Delhi District Court
State vs Rishi Kumar And Ors. on 12 July, 2018
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE 04
PATIALA HOUSE COURTS: NEW DELHI.
CNR No. DLND010008822017
SC No. 34/17
FIR No. 388/16
PS - Sagarpur
U/s 498A/304B/306/34 IPC
State
Vs.
1. Rishi Kumar
S/o Sh. Mahender Singh
R/o RZ26P/215B, Gali no. 8B,
Indra Park, Sagarpur, Delhi.
2. Arun Kumar
S/o Sh. Mahender Singh
R/o RZ26P/215B, Gali no. 8B,
Indra Park, Sagarpur, Delhi.
3. Rajni
W/o Sh. Arun Kumar
R/o RZ26P/215B, Gali no. 8B,
Indra Park, Sagarpur, Delhi.
State VS Rishi Kumar and Ors.
FIR no. 388/16
PS - Sagarpur Page no. 1 of 76
4. Krishna Devi
D/o Sh. Mahender Singh
R/o RZ26P/215B, Gali no. 8B,
Indra Park, Sagarpur, Delhi.
5. Manish @ Rekha
D/o Sh. Yudhvir Singh
R/o WZ451, Naraina Village,
New Delhi.
Date of Institution : 23.01.2017
Date of Arguments : 05.06.2018
Date of Judgment : 12.07.2018
JUDGMENT:
1. Brief case of the prosecution as per chargesheet is :
a) On 26.09.2016, on receipt of DD no. 19A, IO PW14 SI Surat Singh along with constable Surender and lady constable Bartilla went to the spot i.e. first floor of house no. RZ26P/215B, Gali no. 8B, Indra Park, Sagarpur, Delhi. There he found body of a female lying on bed in unconscious condition. Her husband Rishi Kumar was also present there. No suicide note was State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 2 of 76 found. No injury mark was found on the body of deceased. Accused Rishi Kumar told the IO that prior to their arrival he had taken down the body from the ceiling fan. IO was also informed that deceased had hanged herself with the help of ladies stoll (dupatta). Crime team was called at the spot and photos of the spot were got clicked. Accused Rishi Kumar was interrogated and he disclosed that he was married to deceased Jyoti on 12.05.2013.
b) Executive Magistrate Sh. S.K. Rawat, was also informed, who directed the IO to send the body of deceased to DDU hospital. Accordingly, body of deceased was sent to DDU hospital through lady constable Bartilla and constable Surender. Doctors declared her brought dead. The dead body of deceased was got preserved and postmortem was got conducted. Meanwhile, mother Smt. Manorma and brother Sh. Gaurav, of deceased Jyoti also came at the spot. At the directions of Executive Magistrate Sh. S.K. Rawat, they both were sent to his office at Najafgarh and their statements were recorded by Executive Magistrate. In her statement Ms. Manorama, stated that her daughter Jyoti was got State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 3 of 76 married to accused Rishi Kumar on 12.05.2013 with the consent of both families and that she was disturbed right after her marriage. Deceased Jyoti used to talk with her on phone and told her that her husband i.e. accused Rishi Kumar used to abuse her and mentally harass her by saying that she had given less money in dowry and had not given car in marriage. Accused Rishi used to only have sexual intercourse with Jyoti and thereafter used to go and sleep in the room of his mother i.e. accused Krishna Devi. The other family members of accused namely Krishna Devi, Arun panwar, Rajni and Manish, were also aware about the said acts of accused Rishi. The family members of accused also used to harass her daughter. Complainant Manorma, also stated that she had disclosed all these facts to her husband and both sons. About one year prior to the incident, her husband and son had gone to the matrimonial home of her daughter to make inlaws understand, however, accused Arun Panwar, threatened her husband and tried to hit him. About four days prior to the incidence her daughter Jyoti had telephoned her and informed her that her State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 4 of 76 husband accused Rishi Kumar along with other accused persons was throwing her out of matrimonial home. Thereafter, she along with her son immediately went to the matrimonial home of her daughter where they found that her suitcase was packed. She and her son tried to talk to accused Rishi Kumar, however he did not listen to them. Thereafter, she pacified her daughter and returned back. Later on her daughter told her that accused Rishi Kumar had threatened her by saying "ab tera intezaam mei karunga". After hearing this she and her daughter became afraid. Thereafter, she used to call her daughter 23 times in a day for inquiring her wellbeing.
c) Complainant Smt. Manorama, further stated that her daughter had told her that after the said incidence accused Rishi Kumar and his family members increased mental harassment to Jyoti. On 25.09.2016 at about 10.30 pm, she had talked with her daughter and at her request, she asked for help from accused Rajni but Rajni refused any help. She told this fact to her daughter. On 26.09.2016 at about 10.00 am she was informed by accused Rishi Kumar that her daughter had committed State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 5 of 76 suicide. She further stated that accused Rishi Kumar had married with her daughter to satisfy his sexual needs. Nobody in her matrimonial home used to talk with her and they all used to abuse her.
d) On the basis of said complaint present case was registered u/s 498A/304B/34 IPC. During investigation accused persons were arrested. Statements of witnesses were recorded. Site plan was prepared. Inquest proceedings were conducted. Exhibits were sent to FSL. After completion of investigation, present charge sheet was filed in the court.
CHARGES
2. In view of the allegations against the accused persons in the chargesheet, charges u/s 498A/304B/306/34 IPC were framed against all accused persons to which they pleaded not guilty and claimed trial.
EVIDENCE
3. In support of its case prosecution examined 16 State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 6 of 76
witnesses.
4. PW1 Smt.Manorama, is the mother of deceased Jyoti. Her detailed relevant testimony would be discussed in later part of the judgment.
5. PW2 Sh. Satish Kumar Rawat is the Executive Magistrate, who testified that on 26.09.2016 at about 10.30 am, he received an information about the death of one Jyoti, w/o Sh. Rishi Kumar from PSSagarpur. IO also informed that Smt. Jyoti Rani was found dead at her residence at RZ26B/215B, Gali No. 8B, Indira Park, Sagarpur, Delhi. He was also informed that local police and crime team reached the site and the dead body of Jyoti was already removed by her husband from the ceiling fan before local police or crime team reached the spot. The parents of the deceased were also already informed. He immediately gave directions to IO to send the dead body of deceased to mortuary at DDU hospital and further asked IO to send parents/relatives to his office for recording their statement.
6. PW2 further testified that on the same day at about 01.30 pm, IO SI Surat Singh came to his office State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 7 of 76 along with mother and brother of deceased namely Smt. Manorma and Gaurav Singh and he recorded their respective statements. He proved the statement of Gaurav Singh as Ex.PW2/A. He directed IO to get the postmortem conducted. He also directed SHO to initiate immediate action considering the gravity of allegations made by Manorma and Gaurav Singh. SHO was further directed to conduct detailed investigation. He proved the brief facts of the case written by him along with his directions as Ex.PW2/B. He proved his request to HOD DDU Hospital to conduct postmortem of deceased as Ex.PW2/C, form no. 25.35 (1) (B) as Ex.PW2/D, identification statement of Sh. Shokaran Singh and Sh. Harpal Singh as Ex.PW2/E and Ex.PW2/F respectively. After the postmortem, the dead body of deceased was handed over to the relatives of the deceased by the IO on his directions.
