Delhi District Court
State vs Satender Gautam on 29 July, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FAST
TRACK COURT), SOUTH-WEST DISTRICT, DWARKA
COURT, NEW DELHI
Presided by: Mr. SHARAD GUPTA
Sessions Case No. 441123/2016
CNR No. DLSW010004202012
FIR No. : 379/2011
Police Station : NAJAFGARH
Under Section : 498A/304B IPC
In the matter of :
STATE
versus
SATENDER GAUTAM
S/o Sh. Kanchan Singh,
R/o Village Shekhupur Roura,
PS Jahangirabad, Bullandshahar,
Uttar Pradesh
Date of institution : 25.02.2012
Date of committal to Sessions Court : 28.03.2012
Date of receipt by way of transfer : 23.09.2022
Date of conclusion of arguments : 20.07.2024
Date of judgment : 29.07.2024
JUDGMENT
1. Vide this judgment, the accused Satender Gautam is being acquitted of the offence punishable under Section 498 A and Section 304 B of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.'), in the instant case FIR No. 379/2011 Police State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 1 of 46 Station Najafgarh, New Delhi for the reasons mentioned below.
CASE OF PROSECUTION
2. The case of the prosecution, as per the complaint made by Smt. Kamlesh Devi, mother of the deceased is that she had two daughters, namely, Preeti Sharma and Poonam Sharma and her elder daughter Preet Sharma got married with one Mr. Gunjan Sharma and joined her matrimonial home at Kabul Nagar, Shahdra, whereas her younger daughter Ms. Poonam Sharma came to Delhi for the studying. She added that her daughter Poonam Sharma lived in Khoda UP for sometime and thereafter, she started residing at Mahipal Pur. The complainant added that she, her elder daughter Preeti and her husband used to visit Ms. Poonam at her rented accommodation and Ms. Poonam also used to visit her village. She added that they also used to give expenses to her daughter Mr. Poonam Sharma. She stated that her daughter Poonam was working in Metro for the last about one year and had visited her (complainant) about five months ago, for 2-3 days when she got operated for her ear and thereafter, they could not come to meet her and in the meantime, accused Satender Gautam performed court marriage with her daughter, about which they had no knowledge. She added that about twenty days ago, her daughter (deceased) had demanded Rs.40,000/- from her saying that she wanted to pursue B.Ed. and she had delivered the said amount to her daughter at Shahdra Metro Station. She stated that thereafter, on 26.11.2011, at about 10.00 pm, accused Satender called her from the mobile phone of deceased Poonam and informed that Poonam had consumed poison. She added that on the same day she went to the house of State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 2 of 46 her elder daughter Preeti and thereafter, she alongwith her brother in law and daughter Preeti reached Chanan Devi Hospital where the doctors informed that her daughter died of consuming poison. She added that she asked accused Satender Gautam as to what had happened and why Poonam had consumed poison, on which accused informed her that he had a quarrel with deceased Poonam under the influence of liquor due to which Poonam consumed poison. Smt. Kamlesh Sharma raised suspicion that accused Satender Gautam has killed daughter by giving her poison.
3. The circumstances which put the law into motion are that on 26.11.2011, about 09.43 pm, an information regarding Ms. Poonam W/o Sh. Satender Gautam, aged 22 years, R/o RZ- 129, Roshan Garden, Najafgarh, having been admitted to Roop Rani Hospital, vide MLC no. 3393/2011, in unconscious state due to some unknown poison was received at PS Najafgarh from the PCR. The information was recorded vide DD no. 34 A. On making a telephone call at Roop Rani Hospital, it was revealed that no woman by the name of Ms. Poonam had been admitted there. On checking with control room, it was revealed that Ms. Poonam had actually been admitted at Chanan Devi Hospital. On the basis of DD no. 34 A, ASI Nand Kishore alongwith Ct. Jagdish reached at Chanan Devi Hospital where Ms. Poonam was found admitted. The doctors had declared her 'not fit for statement'. Accused Satender Gautam was found present in the hospital and he informed ASI Nand Kishore that he had got married with Ms. Poonam in a temple at Khurja about two years ago and they got their marriage registered in September, 2011. In State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 3 of 46 the meantime, Ms. Poonam expired during treatment and was declared dead at about 11.00 pm. Since the deceased had expired within two years of her marriage, SDM Najafgarh was informed who directed the IO to bring the mother and father of the deceased to his office in the morning on 28.11.2011. In the meantime, the dead body was sent for post mortem and the spot was got inspected/photographed from the crime team. As per the charge-sheet, on 28.11.2011, the SDM recorded the statement of mother of deceased and made endorsement directing the SHO to proceed as per law. The IO got the post mortem conducted and handed over the body of the deceased to her relatives. On the basis of the aforesaid facts and circumstances, ASI Nand Kishore prepared rukka and got the present FIR registered U/s 304 B IPC. Further investigation was handed over to Inspector Rajbir, who prepared the site plan, arrested accused Satender Gautam, recorded his disclosure statement and collected the marriage registration documents of the deceased and the accused. Further investigation was handed over to Inspector Manoj Kumar, who recorded the statements of witnesses, added Section 498 A IPC, collected the post mortem report, got the viscera deposited at CFSL Delhi, got the marriage registration documents verified and after completion of the investigation filed the charge-sheet in the court. FSL result was subsequently filed in the court.
COURT PROCEEDINGS
4. In light of the police report and the documents filed alongwith the same, cognizance was taken and the matter was committed for trial vide order dated 28.03.2012 passed by the learned Metropolitan Magistrate.
State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 4 of 46
5. The case was received by way of transfer by this Court on 23.09.2022.
CHARGE
6. Vide order dated 17.04.2014 passed by Mr. Vikas Dhull, the then learned Additional Sessions Judge-(SW-02), Dwarka Courts, Delhi, charge for the offences punishable under Section 498 A IPC and Section 304 B IPC was framed against accused Satender Gautam. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. The prosecution in all examined nineteen (19) witnesses to prove the charge against the accused.
