravesh only when required and also because he was living in the same house hold. She stated the conversation in this regard between her and deceased took place on the occasion of "Rakshabandhan".

30. PW­1 stated further that on 30.10.2005, A­2 had visited her with demand of Rs. 50,000/­ and when she had refused, A­2 had declined to take any food and had gone away saying till the money was given, she would not even accept water from her house. According to her on 21.11.2005, A­1 had conveyed that the deceased be taken back to the parental home and, on this, her younger son Virender had brought the deceased from the matrimonial home. On arrival, the deceased had told her that after the refusal to pay the money demanded, the accused persons had turned even SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 20 of 92 more cruel and had started beating her and denying her food, as a result of which the deceased had become unwell. During this (last) visit, according to PW­1, the deceased had told her that she had been sent by all the accused to bring Rs. 50,000/­. According to her, the deceased stayed with her for about 15 days but no one came from the matrimonial home to take her back. She claims to have sent the deceased to the matrimonial home with her son Dinesh (PW­14) at about 8.30 PM at the end of the said stay of 15 days.

31. During her cross­examination, Pw­1 was confronted at length with her statement Ex. PW 1/A made before SDM. At this stage, she stated that accused persons had made demand of dowry since the occasion of sagai. She spoke about the list of items given at the time of sagai but conceded that she had not retained the said record. She was questioned about the value of dowry given in the marriage ceremony and about the money borrowed for paying the said expenses. She conceded that she had not disclosed the names of relatives from whom, she had made the borrowings and SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 21 of 92 had also not mentioned the gifts given on the occasion of dowry in her statement to SDM. I do not think this adversely affects the prosecution case in any manner in as much as it is the conduct of the accused persons after the marriage which is at the core of the charge faced by them. Even in the complaint Ex. PW 1/A, there was no indication of the dowry given in the marriage having been arranged on account of constraints of any demands coming from the accused persons.

32. PW­1 conceded that in the statement before the SDM vide Ex. PW 1/A, she had not mentioned fact of demand of Rs. 50,000/­ made in October, 2005 or about the accused persons having beaten her on the demand being refused to be complied with. She also conceded that she had not mentioned the incident of 21.10.2005 in her said statement to SDM. She conceded that she had not spoken in her statement to SDM about proper food not being given to the deceased and being beaten up in connection with demand of dowry. For these all omissions, her explanation was that she was not questioned in this regard by the SDM.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 22 of 92

33. PW­1 claimed that she had told the SDM that the deceased used to come to her occasionally to report about the harassment meted out to her. It is clear from the statement Ex. PW 1/A that there is no mention of the deceased coming specifically for the purpose of reporting about the harassment, though communication in this regard having been received from the deceased is duly set out even in the said statement. PW­1 conceded that she had not told the SDM about the complaints of the accused persons regarding quality of furniture or about the incident involving A­3 misbehaving with the deceased by spitting or regarding the visit of the deceased to convey the demand of accused persons for payment of Rs. 50,000/­ or even further about the conduct of A­2 in refusing to take food and returning with threat that he would not accept water from her house till the said money was paid.

34.The Ld. defence counsel during the course of arguments submitted that the above facts demonstrate that PW­1 has made major improvements over her original version set out in the statement Ex. PW 1/A SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 23 of 92 made before the SDM. His submission is that the contradictions brought out on PW­1 being confronted with her original statement before SDM renders the witness unworthy of reliance in as much as she has tried to make material improvements over her original story.

35.In my considered opinion the criticism of PW­1 on above lines is not fair. In fact it appears the arguments stem from lack of proper understanding of the scope and purpose of the proceedings conducted by the SDM on 06.12.2005.

36. It was a case of unnatural death. From the facts then available it involved a suicide by a woman within one year of her marriage. The police had activated the office of SDM (PW­8) for purposes of Sections 174 and 176 Cr.P.C. The object of "investigation" under Section 174 Cr.P.C. and "inquiry" under Section 176 Cr.P.C. by SDM was to find out "apparent cause of death". The SDM was not investigating into any crime. The sole object of the proceedings was to ascertain the cause of death. Nothing more and nothing less.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 24 of 92

37. In case of Podda Narayana & others Vs. State of A.P. (AIR 1995 SC 1252) the Hon'ble Supreme court observed as under:­ " the object the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under S. 174".

38. As brought out even during the cross­examination of PW­1 by the defence itself, the investigation into FIR that came to be registered was carried out by the police investigating officer who had also recorded the statement of the witnesses, including of PW­1, under the provisions of Cr.P.C. The statement Ex. PW 1/A made before the SDM, thus was restricted for purposes of "inquiry" into the cause of death and not to bring out the entire role of all persons whose conduct or acts of SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 25 of 92 commission/omission may have led to the circumstances which resulted in the death.

39. Even otherwise, the circumstances in which PW­1 was making the said statement before SDM have to be borne in mind. Her young daughter whom she had given in marriage only in Feb. 2005 and who was pregnant with her first child had committed suicide by hanging herself in the matrimonial home. She had come to the hospital on hearing this news which undoubtedly would have shocked and numbed her nerves and senses a great deal. Expecting her to narrate at length with minute details the experience of her daughter in the matrimonial home over the last about 10 months period at such stage is not being just or human. She could have been confronted with her statement before the investigating officer if there were any contradictions or improvements to be brought out. The defence avoided doing that for reasons best known to it.

40. PW­4 Dinesh is brother of the deceased. He gave a statement which is similar to that of his mother PW­1. According to him, after the marriage, the deceased used SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 26 of 92 to come to the parental home frequently and would tell that the accused were taunting her for insufficient dowry. He also spoke about A­1 having made a demand for Rs. 5000/­ through the deceased which was paid about one and half month of the marriage. According to him, even the medical expenses of the deceased were borne by his mother.

41. According to PW­4, A­1 had met him 10­15 days prior to the death and had asked him to bring his sister back, on which his younger brother Narender had gone and brought her back to the parental home. He stated that the deceased had stayed with his family for about 15­20 days and during this she had told about the demand of Rs. 50,000/­ for which reason she had been sent by the accused persons. He stated that during talk with him the deceased had told him that the accused persons would not give her food and that A­3 had spit in her meal. He stated that she had also told him that accused persons used to object when she would talk with Parvesh (PW­10) and that they would pass comments in SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 27 of 92 this regard. He stated that the deceased had gone back to her matrimonial home on 5.12.2005.

42. During his cross­examination, it was brought out that in his statement to police during investigation, PW­4 had not mentioned about the demand of Rs. 50,000/­ being the reason for which the deceased had later on visited her parental home or about the conduct of A­2 in spitting in the food served to the deceased in the matrimonial home or further about the deceased having stayed in the matrimonial home for about 10­15 days and also about the medical expenses in respect of the deceased being borne by the parental family.