7. PW3 Sh. Gokaran Singh, is the father of deceased.
8. PW4 Dr. Pallavi, SR Casualty, DDU Hosital, testified that on 26.09.2016 at about 11.30 am one Jyoti Rani, W/o Rishi Kumar aged about 28 years was brought State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 8 of 76 by W/ct Bartila in the hospital. The said patient was brought in an unresponsive state in the causality of the hospital with the alleged history of hanging as told by constable Bartila. She medically examined the patient who was unconscious and was not responding to any verbal command or tactile stimuli. The pulse, BP and other vitals of the patient were not recordable. On local examination, one ligature mark along with the ligautre material i.e. bluered dupatta was seen around the neck. As the patient showed no signs of life, hence she was declared "brought dead". Thereafter, the body was packed, sealed, labeled and was sent to mortuary for autopsy. She proved the MLC no. 9616 of deceased as Ex.PW4/A.
9. PW5 Sh. Gaurav Singh and PW7 Hemant Kumar are the brothers of deceased.
10. PW6 HC Bhagwan Sahai, was working as duty officer on 26.02.2016 from 4 pm to 12 midnight. On that date at 06.10 pm, he received rukka from SI Surat Singh in the PS. On the basis of said rukka, he got recorded computerized FIR through constable Vishram. He proved State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 9 of 76 the copy of FIR as Ex.PW6/A, his endorsement on rukka as Ex.PW6/B and certificate u/s 65B Indian Evidence Act as Ex.PW6/C.
11. PW8 HC Surender Kumar and PW10 W/ct Bartila have joined the investigation of the case with IO SI Surat Singh. PW8 proved the seizure of chunni/dupatta as well as scissor which were lying on the spot as Ex.PW8/A, seizure of ear ring and one pair of toe rings of deceased as Ex.PW8/B, and seizure of viscera of deceased as Ex.PW8/C. He further proved the piece of chunni as Ex.PW8/P1 and scissor as Ex.PW8/P2.
12. PW9 constable Ramesh Kumar is the Draftsman, Mapping section, who testified that on 19.12.2016, he along with IO SI Surat Singh went to the spot i.e. first floor of house no. RZ 26P/215B, gali no. 8B, Indira Park, East Palam Delhi. Thereafter, on the directions of IO, he took the measurement and prepared rough notes of the spot. On 20.12.2016, he prepared the scaled site plan Ex.PW9/A.
13. PW11 SI Rakesh Kumar, was posted as Incharge Mobile Crime Team at SouthWest District on State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 10 of 76 26.09.2016. He testified that on the said day at about 9.45 am, a PCR call was received from District Contorl Room upon which he along with HC Balwant (Photographer) and HC Banwari (Finger Print Proficient) reached the spot i.e. first floor of house no. RZ 26P/215B, gali no. 8B, Indira Park Extension, where a lady was found lying dead on a bed. The deceased was having a piece of dupatta around her neck. He inspected the scene of crime and HC Balwant took the photographs of the spot. He prepared the scene of crime report bearing no. 1242/16 dated 26.09.2016 and proved the same as Ex.PW11/A.
14. PW12 ASI Balwant, is the photographer who accompanied PW11 SI Rakesh to the spot. He took 20 photographs of the spot. He proved the said photographs as Ex.PW12/A1 to Ex.PW12/A20 and its negatives as Ex.PW12/B1 to Ex.PW12/B20.
15. PW13 constable Mugal Ansari, testified that on 04.11.2016, on the directions of IO, he had collected the exhibits of present case from MHC(M) vide RC number 211/12/16 and deposited the same at FSL Rohini and State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 11 of 76 returned back acknowledgment form FSL to MHC(M).
16. PW14 is IO SI Surat Singh, who testified on the lines of chargesheet filed by him. He proved the DD no. 19A as Ex.PW14/A, delivery memo regarding handing over of dead body as Ex.PW14/B, arrest memos of accused Arun Kumar, Rajni, Krishna Devi and Manish @ Rekha as Ex.PW14/C, Ex.PW14/D, Ex.PW14/E and Ex.PW14/F respectively.
17. PW15 HC Nisha was posted as duty officer on 26.09.2016 in PSSagarpur from 8.00 am to 4.00 pm and stated that on that day at about 08.15 am wireless operator of G58 came to Duty Officer Room and produced QST PCR Call which was to the effect that at house no. RZ 26P/215B, gali no. 8B, Mangal Bazar, Sagarpur, Delhi, the wife of brother of the caller committed suicide. She reduced the said information in the roznamcha as DD no. 19A in her handwriting and handed over the copy of same to SI Surat Singh for further course of action who along with constable Surender left for the spot.
18. PW16 Dr. Subhra Kumar Paul, Senior Scientific State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 12 of 76 Officer (Chemistry) FSL, Rohini, testified that on 04.11.2016 one sealed polythene bag was received at FSL Rohini. The same was found containing exhibits 1A, 1B and 1C. On examination metalic poison, ethyl and/or methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1A, 1B and 1C. He proved his report as Ex.PW16/A.
19. The accused persons admitted PM report No. 1599/2016 dated 27.09.2016 prepared by Dr. Jatin Bodwal, Specialist Department of Forensic Medicine, DDU Hospital as Ex.PX.
Statements U/s 313 Cr.PC:
20. The entire incriminating evidence was put to accused persons at the time of recording of their statements u/s 313 Cr.PC. Accused persons denied incriminating evidence against them.
21. In their statements, accused Arun Kumar and accused Rajni stated that they were living at second floor separately from accused Rishi Kumar and his wife, State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 13 of 76 whereas Rishi Kumar was living at first floor. They were having good relations with deceased and are falsely implicated by the inlaws of his brother Rishi Kumar. Accused Krishna Devi stated that she is 80 years old and is residing separately on ground floor from accused Rishi Kumar and his wife and was falsely implicated being mother of accused Rishi Kumar. Accused Manish @ Rekha, stated that she is residing with her children at her matrimonial home at Naraina. Accused Rishi Kumar stated that he was having good relations with his deceased wife and he do not know why she committed suicide and that he had good relations with his inlaws as well and there was no dispute with them and that he do not know why this case was made against him, and that his wife was disturbed due to the age gap between them as he was 1213 years elder to her, may be that she was in depression. He further stated that Jyoti was having some defect in her eyes and had a feeling that even the God has not done justice to her. He further stated that he cannot say why she committed suicide and that she married him under pressure from her parents possibly State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 14 of 76 because he was government employee and she was having some defect in her eyes and that he got her educated and that at the time of marriage she was 12th class and that he got her into JBT (Junior Basic Teacher), a two year diploma course which she passed with very good marks and that she also passed Teacher Eligibility Test with very good marks while residing with him and his family and that everybody in his family cooperated with her in all respect and that she had to go to Madhya Pradesh to appear in her examinations and that he do not know why she came in depression and why she took such step.
22. Accused persons chose not to lead evidence in defence.
Arguments/submissions:
23. Final arguments were addressed by learned Addl.
PP assisted by Sh. Amardeep Maini, counsel for complainant and learned Sh. Vinod Kumar Sharma, counsel for all accused persons.
24. It is argued by learned Addl. PP with assistance of State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 15 of 76 learned counsel for complainant that the prosecution has successfully proved its case against all accused persons. Learned Addl. PP submitted that all the public witnesses of prosecution being the mother, father and brothers of victim have testified that the accused persons subjected the deceased/victim to cruelty and harassed her for not bringing the dowry as per their desires.
