Delhi District Court
Sc No. 97/09, 37/10 & 38/10 State vs . Vicky & Others 1 Of 30 on 1 September, 2010
IN THE COURT OF SHRI R.K. GAUBA
ADDITIONAL SESSIONS JUDGE03 (CENTRAL) DELHI
Sessions Case No. 97/09 (Original No. 38/06)
Sessions Case No. 37/10 (Original No. 64/06)
Sessions Case No. 38/10 (Original No.124/06)
ID No.: 02401R0288732006
State FIR No. 45/06
PS: Hauz Qazi
U/S.: 304B/498A/34 IPC.
Versus
1. Vicky s/o Tansen,
R/o 2132, Katra Gokul Shah,
Sita Ram Bazar, Delhi. .... Accused no.1
2. Tansen s/o Panchu Ram,
R/o 2132, Katra Gokul Shah,
Sita Ram Bazar, Delhi. .... Accused no.2
3. Sonu s/o Tansen,
R/o 2132, Katra Gokul Shah,
Sita Ram Bazar, Delhi. .... Accused no.3
4. Sunita d/o Tansen,
R/o 4615, Gali Sitara,
Hauz Qazi,Delhi. .... Accused no.4
Date of institution : 04.04.2006
Judgment Reserved on : 19.08.2010
Date of Decision : 01.09.2010
SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 1 of 30
J U D G M E N T
1. Four accused persons were sent up for trial through the three charge sheets, each arising of investigation into FIR No. 45/2006 PS Hauz Qazi registered on 3.2.2006. The case involves allegations constituting offences punishable under Sections 498A/34 IPC, 304 B/34 IPC and 306/34 IPC qua Sudha wife of late Sh. Rakesh (hereinafter "the deceased"). While Rakesh, husband of the deceased woman himself had died on account of tuberculosis more than a year before the date of incident involved herein, the four accused sent up for trial in the case in hand are his relatives. Accused No.2 Tansen son of Panchu Ram (hereinafter, "A2") is the father of Rakesh and thus, fatherinlaw of the deceased. The other three accused namely Vicky s/o Tansen (hereinafter, "A1"), accused no. 3 Sonu s/o Tansen (hereinafter, "A3") and accused Sunita d/o Tansen (hereinafter "A4") are the other two sons and one daughter respectively of A2. They are, thus, brotherinlaw, brotherinlaw and sisterinlaw respectively to the deceased.
2. According to the prosecution case, the deceased was married to late Rakesh on 19.2.1999, as per Hindu rites and ceremonies. Her father Gian Chand son of Sh. Mahadev Ram (PW4) is a resident of Sant Nagar, Burari, Khanpur, Delhi, where he lives with his family that includes his son Manoj (PW3). The matrimonial home of the deceased is described as 2132, Katra Gokul Shah, Gali Sudama, Bazar SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 2 of 30 Sita Ram, Delhi6, within the jurisdiction of PS Hauz Qazi.
3. It has been alleged that the deceased was living in the matrimonial home where her husband died more than a year before the date of incident involved herein. The couple did not have any child born out of the wedlock. After the death of her husband, the deceased was living under the same roof with A1, A2, and A3. A4, sister in law lived in her matrimonial home nearby in Bazar Sita Ram.
4. It is alleged that the deceased, after the marriage, was harassed and subjected to cruelty on account of unlawful demands of money, raised by all the accused persons and late husband of the deceased. Initially, the family was residing in a house in Patpar Ganj from where they shifted to House No. 2132, Gali Sudama, Katra Gokul Shah, Bazar Sita Ram where harassment and cruelty had continued. It is alleged that the deceased would make complaints in this regard to her father, whenever she would visit parental house at intervals of two months or six months or on festivals. It is further alleged that pursuant to these demands, her father would give to her money ranging from Rs. 5,000/, Rs. 20,000/ to satisfy these demands but the harassment continued unabated. In this context, in the year 2003, the father of the deceased had even secured from the inlaws of the deceased, an undertaking in writing that she would be kept properly but with no effective results. The allegations included the averment that after the death of Rakesh, a suggestion had come to the effect that the deceased could be married to A1. But her parental family was not agreeable for the reason A1 SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 3 of 30 was a smack addict. It is further alleged that A2 wanted to keep the deceased as his wife and with this view had indecent designs against her. On the other hand, A1, A3 and A4 wanted the deceased to vacate the house and, for this reason, would harass her.
