Delhi District Court
State vs . Ashok Kumar - Sc No. 212 Of 2010 1/11 on 31 March, 2012
ID No.02403R0140072009
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 212/2010
Unique ID No.02403R0140072009
FIR No. 236/08
PS : Ambedkar Nagar
U/s. 498A/304B IPC
State
Versus
Ashok Kumar
s/o Sh. Ganga Ram
r/o BII/255, Ambedkar Nagar
New Delhi ..........Accused
Instituted on :15th April, 2009
Argued on : 30th March, 2012
Announced on : 31st March, 2012
J U D G M E N T
1. Accused in this case was prosecuted for the commission of offence punishable u/s 498A and 306 Indian Penal Code.
2. Briefly stated facts of this case are that at 03:52 pm, on 17.05.2008, an information vide DD No. 20A was recorded at Police Station Ambedkar Nagar that the wife of the tenant at house no. D2/46, Madangir had committed suicide. On receipt of DD No. 20A, IO/SI Hukam Singh along with Constable Kundan Kumar reached at the spot where he found dead body of Sunita @ Asha lying on the floor. During inquiry, it was revealed that Sunita (deceased) and the accused Ashok Kumar got married in the year 2007 accused used to consume liquor. On the day of incident he quarreled with the deceased and had beaten her. IO/SI State Vs. Ashok Kumar - SC No. 212 of 2010 1/11 ID No.02403R0140072009 Hukam Singh informed Sh. R. K. Saini, Tehsildar (Executive Magistrate) Hauz Khas . Sh. R. K. Saini directed IO to send the dead body to the mortuary. On 18.05.2008, the postmortem on the dead body was got conducted and cause of death was opined as 'asphyxia due to hanging'. Executive Magistrate recorded statement of Sh. Mahavir Prasad, father of deceased and Jai Prakash, brother of deceased. Executive Magistrate made endorsement on the statement of Mahavir Prasad and FIR no. 236/08 u/s 498A/306 IPC was registered. Crime team was called. Photographs of the place of occurrence were taken. IO prepared site plan and recorded statement of the witnesses. On completion of investigation, charge sheet was filed in the court on 24.07.2008. Case was committed to the court of Sessions by the Learned Metropolitan Magistrate on 15.04.2009. Charges u/s 498A and 306 IPC was framed against accused on 22.05.2009 by Learned Predecessor of this Court, to which accused pleaded not guilty and claimed trial.
2. Point which emerge for determination in this case are :
i Whether deceased Sunita was subjected to cruelty by the accused ? ii Whether accused abetted in the commission of suicide by deceased on 17.05.2008 ?
3. In order to establish the accusations against the accused, prosecution examined 12 witnesses .
Medical Evidence 3.1 Doctor Sudipta Ranjan (PW13) was deputed by Medical Superintendent, AIIMS hospital to depose on behalf of Doctor Puneet Setia as he had left the hospital. She deposed that postmortem report no. 501/08 (Ex. PW13/A) pertaining to deceased Sunita w/o Ashok Kumar was prepared by Doctor Puneet Setia. As per postmortem report, following injuries were found : 1 Incomplete oblique ligature mark present over front and side of neck starting from left mastoid process going forward and present 6cm below the chin in mid line, going towards right and present 8 cm below the right mastoid process, going back and merging with posterior hairline. The width of the mark varies from 1 cm at the level of right mastoid to 2 cm at mid line. Total ligature length was 20 cm and neck circumference is 33 cm. 2 Abrasion 1.5 x 0.8 cm present 0.5 cm below left angle of mouth.
State Vs. Ashok Kumar - SC No. 212 of 2010 2/11ID No.02403R0140072009 3 Abrasion 1.3 x 0.5 cm present 1.5 cm below and left of chin 4 Reddish contusion in an area 0.5 x 0.5 cm present outer to angle of right eye.
5 Multiple reddish contusions in an area 3 x 1 cm present over left eyebrow.
6 Scabbed abrasion 1 x 1 cm present over left lower lip.
7 Bluish red contusion in an area 1.5 x 1 cm present over left eyebrow.
8 Bluish red contusion in an area 2 x 2 cm present around left eye. 9 Reddish contusion in an area 1 x 1 cm present over left cheek. 10 Reddish contusions in an area 2 x 2 cm present over front of middle of left leg.