8. PW-1 Ms. Kamlesh Sharma is the complainant/mother of deceased Ms. Poonam Sharma. PW-2 Ms. Preeti Sharma and PW-3 Mr. Mukesh Kumar are respectively, the elder sister and father of deceased Ms. Poonam Sharma. PW-4 HC Karamveer Singh is the MHC(M) with whom the case property of this case was deposited. PW-5 Mr. Harinder Singh is the record clerk from the Officer of Sub Registrar, Khurja, Bulanshahar, UP, who proved and produced the record regarding the registration of marriage of accused Satender Gautam with deceased Ms. Poonam Sharma. PW-6 Mr. Babu Lal is the owner/landlord of the house where the deceased had expired. PW-7 Mr. Ashish Mohan, is the then SDM who had recorded the statement of complainant/mother of deceased Ms. Poonam Sharma. PW-8 Dr. V. S. Issar had examined/treated the deceased State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 5 of 46 Ms. Poonam at Mata Chanan Devi Hospital, prepared the examination notes/treatment and under whose supervision, the death summary was prepared. PW-9 Dr. Pravindra Singh conducted the post mortem on the dead body of deceased Ms. Poonam Sharma and also gave the final opinion regarding her death. PW-10 Dr. V. K. Jain had attended the deceased Ms. Poonam Sharma at Surya Kiran Hospital, Najafgarh, where the deceased was first taken. PW-11 Dr. Shephali Bhasin identified the handwriting and signatures of Dr. Mayanka Shekhawat on the MLC of deceased. PW-12 Ms. Sneha is the friend of deceased Ms. Poonam Sharma who had been residing with the deceased and the accused in their rented accommodation for a few days prior to the incident. PW-13 Ct. Jaswinder deposited the exhibit(s) of this case at FSL. PW-14 ASI Naresh Kumar is the duty officer who had recorded the FIR of this case. PW-15 ASI Nand Kishore is the first investigating officer of this case. PW-16 SI Gajendra had recorded DD no. 34 A. PW-17 Retired Inspector Rajbir Singh and PW-18 Inspector Manoj Kumar are the investigating officers of this case. PW-19 Mr. Sri Narain is the Assistant Director Chemistry who had chemically examined the gastric leverage and viscera of the deceased and gave his report.
DEFENCE OF THE ACCUSED
9. In his statement recorded under Section 313 Cr.PC, vide order dated 09.12.2013, the accused denied the entire incriminating circumstances appearing in the evidence against him. He claimed innocence and stated that PW-1 Smt. Kamlesh, PW-2 Ms. Preeti Sharma and PW-3 Mr. Mukesh are interested witnesses and they were not happy with his marriage as he State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 6 of 46 belonged to scheduled caste community and they belonged to brahmin community. He stated that PW-2 never visited their house. He stated that he had called the sister of Poonam from hospital that Poonam is in the hospital. He stated that no one met him in the hospital. He stated that he never harassed Poonam for money or any other reasons. He stated that his signatures were obtained on blank papers. He stated that the FSL report was a fabricated one. Accused added that his marriage with the deceased was a love marriage which was performed without informing their families. He stated that he had left his family to live with deceased Poonam and had no reasons to commit the alleged offence. He stated that he always kept his wife well and never demanded any dowry as alleged. He stated that he never harassed the deceased nor given any beatings to her at any point of time. He stated that the allegations regarding demand of Rs.40,000/- for B.Ed. is baseless as his wife was not even a graduate. He stated that he was living peacefully with his wife and no dispute/quarrel had taken place between them at any point of time. He further stated that after the death of his wife, he came to know that her parents and other family members used to harass her over phone calls for inter caste marriage between her and the accused. He stated that he has been falsely implicated in the present case since the family of the deceased was unhappy with his marriage with the deceased. The accused preferred not to lead any evidence in his defence.
10. The record has been carefully perused. The respective submissions of Mr. Girish Kumar Manhas, learned Additional Public Prosecutor for the State, Mr. Pujya Kumar State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 7 of 46 Singh, Ld. Counsel for the accused have been duly considered.
ANALYSIS AND FINDINGS
11. In the instant case, the accused has been charged for the offences punishable U/s 498A & 304B IPC. The provisions of Sec.498A IPC provide 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 purposes of this section 'cruelty' means -
(a). any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
(b). harassment of the woman whether such harassment is with a view to coercing her to 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."
12. Cruelty has been defined by the explanation added to the Section itself. The basic ingredients of Section 498A IPC are cruelty and harassment.
13. In Mohd. Hoshan Vs. State of A.P (2002) 7 SCC 414, Hon'ble Apex court held that "Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 8 of 46 impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."
14. In Smt. Raj Rani Vs. State (Delhi Administration) AIR 2000 SC 3559, the Hon'ble Supreme Court held that "while considering the case of cruelty in the context to the provisions of Section 498A IPC, the Court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt."
15. In Sushil Kumar Sharma Vs. Union of India AIR 2005 SC 3100 Hon'ble Apex court while explaining the distinction of cruelty as provided under Section 306 and 498A observed that "under Section 498A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306 IPC, suicide is abated and intended. Therefore, there is a basic difference of the intention in application of the said provisions."
16. In Girdhar Shankar Tawade Vs. State of Maharashtra AIR 2002 SC 2078 Hon'ble Apex court held that "cruelty has to be understood having a specific statutory meaning provided in Section 498A IPC and there should be a case of State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 9 of 46 continuous state of affairs of torture by one to another."
17. "Cruelty" for the purpose of Section 498A IPC is to be established in the context of Section 498A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty".
18. It is clear from the above settled law laid down by the Hon'ble Supreme Court in catena of decisions that for cruelty to come U/s 498A IPC, mental or physical torture has to be continuously practiced by the accused on his wife. Allegations must be of a very grave nature and should be proved beyond reasonable doubt. Cruelty has to be understood having a specific statutory meaning provided U/s 498A IPC and there should be a continuous state of affairs of torture by one to another. For proving cruelty, it is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint.
19. To establish charge under Sec.304B IPC, it is incumbent upon prosecution to prove the ingredients of section 304 B. State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 10 of 46 Sec.304-B of the Indian Penal Code 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.
Explanation - For the purpose of this sub- section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
20. A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death, the deceased as subjected to cruelty or harassment by her husband or any of his relative; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The parliament has also inserted Section 113 B of the Indian Evidence Act by Act No. 43 of 1986 with effect from 1.5.1986 which reads as under:-
"113 B- 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 State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 11 of 46 such person had caused the dowry death."
Explanation.- For the purposes of this section, "dowry death", shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860)".
