Delhi District Court
State vs . on 5 September, 2013
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE 02, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 49/13
FIR No. : 478/2003
P.S. : Prashant Vihar
U/s : 306/498A/34 IPC
Date of registration : 18072005
Reserved for Judgment on: 26072013
Judgment Announced on : 05092013
State
Vs.
1. Naresh Bansal S/o Onkar Mal Bansal
R/o H. No. 3399/246, Hansa Puri,
Tri Nagar, Delhi.
2. Anju Bansal W/o Naresh Bansal
R/o H. No. 3399/246, Hansa Puri,
Tri Nagar, Delhi.
3. Kamla Garg W/o Late Sh. Bishan Swarup
R/o H. No. 3399, Gali No. 246,
Tri Nagar, Delhi.
JUDGMENT
BRIEF FACTS :
1. Briefly stated the facts of the case are that Smt. Babita Garg filed a complaint under Section 306/498A/34 IPC and the Sessions Case No: 49/13 Page 1 of 33 2 case was registered on the directions under Section 156 (3) Cr.P.C. It is alleged by the complainant Babita Garg that she was married with Shri Mukesh Garg (deceased) son of accused Smt. Kamla Garg and Shri Bishan Swaroop (since expired) on 27101995.
2. Out of the said wedlock two daughters were born. After the marriage, accused persons became inimical against the complainant and her husband and did not allow husband of the complainant to enter in house No. B4/82, Sector11, Rohini Delhi, for a period of about 5 years. After five years accused Smt. Kamla Devi and Bishan Swrooop Garg (since expired) came to the house of the complainant at District Panchkula, Haryana and asked the complainant to join their house, as such the complainant alongwith her husband and children came to the said house at Rohini Delhi. Accused Smt. Anju Bansal is sisterinlaw of complainant and accused Naresh Bansal is brother in law / husband of Smt. Anju Bansal and whenever they visited the said house, accused Anju Bansal used to instigate her parents as well as Mukesh Garg against the complainant. Accused persons pressurized Mukesh Garg to leave the complainant and they would marry him in a rich family and can fetch several lacs. Sessions Case No: 49/13 Page 2 of 33 3
3. It is further alleged by the complainant that accused persons taunted her and remarked "Hamara Mukesh to Bhikari Ko Ghar Main Le Aaya". Due to cruel treatment of accused persons, complainant and her husband left the matrimonial house and started living separately. Again after about 45 months accused Smt. Kamla Devi and deceased Bishan Swroop requested the complainant to join matrimonial house and the complainant joined the matrimonial house in October01.
After 23 months accused Anju Bansal and Naresh Bansal interfered in the matrimonial life of the complainant, they used to visit almost every day to the matrimonial house of the complainant and pressurized the husband of complainant to give divorce.
4. It is also alleged by the complainant that due to utmost cruelties, mental pain and agony, husband of the complainant was forced to commit suicide on 18062002, after leaving a suicide note that the complainant and her husband decided to commit suicide due to cruel treatment of the accused persons but the husband of the complainant after obtaining signatures of complainant on suicide note immediately left the house and just after five minutes came back to the room and he had already taken poisonous substance. The complainant tried her level Sessions Case No: 49/13 Page 3 of 33 4 best to save the life of complainant and took him to nearest hospital at ESI Hospital but she could not save him and he expired after about half an hour.
5. F.I.R. bearing No. 478/2003, was registered at P.S. Prashant Vihar and investigation went underway. During the course of investigation accused persons were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
6. On 14082007, a charge U/s 498 A IPC read with Section 34 IPC was framed against all the accused persons and a separate charge U/s 306 IPC read with Section 34 IPC was also framed against accused Naresh Bansal and Kamla Garg to which they pleaded not guilty and claimed trial.
7. In order to prove the guilt of the accused persons, the prosecution examined as many as 12 witnesses.
8. PW 1 ASI Rajbir Singh is the duty officer. He proved on record the copy of the FIR as Ex. PW 1/A.
9. PW 2 Inspector Deen Dayal Kalshan deposed that on 18082003, the present FIR was entrusted to him for investigation. He had gone to the house of the complainant at Sessions Case No: 49/13 Page 4 of 33 5 B4/82, Sector 11, Rohini and the said house was found locked. Thereafter, he recorded the statements of the neighbours of the complainant namely Smt. Daya and Kirdi Ram. Thereafter he went to village Muniraka, South Deli where the brother of the deceased was residing namely Kirpa Ram whose statement was recorded by him.