43. The fact about the medical expenses being borne about the parental family is not of much consequence in as much as it is not alleged any where that this need arose because of refusal on the part of the matrimonial family to take care of the medical needs of the deceased. The fact that relatives from the parental side are now bringing up these instances is only on account of their anxiety to expose the accused persons to the extent possible. As regards the omission on the part of PW­4 SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 28 of 92 in referring to the demand of Rs. 50,000/­ or the conduct of A­3 vis ­ a ­ vis the deceased, it has come out through the evidence of PW­1, PW­2 and PW­5 that these facts were shared by the deceased with her mother and sisters more than with PW­4 (brother). After all, these were sensitive issues and the deceased, a young married woman placed in the situation she was, particularly with aspersions being cast on her character, would not be so open with her brother as she would be with persons of her own gender, especially her mother and sisters.

44. In so far as the omission on the part of PW­4 in referring to the stay of 10­15 days before the suicide, the said stay of such duration being a fact established even otherwise, such omission to mention it in the statement to police is of no consequence. In this context, reference needs to be made to statement of A­1 made before SDM vide Ex. PW 8/A during inquest proceedings in which he himself referred to the stay of two weeks ending on 05.12.2005 when the deceased had returned from her parental home. Noticeably, the SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 29 of 92 said statement was made by A­1 before an independent authority in the inquiry into the cause of death.

45. PW­2, Krishna is younger sister of the deceased. She also testified generally speaking about the ill treatment of the deceased in the matrimonial home. She stated that her mother had spent Rs.1.75 lacs in the marriage but her sister used to remain unhappy and would cry whenever she visited the parental family. She would complain about the demands for money conveyed by the accused persons and she being beaten upon this being refused. She stated that A­4 would create some scene in the matrimonial home whenever she visited the house of other accused persons. She also deposed about the deceased having stayed with the parental family for about a fortnight before her death during which she had told her about the demand of Rs. 50,000/­ for which she had been sent by A­1. She stated the accused persons were also demanding a motor cycle and because of this being not fulfilled she was beaten up. She also spoke about exception being taken to the deceased talking to Parvesh (PW­10).

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 30 of 92

46. PW­5 Manju is a cousin (daughter of sister of PW­1) to the deceased. She deposed that the deceased, after marriage, used to talk to her on phone and would narrate how she was harassed with taunts and comments about insufficient dowry by all the accused persons. She stated that she had met the deceased last time about 15 days prior to her death when she had come to her mother's house. She deposed that one day before she returned to the matrimonial home (which would be 5.12.2005), it was in her presence that the deceased had told PW­2 about the demand of Rs. 50,000/­.

47. During their cross­examination, PW­2 and PW­5 were confronted with their respective statements to the police vide Ex. PW 2/DA and Ex. PW 5/DA. It does appear that PW­2 in her statement to police had not mentioned about the demand of motor cycle or about the deceased having cried over the ill­treatment meted out to her in the matrimonial home except in the context of demand concerning Karva Chauth. It further appears that PW­2 in her statement to police had not mentioned about the SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 31 of 92 abuses or harassment meted out to the deceased or she being turned out of the house on her refusal to bring money. Since even PW­1 has not mentioned that motor cycle was demanded at any stage, (her version being that motor cycle not having been given in dowry was the cause for comments), I am prepared to proceed on the assumption that PW­2 is imagining such a demand having been made. The omission referred to above in her statement to police cannot, however, led to a conclusion that she is totally unworthy of reliance in as much as her statement substantially corroborates the word of her mother, (PW­1) and her cousin sister, (PW­

5). The sole contradiction brought out during the cross­ examination of PW­5 is what has been described by the defence counsel as "omission" in her statement to police about the deceased being subjected to harassment for insufficient dowry. In the said statement the witness mentioned that "she was harassed over petty things". Difference in phraseology in these facts and circumstances cannot render the entire evidence doubtful.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 32 of 92

48. Since reference to PW­10 Parvesh has been made by PW­1, PW­2 and PW­4, it would be appropriate at this stage to take note of what the said witness had to say. According to the prosecution case, this person had attempted suicide after the death of Chanda Kumari on 6.12.2005. The prosecution case is that this attempted suicide by PW­10 relates to an incident that occurred on 8.12.2005. PW­10, when examined, testified that he had come to live in Delhi with the family of PW­1 (sister of his mother), in search of a job. He came to live with this family 2/3 months after the marriage of A­1 with the deceased. He stated that A­1 had arranged a job for him and that his relationship with the deceased was normal and the family of the accused persons never had any objection in this regard. He was declared hostile by the prosecution and cross­examined. He denied the suggestion about he having attempted to commit suicide or that the family of the accused persons had objection to the deceased talking to him. He admitted document Ex. PX­1 to be in his handwriting and addressed to his family.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 33 of 92

49. Document Ex. PX­1 appears to be a suicide note as it begins with "last salutations" to his family by the author (PW10). In this document PW­10 describes his relationship with his Bhabhi (apparently referring to the deceased) as a pious relation. He expressed deep anguish and sorrow over her untimely death. He refers to taunt by "Kaki" as to why he was not committing suicide if he so much loved the deceased. He stated that that he was committing suicide so as to join his Bhabhi.

50.It has come out vividly in the prosecution evidence particularly in the statement of PW­1 that A­2, A­3 and A­4 used to take exception to the deceased talking with PW­10. PW­1 has testified that these three accused persons used to pass remarks raising suspicion about the character of the deceased, doubting so as to question her about her said relationship and in order to bring piece she (PW­1) having advised the deceased not to talk with PW­10.

51. During cross­examination of PW­1, the defence itself brought up the said subject by questioning her at length. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 34 of 92 PW­1 when asked showed ignorance if one day after the death of her daughter, PW­10 had made an attempt to commit suicide or had even written a suicide note in which he had expressed feeling sad on account of death of her daughter. She admitted as correct the suggestion that PW­10 used to come to her house with other members of the family but denied that he would take her daughter from her house on some occasions. It was suggested to her on behalf of the accused persons that her daughter (deceased) "was having an affair with Parvesh (PW­10)" and just to avoid this thing she had implicated the accused in the present case. PW­1 denied this suggestion categorically.

52. The prosecution has also relied upon documents Ex. PW­26/H­1 to H­5 which are photo copies of case FIR no. 398/05 registered by PS Prasad Nagar for the offence under Section 309 IPC respecting the attempted suicide of PW­10. PW­22 Dr. Abhishek Duggal proved MLC Ex. PW 22/A recorded at 9.30 AM on 8.12.2005 in RML Hospital respecting the result of examination of SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 35 of 92 PW­10 when he was brought there with alleged history of ingestion of some unknown substance.