21. From a conjoint reading of Section 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act, it is apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304-B of the Indian Penal Code.
22. The ingredients of the aforementioned provisions are:-
(i). That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;
(ii). Such death occurs within 7 years from the date of her marriage;
(iii). That the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(iv). Such cruelty or harassment should be for or in connection with demand of dowry; and
(v). It is established that such cruelty and harassment was made soon before her death.
23. The essential ingredient of Section 304B is that soon before her death woman was subjected to cruelty or harassment by her husband or his family in connection with demand of dowry.
24. It is a matter of record as well as an admitted fact that the death of deceased Ms. Poonam was caused in circumstances which were not normal and the said death took place within seven years of her marriage with the accused.
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25. In respect of the other ingredients of Section 304 B IPC, in the instant case, the prosecution has alleged that the deceased Ms. Poonam Sharma ended her life because of harassment caused to her by the accused for or in connection with demand of money/dowry. In order to establish the allegations regarding the demand of dowry, the star witnesses of the case of prosecution are PW-1 Mrs. Kamlesh Sharma (mother of deceased), PW-2 Ms. Preeti Sharma (sister of deceased) and PW-3 Mr. Mukesh (father of the deceased).
26. PW-1 Smt. Kamlesh while appearing in the witness box deposed that the deceased was her daughter and three years prior to the date of incident, she came to Delhi for studies and stayed at Khauda, Anand Vihar, New Delhi for about one year and from there she shifted to Mahipulpur and stayed there for about two years. She further deposed that her deceased daughter Poonam used to visit her native place once in a month and they also used to often visit her tenanted accommodation at Delhi. She stated that her elder daughter Preeti Sharma alongwith her husband and children used to reside at Qubul Nagar, Shahdara, Delhi and about four-five months prior to the death of her deceased daughter Poonam, she came to know from her elder daughter Preeti Sharma that her deceased daughter Poonam and accused had got married. She added that her elder daughter also informed her that accused used to harass her deceased daughter Poonam and he also used to beat her and had also sold her jewelry. She further deposed that her elder daughter Preeti also used to visit the house of accused and she had made the accused understand as to why he used to quarrel with Poonam.
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27. PW-1 further deposed that on 26.11.2011 at about 10-11 p.m., accused Satender had telephonically informed her from mobile phone of her deceased daughter Poonam and informed that Poonam had consumed poison. She added that she alongwith her elder daughter Preeti, son in law Gunjan Sharma and brother in law Dev Kumar Sharma reached the hospital, the next day in the morning i.e. at around 4.00 a.m. on 27.11.2011. She further stated that accused Satender was also found present in the hospital and she enquired the accused as to what had happened, on which he replied that after consuming liquor, he had a quarrel with Poonam on the previous night. She added that she came to know through her elder daughter Preeti that accused used to harass deceased Poonam for the purpose of dowry. She stated that police also reached the hospital and detained accused Satender in the police station on Sunday. She added that her statement Ex.PW1/A was recorded on Monday in the morning.
28. PW-1 was also cross-examined by Ld. Defence Counsel. In her cross-examination PW-1 Smt. Kamlesh deposed that she had not handed over the marriage documents of her deceased daughter Poonam with the accused, to the police. She stated that her relations with her elder daughter Preeti were cordial. PW-1 could not remember the mobile number of her deceased daughter Poonam through which accused had called her on 26.11.2011. She stated that only her statement was recorded by Police on 27.11.2011. She stated that she and her elder daughter Preeti were not part of the marriage of her deceased daughter Poonam with accused. She could not remember the year and the period in which her deceased daughter a Poonam stayed State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 14 of 46 at Khauda, Anand Vihar and Mahipalpur. She stated that in Khauda, the deceased used to stay with her friends whereas in Mahipalpur, she was staying with accused after marriage. She denied that the accused had never harassed her deceased daughter Poonam for the purpose of dowry at any point of time. She further denied that her elder daughter Preeti had also not informed her regarding the harassment done by accused to her deceased daughter Poonam. She denied that she had deposed falsely.
29. From the above recapitulation of the testimony of PW-1 Smt. Kamlesh Sharma who is also the complainant in the present case, it is clear that she had not attended the marriage of accused Poonam Sharma with the accused and she came to know about the marriage of deceased Poonam Sharma with accused Satender Gautam only through her elder daughter. She has not claimed that she ever visited her daughter Poonam Sharma after her marriage with accused Satender Gautam or that deceased ever visited them. She has also not claimed that she had any telephonic conversation with the deceased after her marriage. PW-1 has claimed that she came to know from her elder daughter Preeti Sharma that the accused used to harass her deceased daughter Poonam and that he used to beat her and had sold her jewellery.
30. Thus, as per PW-1, she came to know through her elder daughter Ms. Preeti Sharma that accused used to harass deceased Poonam for the purpose of dowry. Therefore, it can be safely presumed that PW-1 Ms. Kamlesh had no personal knowledge about the married life of Ms. Poonam Sharma with State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 15 of 46 accused Satender Gautam and her knowledge regarding the harassment and demand of dowry is hear say, originating from her elder daughter Ms. Preeti.
31. This fact assumes significance in view of the fact that in her complaint Ex.PW1/A, Smt. Kamlesh had not disclosed that her elder daughter Ms. Preeti Sharma had ever told her about any harassment and demand of dowry by accused Satender Gautam upon/from deceased Poonam. Therefore, PW-1 Smt. Kamlesh Sharma has majorly improved her version in the court while deposing that her elder daughter Poonam told her that accused Satender used to beat or harass deceased Poonam on account of demand of dowry. This is not a minor improvement which can be safely ignored. In fact, if this improved version is removed from her testimony recorded in the court, there is nothing material in her deposition to hold the accused guilty of the offences charged with.
32. It is also relevant to note here that while in the complaint Ex.PW1/A, PW-1 Smt. Kamlesh claimed that 20 days prior to her death, her deceased daughter Ms. Poonam Sharma had asked her for Rs.40,000/- to pursue B.Ed. and she had handed over the said amount to deceased Poonam at Shahdra Metro Station, she had remained completely silent on these aspects in her testimony recorded in the court.
33. Therefore, this court is of the view that the testimony of PW-1 Smt. Kamlesh who is mother of the deceased as well as the complainant in the present case, is of no aid to the case of prosecution.