10. PW 3 SI Satya Prakash deposed that on 2532004, he obtained the original suicide note by the order of the Court. He proved on record the seizure memo of the original suicided note as Ex. PW 3/A. He further deposed that he obtained the admitted hand writing of the deceased from his driving licence which was produced by Babita Garg which was seized vide seizure memo Ex. PW 3/B. He proved the suicide note as Ex. P1 and driving licence as Ex. P2. He further deposed that the specimen hand writing of Smt. Babita containing eight sheets was taken which is Ex. PW 3/C 1 to Ex/ PW 3/C 8. The said suicide note alongwith the said admitted handwriting of the deceased and specimen hand writing of Smt. Babita were sent to FSL Rohini and the result of the same is tendered as Ex. PW 3/D. He further deposed that during investigation he recorded the statements of two public persons namely Sadhu Singh and Jiwan Singh of the same Sessions Case No: 49/13 Page 5 of 33 6 locality of Sector 11, Rohini.
11. PW 4 Smt. Babita Garg, PW 10 Sh. Rajesh Kumar and PW 12 Sh. Jeevan Singh are the material public witnesses and I will discuss their testimonies in the later part of the judgment.
12. PW 5 Smt. Hardish deposed that she knows the family of late Sh. Bishan Swaroop whose son Mukesh died in house. She further deposed that she had never seen Mukesh and his wife Babita quarreling with each other. She further deposed that she does not know if Mukesh died due to consumption of some thing as she cannot say what had happened inside the house.
13. PW 6 SI Harish Chander deposed that on 19012005, further investigation of present case was entrusted to him. He further deposed that during investigation he recorded the statement of complainant Babita. He also deposed that he formally arrested accused Naresh Bansal, Bishan Swaroop Garg, Smt. Anju Bansal and Smt. Kamla Garg vide memos Ex. PW 6/A to D.
14. PW 7 Dr. P.C. Meghwal proved on record the MLC of Mukesh Garg which was prepared by Dr. Suchitra Bose as Ex. PW 7/A and he also proved on record the transfer order of Dr. Suchitra Bose as Ex. PW 7/B. Sessions Case No: 49/13 Page 6 of 33 7
15. PW 8 SI Rajbir deposed that on 18062002, he was posted at PS Prashant Vihar and on 19602 on receipt of DD No. 3 which is mark PW 8/X, he alongwith Ct. Veer Singh reached ESI Hospital Rohini where he prepared the inquest papers for getting the autopsy conducted on the body of Mukesh Garg. He proved on record his application to that effect as Ex. PW 8/A. He further proved the brief facts as Ex. PW 8/B. He also filled the form no. 25.35 (1) which he proved as Ex. PW 8/C. He further deposed that he recorded the statements of Bishan Swaroop father of the deceased which he proved as Ex. PW 8/E and Kirpa Ram Gupta as Ex. PW 8/F. He further deposed that he also recorded identification statements of Smt. Babita which is already Ex. PW 4/A and Ex. PW 4/B and Bishan Swaroop which is Ex. PW 8/G. He further deposed that thereafter he got the postmortem conducted and handed over the dead body to the relatives of the deceased vide receipt Ex. PW 8/H. He further deposed that on 18602, he moved an application for rerecording the statement of patient to CMO ESI Hospital on which the patient was not fit for making his statement was mentioned by the doctor. The said application is Ex. PW 8/J.
16. PW 9 Dr. R.K. Punia conducted the postmortem on the Sessions Case No: 49/13 Page 7 of 33 8 dead body of Mukesh Garg. He proved on record the postmortem report as Ex. PW 9/A. PW 9 further deposed that after going through the FSL report Ex. PW 9/B which shows presence of aluminum phosphide and ethyl alcohol. He further deposed that the deceased died due to consumption of substances containing aluminum phosphide and ethyl alcohol. PW 9 further deposed that he had also signed the inquest papers.
