Delhi District Court
Sc No. 746/16 State vs . Rakesh Kumar 1/63 on 9 October, 2018
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 05
EAST DISTRICT, KARKARDOOMA COURTS:DELHI
FIR No.: 423/10
PS : New Ashok Nagar
U/s. : 498A/304B IPC
S. C. No. :746/16
STATE
vs.
Rakesh Kumar
S/o Sh. Avdhesh
R/o Village Sandhokor PS Husain Gunj
Distt. Siwan ( Bihar )
Date of Assignment : 22.12.2011
Date on Arguments : 05.09.2018
Date of Judgment : 09.10.2018
JUDGMENT
1. The present case was registered on the direction of Sh.
V.K.Gautam, Ld. M.M., Karkardooma Courts, under Section 156(3) CrPC. This direction was given in a criminal complaint filed by Sh. Bishnu Dev Narain Srivastva, the father of deceased Niharika.
SC No. 746/16 State Vs. Rakesh Kumar 1/63
CASE OF THE PROSECUTION
2. As per the case of the prosecution, the deceased Niharika was married to the accused Rakesh Kumar Srivastva on 13.07.2008, according to Hindu Rites and ceremonies. The father of Niharika spent Rs. 10.5 Lakh in the marriage. Out of this amount, Rs. 6 Lakh were given in cash and cheque. Rs. 4.5 Lakh were spent on dowry articles and gold. After marriage Niharika and the accused Rakesh Kumar shifted to Delhi and started residing at A768, 3 rd Floor, G.D.Colony, Mayur Vihar, Phase III, New Delhi. His mother and two brothers were also residing with him. In the initial stage of marriage, deceased Niharika used to inform that she was happy in her matrimonial home. After four months, other family members joined her in Delhi. They started taunting her for bringing less dowry. On 25.03.2009, the deceased Niharika was blessed with a son. On the occasion of newly born, complainant had sent some clothes, cash of Rs. 51,000/, a gold chain and ring for his daughter and a locket and golden bangle (Bandh) for her son was given. The motherinlaw of the deceased taunted that the SC No. 746/16 State Vs. Rakesh Kumar 2/63 complainant has solemnized the marriage like a lower caste marriage. Accused demanded Rs. 56 Lakh for purchasing a plot for residence. On 15.06.2010, at about 7.30 a.m, the complainant received a telephonic call from her daughter Niharika who requested to arrange the demanded amount if they wanted to see her alive. At 10.30 a.m the complainant received a telephonic call from his other daughter and her husband that his daughter Niharika was serious and unable to breath. After receiving the information, the complainant along with his wife reached Delhi to have a last glance of their daughter Niharika. On 16.06.2010 they reached at Kailash Hospital, Noida. The dead body of the deceased was shown to the family of the deceased in Mortuary. The police did not register FIR in this case and thereafter, the complainant filed a criminal complaint in the Court. The FIR was registered on the directions of the Court.
3. After registration of FIR, investigation was carried out by the police. After completion of investigation, chargesheet was filed against accused for the offences punishable under sections 498 SC No. 746/16 State Vs. Rakesh Kumar 3/63 A/304B IPC.
4. After supply of copies in compliance of Section 207 Cr.PC, Ld. M.M committed the case to the court of Sessions. CHARGE
5. The predecessor Court on 28.04.2012 charged the accused for the offences punishable under sections 498A, 304B IPC and in the alternative under Section 302 IPC. Accused pleaded not guilty to the charges against him and claimed trial.
PROSECUTION EVIDENCE
6. In support of its case, the prosecution examined twenty one witnesses.
7. PW1 is Sh. Bishnu Dev Narain Srivastva. He is the father of the deceased Niharika. He stated that the marriage of her deceased daughter Niharika was solemnized on 13.07.2008 with accused Rakesh Kumar. He spent Rs. 10.50 Lakhs on the marriage. After four months of her marriage, she started complaining of her SC No. 746/16 State Vs. Rakesh Kumar 4/63 harassment to her mother and Bhabhi at the hands of her mother inlaw, fatherinlaw, brotherinlaw namely Sailesh Srivastva and her cousin brotherinlaw Suraj Srivastva. She also told that her husband Rakesh used to beat her, abused her and did not provide her food. Her motherinlaw used to beat her with hot Karchi. Her brotherinlaw Sailesh Srivastva used to abuse her. Her cousin brotherinlaw Suraj used to behave indecently with Niharika. On the occasion of birth of son, the complainant had given one locket, bera, cash Rs. 51,000/ and clothes for the child and for Niharika one gold ring and one gold chain but despite that motherinlaw of Niharika taunted that they had not given Rs.56 Lakhs for purchasing a plot in Delhi. On 15.06.2010 at about 7.15 a.m Niharika phoned the complainant that he should arrange Rs. 56 Lakhs otherwise she would be killed. At about 10.30 a.m accused Rakesh telephoned to the another daughter of the complainant informing that Niharika was not well and was not properly breathing. He along with his wife and sons reached Delhi. On the way, Rinki informed him that Niharika was no SC No. 746/16 State Vs. Rakesh Kumar 5/63 more. He deposed that Niharika was tortured by his husband, motherinlaw, brothersinlaw for demand of Rs. Five lacs for purchasing a plot in Delhi. Accused pressurized Niharika and then harassed her too. In the morning on 15.06.2010 at about 7.15a.m Niharika made a call and told that he should arrange Rs. Five Lacs otherwise she would be killed by her inlaws and husband. He deposed that despite his requests when the police officials of PS New Ashok Nagar did not lodge any FIR, he filed a complaint (Ex.PW1/A) in Karkardooma Courts.
8. PW2 is HC Satish Chand. He is the Duty Officer. He proved the FIR as Ex.PW2/A which was registered on receiving rukka from SHO. He made endorsement Ex.PW2/B on the rukka.
9. PW3 is Manish Kumar. The deceased Niharika was his Sister inlaw (Saali). He deposed that she was married to accused Rakesh Kumar on 13.07.2008. After the marriage, a son was born to the deceased Niharika. He deposed that he heard from his wife Pinki that deceased was being tortured by her inlaws on account SC No. 746/16 State Vs. Rakesh Kumar 6/63 of dowry. On 15.06.2010, accused made a call to his elder co brother (Saadu) Neeraj Srivastva that deceased was having some problem in breathing. Accused called him at his house. Thereafter, the accused made another call to Neeraj informing him to reach at Noida City Centre. He along with Neeraj reached at Noida City Centre, accused informed them to reach at Kailash Hospital. There they came to know that no patient with the name of Niharika was admitted in the hospital. They made call to accused and accused informed them that all is finished and they should reach at his house. He deposed that when he reached at the house of Niharika, ambulance was standing outside the house. When he went upstairs, he found deceased lying on the bed in dead condition. Accused shifted the body of the deceased to Kailash Hospital. Neighbours were saying that accused had not called them. Doctors at Kailash Hospital after examining the deceased declared her 'brought dead'. Postmortem was conducted on the body of the deceased.