53. On careful appraisal of the evidence on this score, I am of the opinion that the factum of attempted suicide of PW­10 has been established beyond pale of all doubts. This is demonstrated not only by the material in the nature of FIR registered in that respect and documents of treatment of PW­10 in the hospital but also by the suicide note Ex. PX­1 admitted by PW­10 to be in his handwriting. This fact is not to be doubted only because PW­10 would not support the prosecution case in toto. In fact even the defence does not refute this fact and referred to it during cross­examination of PW­1 so as to bring on record its plea concerning the love affair attributed by the accused to PW­10 and the deceased.

54. According to PW­1, she had learnt from one Pawan at about 5 PM on 6.12.2005 that the condition of her daughter was serious and she was in Bali Nursing Home. She stated that she had gone there with her daughter Krishna (PW­2), her younger son and one neighbour. Thus, she found her daughter to be dead. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 36 of 92 She spoke about the post­mortem examination and thereafter the body being handed over to her. She stated that at the time of giving ritual bath to the dead body, pressure marks on the abdomen and on the lower foot were noticed.

55.PW­4 Dinesh, brother of the deceased testified that the accused persons had not informed what had happened on 6.12.2005. He stated that the information about the death came from police on 6.12.2005 and he had seen injury marks on the neck, abdomen and legs of the deceased. He had identified the dead body vide memo Ex. PW 4/A.

56. PW­1 proved 34 marriage photographs (Ex.P­3 collectively), marriage card Ex. P­2 and the list of dowry articles Ex. P­4 & P­5 seized vide memo Ex. PW1/C. She referred to document Ex. P­1 seized vide memo Ex. PW 1/D which was given to her by A­1, A­2 and A­3 on the occasion of Karva Chauth demanding the items mentioned therein to be given. PW­1 also stated that certain articles (dowry) were recovered from the house of the accused persons vide Ex. PW 1/D. PW­ SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 37 of 92 1 further proved the arrest of A­1 and A­2 on 9.1.2006 at her pointing out vide memo Ex. PW 1/G, read with memos Ex. PW 1/E & PW 1/F.

57. During the course of investigation, police had also seized the small slip of paper (Ex. P­1) which is described as the list of articles demanded by the accused persons on the occasion of Karva Chauth. As per the evidence, this document is in the hand of A­3. The said document along with a specimen handwriting (Ex. PW 26/D­1 to D­25) of A­3 was sent to FSL. The report of FSL Ex. PW26/E has confirmed the document to be in the handwriting of A­3. Noticeably, this part of evidence has not been assailed by the defence in any manner.

58. In her statement Ex. PW 1/A to the SDM, PW­1, mother of the deceased, had raised suspicion even to the effect that the deceased might have been killed by the in­laws followed by explanation referring the grounds of said suspicion coming in her statement in the court, in the form of pressure marks on the abdomen and on the lower foot noticed on the dead body at the time of ritual SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 38 of 92 bath before the cremation. In this context, her son (Pw­

4) also joined his voice (by referring to injury marks on the neck, abdomen and legs) part. I am not prepared to give any credence to such theory in the face of observations recorded by PW­6 in the MLC Ex. PW 6/A followed by findings of PW­27 in the autopsy report.

59. MLC Ex. PW 6/A clearly mentions the presence of ligature mark on throat of the dead body which had been brought to the hospital by A­1 at 3.10 PM on 06.12.2005 with history of hanging. The post­mortem examination confirmed hanging by neck. The autopsy doctor, however, had reserved his final opinion at that stage as he intended to await viscera report. The viscera report received later vide Ex. PW 26/C has ruled out poisoning. There are no external injuries of the kind mentioned by PW­1 and PW­2 as could have been the cause of death. There is no evidence of hanging by neck to be an event that may have occurred post death. In absence of any evidence indicating possibility of the deceased having been subjected to death or such injuries as could have led to her death, the case of the SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 39 of 92 prosecution that the deceased died on account of suicide has to be accepted as true.

60. The defence counsel has tried to make a huge issue out of the delay in FIR. His submission is that the FIR registered on 09.1.2006 after the suicide on 06.12.2006, is highly belated and product of pre­meditation and cooked up evidence and, therefore, does not deserve to be believed. In his submission, the delay in registration of FIR in the case in hand itself should prove fatal to the prosecution case.

61.In order to appreciate the defence arguments, it is essential to recapitulate certain events, as clearly emerging from the prosecution evidence.

62. As shown by the MLC Ex. PW 6/A the deceased had been brought to the hospital at 3.10 PM on 06.12.2005 when she was declared brought dead. The information about this was conveyed to police station where it came to be reduced into writing vide DD no.37­B (Ex. PW 3/A). The matter arising out of the said DD entry was entrusted to PW­14 SI Bhagirath Singh who with PW­19 Ct. Sohan Lal proceeded to the hospital where he SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 40 of 92 collected facts about the MLC, informed the SHO (court witness no.2), ACP (court witness no.1) and SDM (PW­

8).

63. The SDM (PW­8) came to hospital and commenced the inquest proceedings by recording statement (Ex. PW 1/A) of PW­1. The said record prepared by SDM indicates that he had recorded statement of PW­1 at 8.30 PM on 06.12.2005. After the said action, PW­8 (SDM) recorded his order vide Ex. PW 8/B addressing it to SHO PS Prasad Nagar at which the later (court witness no.2) made over the matter to PW­14 SI Bhagirath Singh for necessary action. As mentioned earlier, in the said order Ex. PW 8/B recorded by SDM, he had directed the SHO to carry out inquiry and he (the SDM) to be informed. It must be added here that the order of SDM was not very clear as to the nature and scope of inquiry he was expecting the SHO to get conducted. Be that as it may, in the statement Ex. PW 1/A which had already come before and recorded by SDM and which was being made over by the SDM to SHO, there were allegations of ill­treatment of the SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 41 of 92 deceased in the matrimonial home in the context of demands by the in­laws, taunts to which deceased was meted out by the mother­in­law, sisters­in­law and also about the disputes raised respecting the character of the deceased vis­a­vis PW­10.

64. In spite of the order of "inquiry", the SHO PS Prasad Nagar did not take any action. The police, on the other hand, assisted the SDM by getting the post­mortem examination of the dead body carried out in the mortuary of MAMC on 07.12.2005, besides seizure of the ligature on 06.12.2005 and recording the gist of the action taken vide DD no.51­B Ex. PW 14/A at 8.35 PM on 06.12.2006.

65. PW­1, however, seems to have been perturbed over the lack of any action by the SDM or the police and thus met the SDM (PW­8) on 02.01.2006 with members of some women organization. It was in the wake of this development that the SDM (PW­8) came out of the slumber and issued memorandum vide Ex. PW 8/X referring to his earlier order dated 06.12.2005 (Ex. PW 8/B) and asking for report of progress within 24 hours SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 42 of 92 with directions for investigation. In this memo dated 02.01.2006 Ex. 8/X, the SDM described his order dated 06.12.2005 as a direction "to investigate the case"

which, seen in the context of Ex. PW 8/D, is not factually correct.