17. PW 11 Kirpa Ram deposed that Bishan Swarup was his younger brother who was residing at Sector 11 Rohini. His son was Mukesh Garg. This witness was dropped by the Ld. APP.
18. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated in this case. The accused persons have also lead defence evidence and in their defence accused Naresh Bansal examined himself U/s 315 Cr.P.C as DW 1and Dr. A.M. Raturi as DW 2.
19. I have heard Ld. Addl.PP for the state assisted by the Ld. counsel for the complainant, Ld. Counsel for the accused persons and have also gone through the records of the case. Sessions Case No: 49/13 Page 8 of 33 9
20. It is urged by the counsel for the accused persons that the accused have been falsely implicated and the complainant since the beginning wanted to grab the property of deceased Sh. Bishan Swaroop and his wife Kamla. It is further urged that during their stay both Mukesh (since deceased) and complainant Babita used to pressurize them to transfer the property in the name of Babita. It is further urged by him that the complainant got signed suicide note from Mukesh by instigating him against accused persons and lateron gave sulfas to him. It is further urged that accused Anju Bansal and accused Naresh Bansal used to look after their old parents and save them from the atrocities of the complainant Babita and Mukesh. It is further urged that the present FIR has been registered on the direction of Ld. MM on the application of the complainant U/s 156 (3) Cr.P.C. It is further urged that in their report the police had categorically stated after making inquiry that the complaint has been made by the complainant with ulterior motive so as to grab the property of old people. It is further urged that before filing the present complaint U/s 156(3) Cr.P.C civil litigations was pending between the parties.
21. It is further urged that the allegations of cruelties as Sessions Case No: 49/13 Page 9 of 33 10 mentioned in the application U/s 156 (3) Cr.P.C does not find mention in the civil proceedings. It is further urged that before filing the complaint U/s 156 (3) Cr.P.C the complainant had made a complaint to CAW Cell in which there was no mention any suicide note. It is further urged that the complainant has made major improvements in her testimony. It is further urged that immediately after the death of Mukesh complainant Babita had made a statement to the police which is Ex. PW 4/B and she has signed the same at point A and in this statement she has not uttered a single word regarding existence of any suicide note. It is further urged that the suicide note did not see the light of the day for about 2 years.
22. It is further urged that no demand or cruelty was meted out to Babita and Mukesh (since deceased) by any of the accused. It is further urged that there is nothing on record to show that the accused persons had any intention that Mukesh should commit suicide and none of their act and omissions as alleged falls within the definition of abetment as provided under Section 107 IPC.
23. On the other hand, it is submitted by the Ld. Addl. PP for the State that the allegations against the accused persons are Sessions Case No: 49/13 Page 10 of 33 11 grave and serious in nature and on the basis of the evidence recorded, the prosecution has proved that it was the accused persons who by their acts and omissions harassed the complainant and her husband so much that he had committed suicide. It is further submitted that the complainant has fully supported the case of the prosecution.
24. DOCUMENTS PROVED BY THE PROSECUTION :
(a) FIR Ex. PW 1/A.
(b) Seizure memo of original suicide note Ex. PW 3/A
(c) Seizure memo of Driving Licence of deceased Ex. PW 3/B
(d) Suicide note Ex. P1.
(e) Driving Licence Ex. P2.
(f) Specimen hand writings of complainant Babita running into 8 sheets Ex. PW 3/C1 to Ex. PW 3/C8.
(g) FSL result regarding hand writing Ex. PW 3/D.
(h) Identification statements of dead body Ex. PW 4/A and Ex.
PW 4/B.
(i) Arrest memos of accused persons Ex. PW 6/A to Ex. PW 6/D.
(j) MLC of Mukesh Garg Ex. PW 7/A.
(k) Transfer order of Dr. Suchitra Bose Ex. PW 7/B.
(l) Application for postmortem Ex. PW 8/A. Sessions Case No: 49/13 Page 11 of 33 12
(m) Brief Facts prepared by PW 8 Ex. PW 8/B.
(n) Form Number 25.35 (1) Ex. PW 8/C and Ex. PW 8/D.
(o) Statement of Bishan Swaroop father of the deceased Ex. PW 8/E.
(p) Statement of Kripa Ram Gupta Ex. PW 8/F.