11 Abrasion 1 x 1 cm present over front of left knee.
12 Multiple scabbed abrasions in an area 4 x 2 cm present over back of left wrist.
13 Multiple scabbed abrasions in an area 5 x 2 cm present over back of left elbow.
14 Multiple bluish contusions of various sizes present over inner aspect and back of right forearm and hand.
15 Multiple bluish contusions of various sizes present over inner aspect and back of left forearms and hand 16 bluish contusion in an area 5 x 5 cm present over palm of right hand.
PW13 opined that as per the postmortem report, cause of death was 'Asphyxia consequent upon hanging'. All injuries were antemortem in nature. Injury no. 1 was caused due to hanging and injury no. 2 to 16 were caused due to blunt trauma.
Public witnesses 3.2 Sh. Mahadev Prasad (PW8) is father of deceased who deposed that he married his daughter Asha with Jagdish on 27.12.98 and from the said wedlock one girl child namely, Vidhi was born. In February, 2007, divorce took place between his deceased daughter and Jagdish. PW8 placed on record Deed of Dissolution of Marriage (Ex. PW2/A). He deposed that on 26.07.2007, he again married his daughter with Ashok Kumar, the accused. After marriage, for about six months, his daughter lived happily in the house of accused. PW8 deposed that the accommodation was insufficient, so the accused and his daughter used to have quarrels. He came to know that mother in law and sister in law of his daughter Sunita raised quarrel with her because of insufficient accommodation. PW8 State Vs. Ashok Kumar - SC No. 212 of 2010 3/11 ID No.02403R0140072009 deposed that Ashok told him that he was having a plot of about 3035 yards at Badarpur which was taken on installment by him. As he had to clear his installments, therefore, for this purpose accused as well as his deceased daughter requested to give Rs. 1.5lacs but PW8 gave them Rs.50,000/ as loan. They told him that the said amount would be returned. PW8 stated that accused used to drink liquor and thereafter, used to raise quarrel with his daughter Sunita. He telephonically came to know through police officials about the hanging of his daughter after her quarrel with accused. In cross examination, PW8 stated that he had not told to the police in his statement u/s 161 Cr. P. C. that the landlord of the accused had told him that accused used to quarrel after drinking liquor with his daughter. PW8 denied that he was demanding Rs.50,000/ back from his daughter and in the alternative, he told her to give plot of land to him because of which she was disturbed. PW8 denied that his daughter told him not to harass Ashok and that amount due to him would be returned. He did not know if, Ashok had deposited Rs. 11,000/ in the bank in the name of Vidhi. PW8 could not tell mobile number from which Ashok used to call him. PW8 denied that he had given a loan of Rs. 50,000/ in order to grab plot of accused at Badarpur. 3.3 Mrs. Meena (PW3), landlady of accused Ashok, deposed that accused resided with his wife as her tenant for about one month. He deposed that accused did not behave properly with her and he used to consume liquor and beat his wife. She did not know about what wife of accused used to say. PW3 deposed that on the day of incident at about 10:00/10:30am Her one lady tenant told her that accused and was beating deceased after consuming liquor. She along with that lady went to the room of accused and stopped him from beating his wife. PW3 deposed that she sent accused downwards and thereafter, she came down to her room and closed door. She did not know at what time accused again come to his room. Her other tenant lady told her that something happened at the upper floor. PW3 deposed that she went to the room of accused where she found wife of accused was lying on the ground. Her hairs were scattered and she was wearing paticot and blouse and accused was not in his room. PW3 testified that accused had gone to bring TSR. He came to his room and saw his wife and thereafter, he State Vs. Ashok Kumar - SC No. 212 of 2010 4/11 ID No.02403R0140072009 left the room without informing her or anybody. In cross examination, PW3 stated that she did not know accused before giving him rooms on rent. PW3 admitted that whenever there was fight between accused and his wife, she used to intervene herself. During the month, when they were residing in her house, she had seen them fighting. PW3 deposed that she had never made a police complaint against accused. PW3 never asked wife of accused as to why her husband used to beat her daily. She deposed that there was a lady by the name of Janaki residing in front of their house. She along with Janak went to the second room behind the first room of accused where both doors were opened. Accused threaten and scolded deceased before them and when they intervened, accused went out of the room and went downstairs. PW3 stated that they had asked his wife as to why she was beaten by her husband, on this, she told them to call some body from her parents house as accused was going to kill her. PW3 testified that one Soni who was residing on the first floor came to her and told her to come upstairs as Poonam was lying straight and was not speaking. She went with Soni to the second floor and saw Poonam lying straight on the floor. PW3 admitted that her elder son Sonu was coming from his duty at about 02:15pm and accused had asked Sonu to bring doctor. Both accused and Sonu went to the doctor but doctor refused to accompany them till then police was not called. She called police from her mobile at 100 number.