10. PW3 has been crossexamined by the Ld. Addl. PP for the State SC No. 746/16 State Vs. Rakesh Kumar 7/63 as he had resiled from his statement u/s 161 Cr.P.C. In his cross examination by Ld. Addl. P.P, PW3 admitted that police interrogated him and recorded his statement. He admitted that his fatherinlaw paid Rs. One Lakh by way of cheque and Rs. Two Lakhs in cash to the inlaws of the deceased at the time of marriage as hue and cry was raised by the inlaws of the deceased.
11. PW4 is Sh. Piyush Kumar Srivastva. He was working as Naib Tehsildar at the relevant time. He was directed by SDM, Dadri to conduct inquest proceedings in respect of deceased Niharika Srivastva. He found ligature marks around the neck of the deceased. He prepared Panchnama of the deceased vide Ex.PW4/A. He also prepared documents during inquest proceedings which are Ex.PW4/A1 to Ex.PW4/A4.
12. PW5 is Rinki. She is the elder sister of deceased Niharika. She deposed that the deceased Niharika was married to accused Rakesh on 13.07.2008. At the time of marriage Rs. 10 Lakhs were spent by her father. After the marriage, her deceased sister used to SC No. 746/16 State Vs. Rakesh Kumar 8/63 visit her house. She used to inform her (PW5) that she was being harassed by her inlaws including her husband on account of dowry. On 15.06.2010 accused made a call to Manish Srivastva informing him that deceased was having breathing problem and requested him to reach Kailash Hospital. She along with Manish and younger sister Pinki and elder sister Seema reached Kailash Hospital. There they came to know that her sister was not admitted there. Thereafter, her husband made a call to the house and came to know that deceased was not admitted in Kailash Hospital. Accused informed her husband to reach at his house as all is finished. Thereafter, they reached at the house of the deceased and saw an ambulance parked outside the house of accused. They went upstairs on the third floor and saw that her sister Niharika was lying on the bed. She was not breathing. In the meanwhile, body of her sister was shifted in an ambulance by the accused with the help of neighbourers. Neighbourers made inquiry from accused as to what had happened to Niharika and accused told them that she had committed suicide. The body of SC No. 746/16 State Vs. Rakesh Kumar 9/63 her deceased sister Niharika was taken to Kailash Hospital. At Kailash Hospital, doctor declared her sister Niharika as 'brought dead'.
13. PW6 is Smt. Manju. She is the mother of the deceased Niharika.
She deposed that Rs. 10.5 Lakhs were spent in the marriage of Niharika. Accused used to torture Niharika whenever his parents used to call him from Bokaro. On 25.03.2009, a son was born to the deceased Niharika. In chhathi ceremony, they had given Rs. 51,000/ in cash, gold ring and gold chain, a silver kada and some clothes to the accused. The motherinlaw of the deceased Niharika taunted that Rs. 1516 Lakh could have easily been spent on marriage. On 15.06.2010, her daughter called at about 7.15 a.m. She asked her father to arrange Rs. 56 Lakh otherwise she would be killed. On the same day i.e. on 15.06.2010 accused Rakesh called her other daughter i.e. PW5 Rinki at about 10.15 a.m telling her that Niharika was feeling problem in breathing. She, her husband and two sons Arvind kumar and Amrinder Kumar immediately left for Delhi. She proved the list of dowry SC No. 746/16 State Vs. Rakesh Kumar 10/63 articles as Ex.PW6/A, four receipts Ex.PW6/A1, Six receipts as Ex.PW6/A2, three receipts of jewellery articles as Ex.PW6/A3, original receipt of utensils as Ex.PW6/A4, Photocopy of receipt of clothes as Mark P6X, receipts of jewellery articles and clothes as Ex.PW6/A5, original receipt of Bolbam Tent Station Road, Siwan dated 13.07.2008 as Ex.PW6/A6 and original list of articles as Ex.PW6/A7. PW6 Manju has corroborated the testimony of her husband PW1 Bishnu Dev Narain Srivastava on all the material points.
14. PW7 is Pankaj Kumar. He is the Assistant General Manager (HRD) LG Electronics India Pvt. Ltd. where the accused was working at the relevant time. He handed over the relevant documents and information to the police regarding working of accused Rakesh Kumar Srivastava. On 17.05.2011, he handed over the print out of punching Attendance of Rakesh Kumar Srivastava to the IO which is Ex.PW7/A. The print out of attendance of accused for 15.06.2010 is Ex.PW7/B. As per record, accused Rakesh Kumar Srivastava punched his I.D. Card at 09.01 SC No. 746/16 State Vs. Rakesh Kumar 11/63 hours in the office at Ghaziabad on 15.06.2010. However, Ex.PW7/B is not showing any time of second punching i.e. time of leaving the office by the accused.
15. PW8 is Arvind Srivastva. He is the brother of deceased Niharika. He has supported the version of PW1 Bishnu Dev Narain Srivastava and PW6 Smt. Manju on all the material points.
16. PW9 is Neeraj Srivastva. Deceased Niharika was his sisterin law (wife's sister). On 15.06.2010, at about 10.30a.m, he received a call from accused Rakesh informing him that Niharika was having breathing problem and he should reach immediately at Kailash Hospital. He informed his wife and his cobrother namely Manish about the condition of Niharika. Thereafter, they all rushed to Kailash Hospital. On inquiry, they came to know that Niharika was not admitted there. They proceeded towards the house of the accused. There they found that the half portion of the body of Niharika was lying on the bed and other half of her body SC No. 746/16 State Vs. Rakesh Kumar 12/63 was on the floor. The broken pieces of glass bangles were lying on the bed and ligature mark was there on the neck of body. He has supported the version of his wife PW5 Rinki.
17. PW10 is HC Richhpal Singh. He deposed that on 15.06.2010 on the directions of SHO he along with Ct. Yusuf reached Kailash Hospital where the dead body of deceased Niharika was lying. On 16.06.2010 postmortem on the body of Niharika was conducted at about 4.30 p.m and the dead body was handed over to her family members.
18. PW11 is Dr. Sarika Chandra. She was working as CCMO, Kailash Hospital, Noida, U.P. She deposed that on 15.06.2010 a dead body was brought to the hospital with alleged history of death by hanging. She filled memo/police information form which is Ex.PW11/A. The Death Certificate dated 15.06.2010 is Ex.PW11/B.
19. PW12 is Ct. Yusuf Ali. He was posted at PS Sector 20, Noida SC No. 746/16 State Vs. Rakesh Kumar 13/63 U.P. He deposed that on 15.06.2010, Niharika was admitted to Kailash Hospital, Noida, U.P. with alleged history of death by hanging. On 16.06.2010, postmortem was got conducted and thereafter, dead body was handed over to her family members. He has corroborated the testimony of PW10 HC Richhpal Singh.
20. PW13 is ASI Lalit. On 17.05.2011, he was posted as Head Constable in PS New Ashok Nagar. He joined the investigation of this case along with IO SI Sanjeev Kumar. They went to LG Electronics Ltd, Greater Noida, U.P where Sh. Panjaj Kumar met them. On interrogation, he told that as per attendance punching computer record accused Rakesh Kumar Srivastva was present in the office at Ghaziabad Branch on 15.06.2010. He deposed that the copy of the said punching attendance print out is Ex.PW7/A.