(q) Identification statement of Bishan Swroop Ex. PW 8/G.
(r) Handing over receipt of dead body Ex. PW 8/H.
(s) Application for recording statement of patient i.e. Mukesh since deceased Ex. PW 8/J.
(t) P.M. Report Ex. PW 9/A. (u) Statement of Rajesh Kumar recorded by the police Ex. PW 10/A.
25. DOCUMENTS POROVED BY THE DEFENCE:
(a) Copy of civil suit filed by Bishan Swaroop and accused Kamla Ex. PW 4/DA.
(b) Copy of civil suit for stay against the accused for not dispossessing PW 4 Ex. PW 4/DB.
(c) Complaint before Magistrate Ex. PW 4/DC.
(d) Complaint before CAW Cell Ex. PW 4/DD
(e) 4 photographs of different ladies Ex. PW 12/D 1 collectively.
26. Now coming to the law on the subject. Abetment is Sessions Case No: 49/13 Page 12 of 33 13 defined in Section 107 of IPC which 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."
27. The punishment for abetment is provided U/s 306 IPC which reads as follows : "306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, Sessions Case No: 49/13 Page 13 of 33 14 shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
28. Section 498 A IPC reads as follows : 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 (whether mental or physical) of the woman; or Sessions Case No: 49/13 Page 14 of 33 15
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]"
29. The most relevant witness in this case is PW 4 Smt. Babita Garg wife of the deceased. She has deposed that she was married with deceased Mukesh Garg in the year 1995. As it was a love marriage, she was not residing with her inlaws. At the time of the birth of her second daughter accused Kamla Garg, Anju Bansal and Naresh Bansal asked her and her husband to live with them in Delhi. At that time PW 4 was residing in Chandigarh alongwith her husband.
30. The complainant PW 4 and her husband Mukesh Garg since deceased came to live in Sector 11 Rohini but due to interference of accused Anju quarrel started in the family. Accused Naresh Bsnsal and Anju Bansal used to daily visit the house alongwith accused Kamla Garg on account of bringing nothing in dowry. She was even humiliated for not giving birth Sessions Case No: 49/13 Page 15 of 33 16 to a male child. Because of all this her husband was disturbed. Two days prior to the incident accused Anju alongwith Naresh Bansal and Seema Gupta visited her house and picked up quarrel to such an extent that no one in the family of the complainant took food for two days
31. On the night of 1762002, her husband i.e Mukesh Garg since deceased came back from his office and found some quarrel with the family. Strong words were exchanged between her husband and accused Kamla Garg. On this, accused Naresh Bansal came to their house in the night and asked her and her husband to leave the house or go and die. Neighbours intervened in t he matter. In the morning of 1862002, at about 5 p.m accused Kamla Garg started throwing their articles outside the house and asked them to leave. Her fatherinlaw had torn the curtain of a room and he also threw her children out of the said room. On that day accused Kamla Garg did not allow to cook her food in the kitchen. In the evening of 1862002, she saw her husband writing something which was a suicide note wherein it was written by him that they both were committing suicide. Thereafter her husband left the house and came back afater 8 p.m and asked her to sign the suicide note. PW 4 signed the Sessions Case No: 49/13 Page 16 of 33 17 suicide note Ex. P1 at point 'X'. After tht her husband Mukesh Garg since deceased went out side and came back within 10 minutes. He was sweating and told her that he had consumed sulphas tablets and asked her to take those tablets. She raised an alarm "Papaji my husband has consumed sulphas tablets"
upon which accused Kamla Garg pulled the hand of her father inlaw and asked him not to interfere and let them die. A doctor who was living as a tenant on the first floor was called who got her husband admitted in E.S.I. Hospital. Her fatherinlaw with accused Naresh Bansal was also talking with the police and after some time she was informed that her husband had expired.