66. The police failed to take any action even after directions given by the SDM on 02.01.2006 vide Ex. PW 8/X. PW­ 8, the SDM issued another order dated 04.01.2006 vide Ex. PW 8/G and now referred to the allegations of harassment by the in­laws of the deceased as had appeared in the statement of PW­1 recorded on 06.12.2005 and directed the SHO PS Prasad Nagar "to take action" against in­laws of the deceased "as per law"

and for report "to be submitted within 3 days". With this order dated 04.01.2006, the SDM (PW­8) made over to the SHO the original file of the case including the statement, post­mortem report etc. Though it has not been one of the reasons cited by the police for in­action on its part, the document Ex. PW 8/G indicates the possibility that the SDM may have shared his record of inquiry with police only with this communication. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 43 of 92

67. When the order Ex. PW 8/G dated 04.01.2006 was received by SHO PS Prasad Nagar, he sought clarification through a note dated 05.01.2006 which was made over to SDM under the signatures and forwarding remarks of ACP. This document is part of the final communication that came to be issued by PW­8 (SDM) on the subject on 07.01.2006 vide Ex. PW 8/F. The sum and substance of this communication has already been taken note of in the earlier part of this judgment and does not bear repetition, save and except to the extent that in this order dated 07.01.2006, the SDM indicated his view that, prima facie, a case for offence under Section 498­A IPC was made out and required to be immediately registered with questions regarding offence under Section 304­B IPC being a matter of investigation after registration of FIR. This order of SDM was passed on by the ACP to SHO who directed registration of a case under Section 304­B/498­A IPC and to be taken up for investigation. Thus, the incident of suicide on 06.12.2005 resulted in registration of FIR only on 09.01.2006 under Sections 498­A/304­B IPC. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 44 of 92

68. The moot question which arises against the above backdrop is as to whether there has been a delay on the part of parental family of the deceased in airing their grievances against the accused persons or there has been a delay on the part of statutory authorities/functionaries in taking up the matter for investigation, upon such facts coming to their notice as constituted cognizable offences.

69. The manner in which PW­8 SDM recorded, framed and worded the orders give rise to anxiety about his knowledge of law and procedure on the subject he was dealing with. The manner in which SI Bhagirath Singh, (PW­14), Inspt. Surender Singh, the then SHO (Now ACP) (court witness no.2), and his superior, (the then ACP) (court witness no.1), handled the issue till 09.01.2006 also give rise to doubts about their understanding of the procedure required to be followed and expectation of the law of them.

70. PW­8, SDM in the course of his further statement on 29.05.2010 has candidly admitted in no uncertain words and expressions that he was (on the relevant date) a SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 45 of 92 total novice to the subject. He had neither any academic background nor any formal training, even imparted by the department, to prepare him for the task he was expected to undertake as SDM in context of Sections 174/176 Cr.P.C. He had joined government service as an assistant in 1974. He was inducted into Delhi Andaman Nicobar Civil Services (DANICS) in 1996. After induction in DANICS, he was posted for the first time as SDM in Jan. 2005. He had never taken any education or training in law or legal matters. He had studied IPC or Cr.P.C. of his own after joining as SDM. He never prepared inquest report required by him under Section 174/176 Cr.P.C. even in the case in hand. When asked, he stated that as per his understanding, expectation of law of him as SDM was "to ensure that the culprit was given due punishment after investigation". So much for the role of SDM!

71. PW­14, on his part, stated he had not taken any action on the statement of PW­1 because in the case of death within 7 years of marriage, "it is for SDM to issue necessary order for registration of a case". The court SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 46 of 92 witness no.2, SHO at the relevant time stated no case was made out on the statement (Ex. PW 1/A) of Kamla Devi (PW­1) recorded by SDM on 06.12.2005. He explained this stand by stating that Kamla Devi (PW­1) "was not clear as to whether it was a case of suicide or murder". This statement is very irresponsible as it was for the police to find out if it was suicide or murder. This also indicates the SHO may not even have read the statement of PW­1 to appreciate its full impact. He stated SDM had already been called and "we (the police) were waiting for his report and further directions from him". He further explained that "it is matter of practice of Delhi Police in cases of such nature action is taken for investigation only after report of police".

72. Similar is the stand taken by court witness no.1 (the then ACP) who also stated that it is general practice in police stations in Delhi that FIR is not registered till " inquiry under Section 176 Cr.P.C. is not concluded by the SDM or till specific directions for registration of FIR under Section 154 Cr.P.C. is not given by the SDM", though he would add that in view of Section 154 Cr.P.C., this "may SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 47 of 92 not be a correct practice". He also referred in this context to fact that "normally SDM who conducts inquest under Section 176 Cr.P.C. give specific directions to register a case under specific provisions of law, if the same is made out". He was making this statement in the context of order of SDM dated 06.12.2005, which did not specify the nature of inquiry required to be made.

73. The fact that the above is not a healthy practice came to be finally conceded on behalf of police headquarters of Delhi Police by the court witness no.3 (DCP­Head Quarters) whose statement in this regard needs to be quoted in extenso. It reads as under:

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 48 of 92

" In a dowry death case, police does not register a case until a report of the Sub­ Divisional Magistrate is received under Section 176 Cr.P.C. which is not a correct and a legal approach on the part of police. The inquiry conducted by the SDM under Section 176 Cr.P.C. has nothing to do with the investigation conducted by the police. According to mandate of Section 154 Cr.P.C., as soon as an information regarding the commission of cognizable offence is received, it is incumbent upon police to register a case and start the investigation forthwith.

The inquiry under Section 174 Cr.P.C. and Section 176 Cr.P.C. can go simultaneously with the investigation conducted by the police in a case and the two aspects are independent of each other.

The object of Section 176 Cr.P.C. is to play as a check on the investigation of the police by the Magistrate, who is holding an inquiry under Section 176 Cr.P.C. which is in addition to or instead of the ongoing investigation conducted by the police. Provisions of Section 176 Cr.P.C. does not put any rider upon the powers of the police to register a case, regarding the commission of any cognizable offence as required under Section 154 Cr.P.C."

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 49 of 92

74. Undoubtedly, it is a general expectation that first information report about the offence must be lodged with promptitude as delay ordinarily leads to suspicion that it may be a product of confabulation as observed in the case of Lalai Vs. State of U.P. AIR 1974 SC 2118. But then, it is equally well settled that criminal courts do not reject the prosecution version as given in FIR and later substantiated by the evidence, merely on the ground of delay unless there are indications of fabrication which is a matter for appreciation dependent upon the facts and circumstances of each case. In this context the following observations of Hon'ble Supreme Court in Tara Singh Vs. State of Punjab, AIR 1991 SC 63 need to be quoted:

" It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report of the police. At times being grief­sticken because of the calamity it may SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 50 of 92 not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report".