21. PW14 is Inspector Vivek Sharma. On 15.06.2010, he was posted at PS Sector 20, Noida, U.P as Sub Inspector. On that day an information was received that one Niharika Srivastava had committed suicide and admitted to Kailash Hospital, Noida. He SC No. 746/16 State Vs. Rakesh Kumar 14/63 reached the said hospital and came to know that Niharika had expired within seven years of her marriage and it was a case of unnatural death. He informed the concerned City Magistrate regarding the unnatural death of Niharika on 16.06.2010. Sh. Piyush Kumar Srivastava, Naib Tehsildar, came to the hospital and Panchnama was written on his dictation which is Ex.PW4/A. After preparation of the Panchnama, the dead body was sent to mortuary for postmortem.
22. PW15 is Ct. Manish Kumar Singh. He joined the investigation with Inspector Suraj Pal Giri on 25.07.2011. He proved the arrest memo of the accused as Ex.PW15/A, Disclosure statement of accused Ex.PW15/B. He also proved the seizure memo of mobile phone of Niharika as Ex.PW15/C and seizure memo of Dowry articles as Ex.PW15/D. He corroborated the testimony of IO PW 21 Suraj Pal Giri on all the material points.
23. PW16 is Surender Kumar. He is the Nodal Officer. He proved the call detail record of mobile no. 9560124172 for the period SC No. 746/16 State Vs. Rakesh Kumar 15/63 w.e.f. 10.06.2010 to 17.06.2010 as Ex.PW16/A. He also proved Certificate under Section 65B of Indian Evidence Act as Ex.PW16/B. The Certified copy of C.A.F is Ex.PW16/C.
24. PW17 is SI Sanjeev Kumar. On 27.02.2011, he was posted as Sub Inspector at PS New Ashok Nagar. The investigation of this case was handed over to him. On 30.02.2011, he recorded the statement of Bishnu Dev, father of deceased under Section 161 CrPC. He interrogated Anita Devi and Sailesh Srivastva. On 17.05.2011, he visited at LG Electronics Pvt. Ltd. at Surajpur, Kasna Road, Greater Noida, where he met Sh. Pankaj Kumar, HR Manager of LG Electronics. He inquired him about the location of accused Rakesh Kumar on 15.06.2010. Sh. Pankaj Kumar had handed over print out of attendance record in this regard to him. He seized the same vide seizure memo Ex.PW7/A.
25. PW18 is Inspector Rajbir Singh. On 19.08.2010, he was posted at PS New Ashok Nagar as Inspector Investigation. The investigation of this case was handed over to him on that day. He SC No. 746/16 State Vs. Rakesh Kumar 16/63 proved the marriage card of the deceased Niharika as EX.PW18/A. He also proved seven photographs which are EX.PW18/B1 to Ex.PW18/B7. He also proved the photocopies of some bills and photocopies of transaction of money as Mark PW18/C and seized the same vide seizure memo Ex.PW18/D. He also prepared the site plan which is Ex.PW18/E. He recorded supplementary statement of Bishnu Dev under Section 161 CrPC. He tried to find out the accused Rakesh Kumar but of no avail.
26. PW19 is Inspector Kuldeep Singh. He deposed that on 08.12.2010, the investigation of this case was handed over to him. He called the accused Rakesh and his father Avdhesh and interrogated them. Thereafter, he was transferred and he handed over the file to MHC(R).
27. PW20 is Sh. Shehnoor Khan. He deposed that on 19.08.2010 the present case was registered as per the order of the Court. He made endorsement upon the complaint Ex.PW1/A. His endorsement is Ex.PW20/A. He deposed that on 07.10.2011, he SC No. 746/16 State Vs. Rakesh Kumar 17/63 gave a Certificate under Section 65B of Indian Evidence Act in regard to FIR of this case which is Ex.PW20/B.
28. PW21 is ACP Suraj Pal Giri. He deposed that on 07.06.2011 he was posted as ATO at PS New Ashok Nagar. The investigation of this case was handed over to him. On 25.07.2011, accused Rakesh Kumar surrendered before the Court. He arrested the accused Rakesh Kumar vide arrest memo Ex.PW15/A. On 29.07.2011, the accused Rakesh Kumar got recovered the dowry articles which were seized vide memo Ex.PW15/D. He also seized the mobile phone which was recovered from the house of the accused which is Ex.PW15/C. He also obtained the call details of said mobile number which is Ex.PW16/A along with Certificate under Section 65B of Indian Evidence Act which is Ex.PW16/B. He recorded the statements of witnesses in this case. He collected all the relevant documents and prepared the charge sheet. He proved the inquest papers Ex.PW21/A. On 14.10.2011, he also obtained subsequent opinion which is Ex.PW21/B from Dr. Raj Singh Medical Officer Govt. Hospital, Noida. He obtained the SC No. 746/16 State Vs. Rakesh Kumar 18/63 postmortem report which is Ex.PA1.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
29. Statement of the accused was recorded under section 313 Cr.P.C., wherein, he denied the allegations against him and stated that he is innocent and has been falsely implicated in this case and the deceased has committed suicide.
30. The accused stated that there was no exchange of dowry in his marriage. The relations between him and his deceased wife were cordial. He denied having received any gifts on the chhathi ceremony of his son. He stated that on 15.06.2010 he and deceased Niharika had phoned the complainant for wishing his marriage anniversary.
31. The accused in his statement u/s 313 CrPC has denied that when the sisters of Niharika entered the room of the accused, Niharika was lying on the bed and her legs were down from the bed or that her bangles were in broken condition or that her chunni was half SC No. 746/16 State Vs. Rakesh Kumar 19/63 lying on the bed and half lying on the floor.
32.The accused stated in his statement under Section 313 CrPC that deceased Niharika was declared 'brought dead' when she was taken to Kailash Hospital, Noida. The accused stated that his relations with his deceased wife Niharika and his inlaws were cordial. He stated that he was blessed with a son on 25.03.2009 and subsequently Niharika conceived in the month of November 2009. They decided to abort the pregnancy and accordingly, they did so. After the abortion Niharika used to remain upset which led her to commit suicide.
DEFENCE EVIDENCE
33.Accused led evidence in his defence and examined two witnesses in his defence.
34. DW1 is Sh. Digvijay Kumar Upadhyay. He is a friend of accused Rakesh Kumar. He deposed that the accused Rakesh disclosed to him that his wife Niharika was under some depression due to abortion. He further deposed that on SC No. 746/16 State Vs. Rakesh Kumar 20/63 15.06.2010, he was informed that the wife of the accused had committed suicide. He deposed that the relations between the accused Rakesh and his deceased wife were very cordial.