25. Counsel for complainant also filed written submissions stating interalia that the victim Jyoti suffered unnatural death within 07 years of her marriage and that there is sufficient evidence on record regarding demand of dowry and harassment by accused persons. Sh. Maini also argued that victim Jyoti died in close doors of the house of accused persons, the facts which took place on the fateful night which led to the death of victim could have been within the especial knowledge of accused persons, and as per section 106 Indian Evidence Act the burden of proving those facts are upon the accused persons. He quoted section 106 Indian Evidence Act in his written submissions which is as under :
106. Burden of proving fact especially within State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 16 of 76 knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
26. He also submitted that the information about the death of victim was given to her parents at 10.00 am on 26.09.2016. Mother of victim talked to her on 25.09.2016 at about 1010.30 pm and there was sufficient time with the accused persons to manipulate the things and to concoct a story of suicide and to cause disappearance of evidence within the meaning of section 201 IPC. He also referred section 201, 498A, 304B and 306 IPC in his written submissions along with section 113A and 113B Indian Evidence Act, submitting that these sections are attracted and the accused persons subjected the victim Jyoti to cruelty, caused her dowry death and abetted her to commit suicide and that in view of section 113A and 113B of the Indian Evidence Act, burden of proving the innocence was upon accused persons. Accused failed to lead any evidence in their defence and are liable to be convicted.
27. Learned Sh. Maini also submitted that it is in State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 17 of 76 evidence that victim Jyoti was well educated, intelligent and was not suffering from any depression and that there is direct evidence that soon before her death she was physically and mentally tortured. He argued that on 25.09.2016, at about 10.00 pm, the mother of deceased talked with her and the deceased informed her mother that accused Rishi was harassing her and was not consuming the food cooked by her nor was permitting her to eat the food. He further argued that as per testimony of PW1, Jyoti requested the help of accused Rajni. PW1 in turn contacted accused Rajni, but she also did not help the victim. He also argued that as per statement of accused persons, accused Rishi used to sleep with victim Jyoti, hence it was for accused to explain how her death occurred. He relied upon the judgment of State of Rajasthan Vs Parthu, 2009 (3) RCR (Crl.) 466 and Tulsi Ram Vs State, 2017 (238) DLT 356, to support his arguments that it was for the accused to provide an explanation about the reason and manner leading to the unnatural death of deceased Jyoti or else adverse presumption is required to be drawn against them.
State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 18 of 76
28. Learned Addl. PP also argued that presumption of law as per section 113A and 113B Indian Evidence Act is against the accused persons as unnatural death of deceased took place within 07 years of her marriage and soon before her death she was subjected to cruelty and harassment. Counsel for the complainant also relied upon the judgment of Hon'ble Supreme Court titled as Maya Devi and Anr. Vs State of Haryana, 2016 (10 RCR (Crl) 407.
29. Learned Addl. PP also argued that the witnesses are not supposed to narrate word by word similar description of events and there would be some natural variation in their testimony. Learned counsel for complainant also supported learned Addl. PP and relied upon the judgment of Hon'ble Supreme Court in the case of Rahul Mishra Vs State of Uttarakhand, AIR 2015 (SC) 3042 to submit that FIR is not expected to contain all details of prosecution case nor any benefit can be given to accused persons for any omission on the part of investigating officer. He also relied upon in the case of Ashok Vs State, 2018 (1) Crl. 349 to submit that no State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 19 of 76 evidence was led by accused persons that deceased in that case was suffering from any depression and the Hon'ble High Court of Delhi held that prosecution successfully proved its case u/s 304B IPC in view of section 113B Indian Evidence Act.
30. Judgment in the case of Kishori Lal Vs State 2017 (2) JCC 1010, is relied upon by prosecution to submit that the statement of witnesses are to be read in the entirety and court need to make a quest to find out whether evidence brought on record satisfied the ingredients of the relevant section and that phrase "soon before death" is an elastic expression. Radius of time by employing these words is to emphasize only an idea that death should in all probabilities have been the aftermath of such cruelty or harassment.
31. Prosecution also relied upon judgment in the case of Hira Lal and Ors. Vs State of Delhi, 2003 (7) JT 596, to submit that in the said case accused was convicted u/s 306 IPC and 498A IPC though the charge was framed u/s 304B IPC only. It is argued that in the present case the court has even framed charge u/s 306 IPC. Hence, there State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 20 of 76 is no difficulty in conviction of accused under the said section.
32. Judgment in the case of Rajinder Singh Vs State of Punjab, 2015 (3) SCC (Crl) 225, is relied upon by prosecution to submit that in the present case there was a continuing demand of dowry which resulted in the cause of death of deceased Jyoti.
33. Prosecution also relied upon judgment in the case of Bansi Lal Vs State of Haryana, AIR 2011 SC 691, to submit that it is mandatory upon the court to presume that death has been committed by a person who had subjected the victim to cruelty and the onus to rebut that presumption is upon accused by leading positive evidence.
34. Prosecution also relied upon judgment in the case of Prashant Mhadeo Chavan Vs State of Maharashtra, 2008 (9) RCR (Crl.) 488, to submit that burden of proving facts within especial knowledge of accused persons lies upon them and that no benefit of defective investigation can be given to them.
35. Counsel for complainant also relied upon judgment State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 21 of 76 in the case of Satbir Singh Vs State, 2001 RLR 23 NSC, to submit that in appropriate case u/s 498A IPC, court is empowered to award compensation.
36. Counsel for complainant also argued that the MLC as well as the postmortem report does not support that the deceased committed suicide and there was no sign of hanging of deceased. He has referred to some literature in this respect. His arguments on this aspect are however not supported by learned Addl. PP.
37. Per contra counsel for accused persons argued that the prosecution has miserably failed to proved its case against either of accused persons. He also relied upon the following judgments :
1. Vikas and Ors. Vs State, Crl. A. 86/2007, decided on 18.01.2016.
2. Kuldeep Kaur Vs State of Uttarakhand, Criminal Appeal No. 2267/2014.
3. Dr. Sunil Kumar Sambhudayal Gupta and Ors. Vs State of Maharashtra, Criminal Appeal No. 891/2004.
4. Baijnath and Ors. Vs State of Madhya Pradesh, Criminal Appeal no. 1097/2016 (Arising out of SLP (Crl.) State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 22 of 76
No. 9718/2014).
5. Hans Raj Sharma and Ors. Vs State Govt of NCT of Delhi, Crl.A. No. 33941/2005, decided on 02.03.2010.
6. Narayanmurthy Vs State of Karnataka and Anr, Arising out of SLP (Crl.) No. 5689 of 2007.
7. Major Singh Vs State of Punjab, Criminal Appeal No. 1145/2012.
8. Ramesh Chander Vs State of Delhi,Crl. A. No. 526/2002, decided on 21.12.2016.
9. Mahavir Kumar and Ors. Vs State, Crl.A. 611/1999, decided on 16.05.2014.
9. Biswajit Halder @ babu Halder and Ors. Vs State of West Bengal, Appeal (Crl.) 371/2007.
10. Ramaiah @ Rama Vs State of Karnataka, Crl.Appeal No. 1671/2011.
11. Appasaheb and Anr. Vs State of Maharashtra, Appeal (Crl.) 1613 of 2005.
12. Bhola Ram Vs State of Punjab, Criminal Appeal No. 1022/2008.
Relevant Provisions:
38. Both the parties relied upon following provisions of State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 23 of 76
law:
(i) Section 304B IPC r/w section 113B Indian Evidence Act.