3.4 Sonu (PW4) deposed that on the day of incident, he came from his duty and reached his house. He saw accused was coming downstairs and was weeping . Accused told him that his wife had committed suicide and asked him to bring a doctor. PW4 along with accused went to the doctor who advised them to take patient to the hospital. Accused hired a TSR for taking his wife to hospital. PW4 deposed that on the day of incident, accused had quarreled with his wife at about 09:45am. In cross examination, PW4 deposed that he left his house at 10:00am and his work place closed at 07:00pm. PW4 admitted that he reached home at 02:30pm on the day of incident. He admitted that accused met him in the lane (gali) and told him that he wanted to take his wife to the hospital. He did not enter the house but went with accused to bring doctor. They did not ask any other State Vs. Ashok Kumar - SC No. 212 of 2010 5/11 ID No.02403R0140072009 person to accompany them to the doctor. Deceased was lying on the floor. PW4 stated that accused tried to flee away but he brought him while he was on the way to his mother's house. PW4 stated that accused himself hired TSR. He deposed that there were tenants of the first floor and seven/eight ladies of gali present in the room.
3.5 Jagdish (PW6) deposed that on the day of incident, he had come at Madangir from his office at Dakshinpuri in order take lunch. He saw an auto driver , who was waiting in his TSR. PW6 knew him as he had worked earlier in their security agency. He told him that somebody called him to take patient to the hospital but no body had turned up despite waiting for about half an hour. He saw some people sitting and standing outside house no. DII/46, Madangir. TSR driver was called upstairs. PW6 called TSR driver and sent him to the first floor. PW6 deposed that one boy Sonu and accused were seen by him there. He found that the patient, wife of accused had already died. PW6 asked Sonu to inform the police. PW6 noticed some marks on the neck of deceased. In cross examination, PW6 was confronted with statement recorded u/s 161 Cr P. C, mark DA where the fact that PW6 informed police that he knew TSR driver and he worked in the security agency earlier was not recorded.
3.6 Janki Devi (PW7) deposed that about two and half years ago, she was residing as a tenant at H. No. D2/40, Madangir and accused Ashok Kumar had been residing before two months of the incident in front of our house. She deposed that she did not know the name of the wife of the accused. She had seen that accused was beating to his wife for two days and when they intervened between them with the landlady of the accused to not to beat his wife. She further deposed that she made request to accused why do you not leave his wife at her parents house who stated to them that who are you to intervene between them and she also made request to accused to inform by telephone the parents of his wife. Thereafter, they returned at our house. PW7 deposed that 17.05.2008, at about 02.30 PM, she heard the noise of public persons in the street. Thereafter, she came out of her house and came to know that wife of accused Ashok Kumar had died due to hanging and her statement was recorded by the IO. In her cross State Vs. Ashok Kumar - SC No. 212 of 2010 6/11 ID No.02403R0140072009 examination, PW7 stated that she had told the police that accused was beating his wife for the last two days. The name of the landlady of the accused was Meera. PW7 admitted that she was not very sure that the accused was the same person who used to beat his wife and voluntarily stated that she had only visited once when he was beating his wife and the tenant had come hardly two months prior to the incident and also two and half or three years have passed after the incident. She further stated that the house where they were residing at that time of incident was situated in front of the house where tenants were residing. Police witnesses 3.7 Sh. R. K. Saini, Executive Magistrate (PW1) deposed that on 18.05.2008 he received a telephonic call from PS Ambedkar nagar that a lady had committed suicide at DII/46, second floor, Madangir, New Delhi. PW1 went to the mortuary of AIIMS Hospital and moved an application (Ex. PW1/A) to Autopsy Surgeon for conducting postmortem of dead body of deceased Sunita @ Asha . He filled Form 25.35 (1) (B) (Ex. PW1/B). PW1 recorded the statement (Ex. PW1/C) of Sh. Mahadev Prasad who made allegation of quarreling and demand of