35. DW2 is Dr. Lucky Chandekar. She is working in Surabhi Hospital, Sector 35, Noida since August 2009. She identified her handwriting upon OPD slip of patient Niharika, dated 21.12.2009 which is Ex.DW2/A. She also identified the OPD Slip dated 03.09.2009 of patient Niharika prepared in her hospital which is Ex.DW2/B. She also identified the ultrasound reports of Niharika dated 19.12.2009 and 21.12.2009 which are Ex.DW2/C and Ex.DW2/D. As per the OPD Slip Ex.DW2/B, the patient had taken medical abortion pill two days before presenting herself in OPD. She had done a Dilatation and Evacuation of the patient.
36. I have heard Sh. Gaurav Pandey, Ld. Addl. P.P for the State and Sh. Anshuman Sinha, Ld. Counsel for accused. I have also gone through the case file, written arguments filed on behalf of accused and the case law relied upon by the Ld. defence counsel.
SC No. 746/16 State Vs. Rakesh Kumar 21/63 ARGUMENTS ON BEHALF OF PROSECUTION
37. It was submitted by the Ld. Addl. P.P. for the State that the prosecution case stands proved from the statements of witnesses. It was submitted by the Ld. Addl. P.P. that all the witnesses are consistent and corroborative and hence, there is no reason to disbelieve their version.
38. It was submitted that in this case the material witnesses are PW1, the complainant Sh. Bishnu Dev Narain, who is father of the deceased Niharika, PW3 Manish Kumar, brotherinlaw (Jija) of deceased Niharika, PW5 Rinki, sister of deceased Niharika, PW 6 Smt. Manju, mother of deceased Niharika, PW8 Sh. Arvind Srivastva, brother of deceased Niharika and PW9 Neeraj Srivastva, brotherinlaw (jija) of Niharika. It was argued that they all are consistent and have supported the prosecution case regarding the demand of dowry and harassment by the accused. It was argued that the deceased Niharika died unnatural death within seven years of her marriage and therefore, presumption under SC No. 746/16 State Vs. Rakesh Kumar 22/63 Section 113B of Indian Evidence Act. is attracted in this case. The postmortem report Ex.PA1 was admitted by the accused and postmortem report also supports the prosecution case. The accused has failed to rebut the presumption under Section 113B of Indian Evidence Act. It was also argued that the other witnesses who were associated with the investigation or joined the investigation have also supported the prosecution case. It was argued that all the Prosecution witnesses could not be shaken from the stand in their crossexamination. Hence, their statements have to be relied upon.
39.It was contended that from the statements of witnesses and other material on record the prosecution has been able to prove its case beyond doubt.
ARGUMENTS ON BEHALF OF ACCUSED
40.On the other hand, it was submitted by Ld. Counsel for the accused that the accused is innocent and he has been falsely implicated in this case. It was argued that the prosecution has failed to prove its case against the accused.
SC No. 746/16 State Vs. Rakesh Kumar 23/63
41. It was contended that in this case that PW1 Bishnu Dev Narain Srivastva and PW6 Smt. Manju have made major and material improvements in their statements before the Court. It was argued that the said fact has been corroborated by PW18 Inspector Rajbir Singh in his statement. It was contended that the improvements made by the prosecution witnesses shake the entire basis of the prosecution case. It was further contended that it is a settled principle of law that when the witnesses make improvements in their statements during their deposition in the Court, the testimony of the said witnesses becomes unworthy of credence. To support his contention the Ld. Counsel has placed reliance upon the judgments reported as Jag Narayan Prasad Vs. State of Bihar 1998(2) CC Cases (SC) 45 and Tarun @ Gautam Mukherjee Vs. State of West Bengal 2000 (4) Crimes 260 (SC). It was argued that PW18 (Inspector Rajbir Singh) in his cross examination stated that PW6 (Manju) in her statement under Section 161 CrPC has not stated that the motherinlaw of the SC No. 746/16 State Vs. Rakesh Kumar 24/63 deceased Niharika had taunted that her parents could have easily spent Rs. 1516 Lakhs on the marriage and also when the mother and father of the deceased were on their way to the hospital, Neeraj (husband of Rinki) called his fatherinlaw to inform that he had reached the hospital and that Niharika was not admitted in the hospital. It was also argued that the fact of surrounding the situation at the house of the accused when the relatives had arrived as informed to PW6 (Manju) by PW5 (Rinki) was not stated by her in her statement under Section 161 CrPC.
42.It was argued that the allegations of harassment by the accused and his family members as stated by the PW1 (Bishnu Dev Narain) is only hearsay evidence which is not admissible. It was argued that there are material contradictions in the statements of the material witnesses. The crossexamination of the witnesses demolish the case of prosecution. It was argued that the allegations of harassment of the deceased Niharika by the accused persons and the allegations regarding demand of dowry as SC No. 746/16 State Vs. Rakesh Kumar 25/63 narrated by the prosecution witnesses, is hearsay which is not admissible.
43. It was argued that bills pertaining to the alleged dowry items have not been proved in accordance with law. It was argued that PW 18 (Inspector Rajbir Singh) has admitted that he did not conduct specific investigation regarding the said bills (Ex.PW18/C colly). It was also argued that PW18 (Insp. Rajbir Singh) admitted that the fact that the deceased Niharika was beaten by hot karchhi and that second call was received by PW1 (Bishnu Dev Narain) have not been mentioned in the complaint and supplementary statement of PW1 (Bishnu Dev Narain). It was also argued that PW18 (Inspector Rajbir Singh) has admitted the fact of receiving second call by PW1 from the deceased has also not been mentioned in the complaint or supplementary statement of PW1 (Bishnu Dev Narain).
44.It was argued that PW3 (Manish Kumar) in his cross examination has denied that he had told the police that the SC No. 746/16 State Vs. Rakesh Kumar 26/63 deceased Niharika had told his wife that her inlaws were demanding cash and dowry articles. He further denied that Niharika had died due to cruelty made to her on account of dowry demand. It was argued that PW3 Manish Kumar also demolishes the prosecution case.
45.It was further argued that PW5 (Rinki ) in her crossexamination has stated that no demand was ever made to her family by the accused in her presence. She further stated that Niharika had cordial relations with the accused. She stated that she was not aware as to how many times the deceased Niharika had called her father on the date of alleged incident. PW5 in her cross examination has stated that she was not aware of her parent's visit to Delhi and to their deceased daughter which shows that there was not any troublesome situation at the matrimonial house of Niharika. PW5 in her examinationinchief stated that she was not aware about the abortion of deceased Niharika. It was argued that it is difficult to accept that the said fact was not in the knowledge of PW5 (Rinki) though there was close relationship SC No. 746/16 State Vs. Rakesh Kumar 27/63 between the deceased and PW5 (Rinki), being sisters, as they used to talk on phone for hours on alternate days. It was contended that PW5 (Rinki) has stated in her crossexamination that no demand was ever made to her family by the accused persons and also that no demand was ever made in her presence. It was argued that this witness also demolishes the prosecution case.
46.It was argued that the testimony of PW8 (Arvind Srivastva), who is brother of the deceased Niharika, is inadmissible in law as it is hearsay evidence. PW8 (Arvind Srivastva) in his cross examination has admitted that he had not attended the marriage talks and his parents informed him about the marriage. Hence, the testimony of this witness is of no help for the prosecution being hearsay.