(ii) Section 498A IPC.
(iii) Section 306 IPC, 107 IPC and section 113A Indian Evidence Act.
39. Learned Addl. PP submitted that section 304B IPC is made out against the accused persons and mandatory presumption under section 113B Indian Evidence Act is to be drawn against the accused persons.
40. Section 304B reads as under: 304B. Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
41. Hon'ble Supreme Court in the case of Sunil Bajaj State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 24 of 76 Vs State of MP (2001) 9 SCC 417, after noticing the provisions of section 304B IPC had opined that in order to establish an offence u/s 304B IPC, following ingredients must be established before any death can be termed as dowry death: (1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
(2) Such death must have occurred within 7 years of her marriage.
(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.
(4) Such cruelty or harassment must be for or in connection with demand of dowry.
42. In the case of Mahavir Kumar Vs State (supra) relied upon by learned defence counsel. While discussing section 304B IPC, Hon'ble High Court of Delhi held :
16. This section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or inlaws for State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 25 of 76 dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on the husband or inlaws though they did not in fact caused the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, evidence may be direct or circumstantial or both. But in case of an offence under Section 304B IPC, an exception is made by deeming provision as to the nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 26 of 76 said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution.
17. Section 113B of the Evidence Act is also relevant for the case in hand. Both section 304B IPC and Section 113 of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B of the Evidence Act, 1872 reads as under: "113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation - For the purpose of State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 27 of 76 this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)".
18. As per the definition of "dowry death" in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment "for or in connection with the demand for dowry". While considering these provisions, Hon'ble Court in M. Srinivasulu Vs State of A.P., (2007) 12 SCC 443 has observed thus:
"8.4... The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B Indian Penal Code.) State VS Rishi Kumar and Ors.FIR no. 388/16
PS - Sagarpur Page no. 28 of 76 (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death."
19. A perusal of section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that "soon before her death" the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.
43. In the case of Baijnath and Ors. Vs State of MP (supra) the Hon'ble Apex court discussed the conjoint effect of the sections 304B IPC and 113B Indian Evidence Act, holding : State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 29 of 76 (33) A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuse only of the presumption to cover up the shortfall in proof.
(34) The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 30 of 76 the person charged, cannot be overeased to glossover and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty. (35) This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Sindo Alias Sawinder Kaur and another Vs State of Punjab - (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs State of Haryana - (2013) 16 SCC
640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 31 of 76 the Act. It referred to with approval the earlier decision of this Court in K. Prema S. Rao Vs Yadla Srinivasa Rao - (2003) 1 SCC 217 to the effect that to attract the provision of section 304B of the Code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry".
44. Section 498A IPC reads as under: 498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section, "cruelty" means
(a) any 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 State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 32 of 76 (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view of 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.
45. In the case of Hansraj Sharma and ors. Vs Government of NCT of Delhi (supra) relied upon learned counsel for accused, while discussing section 498A IPC Hon'ble High Court of Delhi held as under:
10. In order to succeed in charge under section 498A IPC, the prosecution was required to prove that the appellants had subjected deceased Lovely to cruelty, as defined in the explanation to the Section. It is not every cruelty which is punishable under Section 498A of IPC. The cruelty, as defined in the explanation to 498A of IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act.
The cruelty, so as to attract penal provisions, contained in Section 468A State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 33 of 76 of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to Section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such nature, that causing injury to the life,limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be.
46. It was further held:
44. A bare reading of Section 498A goes to show that the term cruelty which has been punishable under the Section, has been defined in State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 34 of 76 the explanation appended to the said section. Therefore, the consequences of cruelty, which are either 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 harassment of the woman where such harassment is with a view to coerce 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, are required to be established in order to prove an offence under Section 498 IPC.
47. Section 306 IPC has to be read with section 107 IPC and section 113A Indian Evidence Act.
48. In the case of Mahavir Kumar Vs State (supra) relied upon counsel for accused it was held :
50. A perusal of these sections goes to show that any person, who abets commission of suicide, is liable to be punished under section 306 IPC. Section 107 IPC lays down ingredients of abetment,which includes instigating any person to do State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 35 of 76 a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. As per definition of abetment as laid down u/s 107 IPC, there has to be instigation to commit suicide on behalf of the accused persons.
51. In Sanju @ Sanjay Singh Sengar Vs State of MP (2002) Cri.LJ.2796, it was observed:
"Where suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and dies, no offence u/s 306 IPC is made out."
52. In Kishori Lal Vs State of MP, (2007) 10 SCC 797, it was observed: "Mere fact that the husband treated the deceased wife with cruelty is not enough to bring the case within the parameter of Section 306 IPC."
53. In the absence of direct evidence, it is to be seen whether presumption u/s 113A of Indian State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 36 of 76 Evidence Act can be drawn or not.
54. Unlike section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in section 113A of the Indian Evidence Act.
Under section 113A of the Indian Evidence Act the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband and inlaws (in this case) had subjected her to cruelty. Even if these facts are established, the Court is not bound to presume that the suicide had been abetted by her husband. Section 113A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in section 498A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 37 of 76 cruelty by her husband and inlaws does not automatically give rise to the presumption that the suicide had been abetted by her husband and inlaws. The Court is required to look into all other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar Vs State of Chattisgarh, (2001) 9 SCC 618 wherein Hon'ble Supreme Court observed: "This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in laws and incriminating evidence was usually available within the four corner of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 38 of 76 it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability o section 113A, it must be shown that (1) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 39 of 76 shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of th Court to abstain from drawing the presumption. The expression "the other circumstances of the case" used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebutable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in section 113A is defined in section 4 of the Evidence Act, which says "Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it".
55. In Gangula Mohan Reddy Vs State of Andhra Pradesh (2010) 1 State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 40 of 76 SCC 750, Hon'ble Supreme court, observed as under: "In State of West Bengal Vs Orilal Jaiswal & Ors (1994) 1 SCC 73, this Court has cautioned that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpired 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".
APPRECIATION OF EVIDENCE:
49. Now let us appreciate the evidence led by the State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 41 of 76 prosecution in the light of the aforesaid provisions of law and judgments cited by the parties.
50. None of the prosecution witness has stated that any demand of dowry was made from him personally by either of the accused prior to or at the time of solemnization of marriage. In her examination in chief PW1, mother of victim stated that Jyoti was disturbed right after her marriage. Accused Rishi Kumar (husband), used to had only sexual intercourse with her, and coaccused Arun Panwar and Rajni wife of accused Arun Panwar had information about said acts of accused Rishi and were also hand in glove with accused Rishi.
51. It is rightly submitted by learned defence counsel that there is nothing in the testimony of PW1 to suggest that accused Arun Panwar and accused Rajni subjected deceased Jyoti to any cruelty. The role of accused Arun Panwar and Rajni in the testimony of PW1 is limited to having knowledge of the fact of the behaviour of accused Rishi with deceased Jyoti. In her examination in chief itself PW1 stated that on 25.09.2016, deceased Jyoti had requested her to seek help from accused Rajni and also State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 42 of 76 provided her the mobile number of this accused. Thereafter, PW1 stated "I thereafter made a call to accused Rajni and requested her to make her family members understand that they should not harass Jyoti, however she refused any help saying that she could not do anything and discontinued the phone".