75. This has been a consistent view of Hon'ble Supreme Court, as can be demonstrated by reference to the observations in the cases of Apren Joseph Vs. State of Kerala, AIR 1973 SC 1 and Ram Jag V. State of U.P., AIR 1974 SC 606.

76. In the case of Apren Joseph (supra), the Hon'ble Supreme Court observed as under:­ "the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under S. 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue or unreasonable delay in lodging the F.I.R., SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 51 of 92 therefore, inevitably gives rise to suspicion which puts the court on guard to look after the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case".

77. In the case of Ram Jag (supra), the Hon'ble Supreme Court observed as under:­ "A commonsense view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 52 of 92 on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution".

78. The Code of Criminal Procedure in addition to making a detailed provision about the information of commission of offence to the police and also its power to investigate also provides for inquiry into cause of unnatural death. These inquiries are contemplated by detailed provisions contained in Section 174 and 176 Cr.P.C. The said provisions read as under:­ " 174.Police to inquire and report on suicide, etc.­(1) When an office in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquest, and, unless otherwise directed by any rule prescribed by the State SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 53 of 92 Government, or by any general or special order of the District or Sub­Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officr and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub­Divisional Magistrate.

(3) When­

(i) the case involves suicide by a woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 54 of 92

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do, He shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination unless.

(4) The following Magistrate are empowered to hold inquest, namely any District Magistrate or Sub­divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistate.

176. Inquiry by Magistrate into cause of death.­ (1) When the case is of the nature referred to in clause (i) or clause (ii) of sub­ section (3) of section 174, the nearest Magistrate empowered to hold inquest shall, and in any other case mentioned in sub­ section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 55 of 92 and if he does so, he shall have all the powers to conducting it which he would have in holding an inquiry into an offrence.

(1­A) where­

(a)any person dies or disappears, or

(b)rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorized by the Magistrate or the Court, under this Code, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.

                             (2)   The   Magistrate   holding     such   an
                           inquiry   shall   record     the   evidence

taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already inferred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 56 of 92 (4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.

(5) The Judicial Magistrate or the Metropolitan Magistrate of Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub­section(1­A) shall, within twenty four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical person appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.

Explanation­ In this section, the expression "relative" means parents, children, brothers, sisters and spouse."

79. Even a bare reading of the provisions of Section 174(1) Cr.P.C. would show that the Officer Incharge of a police station in receipt of information about, inter alia, a person having committed suicide or having died under SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 57 of 92 circumstances raising reasonable suspicion about the commission of offence is required not only to give immediate intimation to the nearest Executive Magistrate empowered to hold inquest but also "unless otherwise directed by any rule prescribed by the State Government or by any general or special order of the District or Sub Divisional Magistrate" to proceed to the place where body of the dead person is lying and " to make investigation and draw up a report of the apparent cause of death".

80. Ld. Addl. PP for the State pursuant to directions of this court has made inquiry with the concerned quarters in the Government of NCT of Delhi and reported on 29.05.2010 that no rules have been framed/prescribed nor any order/instructions issued by the Government for the purposes of Section 174/176 Cr.P.C. It is clear from the evidence led by the prosecution that SDM (PW­8) had not issued any general or special order inhibiting the power of police to "make an investigation" in the nature contemplated under Section 174 Cr.P.C. in the case at hand.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 58 of 92

81. The provisions of Section 176(1) have to be read in conjunction with those of Section 174(3) Cr.P.C., the first clause of which covers the case involving suicide by a woman within 7 years of her marriage, the second clause going even further so as to cover the case relating to death of a woman within 7 years of her marriage in suspicious circumstances raising a reasonable suspicion that some other person had committed offence in relation to such woman. The investigation into the apparent cause of death and a clear report in that regard by the investigating officer was thus necessary in terms of Section 176(1) which enjoined a parallel obligation on the SDM(PW­8) to hold an inquiry "into the cause of death" which inquiry could be " either instead of" or "in addition to investigation held by the police officer". At the cost of repetition, it may be mentioned that the SDM (PW­8) had not asked the police not to investigate. In these circumstances, the action by the SDM would, in the case at hand be "in addition to the investigation" by the police. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 59 of 92

82. The evidence of not only PW­8 (SDM) but also of the concerned police officials, namely SI Bhagirath Singh (PW­14), Inspt. Surender Singh, the then SHO (court witness no.2), the then ACP P.S. Kushwaha (court witness no.1) and Sh. Mangesh Kashyap, DCP­Head Quarter (court witness no.3) has brought out to the fore, yet again, a very unhealthy and improper practice followed by Delhi Police, wherein, the police would refrain from taking any action even in cases involving unnatural death of the kind referred above in the context of Section 174(3) Cr.P.C. on the pretext that the SDM was holding the inquiry and with the excuse that it was only when SDM were to so direct, police could register a FIR or take up the investigation.

83. The above practice undoubtedly, is against the spirit of the provisions contained under Section 154 Cr.P.C., wherein it is the statutory duty of the Officer In­charge of a police station to reduce into writing every information received relating to commission of cognizable offence and for the same to be taken up for investigation with all expedition at his command. It was conceded during the SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 60 of 92 course of arguments by the Ld. Addl. PP that the pendency of inquiry whether under Section 174 Cr.P.C. or under Section 176 Cr.P.C. could not come in the way of the statutory duty cast on the police by Section 154 Cr.P.C. or to put it other way round, the provision of Section 174/176 Cr.P.C., do not in any manner control the provisions contained in Section 154 Cr.P.C.. As mentioned earlier, the object of the proceedings under Section 174/176 Cr.P.C is not to investigate or to collect evidence about the author of crime. Its object is only to find out the apparent cause of death, in case where death has occurred in suspicious circumstances. [Podda Narayana (supra)].

84. To put it very mildly, not only the SDM (PW­8) but also the concerned police officials (PW14 and his superiors) miserably failed in discharge of their respective legal obligations towards PW­1. To the credit of PW­1, she had set out the broad contours of her grievances against the matrimonial family of her deceased daughter during inquest, within a few hours of the suicide coming to her notice. The SDM having recorded her statement seems SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 61 of 92 to have been not sure as to what to do with the said statement. No wonder because he was not educated in legal mattes but also had not been imparted any training in this regard before he was posted in the position of SDM. He passed a very cryptic order requiring the police to investigate. The first order itself should have resulted in registration of FIR on the very same day as of death by suicide. As mentioned earlier, the police failed to carry out its duty, may be on account of some misunderstanding of the law that seems to have grown into a practice referred to earlier. Be that as it may, when the SDM was impelled to issue another order on account of pressure of women's organization, the police should have risen to the occasion and at least then registered FIR. Instead of doing so, it called for clarification which was not only unnecessary but also a reason for further delay. It seems the SDM, by this stage, had become wiser and passed a detailed order Ex. PW 8/F under the constraints of which the police ultimately registered the formal FIR on 09.01.2006. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 62 of 92

85. It is not a case where the complainant's side had deliberately delayed the report of offence to the authorities. PW­1 had made a clear statement before the SDM and expected action thereupon. She had done what she could do. It is a case where document Ex. PW 1/A as the first information had actually come to the authorities on 06.12.2005. It is only that the act of translating it into a formal FIR (Ex. PW 13/A) was delayed, which delay was on the part of SDM and the police. The complainant's word cannot be doubted for their defaults.