47. It was argued that PW9 Neeraj Srivastva (Brotherinlaw) of deceased has admitted that the accused and the deceased Niharika had good relations. He denied that at the time of marriage of Niharika, Avdhesh Srivastva (father of the accused) had raised SC No. 746/16 State Vs. Rakesh Kumar 28/63 demand of Rs. 2 Lakhs which PW1 (Bishnu Dev Narain) had arranged and had given to Sh. Avdesh Srivastva. It was argued that the testimony of this witness demolishes the case of prosecution.
48.It was argued that the testimony of PW16 Surender Kumar, Nodal Officer, is of no help to the prosecution as the documents proved by him i.e. Ex.PW16/A and Ex.PW16/B were not prepared by him. He is not the author of the said documents. Therefore, documents have not been proved in accordance with law. Accordingly, the same cannot be read in evidence. It was also argued that this witness has admitted that there is no call at about 8.00 a.m from mobile No. 9560124172.
49. It was argued that PW21 (ACP Suraj Pal Giri) had admitted in his crossexamination that he did not ask about the train tickets from PW8 (Arvind Srivastva) in order to prove that he had participated in Chatthi. He stated that PW8 (Arvind) has not stated that he has participated in Chatthi and he did not ask PW8 SC No. 746/16 State Vs. Rakesh Kumar 29/63 (Arvind Srivastava) about the date or time of his visit at the house of accused at Delhi. It was further argued that PW21 (ACP Suraj Pal Giri) had admitted that he did not inquire about the authenticity and truthfulness of the receipts of dowry articles given to the accused. It was argued that this also creates doubt in the prosecution case.
50.It was argued that for a demand to constitute as "dowry" under Section 2 of the Dowry Prohibition Act, 1961, any property or valuable security must be given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage at or before or any time after the marriage in connection with the marriage of the said parties. It was argued that the alleged demand of Rs. 56 Lakhs in the present case does not constitute a demand for dowry within the meaning contemplated under Section 2 of Dowry Prohibition Act, 1961. It was further argued that to constitute dowry death under Section 304B IPC, the following ingredients needs to be fulfilled:
1.Unnatural death.
SC No. 746/16 State Vs. Rakesh Kumar 30/63
2.Within seven years of marriage.
3.Cruelty or harassment in connection with any demand of dowry.
4.Cruelty and harassment to take place 'soon before the death".
51.It was argued that the third ingredient of Section 304B IPC has not been proved and therefore, no question arises with regard to the 'cruelty' or 'harassment' in connection with any demand for dowry. Hence, no offence under Section 304B IPC is proved by the prosecution.
52.It was further argued that to constitute offence under Section 498 A IPC, the husband or the relative of the husband must have subjected the woman to cruelty, because Explanation (a) of Section 498A explains 'cruelty' as:
a. Willful conduct.
b. Of a nature likely to drive the woman to commit suicide. c. Or cause grave injury or danger to life, limb or health.
Explanation (b) to Section 498A explains 'cruelty' as:
a. Harassment b. With a view to coerce.
c. To meet unlawful demand for property or valuable security.
53.It was argued that the use of expression 'willful' in the explanation SC No. 746/16 State Vs. Rakesh Kumar 31/63 to Section 498A IPC indicates that the conduct attributed to the accused needs to be deliberate and aimed at causing or driving to cause injury to the health of woman. It was submitted that prosecution has failed to establish any specific 'willful' conduct on behalf of the accused that was likely to instigate the deceased to commit suicide. It was contended that none of the prosecution witness has mentioned any specific instances as to how the deceased was harassed.
54.It was argued that the ingredient of 'unlawful demand' has also not been proved by the prosecution even by way of evidence of PW6 (Manju). It was argued that PW6 (Manju) has not stated the specific dates or instances when such demands were raised except for the date of incident i.e. 15.06.2010 and that too was made to PW1 (Bishnu Dev Narain). It was argued that the testimonies of PW1 (Bishnu Dev Narain), PW5 (Rinki) and PW6 (Manju) are discredited because they have made improvements in their deposition in the Court and also on account of being hearsay evidence. It was argued that none of the prosecution witness has SC No. 746/16 State Vs. Rakesh Kumar 32/63 mentioned any specific instance or dates to show that the deceased Niharika was harassed by the accused or her inlaws. It was submitted that in the absence of any specific dates of harassment, the case of the prosecution fails.
55.It was argued that it is essential on the part of prosecution to prove the vital ingredients of Sections 304B and 498A of Indian Penal Code. It was argued that it has not been proved that the deceased was subjected to 'cruelty' or 'harassment' on account of demand of dowry soon before her death. Thus, prosecution has failed to prove the ingredient 'cruelty' in the present case.
56.It was argued that at the time of the alleged incident the accused was away to his office in Ghaziabad. The Ld. Counsel for accused has referred to statement of PW7 Sh. Pankaj Kumar, Assistant General Manager, HRD, LG Electronics, who has stated that as per record accused Rakesh Kumar Srivastva punched his I.D. Card at 09.01 hours in the office in Ghaziabad on 15.06.2010. The attendance report is Ex.PW7/A and Ex.PW7/B. It was argued that SC No. 746/16 State Vs. Rakesh Kumar 33/63 this proves that when the deceased committed suicide the accused was present in his office in Ghaziabad. It was argued that PW17 (SI Sanjeev Kumar) also supports the case of accused that at the relevant time the accused was in his office on the date of incident. This fact was told to PW17 (SI Sanjeev Kumar) by one Mr. Faizal Chaudhary, coemployee of the accused.
57.It was argued that the factum of abortion of the deceased has also not been disproved by the prosecution. DW2 (Dr.Lucky Chandekar) has proved the documents relating to abortion of deceased and has stated that the patient had taken abortion pills two days before coming to the OPD. It was argued that this proves that Niharika had undergone abortion.
58.It was contended that in the absence of any evidence to prove the fact of demand of dowry made soon before death, cruelty, mental or physical torture and strained relationship between husband and wife, the entire case of prosecution fails. It was argued that most of evidences are hearsay in nature and thus, inadmissible. It was SC No. 746/16 State Vs. Rakesh Kumar 34/63 contended that the prosecution has failed to prove its case against the accused and there are material contradictions in the statements of the prosecution witnesses and therefore, their testimonies are not reliable. Ld. Counsel for the accused has placed reliance upon the following judgments:
1. Jag Narain Prasad Vs. State of Bihar AIR 1998 SC 2879
2. Tarun @ Gautam Mukherjee Vs. State of West Bengal (2001)10 SCC 754
3. Hans Raj Sharma & Ors. Vs. State Govt. of NCT of Delhi 2010 CriLJ 4464
4. Appasaheb & Ors. Vs. State of Maharastra 2007(1) ACR 538 (SC).
5. Rohtash Vs. State of Haryana (2012) 6 SCC 589
6. Kunju Moideen Vs. Sayed Mohammed AIR 1986 Ker 48a
7. Kuljeet Singh and Anr. Vs. Jaspal Kaur and Anr.
(1983) 1 RCR (Cri) 29a.