52. If the aforesaid testimony of this witness is believed to be true, deceased Jyoti was having a hope from accused Rajni that she can make the other family members understand her situation or she could have saved deceased Jyoti from the harassment. If accused Rajni was herself a tormentor of deceased Jyoti, she would not have asked her mother to seek intervention of said accused Rajni to make other accused understand and stop the harassment of deceased. Mere act of refusal of accused Rajni to not to intervene in the family matters of accused Rishi and deceased Jyoti does not amount to any kind of cruelty. Furthermore, in the examination of PW1 no harassment of accused Rajni on 25.09.2016 is reflected except that the accused Rishi was not consuming the food cooked by deceased Jyoti nor was State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 43 of 76 permitting her to eat the same. If the husband and wife were not taking their dinner after 10.30 pm and accused Rajni refused to intervene in their matter, it cannot be said that she in any way supported the alleged harassment or cruelty or even the conduct of accused Rishi.
53. Other generic allegations in the testimony of PW1 against accused Rajni and Arun Panwar are that they were in possession of two rooms out of three rooms in addition to toilet and kitchen at first floor of the matrimonial home of deceased Jyoti, and Jyoti was not permitted by them to use the toilet at the first floor and she had to go downstairs to use the toilet.
54. Site plan of the first floor of property is attached with the chargesheet and is Ex.PW9/A. It is admitted by the witness that the room in possession of Jyoti was adjacent to the only balcony at first floor. There is no other balcony available in the entire first floor except the one adjacent to the room of deceased Jyoti. The room in her possession is adjacent to kitchen and nearer to the only bathroom as well as staircase. Size of the room is State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 44 of 76 biggest out of the other rooms. The said room has two openings, whereas other rooms at first floor are having one opening each. One of the door of the room opens towards 70 feet wide balcony. There is nothing on record that the bathroom was kept under lock and key. Had there been any intention of the accused persons to not to allow deceased Jyoti the facility of bathroom or balcony etc., there was no purpose with them to provide the best ventilated, open and biggest room to deceased Jyoti. There is no reason that after providing her the best room at the first floor, deceased Jyoti would not have been permitted to use the wash room available by the side of her room. There may be some occasion when the only bathroom available at first floor, might have been occupied and deceased Jyoti had to use the bathroom at ground floor but in the absence of any evidence of the manner in which accused Rajni or Arun Panwar were guarding the bathroom at first floor, the testimony of PW1 is not believable. Otherwise also if since after the marriage deceased Jyoti was using the bathroom at ground floor and lived at her matrimonial home for about State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 45 of 76 03 years, it cannot be said that the act of accused Arun Panwar or Rajni were sufficient to drive deceased Jyoti to commit suicide. There is no allegation that accused Rajni or Arun Panwar ever demanded any property or article or money from deceased Jyoti or her family, rest aside any demand in connection with the marriage or dowry. Rather PW1 herself stated "Accused Rajni had good behaviour towards Jyoti for the first six months of her marriage, however, subsequently used to harass her by asking her to do all the household chores including jhadu pocha and also used to say her that Jyoti had come as a maid servant. She used to instigate other accused persons including accused Rishi". There is no detail how accused Rajni, used to instigate accused Rishi. Even this part of testimony suggests that accused Rajni was having good behaviour towards deceased Jyoti for at least six months. The earlier part of testimony already discussed, in which PW1 had asked accused Rajni to intervene between deceased Jyoti and accused Rishi also reflects that even at that time deceased Jyoti was having at least some faith and confidence in accused Rajni.
State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 46 of 76
55. Considering the relationship between accused Rajni and deceased Jyoti, there may be variety of conversations on different occasions between them and if accused Rajni had asked or advised the wife of younger brother of her husband to do household chores, the same cannot be considered as cruelty or harassment. PW1 stated that there was a maid servant employed in the house prior to the marriage of deceased Jyoti with accused Rishi and the said maid was removed from her job. In her crossexamination this witness stated that she never met any maid servant in the matrimonial house of deceased Jyoti, even prior to or after marriage. Hence, the testimony of PW1 to this effect cannot be believed. Further there is nothing to suggest that only deceased Jyoti was doing all household chores and no other member of the family was doing the same. There is nothing either in the testimony or the circumstances brought on record to suggest that deceased Jyoti was doing household chores of the portion in possession of accused Arun Panwar or Rajni or in possession of other accused persons. If deceased Jyoti was asked to do State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 47 of 76 household chores including jhadu pocha, in the opinion of court the same, except under some circumstances, which suggest that the same was done in order to harass her, does not amount to cruelty or misbehaviour.
56. In the testimony of other witnesses also i.e. PW3 father of deceased, PW5 and PW7 brothers of deceased only general allegations are made against accused Arun and Rajni. PW3 generally stated that accused persons demanded dowry after the marriage. Neither he pointed any specific incidence nor named any accused nor provided any date or occasion when the demand of dowry was made. He further stated that deceased Jyoti was slapped by accused Arun on 23 occasions and when this incidence was told to accused Rajni, then she also gave beatings to her. This statement of PW3 was not corroborated by any other witness nor this witness disclosed his source of information. As per testimony of PW1, Jyoti was mostly talking to her on telephone. PW3 has not stated that how did he receive the information of accused Arun and Rajni beating his daughter. Moreover, as per testimony of PW4 Dr. Pallavi, there was no State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 48 of 76 external injury mark on the body of deceased Jyoti.
57. Again general allegations are levelled against all accused persons in the testimony of PW5 Gaurav Singh, who stated that he seldom had telephonic talks with Jyoti and his mother used to often talk to her on phone and his mother after having talk with Jyoti on telephone, used to tell her about cruelties being faced by Jyoti at her matrimonial home. He also stated that all accused persons demanded dowry but accused Rishi mainly demanded dowry from Jyoti and other accused persons used to support him. How Rishi demanded dowry and how other accused supported him is unexplained.
58. PW7 Hemant Kumar, other younger brother of deceased also made generic allegations that all accused persons used to torture Jyoti and demanded dowry from her. He also stated that accused Krishna Devi used to taunt her and threw the food cooked by her by saying that the same was not cooked properly. He further deposed that Jyoti used to tell him when he had telephonic talks with her that accused Arun and Rajni used to taunt her by saying "kangli kaha se aa gayi". He State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 49 of 76 also deposed that Arun and Rajni had also slapped her and given beatings to her. In his crossexamination he admitted that no demand of dowry was personally made to him.
59. In the facts and circumstances, this court is of the opinion that there is no specific allegation against accused Arun Panwar and Rajni that they ever made any demand of dowry or property or any other article from Jyoti or from any relative of Jyoti. There is even no specific allegation that these two accused harassed Jyoti in connection with any demand of dowry.
60. Similarly, in the case of accused Manish, PW1 stated that she frequently came to matrimonial home of Jyoti and used to instigate accused Krishna Devi and Rishi to demand further dowry and car from Jyoti and on her visit to her parental home, she did not allow Jyoti to touch her feet and also she did not consume anything from the hands of Jyoti.
61. It is rightly submitted by learned counsel for accused persons that there is no date, time, occasion, when accused Manish @ Rekha had instigated accused State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 50 of 76 Krishna Devi and Rishi. PW1 has not even narrated how did she got to know about this behaviour of accused Manish. She has not explained whether and when Jyoti had informed her, if so, on telephone or on any personal meeting.
62. In the case of accused Krishna Devi also there are general allegations that she used to demand dowry from Jyoti and used to taunt her. There is neither any specific incidence, nor it is stated how she put the demand of further dowry before deceased Jyoti. Even if it is presumed that she did not eat the food cooked by Jyoti or or taunted the deceased, there is nothing in the testimony of either witness that the said taunts were in connection with any demand of dowry.