86.The defence counsel has next argued that witnesses who speak about the cruelty meted out to the deceased in the matrimonial home are interested witnesses, they being her mother and siblings. It has been argued that there is no independent witness produced from the neighbourhood of the matrimonial home so as to corroborate the allegations of illegal demands or cruelty to which the deceased was subjected on account of non­fullfilment thereof.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 63 of 92

87. In above context, the following observations of Hon'ble Supreme Court in the case of Dalip Singh Vs. State of Punjab AIR 1953 SC 364 need to be kept in mind. They read as under:­ "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 64 of 92

88. Referring to the above mentioned observations of Hon'ble Supreme Court in the case of Dalip Singh (Supra), Hon'ble High Court of Delhi in the case of Zahid Vs. State 2009 CRI.L.J. 3682 further observed as under:

"Merely because a witness is related to a deceased would not make the witness an interested witness. A witness is an interested witness who has a motive i.e. an interested to secure a false conviction."

89. Against the back drop of factual matrix of the case at hand, the following observations of Hon'ble Supreme Court in Bhagwant Singh Vs. Commissioner of Police Delhi, AIR 1983 SC 826 are also of great relevance:

"In a case where a wife dies in suspicious circumstances in her husband's home it is invariably a matter of considerable difficulty to ascertain the precise circumstances in which the incident occurred. As the incident takes place in the home of the husband, the material witnesses are usually the husband and his parents or other relations of the husband staying with him. Whether it was cooking at the kitchen stove which was responsible for the accident or, according to the inmates of the house, there was an SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 65 of 92 inexplicable urge to suicide or whether indeed the young wife was the victim of a planned murder are matters closely involving the intimate knowledge of a woman's daily existence."

90. The deceased had been married to A­1 on 03.02.2005. She had been frequently coming to her parental home on various occasions including festivals like Rakshabandhan etc. Similarly members of her parental family are also shown to have been visiting her matrimonial home on the occasions such as Karwa Chauth. During the meetings that would have taken place on such visits by either side, the parental family would naturally have been anxious to learn and reassure itself about the welfare of the daughter of the house after marriage. In these meetings, the members of the family on the parental side, particularly the widowed mother (PW­1) and sisters (PW­2 and PW­5) were natural confidantes who would be privy to how the deceased was faring in the matrimonial family. There is nothing unnatural about PW­1, PW­2 and PW­5 and through them, the brother (PW­4) learning of the necessary details. In such cases, the neighbourhood of SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 66 of 92 the matrimonial home is generally seen to be not of much help. In these circumstances, I do not find the criticism of the witnesses to create doubts about their credibility to be just or fair.

91. The defence counsel referred to Ashok Vishnu Davare Vs State of Maharashtra 2004 (2) Crimes 189 (SC) to submit that the family members on the parental sides while deposing in the court have made major improvements which materially affect the creditworthiness of the prosecution case.

92. On careful perusal of the evidence on record, I do not find any reason why it should be disbelieved. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities [Narotam Singh Vs. State 1978 Cr.L.J. 1612 (SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses [Lallan Vs. State 1990 Cr.L.J. 463]. It was ruled in Ramni Vs. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 67 of 92 State, [Judgment Today 1999(6) SC 247)] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness.

93. Observations of Hon'ble Supreme Court in 1985 Crl. L.J. 1173 can also be fruitfully referred to in this context. The evidence of an eye witness cannot be treated as one of the three legs of a tripod so as to conclude that it must collapse if one or the other leg collapses.

94. In the case of Sukhdev Yadav & ors. Vs. State of Bihar (2001) 89 (SCC) 86) it was held by Hon'ble Supreme Court that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence.

95. I do not find any such major contradictions in the prosecution evidence as can adversely affect the credibility of PW­1, PW­2, PW­4 and PW­5 about the conduct of A­2, A­3 and A­4 towards the deceased. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 68 of 92

96. In the first statement Ex. PW 1/A, PW­1 had undoubtedly made it clear that except for coming for collecting Rs.5000/­ for photo album in the same month as of the marriage, A­1 was not party any demand of gifts or dowry. In this view, it would not be proper, just or fair to draw conclusions against A­1 on the basis of statements made by PW­1, PW­2, PW­4 and PW­5 in the court seeking to generalize and cover A­1 attributing, to him the role of party to the demands and harassment flowing out of refusal thereof on the part of other three accused persons.

97. One solitary circumstances of coming to collect Rs.5000/­ for photo album cannot be taken as sufficient evidence for A­1 having subjected the deceased to cruelty within the meaning of expression used in Section 498­A IPC or to be a reason that led to suicide. It has not been fully or properly explained as to what was the background of the said payment of Rs. 5000/­ towards photo album. In addition to the demands of gifts, harassment in the nature of regular taunts over non­ fulfillment of demands by A­2, A­3 and A­4, the ill­ SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 69 of 92 treatment of the deceased arising out of non­payment of Rs. 50,000/­ as demand during the final visit of the deceased, one major circumstances relied upon is in the context of objection taken to the deceased talking with PW­10. The entire evidence on this subject does not show that A­1 in involved in the aspersions against the character of the deceased on this account.

98. In above view, the prosecution cannot succeed as far as A­1 is concerned A­1 is thus entitled for benefit of doubts. But then, in the context of such result of the prosecution against the husband, I am unable to accept further argument of the defence counsel that it is inconceivable that other members of the family of the husband would be making dowry demands. This argument deserves to be rejected outright. There is no basis of the presumption that husband is always and invariably a necessary party to make dowry demands. Further, the reasoning that in the absence of role of the husband, other family members cannot make dowry demand is wholly misconceived. In taking this view, I draw strength from the view taken by the Hon'ble High SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 70 of 92 Court in Mohan Prasad Vs. State 2010­III­AD(CRL) DHC 21.

99. I may add that the fact that PW­1 clarified in her statement Ex. PW 1/A that the father­in­law was a gentleman and there was no cause of grievance against him and further that son­in­law (A­1) had never made any illicit demand (after coming to take money for photo album) only adds to her credibility. It shows that she was making the said statement before SDM in all sincerity and with requisite responsibility and circumspection, not ready to rope in as many members of the matrimonial family as she could lay her hands on.