8. Nunna Venkateshwarlu @ Venkateshwara Rao Vs. The State of A.P. 1996 CriLJ 108.
9. Ramesh Kumar Vs. State (Govt. of NCT of Delhi) (2014) 207 DLT 438.
10. Rani Vs. State of NCT of Delhi 2011 (1) JCC 668
11. Sher Singh @ Partapa Vs. State of Haryana (2015) 3 SCC 724.
12. State by C.O.D, Police, Anti Dowry Cell, Bangalore Vs. K. Sridhar 2000 CriLJ 328.
13. Nirdosh Kumar Vs. Padma Rani 1984 (2) RCR (Criminal) 239.
14. Sushil Kumar & Ors. Vs. State of Haryana and Krishan Kumar Vs. Sushil Kumar & Ors. 2005(3)RCR(Criminal) 129.
15. Reguri Sampath Reddy & Ors. Vs. State of Andhra Pradesh SC No. 746/16 State Vs. Rakesh Kumar 35/63 & Ors. 1996(1)ALT(Crl) 318.
DISCUSSION AND CONCLUSION
59. The first charge against the accused is under Section 498A IPC.
To prove this charge, prosecution has examined the complainant PW1 Bishnu Dev Narain, PW3 Manish Kumar (Jija of deceased Niharika), PW5 Rinki (sister of deceased Niharika), PW6 Manju (mother of deceased Niharika), PW8 Sh. Arvind Srivastva (brother of deceased Niharika) and PW9 Sh. Neeraj Srivastva, (jija of deceased Niharika).
60. The complainant PW1 Bishnu Dev Narain has stated that he had spent Rs. 10.5 Lakhs in the marriage of deceased Niharika. He also stated that out of this amount Rs. 4 Lakhs were given through a cheque, Rs. 2 Lakhs were given in cash and remaining amount was spent on household articles and jewellery. He also deposed that after four months of the marriage his deceased daughter Niharika started complaining of her harassment by the accused, his mother and other family members. He also deposed that the accused used to beat her and also did not provide proper food to SC No. 746/16 State Vs. Rakesh Kumar 36/63 her. She was beaten with hot Karchhi. He also deposed that on the chatthi ceremony of the son of the deceased they had given cash of Rs. 51,000/ and other gifts to the accused persons, but they were not happy with the same. He also deposed regarding demand of Rs. 56 Lakhs as told to him by his deceased daughter Niharika. The said demand was for purchasing some plot. The other witnesses namely PW3 Manish Kumar, (Jija of deceased Niharika), PW5 Rinki (sister of deceased Niharika), PW6 Manju (mother of deceased Niharika), PW8 Arvind Srivastva (brother of deceased Niharika) and PW9 Neeraj Srivastva, (jija of deceased Niharika) have also deposed on the similar lines.
61. The scrutiny of the statements of the above mentioned prosecution witnesses reveals that the allegations against the accused regarding cruelty/harassment are that the accused used to beat Niharika, he did not provide proper food to deceased Niharika, the accused was not happy with the gifts given to him in the Chatthi ceremony and he used to demand Rs. 56 Lakhs for purchasing plot. It is important to note that no specific dates when such SC No. 746/16 State Vs. Rakesh Kumar 37/63 demands were made by the accused have been mentioned by the prosecution witnesses.
62. The Hon'ble High Court of Delhi in a case reported as Mahavir Kumar & Ors. Vs. State MANU/DE/1321/2014 has held as under:
"A bare reading of Section 498A goes to show that the term cruelty which has been made punishable under the Section, has been defined in the explanation appended to the said section. Therefore, the consequences of cruelty, which are either likely to drive the woman to commit suicide or to cause grave injury/ or danger to life, limb or health, whether mental or physical, of the woman or harassment of the woman where such harassment is with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, are required to be established in order to prove an offence under Section 498 IPC."
63. The Hon'ble Delhi High Court in a case titled as Hansraj Sharma and Ors. Vs. State reported as MANU/DE/0476/2010 has held as under:
"10........It is not every cruelty which is SC No. 746/16 State Vs. Rakesh Kumar 38/63 punishable under Section 498A of IPC. The cruelty, as defined in the explanation to 498A of IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so at to attract penal provisions, contained in Section 498A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of expression 'willful' in the explanation to Section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequence of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is SC No. 746/16 State Vs. Rakesh Kumar 39/63 likely to perceive such a behaviour. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A of IPC. Of course, the expression "cruelty" would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498A of IPC."
64. The scrutiny the prosecution evidence show that the allegations regarding demand of dowry and harassment are not specific rather they are vague. The said allegations do not meet the requirement of the offence under Section 498A IPC as mentioned in the judgments Mahavir Kumar & Ors. Vs. State (supra) and Hansraj Sharma and Ors. Vs. State (supra).
65. As regards the allegation of beating the deceased Niharika with hot Karchhi is concerned the same has been made by the complainant PW1 Bishnu Dev Narain in the Court and he has SC No. 746/16 State Vs. Rakesh Kumar 40/63 made improvement in the Court in respect of this allegation. No medical examination of Niharika was ever got conducted in this regard. Nor any complaint was ever made by Niharika or her parents before the death of Niharika.
66. So far as the demand of Rs. 56 Lakhs is concerned, it does not fall in the category of dowry demand. Reliance in this regard can be placed upon a judgment of Hon'ble Supreme Court reported as Appasaheb and Anr. v. State of Maharastra AIR 2007 SC 763 wherein the Hon'ble Supreme Court has held as under:
"In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words SC No. 746/16 State Vs. Rakesh Kumar 41/63 are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
67.Therefore, in view of the evidence discussed above and the judgments referred above, I am of the considered opinion that the prosecution has failed to prove its case against the accused for the offence punishable under Section 498A IPC.
68. The next charge against the accused is for the offence under Section 304B IPC. The Hon'ble Delhi High Court in the case of Hansraj Sharma and Ors. Vs. State (supra) has held that before a person can be convicted under this Section, which deals with what is described as "dowry death", the prosecution must necessarily prove the following ingredients: i. The death of a woman must have been caused by burn or bodily injury or otherwise than under SC No. 746/16 State Vs. Rakesh Kumar 42/63 normal circumstance;
ii. Such death must have occurred within seven years of her marriage;
iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
iv. Such cruelty or harassment must be for or in connection with demand for dowry;
v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.
69.Admittedly, the death of Niharika took place otherwise than under normal circumstances and she died within seven years of her marriage.
70.The third ingredient of Section 304B IPC is that soon before her death the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. In this regard, the prosecution has relied upon the statement of the complainant PW1 Bishnu Dev Narain who has stated that on SC No. 746/16 State Vs. Rakesh Kumar 43/63 15.06.2010 at around 7.15 a.m Niharika telephoned him that he (PW1 Complainant) should arrange amount of Rs. 56 Lakhs otherwise she would be killed. The complainant also stated that his wife took phone from him and assured Niharika that the said amount would be arranged at earliest and plot would be purchased at the earliest.