63. In view of the judgments and law already discussed, it is rightly submitted by learned defence counsel that for invoking section 304B IPC and section 498A IPC, the harassment or cruelty against the victim has to have some connection with the demand of dowry. It is already discussed that every cruelty or harassment by the husband or his relatives is not sufficient to invoke section State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 51 of 76
304B IPC or 498A IPC.
64. Court is further in agreement with the submissions of learned defence counsel that there was no occasion for invoking section 113B Indian Evidence Act in the present case. For invoking the said sections prosecution has to positively establish that the deceased woman had been subjected by her husband or his family members to cruelty or harassment for or in connection with any demand for dowry. In the case in hand, prosecution has miserably failed that soon before her death the deceased was subjected to any cruelty or harassment in connection with such demand.
65. Even in the case of accused Rishi, only two incidents have been referred by the prosecution witnesses soon before the death of Jyoti. PW1 in her testimony testified that about four days prior to incidence, Jyoti telephoned her and informed her that accused persons were throwing her out of her matrimonial home and accused Rishi was coming to drop her at her parental home. Witness further deposed that thereafter she with her son Gaurav reached matrimonial home of Jyoti and State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 52 of 76 tried to make accused Rishi understand that he should not destroy his matrimonial life and asked Jyoti that she should remain at her matrimonial home only to save her married life and Jyoti accordingly remained at her matrimonial home. In the entire narration there is nothing that accused Rishi or any other accused demanded any article or dowry from Jyoti, or that the dispute has arisen due to any demand of dowry. Though in earlier part of the statement it is stated that "accused persons" were throwing Jyoti out of her matrimonial home but in the later part it is stated that request was made to accused Rishi only. Hence, a complete reading of the statement suggests that at the most some dispute had arisen between the husband and wife. No other accused was involved in the same. The dispute was not related to any demand of dowry and therefore there is no deposition qua the said demand nor there is any deposition that PW1 or PW5 gave any assurance for providing any article or dowry to accused Rishi. It is important to mention here that though PW1 has stated about this incidence about four days prior to the death of State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 53 of 76 Jyoti and stated that she had visited her matrimonial home along with PW5 Gaurav but PW5 did not corroborate her. PW5 did not state that he visited the matrimonial home of Jyoti along with his mother or that accused Rishi or any other accused, at any occasion, were throwing deceased Jyoti out of her matrimonial home or that situation was saved by him or his mother. PW3 father of deceased also did not mention that he was aware of any such incidence or that he was informed by his wife or son about any such incidence.
66. The next incidence soon before the death of Jyoti is narrated by PW1 about the night on 25.09.2016. PW1 deposed that she made a call to Jyoti on 25.09.2016 at about 10.30 pm, when Jyoti informed her that accused Rishi was harassing her and was not consuming the food cooked by her, nor permitting Jyoti to eat the food. Again there is no allegation that even this dispute between the husband and wife arose due to any demand of dowry. General allegations in the testimony of witnesses without any date or occasion qua the demand of dowry are not believable. The allegations qua the demand of dowry State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 54 of 76 further appear to be unfounded considering the age, family and financial status of deceased Jyoti and accused Rishi. Though it is stated by PW1 and PW3 that about Rs.15.00 lakhs were spent in the marriage but the witnesses admit that no detail of the expenditure was provided to the police. No detail of expenditure was provided even in the court. None of the family member of deceased appear to be an income tax assessee. Specific questins were asked and suggestions were given in the crossexamination to the witnesses but the details of income or expenditure were not provided nor the copy of income tax return was given. The expenditure of Rs.15.00 lakhs at the marriage appears to have been exaggerated because it is admitted by PW3 in his crossexamination "During my job I remain ill from the year 2008 till 2010. The household expenditure during that time used to be met as Jyoti as well as my son Hemant Kumar were working and the medical expenditure was borne out of ESIC. Hemant was aged about 18 years in the year 2008 and had passed 12th examination". PW3 was employed only as a gunman/guard in a private security State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 55 of 76 organization. The court cannot presume that a person, who work only as a private guard/gunman and who was unable to meet his household expenditure due to his illness, and whose studying children had to work outside to meet the household expenses, would be able to spend Rs.15.00 lakhs in the marriage of his daughter. It is important to mention that at relevant time in the year 20082010 one son of PW3 had achieved majority and other son i.e. PW5 was minor, only deceased Jyoti was aged about 2122 years.
67. The claim of expenditure in the marriage of deceased Jyoti further appears to be false because from the record it appears that the family of PW3 did not have enough means to fund the regular education of his children. In her crossexamination PW1 admitted that Jyoti passed her senior secondary school in the year 2006. It is further admitted that till the time of marriage she had not passed her graduation. Though PW1 stated that at the time of marriage she was pursuing her graduation from some college located near Dhaula Kuan but she failed to provide the name of the said college. She State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 56 of 76 admitted that Jyoti continued her studies after the marriage, and after the marriage she took her admission in a Diploma course for the session 20132014 and 2014 2015. As per admission of PW1, Jyoti passed the said diploma course with very good marks. After the marriage Jyoti even appeared for Center Teachers Eligibility Test (CTET) and qualified the said exam also with 101 marks out of 150 marks i.e. with a first division. Other children of PW3 i.e. PW5 and PW7 also did not pursue their regular graduation. Noncompletion of graduation of Jyoti for about 07 years after doing her Senior Secondary; taking admissions in further courses immediately after marriage; passing the same with good marks; clearing the Center Eligibility Test again with good marks, reflects that despite her temptation to study, deceased Jyoti could not continue or complete her graduation in her parental home, the testimony of PW3 itself suggests that during that period she and her brother had to work to meet household expenses, hence the financial status of parents of deceased Jyoti was not sound that accused persons could have expected a car from that family.
State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 57 of 76 Hence, in the opinion of court the story of expenditure of Rs.15.00 lakhs in the marriage of deceased with accused Rishi, as well as the demand of car by accused persons is exaggerated by the family members of deceased, after her death.
68. It is rightly submitted by learned defence counsel that in view of the law and judgments cited on record, cruelty or harassment in connection with any demand of dowry is a sine qua non for invoking section 498A IPC or section 304B IPC. In the facts and circumstances of the present case the prosecution has miserably failed to prove beyond reasonable doubt any demand for dowry and consequent harassment in order to or on account of failure to meet any such demand. Hence, none of accused is liable for conviction for the offence punishable u/s 498A IPC and 304B IPC.
69. Now let us examine the submissions of learned Addl. PP that even if the accused is not convicted for offences u/s 498A IPC and 304B IPC, offence u/s 306 IPC r/w section 107 IPC is clearly made out against the accused persons and more specifically against accused State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 58 of 76
Rishi Kumar.
70. Under Section 107 IPC, a person can be abettor of an act or thing if : (I) He instigates any person to do that thing. (II) He engages with other(s) in conspiracy of doing that thing and an act or illegal omission takes place in pursuance to that conspiracy, and in order to doing of that thing.
(III) He intentionally aids by any act or illegal omission the doing of that thing.
71. Hence, intention or knowledge of the abettor that his acts can lead to the commission of doing a particular act or thing are essential ingredient of section 107 IPC. Without having the necessary menseria or the reasonable knowledge that his acts or omissions may lead to the particular result or thing, no instigation can be made to do that thing, nor any conspiracy can be entered, nor any aid for doing that thing can be provided.