5. The prosecution case is that on 3.2.2006, Bhagwati Devi (PW14), a resident of neighbouring house, heard the shouts of the deceased calling for help some time around 2/2.30 PM. She went to the house in question and found the door blocked from inside. She pushed the door with force to find the deceased lying in burnt condition. The deceased was shifted by her immediately to LNJP Hospital where at 3 PM on 3.2.2006, MLC (Ex. PW 8/A) came to be recorded. The deceased at that stage was conscious and oriented. External examination brought out that she had superficial to deep burn injuries involving chest, back, both sides of upper and lower limbs and face. She was referred to the concerned department for further management by the examining Medical Officer from the casualty.
6. Information about the aforementioned fact of the deceased woman (then injured) having been brought to LNJP Hospital was conveyed by duty constable (PW12) to PS Hauz Qazi where it came to be recorded vide DD no.10A (Ex. PW 6/A). The matter was entrusted to ASI Babban Rao (PW6), initial investigation officer (hereinafter, initial IO). PW6 accompanied by Ct. Ajit Kumar (PW7) went to JPN Hospital (hereinafter, "the hospital") where he learnt about the fact that seven yeas had not been completed after the marriage of the SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 4 of 30 deceased who had been brought in burnt state. He informed Mr. Bishan Chander, Sub Divisional Magistrate (SDM), Pahar Ganj (PW
16) pursuant to which SDM (PW16) came to the hospital. On it being enquired, the doctor attending on the victim gave a certificate at 4.30 PM on 3.2.2006 that she was fit to give statement. After this confirmation, the SDM examined the deceased women, who allegedly gave statement (Ex. PW 6/A), inter alia, stating that she had set herself on fire with a heater on account of anguish felt due to the harassment at the hands of the accused persons out of which her fatherinlaw (A2) had cast evil eye on her and he wanted to keep her as his wife while others used to harass so as to turn her out of the house. The SDM made endorsement on the said statement of the deceased, directing the SHO PS Hauz Qazi to take action under IPC. On this statement and directions, PW6 ASI Babban Rao made his own endorsement (Ex. PW 6/B) and got the FIR (Ex. PW2/A) registered for the offence under Section 498A/34 IPC.
7. The SDM (PW16) in his further proceedings also recorded statements of PW3 Manoj and PW4 Gian Chand (vide Ex. PW 3/A and Ex. PW 4/B respectively) as they are also stated to have reached hospital at around 9 PM.
8. During the investigation that followed PW6 ASI Babban Rao visited the scene of incident and prepared site plan Ex. PW 6/C. He found heater (Ex. P1) lying at the scene, with the help of which the deceased had indicated to have set herself on fire. This heater was SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 5 of 30 seized vide seizure memo (Ex. PW 6/D). At the scene, burnt pieces of clothes (Ex.P2) of the deceased and a plastic hair oil bottle were also found and seized vide seizure memo (Ex. PW 6/E). The examining Medical Officer had also taken off saree (Ex. P3) wrapped in which the injured had been brought to the hospital which was seized vide memo (Ex. PW 6/F).
9. On 6.2.2006, PW4 Gian Chand, father of the victim had handed over the wedding invitation card (Ex. P4) which was seized vide memo (Ex. PW 6/K).
10.In the course of investigation, PW6 ASI Babban Rao arrested A1 and A2 on 3.2.2006 vide arrest memos (Ex. PW6/H and PW 6/G) after personal search vide memos (Ex. PW6/J and PW 6/I) respectively.
11.The IO had called crime team of the central police district and in which Inspt. Yashpal ( PW13) and Ct. Mahesh Kumar were members. PW13 prepared report (Ex. PW 13/A) which is not of any consequence, in that he only recorded that injured lady had already been shifted to hospital. He did not find any article, chance pint etc. worth mentioning in his report. On the other hand, PW11 photographer took seven photographs of the scene with the help of negatives (Ex. PW 11/B1 to B7) with which he would later prepare photographs (Ex. PW 11/A1 to A7).