32. She further deposed that in the morning of 1962002 she was asked to sign some papers at police post of Sector 16 as the dead body of her husband was not given by that time. On 982004, she produced the driving licence of her husband Ex. P2 before the IO which was seized vide memo Ex. PW 3/B. On 14052004, she produced the original suicide note before the IO. In the year 2004, police obtained her specimen signatures. PW 4 was forced to sign some documents on 19062002 in order to get the dead body of her husband. PW 4 was having love affair with Mukesh and they married against the wishes of Sessions Case No: 49/13 Page 17 of 33 18 the accused persons as they were demanding huge dowry and her parents were not in a financial condition to pay the said amount. All the details of cruelty committed upon her by the accused were mentioned by PW 4 in her complaint before the Magistrate who ordered the registration of the FIR Ex. PW 1/A.
33. Accused persons according to the complainant used to taunt her husband that they had brought a Bhikaran in their family. Accused Naresh Bansal used to visit her matrimonial home at 12 midnight in order to threaten them and he used to drag her out of the house by holding her hair. All the accused persons used to pressurize her husband Mukesh Garg to leave the complainant as they were interested in the second marriage of her husband. Accused Kamla Garg used to comment that she had 4 daughters and one son only and in her son's marriage she would take the dowry equal to the dowry given by here in the marriage of here 4 daughters.
34. RELIABILITY AND TRUSTWORTHINESS OF PW 4 : It is not denied by the complainant PW 4 that two civil litigations are pending between her and the accused persons. The defence during the cross examination of PW 4 proved the record of civil proceedings as Ex. PW 4/DB and Ex. PW 4/DA. The present Sessions Case No: 49/13 Page 18 of 33 19 case was registered on the basis of the complaint filed by PW 4 U/s 156 (3) Cr.P.C Ex. PW 4/DC. The complainant has also filed a complaint to ACP CAW Cell prior to the filing of the complaint U/s 156 (3) Cr.P.C. This complaint is Ex. PW 4/DD.
35. According to the complainant her husband committed suicide on 18062002 and he left behind the suicide note Ex. P1. The suicide note reads as follows :
"I Mukesh Garg S/o Sh. B.S. Garg and my wife are greatly disturbed and are giving our life. My mother, my father and my Jeeja who lives in Sri Nagar are responsible for this. These three persons have forced us to die.
Our Jeeja who lives in Sri Nagar used to tutor our parents and who used to commit atrocities on us. Now we are unable to tolerate and finishing our life.
After us our Jeeja Naresh should not be spared"
36. This is the suicide note which has been left behind by deceased Mukesh Garg. The suicide note bears the signature of Sessions Case No: 49/13 Page 19 of 33 20 the complainant at point "X". The first statement was made by PW 4 to the police on 1962002 i.e on the next day of the death of her husband. In this statement she has not levelled any allegations and she has not even stated that any suicide note was left behind by her husband.
37. Few days after the death of the husband of the complainant the dispute started between the complainant and the accused persons who are her inlaws with regard to the possession of the property bearing House No. B4/82, Sector 11, Rohini, Delhi. It is the admitted fact on record that the deceased left the house of his parents and he married with complainant on 27101995 and since then they both have been living separately from the accused persons. It was only in the month of October 2001 that the complainant alongwith her husband and children came to live with the accused persons in their house situated at Rohini. Accused Bishan Swaroop (since deceased) and accused Kamla Devi filed a suit for permanent injunction against the complainant and her daughters and the complainant also filed a suit for permanent injunction against Bishan Swaroop (since deceased) and accused persons. Both the parties were fighting with each other for taking the possession of the property situated Sessions Case No: 49/13 Page 20 of 33 21 at Sector 11 Rohini where the complainant alongwith her husband and children lived with the accused persons.
38. After the death of her husband the complainant has filed a complaint before CAW Cell some time in the month of August 2002 which is Ex. PW 4/DD. The perusal of the complaint shows that the complainant has not uttered a single word regarding leaving of any suicide note by her husband. The complainant filed a civil suit for permanent injunction which is Ex. PW 4/DB in this civil suit also she has not uttered a single word regarding the leaving of any suicide note by her husband.
39. Subsequently the accused persons have also filed a civil suit against the complainant which is Ex. PW 4/DA and the perusal of this document shows that she has not made any allegations as made by the complainant in her complaint U/s 156(3) Cr.P.C.