72. Now coming to the facts of the case in hand, it is argued by learned Addl. PP that the combined acts of all accused persons and more particularly the acts of accused State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 59 of 76 Rishi Kumar are sufficient to drive the deceased Jyoti to commit suicide and any reasonably prudent man may analyse that such of his acts may actually abet the victim to commit suicide.
73. The court is not in agreement with the submissions of learned Addl. PP and counsel for complainant.
74. In the case of Narender Singh Arora Vs State, 2010 (3) LRC 349 (Del) Hon'ble High Court of Delhi while observing the tendency of inlaws for registration of case against the husband and his relatives, observed : This case is a reflection of mentality which is now taking grip of parents of a deceased wife in the criminal cases. Whenever a woman dies an unnatural death within seven years of her marriage at inlaw's house, whatever be the cause of death, the in laws must be hanged. This case also shows how truth is losing significance because of the ego of the litigants to see that inlaws should be hanged.
Suicide is a known phenomenon of human nature. Suicides are committed by living human beings for various reasons, some are not able to bear the State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 60 of 76 normal stresses which are common in life. Some are not able to cope up with the circumstances in which they are placed. Some commit suicide because of frustration of not achieving the desired goals. There are many cases where students commit suicide because they failed to achieve certain percentage of marks. Some commit suicide because they are not able to retain top position, some commit suicide because they are not able to cope with the demands of life. Some commit suicide because they suffer sudden loss, some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women. All suicides are unnatural deaths. Suicide is a complex phenomenon. One, who commits suicide, is not able to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married woman in her inlaws' house or at her parents' house has to be because she was suffering harassment at the hands of her husband or her inlaws."
State VS Rishi Kumar and Ors.
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75. From the record it cannot be said that acts or omissions of the accused persons jointly or individually amounted to willfully leading the deceased Jyoti to commit suicide or all the accused persons or some of them entered into any conspiracy to lead deceased Jyoti to do so.
76. There may be some matrimonial discord between accused Rishi and deceased Jyoti, however if the testimony of witnesses is scrutinized, it appears that accused Rishi also provided the support to his deceased wife Jyoti for further progress in her life. He might not have stood to the expectations of deceased Jyoti but he fulfilled many of the obligations as husband. There may be tempramental or other differences between the couple but because of that the accused persons cannot be said to have led the deceased Jyoti to commit suicide. There may be variety of reasons for committing suicide by a person. At spur of moment a person may lose his consciousness to the extent to think and to act to end his life. One negative incidence at the moment may give rise to the thought State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 62 of 76 process in which series of negative moments are remembered or become alive one after the other, and the person may be so overwhelmed by the negative emotions to consider his life useless and to put an end to life, though the incidence may only be ordinary petulance, discord and difference in domestic life which is quite common in the society.
77. In the case in hand following evidence/admissions of witnesses suggests that accused Rishi Kumar had taken care of deceased Jyoti and was overall supportive to her:
1. Best room available on the first floor was provided to deceased Jyoti at her matrimonial home.
2. In her parental home after completing her Senior Secondary Education in the year 2006, Jyoti could not complete her graduation till the year of marriage i.e. 2013. PW1 admitted that Jyoti had taken admission in a diploma in education course from Bhopal, Madhya Pradesh for the session 20132014 and 20142015 and accused Rishi Kumar had taken her to Madhya Pradesh for her admission in the said diploma course. Though the witness volunteered that the fees of that course was paid State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 63 of 76 by her in cash but considering the financial status of the parental house and fact that for 07 long years after her senior secondary, deceased Jyoti could not complete her graduation nor took any admission in any other course, testimony of witness qua payment of fees is not trustworthy.
3. In order to pursue her education, accused Rishi allowed Jyoti to stay at Gwalior, Madhya Pradesh.
4. After marriage Jyoti had appeared for Center Teachers Eligibility Test in September, 2014 and qualified the same with good marks.
5. Jyoti also applied for the post of primary teacher at Kendriya Vidyalaya Sangathan and appeared for the said exam from her matrimonial home.
6. She also applied for the post of Assistant Teacher with Department of Education, Government of NCT of Delhi.
7. PW3 admitted in his crossexamination dated 06.05.2017 that Jyoti used to visit her parental home once every two months or so and at that time accused Rishi used to drop her at parental home and used to take State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 64 of 76 her away in the evening while returning from school. This reflects that accused allowed and helped Jyoti to meet her family members.
8. PW1 admitted that Jyoti used to play and love to spend time with minor daughter of accused Arun and Rajni. Though she volunteered that Rajni used to forbid her daughter to meet Jyoti, and Jyoti was very affectionate towards said child, but said voluntary statement is not trustworthy as in further cross examination witness admitted that on the occasion of birthday of her son Hemant Kumar (PW7), accused Rishi Kumar had brought the said child to the parental house of Jyoti along with Jyoti and photographs Ex.PW1/D2 was clicked in said birthday. Further there are four other photographs Ex.PW1/D1 of the said child with deceased Jyoti in which deceased Jyoti was looking very happy with the said child as admitted by PW1.
78. The testimony of PW1 qua financing further education of deceased Jyoti after marriage or providing her financial assistance does not inspire confidence because of following reasons : State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 65 of 76
a) There is no income tax return of any family
member of deceased Jyoti. Father of deceased was working as a private gun man/security guard with a security agency. PW3 himself admitted that during his illness Jyoti had to work in order to meet household expenditure of her parental home. All these facts reflect that the financial status of the parental home of Jyoti was not very sound.
b) Though in the examination in chief PW1 stated that she deposited Rs.50,000/ in the bank account of Jyoti but she did not mention any date of deposit nor produced any receipt for the said deposit. In her cross examination she stated that the amount of Rs.50,000/ was not deposited by her in a single transaction but was deposited in various transactions and therefore she could not show any receipt of its deposit to the police. She did not even remember the date of any such deposit. Hence, this story of deposit of money cannot be believed.
c) Financing the education of Jyoti after marriage through cash payment is also not believable, because both the brothers of Jyoti who were dependent State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 66 of 76 on PW1 and PW3 could not pursue their regular education. Even Jyoti despite clearing all her examinations after marriage with merit, could not complete her graduation for 07 long years of completion of senior secondary school. Statement of PW1 that Jyoti was pursuing the graduation course through correspondence at the time of marriage is not believable as the said witness could not even tell the name or the location of college. Hence, it is reasonably believable that the finances of further education of Jyoti were provided by her husband.
79. Further the testimony of witnesses qua the alleged harassment by accused persons to deceased Jyoti is not believable due to following reasons:
1) Admittedly deceased Jyoti used to visit her parental home quite often, but according to PW1, PW3, PW5 and PW7 the tale of harassment was narrated by her on telephone only. It is indigestible that deceased would discuss her harassment from the day of marriage, only on telephone, when she used to visit her parental home personally and used to remain there in the absence State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 67 of 76
of either of accused.
2) As already discussed the incidence of about
four days prior to death of Jyoti, about which PW1 stated that accused persons were throwing Jyoti out of matrimonial home, is not corroborated by PW3 or PW5 or PW7.