12.Sudha died in hospital during treatment at 9.45 PM on 10.2.2006. Information in this regard was conveyed to police station by duty SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 6 of 30 constable Ranjit and came to be recorded vide DD no. 24B at 10.45 AM on 10.2.2006 (Ex. PW 10/A).
13.The SDM prepared brief facts of inquest proceedings (Ex. PW 17/C) and arranged for postmortem examination before which the dead body was identified by PW4 Gian Chand (PW 4/F) and one Anil Kumar (another brother of the deceased) vide Ex. PW 17/D. The IO also prepared death report (Ex. PW 17/B). The dead body was subjected to postmortem examination on 11.2.2006 in the mortuary of Maulana Azad Medical College by Dr. Vinod (PW5). As per report (Ex. PW5/A), of postmortem examination, in the opinion of the autopsy doctor, PW5, the external examination indicated infected superficial to deep antemortem injuries present all over the body except head and soles. The burns covered about 90% of the total body surface area, blackening, redness, shining were present at different places, peeling of skin exposing yellowish green base with foul smelling pus. Both the MLC (Ex. PW8/A) and the postmortem report (Ex. PW5/A) confirmed that there was no smell of kerosene oil. In the opinion of the autopsy doctor, the cause of death was septicemia consequent upon infected burn injuries as aforesaid which had been suffered due to flames of fire.
14.It appears that during investigation, questions were raised about age of A1 in which regard, the investigating agency took opinion (Ex. PW 1/A) by Dr. P.K. Jain ( PW1) of LNJP Hospital who found the radiological age of A1 between 1820 years. It may be mentioned SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 7 of 30 here that A1 has faced this trial without the issue of juvenility being pressed at any stage.
15.On the basis of investigation, charge sheet was laid in the court of Metropolitan Magistrate on 4.4.2006 seeking trial of A1 and A2 for offences under Section 304B, 498A and 34 IPC. In the said charge sheet, A3 and A4 were shown in column no. 2 on the ground, efforts were being made to trace them out while they were evading arrest. Ld. Metropolitan Magistrate took cognizance of this charge sheet and after compliance with provisions of Section 207 Cr.P.C. committed the case to Sessions vide his order dated 1.6.2006.
16.A3 and A4 were declared proclaimed offenders by the court of Ld. Metropolitan Magistrate on 14.7.2006, inter alia, on the basis of reports of nonavailability on warrants and process under Section 82/83 Cr.P.C.
17.On 10.8.2006, an application was moved on behalf of A3 in the court of Ld. Metropolitan Magistrate where he surrendered himself to custody. On 18.8.2006, supplementary charge sheet was filed against A3 in which A4 was shown as proclaimed offender. This charge sheet was committed to the court of sessions by Magistrate vide order dated 18.8.2006.
18.On 6.10.2006, A4 also surrendered in the court of Ld. Metropolitan Magistrate vide application and thus came to be arrested. Supplementary charge sheet against her was filed on 12.10.2006 which after compliance of provisions of Section 207 Cr.P.C. was SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 8 of 30 committed to Sessions Court vide order dated 16.10.2006 by the court of Ld. Metropolitan Magistrate.
19.In due course all three charge sheets came to be clubbed and have been tried together.
20.My Ld. Predecessor had initially framed charges on 1.8.2006 on the basis of main charge sheet against A1 and A2 for offences under Section 498A/34 IPC and 304B/34 IPC. In the alternative, both said accused were also charged for offence under Section 306/34 IPC.
21.After the committal of two supplementary charge sheets against A3 and A4, both of they were also similarly charged for offences under Section 498A/34 IPC, 304B/34 IPC and in the alternative under Section 306/34 IPC.
22.During the trial, A3 died, on confirmation of which fact, the proceedings against A3 were found by my Ld. Predecessor vide order dated 19.8.2009 to have abated.