71.To prove this phone call prosecution has examined PW16 Sh.
Surender Kumar, Nodal Officer, Bharti Airtel Ltd. He has proved the Call Detail Record of mobile number 9560124172 for the period w.e.f 10.06.2010 to 17.06.2010. The said CDR is Ex.PW16/A and Certificate under Section 65B Indian Evidence Act is Ex.PW16/B. The said record bears the signature of Sh.Vishal Gaurav, the then Nodal Officer. He has stated that he can not comment upon the correctness of the said documents and said documents were not prepared by him. He also stated that there is no call at about 8.00a.m from mobile number 9560124172 to mobile number 9973548715 on 15.06.2010. He also stated that SC No. 746/16 State Vs. Rakesh Kumar 44/63 he cannot comment upon the working of the computer system and the control thereupon pertaining to the period prior to his joining the company. Thus, it is clear that the Call Detail Record has not been proved in accordance with law and therefore, it does not help the prosecution case.
72. From the statement of PW1 Bishnu Dev Narain, it is revealed that on 15.06.2010, when the call was received by him and at that time his wife PW6 Manju also talked to Niharika. It is further revealed from the statement of PW1 Bishnu Dev Narain that the Niharika told the complainant to arrange for Rs. 56 Lakhs for purchasing the plot. As discussed above the demand for money for purchasing the plot is not covered within the meaning dowry demand as held in the judgment of Appasaheb and Anr. v. State of Maharastra (supra).
73. Section 2 of Dowry Prohibition Act defines dowry as under:
2. Definition of 'dowry'. In this Act, "dowry" means any property or valuable security given or agreed to be given SC No. 746/16 State Vs. Rakesh Kumar 45/63 either directly or indirectly
(a) by one party to a marriage to the other party to the marriage, or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applies.
74. In Satvir Singh and Ors. Vs. State of Punjab and Anr. 2001 (4) Crimes, 45 while dealing with this issue, the Hon'ble Supreme Court, inter alia, observed as under:
"Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped SC No. 746/16 State Vs. Rakesh Kumar 46/63 within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."
75. It was argued on behalf of the State that the presumption under Section 113B of the Indian Evidence Act goes against the accused. I am not in agreement with this contention as this presumption is firstly, rebuttable and secondly, it comes into play only when it has been proved that the deceased was subjected to cruelty or harassment on account of demand of dowry soon before her death. When the prosecution fails to prove the basic ingredients of this Section, the application of this presumption does not arise at all. Reliance in this regard can be placed upon the Judgment of the Hon'ble Supreme Court of India in the case of Sher Singh Vs. State of Haryana reported as AIR 2015 SC 980. In the present case the prosecution has failed to prove the ingredients of the offence under Section 304B IPC and therefore, the presumption under Section 113B of Indian Evidence Act is of no help to the prosecution.
SC No. 746/16 State Vs. Rakesh Kumar 47/63
76.Thus, in view of the discussion above and the case laws discussed above, I am of the considered opinion that prosecution has failed to prove that deceased Niharika was harassed and subjected to cruelty by the accused for or in connection with dowry soon before her death. Therefore, the charge under Section 304B IPC cannot be sustained against the accused.
77.The third charge against the accused is under Section 302 IPC which has been framed in the alternative to the charge under Section 304B IPC.
78. The accused has taken the defence of alibi. His case is that at the time of incident he was in his office. To support his contention, the reliance was placed upon statement of PW7 Sh. Pankaj Kumar, Assistant General Manager, HRD, LG Electronics. It was argued that this witness has stated that the accused punched his I.D. Card at 09.01 hours in his office at Ghaziabad on 15.06.2010. This record is Ex.PW7/A and Ex.PW7/B. This is of no help for SC No. 746/16 State Vs. Rakesh Kumar 48/63 the accused to establish his plea of alibi as this witness i.e. PW7 Pankaj Kumar has also stated that Ex.PW7/B does not show any time when the accused left the office on that day. The accused was working at Ghaziabad at the relevant time and was residing in area of G.D Colony, Mayur Vihar, Phase III, Delhi, which was not far away from his office.
79.It was also argued that one Faizal Chaudhary, a coemployee of the accused, also told PW17 SI Sanjeev Kumar that accused had come to office on the day of incident i.e. 15.06.2010. It is not stated by SI Sanjeev Kumar that Faizal Chaudhary told him that accused remained in the office throughout the day. It is important to note that the accused has not examined this witness in his defence to prove that upto what time he remained in office on 15.06.2010.
80. The Hon'ble Supreme Court in a case reported as Binay Kumar Singh Vs. State of Bihar (1997)1 SCC283 has observed that the burden of proving an alibi is entirely on the accused and strict SC No. 746/16 State Vs. Rakesh Kumar 49/63 proof is required for establishing an alibi. The word alibi means 'elsewhere', and that word is used for convenience when an accused takes recourse to a defence that when the occurrence took place he was so far away from the place of occurrence that is extremely improbable that he would have participated in the crime.
81. The Hon'ble Supreme Court in a case reported as ''State of Haryana Vs. Sher Singh 1981 Cr.L.J. 230 (SC)'' has observed that if an accused takes the plea of alibi, he must establish it. The Hon'ble Supreme Court in a case reported as "Duth Nath Pandey Vs. State of Uttar Pradesh AIR 1981 SC911'' has observed that plea of alibi can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
82. In the present case the accused did not lead any evidence to establish his plea of alibi and therefore, in view of the judgments referred above, his plea of alibi cannot be accepted.
SC No. 746/16 State Vs. Rakesh Kumar 50/63
83.The other defence taken by the accused is that his wife was upset on account of abortion and due to this reason she had committed suicide. To prove this defence the accused has examined DW2 Dr. Lucky Chandrekar.
84.DW1 is Digvijay Kumar Upadhaya, who is a friend of accused.
He stated that accused Rakesh told him that his wife Niharika had conceived again and they wanted to abort the child with mutual consent. Thereafter, accused Rakesh told him that Niharika was upset and was under some depression due to abortion.
85.DW2 is Dr. Lucky Chandrekar. She has proved OPD Slip dated 03.09.2009 of Niharika which is Ex.DW2/B. She stated that as per OPD Slip Ex.DW2/B, the patient had taken medical abortion pill two days before presenting herself in the OPD. This means that Niharika had consumed medical abortion pills on 01.09.2009. This shows that Niharka was pregnant prior to 01.09.2009. It is important to note that accused in his statement u/s 313 CrPC that SC No. 746/16 State Vs. Rakesh Kumar 51/63 Niharika conceived in the month of November 2009. This shows that the statement under Section 313 CrPC of the accused is contradictory to the evidence led by the accused. Moreover, the accused did not lead any evidence as to when the pregnancy of Niharika was terminated.
86.The case of the accused is that after abortion his wife Niharika went under depression and committed suicide. It is important to note that as per the case of accused Niharika remained under depression for a considerable long time. The deceased Niharika committed suicide on 15.06.2010. The accused did not ever got her medically treated for alleged depression.