40. Now coming to the cross examination of PW 4. The relevant portion of her cross examination is as follows : PW 4 in her cross examination stated that she had left her house with Mukesh on 26101995 and she knew Mukesh since 1989. She stated that she was having love affair with Mukesh since the time of their college. She stated that she had no knowledge about Sessions Case No: 49/13 Page 21 of 33 22 the marriage of Mukesh with Sunita on the intervening night of 25/26 February 1994. She admitted that two civil suits were pending between her and parents of Mukesh. The certified copy of the suit filed by accused Kamla and her husband Bishan Swroop is Ex. PW 4/DA. She admitted that she had filed a civil suit for stay against accused for not dispossessing her from the property without due process of law. The copy of the suit is Ex. PW 4/DB. She denied the suggestion that she had stated before the Court in the Civil suit that accused persons were responsible for the divorce of Mukesh and Sunita. She denied the suggestion that she was never married with Mukesh.
41. She further stated in her cross examination that she came to the house of the accused in October 2001. She denied the suggestion that accused Mukesh alone came to his parents house in February 2002 for getting permission to allow him to live in the house for some time. She further stated that she had also come with Mukesh to make a request. She denied that during the life time of Mukesh she used to pressurize him andhis parents to transfer the said house of Rohini in her name. She denied that she used to pick quarrel with the parents of Mukesh. She admitted that she and Mukesh were economically Sessions Case No: 49/13 Page 22 of 33 23 sound. She denied the suggestion that they had intention to grab the house of accused Kamla Garg and her husband so they had not made separate arrangement for the residence. She admitted that she had filed a criminal complaint before the concerned magistrate and also before the Crime Against Women Cell subsequent to the filing of the suit Ex. PW 4/DB. She denied that the allegations of abetment of suicide of deceased Mukesh were not leveled by her in the civil suit Ex. PW 4/DB. She was confronted with Ex. PW 4/DB where the said allegations does not find mention.
42. She stated that regarding comment of not giving birth to a male child has been mentioned by her in her complaint before Women Cell and before the Magistrate. She was confronted with her complaint filed by her before the Magistrate which is Ex. PW 4/DC and complaint before CAW Cell Ex. PW 4/DD wherein the fact of taunting for not giving birth to a male child does not find mention. She stated that in her complaint Ex. PW 4/DC and Ex. PW 4/DD she has stated that two days prior to the death of the deceased accused Naresh Bansal, Anju and Seema Gupta had come to the house and picked up the quarrel due to which none of the family member could take food for two days. She Sessions Case No: 49/13 Page 23 of 33 24 was again confronted with her complaints Ex. PW 4/DC and Ex. PW 4/DD where it has not been mentioned. She was again confronted with Ex. PW 4/DC and Ex. PW 4/DD wherein it has not been recorded that on 1762002, when her husband came back from his office he found some quarrel in the house and thereafter hot words were exchanged between her husband and accused Kamla Garg on which accused Naresh Bansal came and asked her husband to leave the house or go and die. She was again confronted with Ex. PW 4/DC and Ex. PW 4/DD wherein it was not mentioned that on 1862002 at 5:00 a.m. accused Kamla Garg started throwing her articles and asked her to leave and that her fatherinlaw had torn the curtain of a room and threw her children from the said room.
43. This witness was confronted with her two complaints and pleadings in the civil suit wherein she has not mentioned that in the evening of 1862002 her husband was writing a suicide note and thereafter he left the house and came back and asked her to sign the suicide note or her husband was sweating and said that he had consumed sulfas tablets and asked her to take those tablets. She was again confronted with her complaints and pleadings in the civil suit wherein she had not Sessions Case No: 49/13 Page 24 of 33 25 mentioned that she had stated that "Papaji my husband had consumed sulfas tablets upon which Kamla Garg pulled the hand of her father in law and asked him not to interfere and let them die". She stated that she first came to know about the suicide note during the quarrel on the said day when her husband wrote the suicide note and asked her to sign the same.
44. She has stated that she had told the police about the suicide note after filing of her complaint in the court for registration of the FIR. She further stated that as the police was not listening the suicide note was handed over to the police by her in the Court on 14052004. She denied the suggestion that she had got suicide note written from her husband in order to pressurize his parents i.e. Bishan Swroup and Kamla to transfer their Rohini property in her name.