23.In the course of trial that followed, the prosecution examined in all 16 witnesses as under:
(i) Dr. P.K. Jain (PW1);
(ii) HC Surender Singh (PW2);
(iii) Sh. Manoj (PW3);
(iv) Sh. Gian Chand (PW4);
(v) Dr. Vinod (PW5);
(vi) ASI Babban Rao (PW6);
(vii) Ct. Ajit Kumar (PW7);
SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 9 of 30
(viii) Dr. Pammi Chaudhary(PW8);
(ix) Dr. Ashish Rai (PW9);
(x) Ct. Hem Pal (PW10);
(xi) Ct. Mahesh Kumar (PW11);
(xii) Ct. Yashvir Singh (PW12);
(xiii) Inspt. Yashpal (PW13);
(xiv) Smt. Bhagwati Devi (PW14);
(xv) Inspt. Ram Kumar (PW15); and
(xvi) Sh. Bishan Chander, SDM (PW16)
24.After the prosecution evidence had been closed, statements of accused persons were recorded under Section 313 Cr.P.C. In the said statements, accused persons denied the evidence as incorrect and claimed to be innocent and falsely implicated.
25.On being called upon to produce evidence in defence, accused persons declined to avail of the opportunity.
26.I have heard Sh. S.K. Tanwar, Addl. PP for the State and Sh. T.R.Sharma, advocate, for the accused persons. I have been taken through the record by both sides during the course of arguments. I have given my considered thoughts to the relevant contentions urged before me.
27.The fact that Sudha died on 9.45 AM on 10.2.2006 in LNJP Hospital during the treatment for, and on account of, burn injuries suffered by her around 2/2.30 PM on 3.2.2006 in House No. 2132, Gali Sudha, SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 10 of 30 Katra Gokul Shah, Bazar Sita Ram, Delhi6 has been proved beyond any manner of doubts and without contest from any quarter through abundant material on record.
28.PW14 is the next door neighbour who had heard the deceased crying for help in the after noon of the date of incident. Though she mentioned the time she heard the cries for help as 2 PM, it is clear she was making a loose statement in this regard. The fact that she is the person who brought the injured woman to the hospital is confirmed by MLC Ex. PW 8/A. The MLC was prepared by PW8 Dr. Pammi Chaudhary, who was Medical Officer on duty in the casualty of the hospital. MLC was prepared by Dr. Amar Singh, who had also signed the said document which indicated that when the deceased was brought to hospital by PW14, she had informed the doctors attending on her that she had suffered the burn injuries by heater at 2.30 PM. The evidence of PW14 leaves no room for doubt that the deceased was found in burnt state by her within the house, the door of which was blocked from inside. In absence of any theory of any foul play, it is clear that the deceased suffered these burn injuries at a time when she was all alone.
29.It has been proved that the police station learnt about the incident and the victim having been brought to hospital in burnt state at 3.50 PM on information conveyed by PW12 Ct. Yashbir Singh, who was on duty in the hospital. This information was reduced into writing by duty officer vide DD no.10A, copy of which has been proved as Ex. SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 11 of 30 PW 6/A. Interestingly, this DD entry shows that the person who had accompanied the injured woman to the hospital was A1, rather than PW14, the neighbour.
30.Be that as it may, par evidence of PW6 ASI Babban Rao and PW7 Ct. Ajit Kumar, both of whom visited the scene of occurrence in the course of investigation that followed after registration of the FIR, heater (Ex. P1) was found at the scene which was seized vide memo (Ex. PW 6/D). The evidence of these witnesses further shows that the initial IO had also found pieces of burnt clothes, one plastic bottle of hair oil and one small container of powder which were seized vide memo Ex. PW 6/E. There is no relevance shown of the bottle of hair oil or small container of powder. The partly burnt cloth pieces, however, do corroborate the prosecution case about House No. 2132, being the scene of incident where Sudha suffered burn injuries.
31.During the course of investigation, it was found that Sudha had been brought to the hospital wrapped in a saree (Ex. P3) in as much as the clothes which she was wearing at the time of incident got burnt. This saree was seized by the IO vide memo (Ex. PW 6/E) on being handed over by the doctor attending on the injured woman.
32.As mentioned earlier, PW13, member of the crime team has proved his report Ex. PW 13/A which is not of any consequence in as much as he did not find any material worth noticing in the house in question.
33. Be that as it may, PW11, photographer who accompanied him, through photographs Ex. PW 11/A1 to A7 has brought out SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 12 of 30 corroborative material about the room inside the said house being the scene of incident.