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34. The prosecution has also examined PW-2 Ms. Preeti Sharma, the elder sister of deceased Poonam. While appearing in the witness box, PW-2 Ms. Preeti Sharma deposed that in the year 2008, her younger sister deceased Poonam shifted to Delhi from their native place Bulandshar, U.P. and she was pursuing course of Hotel Management from an Institute situated in Tri Nagar, Inderlok, Delhi. She stated that she (Poonam) used to reside in a house as Tenant at Inderlok and she used to visit room of deceased Poonam at Inderlok occasionally. She stated that accused Satender Gautam met her for the first time in the room of deceased Poonam and Poonam had introduced accused Satender Gautam to her as her friend. She further deposed that she used to talk to her deceased sister Poonam over telephone also. She added that about 20-25 days prior to the death of her deceased sister Poonam she told her that she had got married with accused Satender Gautam. She further deposed that her deceased sister used to tell her over phone that accused Satender Gautam used to quarrel with her and used to harass her for money. She added that about 10-12 days prior to the death of her deceased sister Poonam, she (Poonam) had asked Rs. 40,000/- from her parents on the pretext that she wanted to pursue B.Ed course and thereafter, her mother had come to Delhi with Rs. 40,000/- and handed over the said amount to her deceased sister at Shahdra Metro Station. She further deposed that on 26.11.2011, accused Satender Gautam made a telephonic call to her at about 09.00 PM to the effect that her deceased sister Poonam was not feeling well. She added that after one minute of the first call, accused Satender again made a telephonic call to State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 17 of 46 her to the effect that her deceased sister Poonam had expired. She stated that at that time her deceased sister Poonam used to stay with accused Satender Gautam in a rented accommodation. She stated that at the same time, she made a call to her parents regarding death of her deceased sister. She stated that in the night at around 02.00 am, her mother alongwith her uncle reached her house at Shahdra and from there they went to Mata Chanan Devi Hospital, Janak Puri, Delhi.
35. Briefly, in her examination in chief recapitulated above, PW-2 Ms. Preeti Sharma has levelled allegations to the effect that her deceased sister used to tell her over phone that accused Satender Gautam used to quarrel with her and used to harass her for money. She further alleged that about 10-12 days prior to the death of her deceased sister Poonam, she (Poonam) had asked Rs. 40,000/- from her parents on the pretext that she wanted to pursue B.Ed course and thereafter, her mother had come to Delhi with Rs. 40,000/- and handed over the said amount to her deceased sister at Shahdra Metro Station.
36. However, in her cross-examination by Ld. Defence counsel, PW-2 took a summersault and completely changed her version. In her cross-examination, PW-2 deposed that her statement was not recorded by the police in this case at any time. She stated that she came to know for the first time, on the day when her sister died, that her sister had married with accused Satender Gautam. She further stated that her mother came to know about her sister getting married with accused Satender Gautam in the hospital. She added that she (her mother) came to know about these facts of her own and she was aware before she State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 18 of 46 could share these facts with her. During her further cross- examination, she once again reiterated that her deceased sister had never shared with her before her death even on telephone that she had got married to accused Satender Gautam. She stated that she had not made any statement to the police that her sister and Satender Gautam had got married in January, 2010 and in September, 2010, they got their marriage registered at Khurja, Distt. Bulanshahar. She once again clarified that her statement made before the court with regard to the fact that she came to know about the fact of marriage of her sister with Satender Gautam on the day when she died, is correct.
37. In the above recapitulated portions of the cross- examination of PW-2 Ms. Preeti Sharma, she has repeatedly stated that she came to know about the marriage of her deceased sister Poonam Sharma with accused Satender Gautam for the first time on the day when she died. She admitted/clarified this fact twice in her cross-examination. As per PW-2 Ms. Preeti, even her mother came to know about the marriage of deceased Poonam Sharma with accused Satender Gautam on the day of her death itself. In view of the fact that PW-2 Ms. Preeti has repeatedly admitted that she came to know about the marriage of deceased Poonam with accused Satender Gautam for the first time on the date of her death itself, her deposition made in her examination in chief that deceased Poonam used to tell her over phone that accused Satender Gautam used to quarrel with her and used to harass her for money, cannot be believed to be true. Further, since as per PW-2, she had no knowledge about the marriage of her deceased sister Poonam Sharma with accused Satender State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 19 of 46 Gautam till the date of her death, there is no question of her having knowledge of any harassment/demand of dowry by accused Satender Gautam from deceased Ms. Poonam Sharma.
38. This is more so in view of the fact that the complainant/PW-1 Smt. Kamlesh had remained silent on the aspect of demand of Rs.40,000/- by deceased Ms. Poonam Sharma from her parents.
39. In view of the aforesaid discussion, this court is of the view that even the testimony of PW-2 Ms. Preeti Sharma could not provide any aid to the case of prosecution in respect of the charges framed against accused Satender Gautam.
40. The prosecution has also examined Mr. Mukesh Kumar, father of deceased Ms. Poonam Sharma as PW-3.
41. While appearing in the witness box PW-3 Mr. Mukesh Kumar deposed that in the year of 2008, his deceased daughter Poonam had come to Delhi for pursuing the course of Hotel Management from an Institute at Inderlok, Delhi and she used to reside as tenant in a room at Inderlok. He further deposed that his deceased daughter Poonam used to visit their house at Bulandshar occasionally. He added that about one month prior to the death of his deceased daughter Poonam, she had made a call asking Rs. 40,000/- for pursuing B.Ed. Course and after about 15 days of receiving the said call, his wife had come to Delhi and handed over Rs. 40,000/- to his deceased daughter Poonam. He further deposed that on 26.11.2011, his elder daughter Preeti had made a call to the effect that deceased Poonam was not feeling well and she asked them to reach Delhi. He added that as he was State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 20 of 46 having a fracture on his right leg, he could not come to Delhi but his wife alongwith his neighbour Sh. Dev Kumar came to Delhi. He further deposed that on 26.11.2011, in the night, he came to know that his daughter Poonam had expired. He further deposed that after death of his deceased daughter Poonam, his elder daughter Preeti told him that she had got married with accused Satender Gautam and he used to harass her for money. He further deposed that his elder daughter Preeti also told him that accused Satender Gautam used to force her (deceased Poonam) to bring money from her house. He further added that after one week of the death of his deceased daughter Poonam, he had come to Delhi and went to the room of his deceased daughter Poonam where she used to reside alongwith accused Satender Gautam.