100.In above facts and circumstances, I have no hesitation in accepting the prosecution evidence as unimpeachable in so far as the acts of commission/omission attributed to A­2, A­3 and A­4 are concerned. It is proved beyond all manner of doubts that after marriage, the deceased had gone to live in her matrimonial home where she was subjected to ill­ treatment by A­2, A­3 and A­4 who would pass comments and taunts expressing grievances about SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 71 of 92 insufficient dowry given and would make demands for gifts occasionally, would subject the deceased to torture by denying her proper food by subjecting her to physical assaults and humiliation and further, the worst, by casting aspersions on her character by taking exception to she talking with PW­10.

101.Section 306 of the IPC reads 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."

102.From a bare reading of provision, it is clear that to constitute an offence under Section 306 IPC, the prosecution has to establish: (i) that a person committed suicide, and (ii) that such suicide was abetted by the accused. In other words, an offence under Section 306 would stand only if there is an "abetment" for the commission of the crime.

103.The parameters of "abetment" have been stated in SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 72 of 92 Section 107 of the IPC, which defines abetment of a thing as follows:

"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 attempt to cause or procure, a thing to be done, is said to instigate the doing of that thing."

104.As per Section 107, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 73 of 92 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 to Section 107 states that any willful misrepresentation or willful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC.

105. The word "instigate" is not defined in the IPC. The meaning of the said word was considered by Hon'ble Supreme Court in Ramesh Kumar Vs. State of Chhattisgarh, 2001(4) RCR (Criminal) 537: (2009) 9 SCC 618 and found to be to goad, urge, forward, provoke, incite or encourage to do an act.

106.In Chitresh Kumar Chopra V. State (Govt. of NCT of Delhi), (SC), 2009(4) RCR (Criminal) 196: 2009(162) D.L.T. 257, it was observed thus:

"To satisfy the requirement of "instigation", though it is not necessary that actual words SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 74 of 92 must be used to that effect or what constitutes "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."

107.In Chitresh Kumar Chopra (supra), Hon'ble Supreme Court further ruled thus:

"To constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is " a thing that stimulates someone into action: provoke to action or reaction" (See: Concise Oxford SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 75 of 92 English Dictionary); "to keep irritating or annoying somebody until he reacts" (See: Oxford Advanced Learner's Dictonary­7th Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar's case (spura), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation"

may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established"

(i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 76 of 92 had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.

Undoubtedly, presence of mens rea is the necessary concomitant of instigation."

108.It was further observed:

"... the question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation reacts and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self­protection or an escapism from intolerable self."

109.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 SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 77 of 92 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.

110.In State of West Bengal V. Orilal Jaiswal, 1994(3) RCR (Criminal) 186: (AIR 1994 SC 1418), Hon'ble Supreme Court has 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 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. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 78 of 92

111.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. 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.

112.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 deceased­wife with cruelty is not enough. [See Mahinder Singh V. State of M.P., (1995 AIR SCW 4570].

113.The law on the subject has been interpreted as above in a catena of judgments including Kishori Lal V. State of M.P, 2007(3) RCR (Criminal) 385 : 2007(3) RAJ 613"(2007(10) SCC 797, Randhir Singh and Anr. V. State of Punjab, 2004(4) RCR (Criminal) 740: 2004 SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 79 of 92 (3) Apex Criminal 683: (2004(13) SCC 129) and Kishangiri Mangalgiri Goswami V. State of Gujarat, (SC) AIR 2009 SC 1808).

114.The defence counsel referred to Sonti Rama Krishna Vs. Sonti Shanti Sree & Anr. AIR 2009 SC 923 to argue that in the given facts and circumstances, the accused persons cannot be said to have abetted suicide as there is no instigation for commission of suicide shown by any evidence. Referring to Kishori Lal Vs. State of Madhya Pradesh AIR 2007 SC 2457, it was argued that the charge under Section 306 IPC cannot be found proved in view of the material on record indicating the deceased was disturbed on account of her physical condition during pregnancy. In this context reference was made to the statement Ex. PW 8/A of A­ 1 before the SDM wherein he had indicated that the deceased was keeping unwell on account of stomach­ ache and back­ache arising due to pregnancy. The defence counsel also referred to Gangula Mohan Reddy Vs. State of Andhra Pradesh AIR 2010 SC 327 and Chanchal Kumari Vs. Union Territory, SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 80 of 92 Chandigarh 1985 Legal Eagle 225 to submit that the deceased might have committed suicide on account of her hypersensitive nature.

115.I am not impressed with any of these submissions. The case of Sonti Rama Krishna (supra) arose out of different facts situation. The instigation alleged there was said to have come on account of words uttered in a fit of anger or emotion which is not the case here. Unlike case of Kishori Lal (supra), there is no evidence worth name to show that the deceased was facing any serious complication during pregnancy as could have made her so mentally disturbed as to contemplate suicide . Mere routine problem like stomach­ache or back­ache do not compel women to commit suicide. There is no evidence indicating that the deceased was a person of hypersensitive nature.

116.In Bhagwant Singh V. Commissioner of Police (AIR 1983 SC 826) Hon'ble Supreme Court observed as under:­ "It is impossible to escape the conclusion that in a case such as this the death of a young wife must be attributed either to the commission of a SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 81 of 92 crime or to the fact that, mentally tortured by the suffocating circumstances surrounding her, she committed suicide. Young women of education, intelligence and character do not set fire to themselves to welcome the embrace of death unless provoked and compelled to that desperate step by the intolerance of their misery. It is pertinent to note that such cases evidence a deep seated malady in our social order. The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation".

117.The said observations apply with all force to the case at hand.

118.Section 498­A IPC seeks to penalize the act of a husband or his relatives in subjecting a woman to cruelty. The expression "cruelty" is defined in the explanation appended to the said provision as under:

"Explanation. For the purposes of this section, "cruelty" means -

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 82 of 92

(a)any willful 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."

119.It is clear that cruelty, for purposes of Section 498­A IPC is not restricted to, as generally misunderstood, unlawful demands for dowry but also encompasses "any willful conduct which is of such a nature as is likely to drive the woman to commit suicide" or to cause grave injury or endanger her life or health (physical or mental).

120.The facts proved here show not only intentional cruelty meted out to the deceased by A­2, A­3 and A­4 but also cruelty of such kind as actually drove her to end her life.

121.The deceased was a young woman who would have gone to the matrimonial home just about 10 months before suicide with dreams of happy married life in the safe environs of the house of her husband. She was not only subjected to harassment and cruelty on account of SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 83 of 92 persistent demands of gifts, stemming out of sheer greed of her mother­in­law and sisters­in­law but also subjected to all kinds of humiliation.