34.PW16, SDM had been informed about this incident by PW6 after he learnt about the age of marriage of the deceased in the hospital. PW 16 reached the hospital and ascertained about the fitness of the deceased to make statement. He has proved Ex. PW 16/A to be the statement made before him by the injured woman. This was recorded by him after the injured woman had been declared fit for statement vide endorsement Ex. PW 9/A. The certificate about Sudha being fit to make statement has been proved by PW9 Dr. Ashish Rai, who identified the writing and signature of Dr. V.M. Dharmesh, Sr. Resident, Plastic Surgery of the hospital who was attending on the victim at the relevant time. Dr. V.M. Dharmesh has left the services of the hospital and according to PW9 his present whereabouts are not known to him.
35.Questions were raised during the crossexamination of PW9 about the possibility of Dr. V.M. Dharmesh being traced and produced in evidence. While PW9 conceded that he could not make any statement on the basis of treatment recorded (as to the fitness of the patient at the relevant time) and further that the present address of Dr. Dharmesh can be ascertained from the administrative branch of the hospital, the fact remains that there is no other theory propounded even by the defence as to the cause of burn injuries suffered by Sudha which culminated in her death. In these circumstances, for present SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 13 of 30 purpose in as much as even the prosecution can not wish away this theory, it may be assumed that the statement Ex. PW 16/A was made by the deceased woman to the SDM in a fit state of mind.
36.In the statement Ex. PW 16/A, the victim herself stated that she of her own had suffered burn injuries with the help of heater. At this stage, the reasons leading her to take this extreme steps need not be discussed, as they would be relevant in the context of charge laid against accused persons. Suffice it to note here that the injured woman in statement Ex. PW 16/A which is presented by the prosecution as her dying declaration, told the SDM in unambiguous words that she was herself instrumental in getting burnt of her own volition.
37.In the MLC, it was noted that the victim had been brought to the hospital with superficial to deep burns that involved chest, back, both lower & upper limbs and face. This is confirmed by the autopsy report Ex. PW 5/A.
38.PW3, brother of the deceased testified that he had learnt about Sudha being admitted in the hospital from his maternal uncle. He stated that he had gone to the hospital where Sudha was admitted in burns ward. He had also found A1 present in the hospital. He states that he had informed his father PW4 in this regard. During crossexamination, he was confronted with statement Ex. PW 3/A given by him on 3.2.2006 before the SDM which was confirmed by him.
39. PW4, father of the deceased, in his statement corroborated PW3 SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 14 of 30 having heard regarding the incident from the latter. He stated that he had gone to the hospital with other family members and had talked with Sudha, who had told him that she had suddenly caught fire when she had gone to take bath. He also confirmed during his cross examination that he had made statement Ex. PW 4/B before the SDM on 3.2.2006. Though, the version learnt from Sudha as deposed by him is at variance from the prosecution case, it lends reassurance at least to the effect that according to the version of the parental family of the deceased (namely PW3 and PW4), incident in which Sudha suffered burn injuries had not been caused intentionally or deliberately.
40.In above facts and circumstances, it is clear that the death of Sudha on 10.2.2006 as a result of 90% burn injuries suffered in the after noon on 3.2.2006 in her matrimonial home is not homicidal in nature. The prosecution case, founded essentially on statement of PW6/A recorded by SDM is that the death was suicidal.
41.The defence, on the other hand, has argued with reference to the statement of PW4 that the theory of suicide is doubtful in as much as what was stated by the victim to her father indicated, it was simply an accident in which deceased caught fire from the heater, at the time when she was all alone. On this basis, the defence questions the veracity of document Ex. PW 6/A which is the basis of the charge under Section 304B IPC or in the alternative under Section 306 IPC.
42.The evidence of PW3 and PW4 read with the evidence in the nature SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 15 of 30 of invitation card Ex.P4 for the wedding of the deceased with Rakesh son of A2 shows the marriage had been performed on 19.2.1999. It is clear from the evidence referred to earlier that the death of Sudha on 10.2.2006 was unnatural. In these circumstances, Sudha died 9 days before the elapse of period of 7 years of marriage which is "sine qua non" for invoking the charge under Section 304B IPC.
43.For the charge under Section 498A IPC and 304B IPC framed against the accused persons in the facts and circumstances of the case, one thing is common. Both depend on the ingredient of the deceased woman having been subjected to cruelty or harassment on account of demand of dowry in the matrimonial home, which is what has been alleged by her father PW4. For purposes of charge under Section 498A IPC, "cruelty" would also stand proved if the prosecution is able to bring home the allegations that willful conduct of the accused persons was of such nature as was likely to drive the woman to commit suicide or to cause grievous injuries or danger to her life, limb or health (mental or physical) as defined in the explanation appended to Section 498A IPC.