42. PW-3 Mr. Mukesh Kumar was cross-examined by learned defence counsel. During the cross-examination, PW-3 Mr. Mukesh Kumar admitted that whatever he had stated in his statement on 18-03-2015 (i.e. his examination in chief), was told to him by his wife and daughter Preeti. He stated that his daughter Poonam had come to Delhi in the year 2009 for pursuing a course in Hotel Management and later she had taken money from him for doing B.Ed. He could not recollect the name of the college from where his daughter had done a course in Hotel Management. He, however, stated that the said college was in Inderlok and it was a 3 years course and she could not complete the said course. He further stated that he had spoken to his daughter Poonam at about 7.00 P.M. on the day she expired. He volunteered that at that time he was having a plaster on his leg. He stated that his daughter Poonam was frightened at that State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 21 of 46 time. He added that he had met his daughter Poonam about 3 months before she expired at his house in Jahangirabad in UP in October or November. He stated that he was a shop keeper at the relevant time and had handed Rs.40,000/-, out of the cash lying in the shop. He volunteered that one week after the death of his daughter Poonam, he came to her room at Najafgarh, where he found that her mobile phone was broken and the sim card was not there. He added that the laptop of his daughter was also given three months after the incident by the brother of accused Satender Gautam in his presence in the police station and her gold chain, ear tops and ring could not been recovered. He stated that he was not aware when his daughter Poonam got married and when he came to take the belongings of his deceased daughter, only then he came to know that accused Satender Gautam and his daughter Poonam had got married. He stated that he came after about one week of death of his daughter. He could not remember the mobile number which he was also having when he last spoke to his daughter Poonam. He also could not remember the mobile number of his daughter Poonam from which she spoke to him. He further stated that his deceased daughter Poonam was doing BA at Jahangirabad but she could not complete the same. He stated that Inspector Manoj had made inquiry from him in this case, however, his statement was not recorded. He denied that he had wrongly deposed with a feeling of vengeance as he had grievance against the accused his getting married to his daughter. He, however, admitted that he had no direct knowledge about the death of his deceased daughter Poonam.
State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 22 of 46
43. From the above recapitulation of the testimony of PW-3 Mr. Mukesh Kumar recorded in the court, it is clear that he came to know about the marriage of his deceased daughter Ms. Poonam Sharma with accused Satender Gautam about one week after her demise, when he came to take her belongings. It is also an admitted fact that whatever is his knowledge about the married life of his daughter Poonam, is based on the information given to him by his wife and daughter Preeti. As has already been discussed hereinabove, even PW-1 Mrs. Kamlesh has admitted that she came to know about the marriage of deceased Poonam with accused Satender Gautam, the so called demands of dowry and harassment upon deceased Ms. Poonam by accused Satender Gautam, only through her daughter Preeti. Therefore, the knowledge of PW-1 Mrs. Kamlesh is hear say having been received from her daughter Preeti. So far as PW-2 Mr. Preeti is concerned, it has already been discussed hereinabove that PW-2 Ms. Preeti in her cross-examination has repeatedly said that she came to know about the marriage of deceased Poonam with accused Satender Gautam only on the date of her demise. Therefore, even PW-2 Ms. Preeti did not have any knowledge about any demands or cruelty on account of demand of dowry being committed by the accused upon her deceased sister Ms. Poonam. Pertinently, when PW3 Mukesh Kumar came to know about fact of marriage of his daughter with the accused about one week after her death when he came to collect the articles of his deceased daughter, his testimony is of no help to the prosecution in establishing that the accused had harassed the deceased in connection with dowry demands.
State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 23 of 46
44. So far as the claim of PW-3 Mr. Mukesh Kumar that he had talked to his deceased daughter Poonam at about 07.00 pm on the day she expired and that she was frightened at that time, is concerned, this court is of the view that this part of the testimony of PW-3 Mr. Mukesh Kumar cannot aid the case of prosecution in any manner as the deceased had not disclosed to PW-3 Mr. Mukesh Kumar that she was frightened nor he asked her about the reasons of the same.
45. So far as the allegations regarding the demand of Rs.40,000/- is concerned, it is relevant to note here that none of the witnesses i.e. PW-1 Mrs. Kamlesh, PW-2 Ms. Preeti Sharma and PW-3 Mr. Mukesh Kumar has stated that the said amount was demanded by the deceased at the instance of accused Satender Kumar Gautam as a dowry. As noticed above, it is clear from the testimonies of PW1, PW2 and PW3 that Poonam never told them even about her marriage with the accused what to say about any harassment by accused Satender Gautam on account of demand of dowry. It was only PW-2 Ms. Preeti who in her examination in chief claimed that Poonam had told her over phone that accused Satender Gautam used to quarrel with her and used to harass her for money. However, as has already been discussed hereinabove, that in her cross-examination, PW-2 has repeatedly claimed that she came to know about their marriage only on the day when she expired.
46. Based on the above discussions, what can be safely concluded from their testimonies is that PW1, PW2 and PW3 were not even aware about the marriage of deceased Ms. Poonam with accused Satender Gautam and they got to know about the State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 24 of 46 same only on the date of her demise or thereafter. Here it is also not out of place to mention that the accused has repeatedly claimed that his in laws were not happy with his marriage with the deceased on account of their caste differences and that he has been falsely implicated in this case for this reason only. It appears that even the deceased had concealed the factum of her marriage with accused Satender Gautam from her family knowing that they would not accept this inter-caste marriage. Be that as it may, a human life is lost and the reason of her death/suicide is being attributed to harassment and demands of dowry having been made by her husband accused Satender Kumar Gautam. However, it is pertinent to observe that when the family members of the deceased including her mother, sister and father were not aware that she had married with the accused, there was no occasion for the deceased to tell them that she was being harassed or subjected to cruelty in connection with dowry demands or that immediately prior to her death the accused had subjected the deceased to cruelty for purpose of dowry demand.
47. In order to establish its case, the prosecution has also examined PW-12 Ms. Sneha, a friend of the deceased, who was allegedly residing with her at the time of her death.