87.Therefore, in view of the above discussion, I am of the considered opinion that accused has failed to prove that Niharika was upset or was under depression due to termination of her pregnancy. Therefore, this plea raised by the accused cannot be accepted.
SC No. 746/16 State Vs. Rakesh Kumar 52/63
88.The third charge against the accused is under Section 302 IPC for committing murder of his wife Niharika.
89.The facts proved on record are as under:
i) The deceased Niharika died unnatural death.
ii) Her death took place in her matrimonial house.
iii)The accused made phone calls to the sisters /brotherinlaws of deceased Niharika informing them that Niharika was having some breathing problem and also told them to reach Kailash Hospital, Noida.
iv)The accused again informed the afore mentioned relatives of the Niharika not to reach Kailash Hospital and they were asked to reach at the house of accused.
v)When the relatives of the deceased went to the house of accused they saw the accused in the house and also that Niharika was lying dead on the bed. Her bangles were found broken. Then the deceased Niharika was taken to Kailash Hospital, Noida where she was declared 'brought dead'.
90.The above mentioned facts are also not disputed by the accused.
91.The case of the accused is that when the deceased Niharika committed suicide he was present in his office. Now the question SC No. 746/16 State Vs. Rakesh Kumar 53/63 is that when accused Rakesh Kumar returned from his office. Who had informed him regarding the death of his wife Niharika. It has not been explained by the accused how he came to know about the death of his wife while he was in office. When he came back to his residence. As per the case of accused, his wife committed suicide by hanging. Why the accused did not call the neighbours etc. Nor he called the police. This shows that the subsequent conduct of the accused was unnatural. It has also not been explained by the accused how he brought the dead body of his wife down to the bed as the deceased Niharika had allegedly committed suicide by hanging as per the defence of the accused. Why the accused did not take his wife Niharika to the hospital. Why he kept waiting for hours together to reach the sisters and brotherinlaws of the deceased Niharika.
92. All the above mentioned facts within the special knowledge of the accused. He has not explained the said facts and circumstances. The said facts being in the special knowledge of the accused, the accused was required under Section 106 of Indian Evidence Act SC No. 746/16 State Vs. Rakesh Kumar 54/63 to explain the said facts. The accused in his statement under Section 313 CrPC has simply denied the allegations against him. The Hon'ble Delhi High Court in a case reported as Tulsi Ram Vs. State 2017 III AD (DELHI) 465 has held as under:
"It has been proved by the prosecution that the deceased was found dead in the dwelling house where she was residing with the appellant and was also last seen together with him. It becomes incumbent on him to offer a plausible explanation for the death of his wife".
93. In State of West Bengal Vs. Mir Mohammad Omar, reported in 2000 VII AC (S.C.) 37, wherein the Hon'ble Supreme Court with respect to Section 106 of the Indian Evidence Act observed as under:
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the SC No. 746/16 State Vs. Rakesh Kumar 55/63 major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the aforenarrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which is thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the SC No. 746/16 State Vs. Rakesh Kumar 56/63 abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody.
xxxx xxxx xxxx
37. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
94. In Ram Gulam Chaudhary & Ors. Vs. State of Bihar reported in 2001 VII AD (S.C.) 605 it was held by the Hon'ble Supreme Court that :
"........for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to SC No. 746/16 State Vs. Rakesh Kumar 57/63 prove the guilt of the accused beyond reasonable doubt, but the Section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of his special knowledge must offer an explanation which might lead the Court to draw a different inference".
95. In the case of State of Rajasthan Vs. Thakur Singh reported at 2014 VII AD (S.C.) 445, the Hon'ble Supreme Court held as under:
17.... "Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.
18.Reliance was placed by this Court on Ganeshlal Vs. State of Maharastra [JT 1992 (2) SC 592] in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the SC No. 746/16 State Vs. Rakesh Kumar 58/63 appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.
96. The Hon'ble Delhi High Court in a case reported as Tulsi Ram Vs. State 2017 III AD (DELHI) 465 (supra) has held as under:
"47.From above, it is clear that the Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference".
97. In State of Rajasthan Vs. Thakur Singh (supra) the Hon'ble Supreme Court has held as under:
"22. The law, therefore, is quite well settled that the burden of proving the guilt of SC No. 746/16 State Vs. Rakesh Kumar 59/63 an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."
98. In the present case the accused has not explained certain facts mentioned above which are only in his knowledge. Therefore, in view of the law laid down in State of Rajasthan Vs. Thakur Singh (supra) there is strong circumstances against the accused pointing to his guilt based on those facts.
99. In view of the fact that the prosecution was able to establish that the death of the deceased took place around the time when the accused was supposed to be present in his house; that the relations between the deceased and the accused were not good; that the deceased and the accused were admittedly residing in the same house; that the postmortem report suggested the time since of death of the deceased is such that the accused was supposed to be present in the house. Section 106 of Evidence Act made it SC No. 746/16 State Vs. Rakesh Kumar 60/63 incumbent upon the accused to explain the facts which have been discussed above, but he failed to do so. The accused has also failed to establish his defence. The subsequent conduct of the accused i.e. he did not call the neighbours, did not inform the police at 100 number, he waited hours to take deceased Niharika to hospital and he gave wrong information to the relatives of the deceased that deceased was in Kailash Hospital Noida whereas at that time the dead body of deceased Niharika was in the house of accused is important and as per Section 8 of Indian Evidence Act this subsequent conduct of the accused is relevant.
100. The postmortem report of deceased Niharika clearly suggests that the death of Niharika took place at such a time when the presence of the accused was at his house and corroborates the version of the prosecution. In my view this becomes an additional link in the chain of circumstances to make it complete.
101. The circumstances strongly indicate that the accused is responsible for the commission of the crime. Reliance is being SC No. 746/16 State Vs. Rakesh Kumar 61/63 also placed on Stirland Vs. Director of Public Prosecution reported as 1944 AC 315, wherein it has been observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished, but also to see that a guilty man does not escape.
102. From the aforesaid conspectus of facts, a reasonable inference can be drawn that deceased Niharika was murdered by the accused. Reliance in this regard can be placed upon a judgment of the Hon'ble Delhi High Court in the case of Tulsi Ram Vs. State (supra). Hence, the prosecution has proved that deceased Niharika was murdered by the accused Rakesh Kumar.
103. In view of the above discussion accused Rakesh Kumar is acquitted of the charges for the offences punishable under Section 498A IPC and Section 304B IPC. He is held guilty for the offence punishable under Section 302 IPC and is convicted thereunder.
SC No. 746/16 State Vs. Rakesh Kumar 62/63
104. Accused is on bail. He is taken in custody. Accused shall be heard separately on the point of Sentence.
(This judgment has been typed directly by the P.A. on my dictation). Announced in the open Court on SURINDER Digitally signed by SURINDER KUMAR SHARMA KUMAR 09.10.2018 SHARMA Date: 2018.10.09 15:27:01 +0530 (SURINDER KUMAR SHARMA) Additional Sessions Judge 05 East District, KKD Courts, Delhi SC No. 746/16 State Vs. Rakesh Kumar 63/63