44.It is well settled that Section 498A and Section 304B, IPC are not mutually exclusive. These provisions deal with two distinct offences. Even if cruelty defined in the Explanation to Section 498A IPC is same for the purpose of Section 304BIPC yet under Section 498A, cruelty itself is punishable. But under Section 304B, it is the dowry death which is punishable. But such death should have occurred SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 16 of 30 within seven years of the marriage. There is no such period mentioned in Section 498A. [Shanti Vs. State of Haryana AIR 1991 SC 1226: 19991 Crl.L.J.; Keshb Chandra Panda Vs. State 1995 Crl.L.J. 1745( Ori)].
45.Thus, in order to seek conviction under Section 304B IPC against a person for the offence of dowry death, the prosecution is obliged to prove that:
(a) the death of a woman was caused by burns or
bodily injury or had occurred otherwise than
under normal circumstances;
(b) such death should have occurred within 7 years
of her marriage;
(c) the deceased was subjected to cruelty or
harassment by her husband or by any relative of
her husband;
(d) such cruelty or harassment should be for or in
connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased
should have been subjected soon before her death [Kans Raj V State of Punjab AIR 2000 SC 2324 (2000) 5 SCC 207: 2000SCC (Cri) 935: 2000 Cr LJ 2993;
Satvir Singh V State of Punjab AIR 2001 SC 2828:
(2001) 8 SCC 633: 2002 SCC (Cri) 48; State of A.P. V Raj Gopal Asawa AIR 2004 SC 1933: (2004) 4 SCC SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 17 of 30 470; Baljeet Singh V State of Haryana AIR 2004 SC 1714, G.V. Sidha Ramesh V. State of Karnataka 2010 (2) SCC 152 ]
46.When Section 304B IPC was inserted in the Penal Code by way of amendment in 1986,when Parliament had also inserted Section113B of Indian Evidence Act which reads as under: "113B. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation. For the purposes of this Section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code (45 of 1860.) "
47.Presumption under Section 113B will operate if prosecution is able to establish circumstances set out in section 304B IPC [State of Karnataka V M.V. Manjunethegowda (2003) 2 SCC 188."
48.In the context of the word "soon before" appearing in Section 113B of the Evidence Act, it has been held that no time limit can be fixed in such regard and the matter needs to be left to be determined by the court depending upon the facts and circumstances of each case SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 18 of 30 [Kailash Vs. State of Madhya Pradesh AIR 2003 SC 107]
49.In G.V. Sidha Ramesh Vs. State of Karnataka (Supra) Hon'ble Supreme Court has indicated in para 26 that parameter under Section 113B of the Evidence Act, would arise only on the material being brought on record receiving the cruelty or harassment of the kind mentioned as the third ingredient of Section 304B IPC.
50.The word "dowry" as used in Section 304B IPC was considered by Hon'ble Supreme Court and it was observed that some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payment are not covered within the ambit of "dowry". Hence, the dowry mentioned in Section 304B should be only such property or valuable security as is given or agreed to be given in connection with the marriage. [Satvir Singh V State of Punjab AIR 2001 SC 2828 : (2001) 8 SCC 633: 2002 SCC ( Cri) 48.]
51.Without going into the question as to whether statement Ex. PW 16/A can be acted upon as dying declaration (case of the prosecution is that Ex. PW 16/A is a dying declaration worthy of reliance), it needs to be examined as to whether there is material on record showing the deceased was subjected to harassment or cruelty to demand of dowry during her stay in the matrimonial home, soon before her death so as to find out if the charge under Section 498A or Section 304B IPC can be brought home.
SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 19 of 30
52.PW3 and PW4 as mentioned earlier are brother and father respectively of the deceased woman. Both had appeared and given the statement before SDM on 3.2.2006 soon after the SDM had allegedly recorded the statement of the deceased. In his statement Ex. PW 3/A before SDM, PW3, brother of the deceased did not level any allegation of harassment or demand or cruelty (in context of) dowry etc. In his statement in the court, PW3 generally stated that he had heard from his sister about the harassment and beating given by A1 to A4. He would not state as to what was the cause of the said harassment or beating. He would not elaborate as to on what occasion said harassment had been meted out and in what manner. In these circumstances, evidence of PW3 is of no help to the prosecution.