48. While appearing in the witness box PW-12 deposed that she was studying Hotel Management in Inderlok IPMT Institute where the deceased Ms. Poonam was also doing the same course with her. She added that after completing the course, she did not meet deceased Poonam. She deposed that Poonam met her after 2 and a half years in a marriage where they exchanged greetings. She further deposed that on her (Poonam) State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 25 of 46 asking, she told that she was not working anywhere on which she (Poonam) told her that she was working in a company and would arrange job for her in her company. She added that she stayed in the house of Poonam where she was staying with accused Satender Gautam. She further stated that during her stay in the house of Poonam, one night there was quarrel between accused and his wife Poonam. She added that she thought that it was a normal quarrel between husband and wife, however, in the morning hours, she saw her (Poonam) weeping in her kitchen and on her asking, Poonam told her that she was disturbed due to the quarrel with accused. She further deposed that in the evening hours, she left for marketing and when she returned, she came to know that Poonam has been removed to the hospital due to vomiting and she was not feeling well. She further deposed that at about 11:00 PM, she went to Chanan Devi Hospital where she met the family members of Poonam i.e. her mother and sister. She further deposed that she came to know that Poonam had expired. She added that due to late hours, she went to the house of a relative in Delhi and thereafter went to her native house at Bulandsahar. She stated that she stayed in the house of Poonam for 3-4 days and the quarrel took place in the same period i.e. month of November-2011 but she could not recollect the exact date.
49. PW-12 Ms. Sneha was cross-examined by Ld. Addl. PP for the State as she was resiling from her previous statement made to the police. During her cross-examination by Ld. Addl. PP for the State, PW-12 changed her stand and admitted that police made inquiries from her. She also admitted that on State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 26 of 46 25.11.2011, a quarrel took place between accused and deceased Poonam and the accused was under the influence of liquor. She also admitted that when Poonam met her in the kitchen and was weeping, Poonam told her that the accused used to tell her to bring money from her family members and she was being harassed. She stated that she forgot to mention these facts due to lapse of time.
50. PW-12 was cross-examined by the Ld. Defence counsel and during her cross-examination, PW-12 again changed her stand and admitted that the marriage between the accused and the deceased was a love marriage and both were living peacefully. She stated that in her presence, the accused did not make any demand of money from the deceased. Taking a summersault in her cross-examination, PW-12 admitted the suggestion of the Ld. Defence counsel that the deceased never told her that accused used to demand money from her and her family. She stated that the police did not record her statement. On PW-12 having changed her version in her cross-examination by Ld. Defence counsel, Ld. Addl. PP for the State sought permission of the court to re-examine PW-12, however, the said permission was declined by my Ld. Predecessor.
51. PW-12 Ms. Sneha has though claimed that a day prior to the death of deceased Ms. Poonam, there was a quarrel between the accused and the deceased and the accused was under
the influence of liquor. She has, however, not claimed that the reason of the said quarrel was on account of demand of dowry/money. In fact, even as per PW-12, she thought that it was a normal quarrel between a husband and a wife.
State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 27 of 46
52. Further, PW-12 Ms. Sneha in her examination in chief, did not level any allegations of deceased Poonam having told her about the accused making any demand of money from her or her family. However, on being cross-examined by Ld. Addl. PP for the State, she admitted the suggestion that Poonam told her that the accused used to tell her to bring money from her family members and that she was being harassed, thereby completely changing her version. Furthermore, while being cross-examined by Ld. Defence Counsel, she once again changed her version and admitted the suggestion of Ld. Defence counsel that deceased never told her that the accused used to demand money from her and her family. PW 12 has thus oscillated and vacillated during the course of her examination in chief, cross examination by Ld APP for the state and cross examination by the accused. In view of the above, it is clear that PW-12 Ms. Sneha has changed her version thrice and therefore, she cannot be termed as a sterling witness. The law as to when a witness can be called a sterling witness is well settled and it would be pertinent here to refer to the settled proposition of law on the point.
53. It has been held in Santosh Prasad @ Santosh Kumar Vs. State of Bihar dated 14.02.2020 Criminal Appeal no. 264 of 2020 arising out of SLP (Criminal) no. 3780/18 as under:-
5.4.2. In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:
"22 In our considered opinion, the "sterling State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 28 of 46 witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 29 of 46 can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
5.4.3 In the case of Krishna Kumar Malik v.
State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix?
Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?
6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable."
State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 30 of 46
54. In Suraj Mal Vs State (Delhi Admn.) AIR 1979 S.C. 1408 it has been observed by the Hon'ble Supreme Court that "Where witness makes two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness." Similar view was also taken in Madari @ Dhiraj & Ors. v. State of Chhattisgarh 2004(1) C.C. Cases 487.
55. In Namdeo Daulata Dhayagude and others Vs. State of Maharashtra AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused. If one integral part of the story put forth by a witness was not believable, then entire case fails. Reliance may also be placed upon Ashok Narang Vs. State 2012 (2) LRC 287 (Del).
56. PW12 in the present case has changed her version at the drop of a hat on every possible stage, rendering her testimony unworthy of any credence or reliability and she cannot be held to be sterling witness by any stretch of imagination and her testimony does not inspire confidence.
57. There is another aspect of the matter. There are contradictions inter-se the testimonies of PW1 Smt. Kamlesh State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 31 of 46 Sharma, PW2 Ms. Preeti Sharma and PW3 Sh. Mukesh Kumar.
58. As per PW1, she came to know from PW2 that the accused had married her deceased daughter. However, PW2 in her cross examination by the accused stated that her mother came to know about her sister having married the accused in the hospital and that she came to know about these facts of her own and she was aware of the said marriage before PW2 could share the said facts with her.
59. As per PW1, she came to know from PW2 that the accused used to harass her deceased daughter, used to beat her and had sold her jewelry. However, as already observed PW2 in her cross examination by the accused stated that her deceased sister had never shared with her before her death even on telephone that she had got married to the accused.
60. Furthermore, PW 1 asserted in her examination in chief that her elder daughter, PW2, used to visit the house of the accused and she made him understand as to why he used to quarrel with the deceased. However, in her cross examination by the accused, PW2 stated that she had met the accused only twice once in the month of June and thereafter in the month of October 2011. Pertinently she did not state anywhere in her examination in chief that she used to visit the house of the deceased or that she used to counsel the accused not to quarrel with the deceased.