45. She denied the suggestion that she had given poison to her husband and she even denied that she did not inform about the suicide note till 1452004, in order to save herself from legal consequences. She was again confronted with her criminal complaint and pleadings in the civil suit with regard to the fact that in the hospital she had seen her fatherinlaw and accused Naresh Bansal talking with the police. She denied the Sessions Case No: 49/13 Page 25 of 33 26 suggestion that the contents of Ex. PW 4/B were recorded by the IO at her instance. She was confronted with her complaint and civil court proceedings regarding her statement that the police officials were not accepting the suicide note despite her request. She stated that the talks of her marriage with Mukesh were settled but failed as the accused persons were demanding huge dowry in the marriage. She further stated that she cannot tell the date, month and year when the talks of marriage were finalized. She denied that there were no talks of marriage between her and Mukesh. She was confronted with Ex. PW 4/DB with regard to the contents of an affidavit filed in those proceedings to the effect that Mukesh Garg had taken divorce and she can produce Smt. Sunita (previous wife of deceased Mukesh) for her defence.
46. She was again confronted with her complaints and pleadings in the two civil suits wherein it has not been mentioned by her that her children were also not spared by accused Anju and Kamla or accused Naresh Bansal used to visit her matrimonial home to threaten her and drag her out of the house by holding her hair. She was again confronted with her criminal complaints and pleadings in the civil suit wherein she has Sessions Case No: 49/13 Page 26 of 33 27 not mentioned that accused Kamla Garg used to comment that she had 4 daughters and one son only and in her son's marriage she would take the dowry equal to the dowry given by her in the dowry of her 4 daughters.
47. One glance at her cross examination shows that she had made major improvements in her testimony in the Court with regard to the comments, taunts and torture attributed to the accused persons. The accused persons have been charged U/s 498 A IPC.
48. Now to attract the provisions of Section 498 A IPC, the allegations made should be specific and not vague. The provisions of law require that deceased should have been subjected to cruelty and harassment for demand of dowry before her death or not a vague or straight taunt for bringing less dowry. In order to prove cruelty as contemplated U/s 498 A IPC, the prosecution has to establish the willful conduct of the offender, that the nature of such conduct was likely to drive a woman to commit suicide or to cause grave injury or danger to life or limb. Thus, on proof of these facts the husband or relative of the husband shall be presumed to have treated the woman with cruelty.
Sessions Case No: 49/13 Page 27 of 33 28
49. It is the admitted case of the complainant herself that her marriage with the deceased was a love marriage and they had been living separately from the accused persons since 1995 and it was only in the month of October 2001 that they came to live with the accused persons. After about 89 months of their coming to the housed of the accused persons Mukesh committed suicide. It is not disputed that the deceased was the only son of accused Bishan Swaroop (since deceased) and accused Kamla who had been living separately from them for the last more than 6 years.
50. When the complainant and her husband were living separately for the last so many years from the accused persons and they were having two daughters, it seems highly improbable that the accused persons would torture the complainant for demand of dowry. Moreover the allegations leveled by the complainant are bereft of any details and even otherwise whatever she had alleged in her examination in chief are nothing but total improvements upon the various complaints filed by her to the various authorities. So from the testimony of PW 4 (complainant) there is nothing to suggest that she was treated with cruelty which falls within the definition of Section 498 IPC. Sessions Case No: 49/13 Page 28 of 33 29 Reliance can be placed upon the judgment of our own Hon'ble High Court titled as Dharampal Vs. State 1997 (3) CCC 1 (High Court.) In these circumstance, the prosecution has failed to prove the charge U/s 498 A/34 IPC against the accused persons. All the accused are, therefore, acquitted of the charge U/s 498 A/34 IPC.
51. Now coming to the suicide note left behind by the deceased husband of the complainant. As far as the question of abetment is concerned, the relevant provision of law has already been discussed hereinabove in the judgment.
52. For a person to be guilty for an offence U/s 306 IPC, i.e., abetment of suicide, the abetment should be such as would fall within the definition of Section 107 IPC. Section 107 IPC defines abetment is constituting :
(i) instigating a person to commit an offence.
(ii) engaging in conspiracy to commit such an offence.
(iii) intentionally aiding a person to commit an offence.