53.PW4 is the only witness who deposed about the demands on account of which Sudha was feeling harassed in the matrimonial home. He testified that some days after the marriage Sudha had told him that she was beaten by her husband, her motherinlaw, A1, A2 and A3 and even by wife of A3. He would not state that these persons used to demand the sum of Rs. 5,000/ to Rs. 20,000/ to be brought by Sudha from her parental home. He would not specify the date on which such demands were made. He talks about Sudha having visited the parental home on festivals or at intervals of two months or six months. Sudha had been married on 19.2.1999. Her husband had died about one year prior to her own death. In the period of six years that she lived with her husband in the matrimonial home, she would not SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 20 of 30 lodge any complaint with any authority about such demands. PW4 would not specify as to who made what demand or on what date. He stated that he had given sums of Rs. 5,000/, Rs.10,000/ and even Rs. 20,000/ on different dates to Sudha as she had requested him on the ground that accused persons had demanded the same. He would not specify the dates on which he had fulfilled the illicit demands.
54.The prosecution is relying on Ex. PW 16/A presented as the dying declaration of the deceased. In the said statement, the deceased would not make any allegation of the nature testified about by PW4. She would attribute harassment altogether for different reasons which have no connection with any illegal demand of dowry. In absence of any specific proof about the dates of the alleged demand or dates of payment of money pursuant thereto as stated by PW4, they can not even be brought under cover of the expression "dowry".
55.In the above facts and circumstances, the prosecution can not succeed on the charge of dowry death under Section 304B IPC or even on the charge under Section 498A IPC, in so far as it relates to allegations of harassment caused with a view to coerce the deceased to make unlawful demand of property or on account of failure to meet the demands.
56.This leaves us with charge under Section 498A IPC stemming from the allegations that the conduct of the accused persons towards the deceased woman was of such nature as was likely to drive her to commit suicide or to grievous injury to her mental or physical health SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 21 of 30 in addition (and on material similar to the above), to the charge under Section 306 IPC.
57.Section 306 of the IPC reads as under:
"306 Abetment of suicide If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
58.From a bare reading of provision, it is clear that to constitute an offence under Section 306 IPC, the prosecution has to establish: (i) that a person committed suicide, and (ii) that such suicide was abetted by the accused. In other words, an offence under Section 306 would stand only if there is an "abetment" for the commission of the crime.
59.The parameters of "abetment" have been stated in Section 107 of the IPC, which defines abetment of a thing as follows:
"107. Abetment of a thing A person abets the doing of a thing, who First Instigates any person to do that thing; or Secondly Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempt to cause or procure, a thing to be done, is said to instigate the doing of that SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 22 of 30 thing."
60.As per Section 107, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any willful misrepresentation or willful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC.
61. The word "instigate" is not defined in the IPC. The meaning of the said word was considered by Hon'ble Supreme Court in Ramesh Kumar Vs. State of Chhattisgarh, 2001(4) RCR (Criminal) 537:
(2009) 9 SCC 618 and found to be to goad, urge, forward, provoke, incite or encourage to do an act.
62.In Chitresh Kumar Chopra V. State (Govt. of NCT of Delhi), (SC), 2009(4) RCR (Criminal) 196: 2009(162) D.L.T. 257, it was observed thus:
"To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 23 of 30 effect or what constitutes "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or mission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."
63.In Chitresh Kumar Chopra (supra), Hon'ble Supreme Court further ruled thus:
"To constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad"
is " a thing that stimulates someone into action:
provoke to action or reaction" (See: Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (See: Oxford Advanced Learner's Dictonary7th Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar's case (spura), where the accused by his acts or by a continued course of conduct creates SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 24 of 30 such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established" (i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation."
64.It was further observed:
"... the question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation reacts and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for selfprotection or an escapism from intolerable self."
65.Abetment involves a mental process of instigating a person or SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 25 of 30 intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
66.In State of West Bengal V. Orilal Jaiswal, 1994(3) RCR (Criminal) 186: (AIR 1994 SC 1418), Hon'ble Supreme Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
67.Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 26 of 30 of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.