61. It is also the prosecution version that a sum of ₹ 40,000 was demanded by the accused as dowry from the family members of the deceased. However, the version of prosecution witnesses has not been consistent even as regards the said State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 32 of 46 demand of ₹ 40,000. As per the prosecution version the said money was given to the deceased by PW1 Smt. Kamlesh Sharma. PW2 Ms. Preeti Sharma in her examination in chief has deposed that about 10-12 days prior to her death, her deceased sister had asked ₹ 40,000 from her parents and that her mother, PW1, had come to Delhi with the ₹ 40,000 and handed over the said amount to the deceased at Shadra metro station. Similarly, PW3 Sh. Mukesh Kumar in his examination in chief stated that about one month prior to death of his deceased daughter, she had made a call asking for ₹ 40,000 for studying and about 15 days after receiving the said call his wife, PW1 had come to Delhi and handed over the said 40,000 to her deceased daughter. However, it is pertinent to observe that PW1 Smt. Kamlesh Sharma has not made any such allegation during the course of her entire testimony. There is thus no consistency in the prosecution witnesses even as regards the said demand of ₹ 40,000 and PW1 who purportedly handed over the said money to the deceased has not stated so in her entire testimony.
62. These contradictions are irreconcilable and destroy the veracity of the prosecution version. Furthermore, other than the assertions of PW2 and PW3 regarding the payment of ₹ 40,000 by PW 1 to the deceased and the conspicuous silence of PW1 on this aspect, no other material would be brought on record by the prosecution to establish that the accused had demanded the said ₹ 40,000 as dowry or that the same was handed over by PW1 to the deceased.
63. The Hon'ble Apex Court in the case of Bansilal vs. State of Haryana (2011) 11 SCC 359 has held that, to attract the State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 33 of 46 provision of Section 304B of the IPC, 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 of dowry". It has been further held:
"20. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death. It may also be pertinent to mention herein that the expression "soon before her death" has not been defined in either of the statutes. Therefore, in each case, the Court has to analyse the facts and circumstances leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. (Vide T.Aruntperunjothi v. State ; Devi Lal v. State of Rajasthan ; State of Rajasthan v. Jaggu Ram ; Anand Kumar v. State of M.P. and Undavalli Narayana Rao v. State of A.P."
64. Similarly, in Sher Singh Alias Partapa vs State of Haryana (2015) 1 SCR 29 it has been held:
"16. As is already noted above, Section 113-B of the Evidence Act and Section 304-B IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word "deemed" in Section 304-B to distinguish this provision from the others. In actuality, however, it is well- nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word "shown" is used as synonymous to "prove" and the word "presume" as freely interchangeable with the word "deemed". In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 34 of 46 "deem" to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory [AIR 1953 SC 333] and State of T.N. v. Arooran Sugars Ltd. [(1997) 1 SCC 326] , requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word "deemed" so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word "shown" in Section 304-B IPC as to, in fact, connote "prove". In other words, it is for the prosecution to prove that a "dowry death" has occurred, namely,
(i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured,
(ii) within seven years of her marriage,
(iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband,
(iv) in connection with any demand for dowry, and
(v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry.
We are aware that the word "soon" finds place in Section 304-B; but we would prefer to State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 35 of 46 interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304-B or the suicide under Section 306 IPC.
Once the presence of these concomitants is established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word "deemed" was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113-B of the Evidence Act and Section 304-B IPC, in our opinion, is to counter what is commonly encountered--the lack or the absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word "shown" has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to common law systems, and beyond the contemplation of CrPC."
65. In view of the aforesaid discussions and on the basis of the above detailed scrutiny of the testimonies of the public witnesses examined by the prosecution, this court is of the State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 36 of 46 opinion that the prosecution has not been able to prove on record that the deceased Ms. Poonam was subjected to cruelty or harassment by her husband or any relative of her husband or that the said cruelty or harassment was for or in connection with demand of dowry; or that such cruelty and harassment was made soon before her death. This is especially more so when apparently her family members were not even aware of the marriage of the deceased with the accused.
66. Although the accused has not been charged with the commission of offence under section 306 IPC, another aspect to be considered here is the liability of the accused under section 306 IPC.
67. Section 306 of the Indian Penal Code talks about abetment of suicide and states that whoever abets the commission of suicide of another person, he/she shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.
68. Abetment is defined in Section 107 IPC and it reads 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.
State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 37 of 46 Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
69. In case reported as 2008(3) R.C.R. (Criminal) 890 Rajbabu & Anr. Vs. State of M.P., the girl had committed suicide. Prior to suicide she wrote a letter to her parents that she was unable to tolerate the atmosphere in the family in matrimonial home and would prefer to live in hell because in-laws have done such acts with her which are of no use to mention. She further wrote that she was treated like an enemy and that her mother told that if she (bride) is kept in their house then nothing will remain. Hon'ble Apex Court held that :-
"In the letter there was no reference of any act or incident whereby the accused were alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to commit suicide. Evidence showed that deceased was unhappy because her husband was illiterate and family was poor and she was asked to do certain household jobs which she was not accustomed to do. In the circumstances Section 113A of Evidence Act was not attracted. Conviction was set aside".
State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 38 of 46
70. In another case reported as Randhir Singh & Anr. Vs. State of Punjab, 2004(4) RCR(Criminal) 740 : 2004(3) Apex Criminal 683 : 2004(13) SCC 129 was observed that "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 U/Sec.306 IPC."
71. In another case reported as State of West Bengal Vs. Orilal Jaiswal, 1994(3) RCR (Criminal) 186 : 1994(1) SCC 73 it was held that :-
"the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and 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. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC. However, in our opinion mere harassment of wife by husband due to differences per se does not attract State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 39 of 46 Sec.306 read with Sec.107 IPC, if the wife commits suicide".
72. In yet another case reported as 2007(3) R.C.R. (Criminal) 87 Bhagwan Das Vs. Kartar Singh & Ors, where wife was harassed as she could not give birth to child for 7 years, and when she gave birth to a female child, she was taunted for bringing bad luck, suicide was committed by bride, Hon'ble Apex Court held that abetment under Section 306 IPC read with Section 107 IPC was not made out.