3) Though PW1 stated that Jyoti informed her on 25.09.2016 through telephone that accused was not consuming the food cooked by Jyoti and was further not permitting her to do so, but it is not explained how the accused was not permitting Jyoti to eat food, whether accused was removing the food from her access or was keeping her away or kept the food in lock and key or threw the food or did not allow her to eat food employing any other method. In the domestic life many words are used which need not be interpreted literally. There may be circumstances under which a person does not eat food due to various reasons including uncongenial atmosphere or ambiance created due to nagging by a partner or some family member. A person may not take the food as a protest to behaviour of his/her partner or to press some State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 68 of 76 request or demand and may still blame the other partner that the food was not taken due to that partner. In the absence of specific allegations the court cannot presume how the accused Rishi had not allowed his wife to eat food, more so when food was cooked by Jyoti herself and possibly it was also Jyoti, who might have offered the food to her husband. If Jyoti was incharge of cooking and serving meals, unless guarded by accused, for which there is no evidence, the court cannot presume that accused could have prevented her from taking food if she was willing to do so.
3) There is major improvement in the testimony of witness from the statement given before PW2 SDM Sh. Satish Kumar Rawat.
4) The mobile phones through which PW1 talked with deceased Jyoti was not provided by her to IO nor the same was collected by IO nor any CDR of the same was filed on record.
5) PW7 admitted that no dowry demand was personally made from him. Even other witnesses does not state that at any point of time any demand of dowry or State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 69 of 76 other articles was made by either of the accused from them.
80. Apart from this the investigation in the case also appears to be not fair and accused Rishi was not arrested as reflected in his arrest memo. As per the arrest memo Ex.PW1/D of accused Rishi Kumar, he was arrested on 27.09.2016 at 06.10 pm and his arrest was witnessed by PW1 Manorma Devi. PW1 in her crossexamination stated that cremation of Jyoti had taken place on 27.09.2016 at about 4.00 pm and that accused Rishi was brought in custody of police at the cremation ground. She further stated that she went to her home after the said cremation and thereafter she remained for the entire night at her house only and did not go anywhere. She further clarified that she directly went to her house from the cremation ground. Hence, it is clear that if the cremation of Jyoti took place on 27.09.2016 at 4.00 pm and PW1 Manorma Devi directly went to her house and remained there for entire night of 27.09.2016, she could not have witnessed the arrest of accused Rishi Kumar from his house RZ26B/215B Indira Park, Sagarpur at State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 70 of 76 06.10 pm. Hence, the IO appears to have not prepared the correct arrest memo and PW1 also signed the false document i.e. arrest memo Ex.PW1/B. Further IO did not examine or cited any neighbour or the person residing in the locality to verify the behaviour of accused persons towards deceased Jyoti, despite the fact that deceased was living in a congested locality and her room was having open balcony.
81. None of the judgments cited by learned counsel for complainant is applicable to the facts and circumstances of the present case. The facts and circumstances of each case relied by learned defence counsel are distinguishable from the facts and circumstances of the present case :
1) In the case of State of Rajasthan Vs Parthu (Supra), it was held that conviction of accused was based on two dying declarations given by the deceased to the IO in presence of treating doctor. However, the same is not in the present case.
2) In the case of Tulsi Ram Vs State (supra), harassment to deceased was proved and there were injury marks on the body of deceased which proved that State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 71 of 76 appellant had beaten the deceased prior to the occurrence of her death. In the present case there are no injury marks on the body of deceased Jyoti, except the ligature mark due to hanging. In the postmortem of deceased Jyoti also cause of death is mentioned as hanging.
3) In the case of Maya Devi Vs State of Haryana (supra), the cruelty and harassment due to demand of dowry was proved and thereafter presumption u/s 113B Evidence Act about the death of deceased was drawn. In the case in hand it is already observed that prosecution has failed to prove the harassment of deceased on account of any demand of dowry and therefore no presumption can be drawn.
4) In the case of Rahul Mishra Vs State of Uttarakhand and Anr. (Supra), cogent consistent evidence was strengthened by the bank statements of witnesses. Whereas, in the present case there is not a single document of expenditure incurred during the marriage or any payment made by inlaws of accused Rishi Kumar, in or after the marriage.
5. In the case of Ashok Vs State (GNCT of Delhi) State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 72 of 76 (supra), ingredients of section 304B IPC were fulfilled from fundamental facts proved by prosecution and thereafter presumption u/s 113B Indian Evidence Act was drawn. In the case in hand, prosecution failed to prove any harassment or cruelty on account of dowry demand and therefore no presumption u/s 113B Evidence Act can be made.
6. The judgment of Kishori Lal and Anr. Vs State (supra), is not applicable to the facts and circumstances of the present case. This judgment has already been discussed by Hon'ble High Court of Delhi in Mahavir Kumar Vs State (Supra), relied upon by accused.
7. In the case of Hira Lal and Ors. Vs State (Govt. of NCT) (supra), there was previous history of police complaint of cruelty, whereas, in the present case there is no complaint against either of accused prior to the date of incidence.
8. In the case of Rajinder Singh Vs State of Punjab (supra), prosecution proved that part payment of inlaws in connection with marriage of deceased was made. Whereas, in the present case prosecution has State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 73 of 76 failed to provide even the list of articles allegedly supplied by the parents of deceased to either of accused. Accused was 11 years older to deceased Jyoti and this was second marriage of accused. It appears that parents of deceased and/or deceased compromised to marry accused Rishi Kumar due to their lower financial status and accused being a public servant. Considering that this was second marriage of accused Rishi Kumar, it is not reasonable that he would demand or that the parents of deceased would have agreed to meet any financial demand of dowry in connection with marriage.
9. In the case of Bansi Lal Vs State of Haryana (Supra), prosecution again established the demand of scooter by inlaws in close proximity to death, whereas, no demand of dowry is established in the present case.
10. In the case of Prashant Mahadeo Chavan Vs The State of Maharashtra (Supra), death was caused due to hanging but there were injuries on the body of victim. In the case in hand as already observed, there are no external injury marks on the body of victim, nor there is any evidence that accused inflicted any physical injury on State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 74 of 76
the body of deceased.
11. In the case of Satvir Singh Vs State, the positive suggestion was made by appellant to the deceased to end her life, whereas, in the case in hand it has already been discussed that accused had taken care for the further progress and education of deceased.
82. For the reasons given above, I thus hold that though the deceased Jyoti had died in abnormal circumstances (hanging) within seven years of marriage; the prosecution has failed to show that soon before her death she was subjected to cruelty or harassment by the accused persons for, or in connection with any demand of dowry, or that due to the cruelty upon her by any willful conduct of the accused to such an extent so as to drive her to commit suicide, nor there is any evidence that deceased was harassed to coerce her to meet any unlawful demand. The accused persons are thus granted benefit of doubt and are acquitted of the charges levelled against them.
83. Accused persons are accordingly acquitted.
84. Bail bonds of accused persons furnished during trial State VS Rishi Kumar and Ors.
FIR no. 388/16PS - Sagarpur Page no. 75 of 76 stand cancelled and sureties are discharged. Endorsement on the documents of sureties, if any, be cancelled. Original documents of sureties, if any, be returned against acknowledgment. Articles seized vide seizure memos and personal search memos of accused persons be released to them against acknowledgment.
85. File be consigned to record room.
Announced in the open court
on the 12th day of July, 2018 Digitally signed
by AJAY
AJAY PANDEY
PANDEY Date:
2018.07.13
14:23:57 +0530
( Ajay Pandey )
Addl. Sessions Judge 04,
New Delhi District, Patiala House Courts New Delhi State VS Rishi Kumar and Ors.
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