68.In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceasedwife with cruelty is not enough. [See Mahinder Singh V. State of M.P., (1995 AIR SCW 4570].
69.The law on the subject has been interpreted as above in a catena of judgments including Kishori Lal V. State of M.P, 2007(3) RCR (Criminal) 385 : 2007(3) RAJ 613"(2007(10) SCC 797, Randhir Singh and Anr. V. State of Punjab, 2004(4) RCR (Criminal) 740:
2004(3) Apex Criminal 683: (2004(13) SCC 129) and Kishangiri Mangalgiri Goswami V. State of Gujarat, (SC) AIR 2009 SC 1808).
70.PW4, father of the deceased has materially contradicted the alleged dying declaration before SDM by stating that the deceased had indicated to him that the burns were suffered accidentally. The consequent doubts, in fact, take the steam out of charge of abetting suicide. None the less, the evidence has been examined on the assumption that the death was suicidal.
71.In the present case, the charge against the accused persons is that they in furtherance of common intention, mentally tortured Sudha (the SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 27 of 30 deceased) and abetted her to commit suicide by the said act of mental torture. It is trite that words uttered on the spur of the moment or in a quarrel, without something more cannot be taken to have been uttered with mens rea. The onus is on the prosecution to show and prove the circumstances which compelled the deceased to take the extreme step of bringing an end to his/her life.
72.In the present case, the evidence tends to show the deceased was under tremendous mental pressure on account of she having lost her husband to TB after about five years of her marriage and being without a child. Her grievance in the statement Ex. PW 6/A that accused Vicky and accused Sunita with accused Sonu (since deceased) wanted to turn her out of the house and would harass her on this account, amounts to an impression that she was entertaining qua them. Her said statement would not clarify in any manner as to how the said harassment was meted out. The acts of commission or omission which constituted harassment needed to be spelt out, if not by the deceased in the said statement Ex. PW 6/A, then at least by the witnesses related to her parental family who have appeared for the prosecution. Neither her brother PW3 nor her father PW4 have come out with any credible detailed narration of facts in this regard. The allegations in Ex. PW 6/A that accused Tansen had an evil eye on the deceased and wanted to keep her as his wife is not illustrated in any manner by any specific instance. Mere assertion that this was the intention entertained by accused Tansen can not suffice. From what SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 28 of 30 acts on the part of accused Tansen, this impression about his mental state was gathered, had to be adduced as evidence which is missing.
73.PW3 vaguely stated that the deceased had told him about being beaten by accused Vikcy, Sonu, Sunita and Tansen. He would not, however, state as to when she told about the said beating or further as to when said incident(s) of beating had occurred. Noticeably, the deceased in her own statement Ex. PW 6/A would not talk of physical assaults. His father PW4 would not support him about the allegations of beating. PW4 instead talked of demands of Rs. 10,000/ or Rs.20,000/ being made. He would make this statement in a very vague manner without specifying as to who had made the said statement or when were the said demand(s) made. He also talked of he having given certain amount of money on different dates. But then, he clarified that he had given said amount of money to the deceased. He vaguely stated the said amount of money to be Rs. 5,000/, Rs.10,000/0 and Rs.20,000/. He would concede that no written complaint was made about the demands pursuant to which said payments had been made. In her statement Ex. PW 6/A, the deceased did not have any such grievance about the demand(s) of money made.
74.In above facts and circumstances, the possibility that the deceased made have chosen to commit suicide on account of she being hypersensitive to ordinary petulance, discord or differences in domestic life, particularly on account of she having become a widow and being childless can not be ruled out. In this view, I do not find SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 29 of 30 sufficient evidence on record to infer that the conduct of the accused persons towards the deceased was designed to instigate, goad, urge, provoke or encourage her to commit suicide.
75.In the result, prosecution can not succeed. The accused persons are acquitted. File be consigned to record room.
PRONOUNCED & DICTATED
IN THE OPEN COURT
On 1st day of September, 2010 [R.K. GAUBA]
ADDl. SESSIONS JUDGE03
CENTRAL/DELHI
SC No. 97/09, 37/10 & 38/10 State Vs. Vicky & others 30 of 30