53. The abetment is an act whereby one goads, urges, provokes, incites or encourages a person to commit an offence and in the present case the offence of suicide. For the prosecution, to prove that the accused abeted the commission of Sessions Case No: 49/13 Page 29 of 33 30 suicide by the deceased, it was necessary to have proved that the accused firstly instigated, goaded, urged and provoked the commission of suicide. Secondly the principal offence was committed which in this case is suicide, which no doubt has been committed by Mukesh (deceased) and lastly that the accused intended to aid or encourages the commission of principal offence.
54. The perusal of the suicide note shows that Mukesh (deceased) and the complainant executed the suicide note because they were very badly harassed by the accused Bishan Swaroop (since deceased), accused Kamla and accused Naresh Bansal. The complainant and her husband had only lived with the parents of deceased Mukesh hardly for 89 months before this incident happened. There is nothing in the suicide note which could suggest that the accused persons being the parents, sister and brotherinlaw of the deceased had any intention that the complainant and her husband should commit suicide leaving behind their two minor daughters.
55. From the conduct of the accused persons as stated by the PW 4 in her testimony in the Court wherein she has been mostly confronted with her previous complaints about the Sessions Case No: 49/13 Page 30 of 33 31 allegations of torture and taunts, does not shows that, the conduct of the accused persons was such which could have goaded, urged, provoked, incited or encouraged the deceased to commit suicide.
56. The complainant did not act as per the commitment made by her to her husband for the reasons best known to her. If it was a joint suicide pact between the complainant and her husband then why the complainant did not honour the joint pact made by her with her husband. The case of the defence is that the complainant and her husband wanted to pressurize their old parents to transfer the property in their name and for that purpose the suicide note was written. The accused persons have examined Naresh Bansal as DW 1 in their defence and DW 1 has categorically stated that there was a constant pressure on the parents of the deceased Mukesh to transfer the property in the name of deceased Mukesh. He further deposed that Babita used to pressurize Mukesh to get the said house transferred in her name. The case of defence is more probable than that of the prosecution.
57. Now coming to the investigation done by the police on the complaint filed by the complainant U/s 156(3) Cr.P.C. During Sessions Case No: 49/13 Page 31 of 33 32 the investigation the police filed an inquiry report which is Ex. DW 1/3 which is dated 642003. The perusal of this document shows that there is mention in this report that the complainant wants to take possession of house Number B4/82, Sector 11, Rohini which is the house of the old couple i.e. parents of deceased Mukesh. It is reported in the report that no foul play came to light in the death of Mukesh Garg.
58. Another status report which is Ex. DW 1/2 was filed before the Ld. Magistrate on 13052004 and in this report also it was reported that there was no foul play in the death of deceased Mukesh and it was also observed in this report that the complainant has also not casted aspersions against the accused persons.
59. So from the evidence on record, there is nothing to suggest that the conduct of the accused persons was such which goaded, urged, provoked, incited or encouraged deceased Mukesh to commit suicide and even the suicide note is totally silent as to what was the conduct or the instigations made by the accused persons which forced the complainant and her husband to enter into this joint suicide pact.
60. The complainant and the deceased had been living separately for the last more than 6 years and it has come in the cross examination of the complainant that they were economically sound. When such was the financial position of the complainant and her husband then why they kept on living in the house of the parents of Mukesh when Sessions Case No: 49/13 Page 32 of 33 33 according to the complainant they were tortured so much which resulted in their writing a joint suicide note.
61. The complainant PW 4 does not appear to be a reliable witness and from the evidence on record and the litigations going on between the parties, it cannot be ruled out that the sole dispute is with regard to the possession of the property bearing house Number B4/82, Sector 11, Rohini, Delhi belonging to the parents of deceased Mukesh.
62. In view of the discussions mentioned hereinabove, I am of the opinion that the prosecution has failed to prove that the accused persons demanded dowry from the complainant or they conducted themselves in such a manner which resulted in the suicide of Mukesh.
Therefore, the prosecution has failed to prove its case beyond reasonable doubt. So accused Naresh Bansal and Kamla Garg are also acquitted of the charge U/s 306/34 IPC. File be consigned to Record Room.
(Announced in the open Court on 05092013.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE02 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 49/13 Page 33 of 33