122.The presence of PW­10 in the said matronial home was not on account of the deceased. The evidence clearly shows that PW­10 had come to live under the same roof on the invitation of her matrimonial family. He was here in search of a job. He was son of the real sister of A­2 and thus part of the extended family. His relation with A­1 would be that of cousin brother. He being younger in age to A­1, he was virtually also a younger brother­in­law in relation to the deceased.

123.In absence of any instance whatsoever showing illicit liaison or connexion between the two, it was grossly unfair on the part of A­2, A­3 and A­4 to take exception to the deceased talking to PW­10 and start making indecent aspersions on her character. He was like a brother living in the same house hold and it was only natural for the two to talk and interact with each other. The suicide note Ex. PX­1 written by PW­10 just before his attempted suicide brings out vividly, how he and the SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 84 of 92 deceased would treat each other. It may be pointed out here that in this note PW­10 would describe the deceased as virtually a mother to him. It is pertinent to mention here that when PW­10 attempted suicide, in his suicide note he also expressed anguish at his relations with his Bhabhi (the deceased) being doubted. He lamented that in the eyes of some persons, there can be "only one kind of relationship between a male and female."

124.Against this back drop, doubting the character of the deceased on account of she talking with PW­10 was an act of grave deliberate insult of the worst kind. For no just or sufficient reasons, her chastity was being questioned by her matrimonial family. The conduct that accused persons persisted with these allegations even during the course of trial by attributing "an affair"

between the deceased and PW­10 during cross­ examination of PW­1 only reinforces the prosecution case in this regard.

125.The deceased, a young girl, who had not completed even a year of her marriage and who was carrying within SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 85 of 92 her womb the result of love for her husband apparently could not bear insult and was driven to extreme mental pain, fear and loss of self respect. There is, thus, no escaping the conclusion that this would have been prime cause of she being impelled to take the extreme step of killing herself. This cannot be explained away as emanating from the conduct of a person hypersensitive to ordinary petulance, discord or routine differences of domestic life.

126.In view of the above, the prosecution has succeeded in proving the guilt of A­2, A­3 and A­4 for offences under Sections 498­A/34 and 306/34 IPC. For reasons already delineated the prosecution cannot succeed against A­1.

127.I am conscious that the facts proved collectively also attract the offence of dowry death, defined in Section 304­B IPC. In fact, this should have been the natural corollary of the conjoint effect of the charges under Section 498­A and 306 IPC. But, since charge under Section 304­B IPC was not framed and the order of my learned predecessor specifically dropping the said SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 86 of 92 charge has attained finality, at this late stage of the trial, conviction for said offence cannot be recorded.

128.In the result, A­1 is acquitted. A­2, A­3 and A­4 are held guilty and convicted for offences under Sections 498­A/34 and 306/34 IPC.

Pronounced in open court on th This 9 day of November, 2010 (R.K.Gauba) Addl. Sessions Judge­1 Central, Delhi.

SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 87 of 92 IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS JUDGE ­01 (CENTRAL) DELHI SC No. 29/06 &73/07 FIR No.: 10/06 ID No.:02401R0248282006 PS: Prasad Nagar ID No.:02401R0604892006 U/Sec498­A/304­B/ 406/34 IPC State Versus

1. Anil Kumar (acquitted vide judgment dated 09.11.2010)

2. Premwati w/o Gopal Singh, R/o 16/1751, P.L.Road, Bapa Nagar, Delhi.

3. Deepu Bala d/o Gopal Singh, R/o 16/1751, P.L.Road, Bapa Nagar, Delhi.

4.Lalita @ Nirmla w/o Duli Chand, d/o Gopal Singh, R/o A­32, Sahyog Vihar, Uttam Nagar, Delhi.

ORDER ON SENTENCE SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 88 of 92

1. Vide judgment dated 09.11.2010 accused no.2 Premwati, accused no.3 Deepu Bala and accused no.4 Lalita @ Nirmala were held guilty and convicted for offences under Section 498­A/34 IPC and 306/34 IPC.

2. I have heard Sh. R.K.Tanwar, Addl. PP for the State and Sh. Jagdish Singh, advocate for the three convicts on the question of sentence.

3. While Ld. Addl. PP submitted that deterrent punishment be awarded as such offences have been on the rise, the ld. defence counsel pressed for benefit of provisions of Section 360 Cr.P.C. and Section 4 of Probation of Offenders Act on the ground that all the three convicts are women and house wives. He submitted that convict Premwati is over 55 years of age and is a housewife with five children including two who are unmarried. It is also submitted that convict Premwati suffers from asthma and heart ailment and that her husband is also keeping unwell. He submitted that convict Deepu Bala is aged 27 years and is presently pregnant with a child, while convict Lalita is aged about 42 years and has four school going children.

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4. I have given my considered thoughts to the relevant contentions urged before me in the light of the facts and circumstances of the case.

5. Though the charge of dowry death under Section 304­B IPC was not framed as mentioned in the judgment dated 09.11.2010, the offences which have been proved collectively present all the necessary ingredients of such offence. It has been brought home that on account of the intentional acts of commission of the three convicts, Chanda Kumari, a daughter­in­law of their family, was forced by their pestering arising out of their sheer greed for dowry and sadism (drawing some satisfaction by humiliating her including by baselessly casting aspersions against her chastity) into such circumstances as to be compelled to take her own life prematurely. It has been observed by Hon'ble Supreme Court of India in Bhagwant Singh Vs. Commissioner of Police, (AIR 1983 SC 826) that such cases indicate a deep seated malady in our social order and call for severest condemnation.

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6. It is indeed unfortunate that in this ancient land where women were once treated with utmost respect because their happiness invokes divine blessings ("YATRA NARYAST POOJYATE, TATRA VASATE DEVTA"), things have come to such a pass where women are treated as chattel and more as a source of illicit monetary gains. It is ironic that Chanda Kumari suffered at the hands of these three close relatives (of her husband) who also come from the same gender.

7. In the given facts and circumstances, I find no scope for any mercy, much less release on probation. The convicts deserve to be visited with maximum punishment prescribed in the law.

8. In above view, each of the three convicts is sentenced to rigorous imprisonment for 10 years with fine of Rs.5,000/­ for offence under Section 306 IPC and rigorous imprisonment for 3 years with fine of Rs. 5,000/­ for offence under Section 498­A IPC. In case of default in payment of fine, the convicts shall further undergo rigorous imprisonment for six months on each count. Substantive sentences shall run concurrently. SC No. 29/06 & 73/07 State Vs. Anil Kumar & Anr. Page 91 of 92 Each convict shall be entitled to the benefit of set off under Section 428 Cr.P.C.

9. A copy of the judgment be given free of cost to each of the convicts. They be sent to jail under appropriate warrants.

10.File be consigned to record room.

Pronounced in open court on th This 16 day of November, 2010 (R.K.Gauba) Addl. Sessions Judge­1 Central, Delhi.

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