73. In case reported as 2007(2) R.C.R.(Criminal) 678, Sanjay Versus State of Maharashtra, both husband and wife used to quarrel with each other and husband used to come late in drunkard condition. Wife committed suicide. Husband was acquitted by Hon'ble Supreme Court.
74. In a recent judgment of the Hon'ble Apex Court in Kamalakar vs. State of Karnataka in Criminal Appeal No. 1485 of 2011 [decided on 12.10.2023], the ingredients of Section 306 IPC were explained as follows:
"8.2. Section 306 IPC penalizes abetment of commission of suicide. To charge someone under this Section, the prosecution must prove that the accused played a role in the suicide. Specifically, the accused's actions must align with one of the three criteria detailed in Section 107 IPC. This means the accused either encouraged the individual to take their life, conspired with others to ensure the person committed suicide, or acted in a way (or failed to act) which directly resulted in the person's suicide.
8.3. In Ramesh Kumar v. State of Chhattisgarh, this Court has analysed different State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 40 of 46 meanings of "instigation". The relevant para of the said judgment is reproduced herein:
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act".
To satisfy the requirement of 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. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
8.4. The essentials of Section 306 IPC were elucidated by this Court in M. Mohan v. State, as under:
"43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 41 of 46 aid in committing suicide, conviction cannot be sustained.
45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."
8.5. The essential ingredients which are to be meted out in order to bring a case under Section 306 IPC were also discussed in Amalendu Pal alias Jhantu v. State of West Bengal in the following paragraphs:
"12. Thus, this Court has consistently taken theview that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess theevidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 42 of 46 or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
8.6. On a careful reading of the factual matrix of the instant case and the law regarding Section 306 IPC, there seems to be no proximate link between the marital discord between the deceased and the appellant and her subsequent death by burning herself. The appellant has not committed any positive or direct act to instigate or aid in the commission of suicide by the deceased."
75. In a recent judgment titled as Prabhu Vs The State SLP(CRL) Diary No. 39981/2022 decided on 30.01.2024, the principles relating to elements of section 306 IPC were summarized as follows:
10. On a perusal of the above, and relying upon this Court's previous judgments discussing the elements of Section 306 IPC, the following principles emerge:
10.1 Where the words uttered are casual in nature and which are often employed in the heat of the moment between quarrelling people, and nothing serious is expected to follow from the same, the same would not amount to abetment of suicide. [Swami Prahaladdas v. State of M.P 1995 Supp. (3) SCC 438, Paragraph 3; Sanju v. State of M.P (2002) 5 SCC 371, Paragraph 12] 10.2 In order to constitute 'instigation', it must be shown that 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. The words uttered by the accused must be suggestive of the State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 43 of 46 consequence [Ramesh Kumar v. State of Chhatisgarh (2001) 9 SCC 618, Paragraph 20] 10.3 Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. [Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605, Paragraph 20] 10.4 There must be direct or indirect acts of incitement to the commission of suicide. The accused must be shown to have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide [Amalendu Pal v. State of West Bengal (2010) 1 SCC 707, Paragraph 12-14] 10.5 The accused must have intended or known that the deceased would commit suicide because of his actions or omissions [Madan Mohan Singh v. State of Gujarat (2010) 8 SCC 628]
76. In the facts of the present case, the prosecution has not been able to bring on record any material to show that the accused had instigated the deceased to commit suicide by any instigation or active act or ommission. The prosecution version is that there was a quarrel between the deceased and the accused one day prior to the death of the deceased. The prosecution has examined PW12 in this regard. The testimony of PW12 has been discussed at length in preceding part of this judgment and is not being reproduced here for the sake of brevity. PW12 as already observed had stated in her examination in chief that there was some quarrel between the accused and the deceased one night and she thought that it was a normal quarrel between husband and wife and the next day she saw Poonam weeping who told her that she was disturbed due to the quarrel. It has already been State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 44 of 46 observed that PW12 is not a sterling witness and has flip flopped and changed her stance during the course of her examination in chief, cross examination by the State and cross examination by the accused and taken diametrically opposite stands. Be that as it may even if her testimony in her examination in chief regarding a quarrel between accused and deceased is taken at its face value, even then the same would fall short of the mischief contemplated under Section 306 r/w 107 IPC. Thereis nothing on record to suggest that the actions of the accused instigated deceased Poonam to take her life or that he conspired with others to ensure that the person committed suicide or any act of the accused or omission instigated the deceased resulting in the suicide.
77. Fights between husband and wife are a normal part of domestic wear and tear and are a part of everyday life. It could not be said that the accused by quarrelling with the deceased had intended to abet the suicide of Ms. Poonam Sharma. This is especially more so as there is nothing on record except the testimony of PW12 regarding the said fight and even PW12 in her examination in chief stated that she thought it to be a normal quarrel between husband and wife. Hence even the offence under Section 306 is not made out in the facts of the present case.
78. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true" and "must be true". It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 45 of 46 ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, 1997(1) R.C.R.(Criminal) 662), Partap v. State of U.P. (SC) 1976 A.I.R. (SC) 966, Vijayee Singh v. State of U.P. (SC) 1990(3) S.C.C. 190, Nasir Sikander Shaikh v. State of Maharashtra (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab (SC) 1996(1) R.C.R.(Criminal) 465.
79. Thus, this Court unflinchingly holds that the prosecution has failed to prove its case against accused Satender Gautam by leading convincing or cogent evidence. The prosecution has failed to discharge the burden placed upon it and therefore, accused Satender Gautam is entitled to be exonerated.
80. Resultantly, accused Satender Gautam is acquitted of the offences punishable under Section 498 A IPC and Section 304 B IPC. File be consigned to the Record Room after compliance of provisions of Section 437 A Cr.P.C.
Announced in the open Court on 29th July, 2024.
(SHARAD GUPTA) Additional Sessions Judge (Fast Track Court) South West District, Dwarka Courts/New Delhi.
It is certified that this Judgment contains Forty Six (46) pages and each page bears my initials / signatures.
Digitally signed by SHARADSHARAD GUPTA (SHARAD GUPTA)
Date: Additional Sessions Judge (Fast Track Court)
GUPTA 2024.07.29
South West District, Dwarka Courts/New Delhi. 16:54:33 +0530 State Vs. Satender Gautam FIR No. 379/2011 PS Najafgarh Page 46 of 46