dowry against inlaws of her daughter Sunita @ Asha. He directed SHO, PS Ambedkar Nagar to lodge an FIR against accused. His direction for registration of FIR on the statement of Mahadev Prasad are (Ex. PW1/D) 3.8 Constable Kundan Kumar (PW5) received DD no. 20A (Ex.PW5/A). PW5 along with Sub Inspector Hukam Singh reached at the spot where they found one lady was lying dead on the floor in a room. Sub Inspector Hukam Singh informed Sh. R. K. Saini , Tehsildar who directed IO to shift dead body to AIIMS Hospital. Postmortem was got conducted and dead body was handed over to Mahadev Prasad vide handing over memo (Ex.PW5/C). PW5 collected one rope and prepared separate pullandas through seizure memo (Ex.PW5/B). PW5 placed on record arrest memo (Ex.PW5/D), personal search (Ex.PW5/E) of accused. 3.9 ASI Shri Krishan (PW9) duty officer registered FIR (Ex.PW9/A) and made endorsement on the rukka (Ex.PW9/B).
3.10 ASI Rohtash (PW10) received information at 03:52 pm that the wife of the tenant of house no. D2/46, Madangir had committed suicide. He reduced State Vs. Ashok Kumar - SC No. 212 of 2010 7/11 ID No.02403R0140072009 this information into writing vide DD no. 20A (Ex.PW5/A). 3.11 SI Hukam Singh (PW11) investigation officer, investigated the case. He prepared documents during investigation. He placed on record rukka (Ex.PW11/A) and prepared site plan (Ex.PW11/B) of the spot. 3.12 SI H. P. Gulia (PW12) prepared supplementary challan on the directions of SHO wherein he put name of accused Smt. Chaya Devi, Rajesh and Seema in column no. 2 and filed the same in the Court.
4. On conclusion of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded. Accused pleaded innocence and false implication. Accused stated that PW Sonu and Meera deposed falsely at the instance of police and they had never spoken to his wife. There was one Ajay who was working as an employee and was residing in the same house on the first floor. Police had knowingly not made Ajay a witness. He had given information about him to the police. His neighbours at D45, D47 were residing, but nobody was called. Police made false witnesses in connivance with Mahadev Prasad who were related to each other. Meera, her husband Kishan Lal and her son Sonu were from the same family and were made witnesses by paying them illegal gratification.
5. I have heard submissions advanced by Sh. Wasi Ur Rehman, Learned Additional PP for State and Sh. Indu Kaul, Learned Amicus Curiae for accused and have examined the evidence on record .
6. Before evidence is discussed, it is noteworthy to summarize relevant legal position. Section 306 IPC deals with the abetment of suicide and Section 107 IPC deals with abetment of a thing. These Sections are defined as under: Section 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 my extend to ten years, and shall also be liable to fine." Section 107 Abetment of a thing A person abets the doing of a thing, who firstly instigate 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, State Vs. Ashok Kumar - SC No. 212 of 2010 8/11 ID No.02403R0140072009 the doing of that thing."
Explanation 1. A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
7. The offence of abetment is a separate and distinct offence provided Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. Legal position is well settled that 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. Merely on the allegation of harassment, conviction in terms of Section 306 IPC is not possible. (Mahinder Singh v. State of M.P. 1995 AIR SCW 4570). It is well established that the mere fact that a woman committed suicide within seven years of marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to presumption that the suicide had been abetted by her husband.
8. In a case reported as 'Amalendu Pal @ Jhantu vs. State of West Bengal', AIR 2010 SC 512, Hon'ble Supreme Court observed that the legal position State Vs. Ashok Kumar - SC No. 212 of 2010 9/11 ID No.02403R0140072009 as regards Sections 306 IPC which is long settled was recently reiterated in the case of 'Randhir Singh v. State of Punjab' (2004) 13 SCC 129 as follows, "Abetment involves a mental process of instigating a person or 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."
9. Thus, before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable." Therefore, what is required to be established is that the persons against whom the charge of abetment is leveled has done something purposefully in order to facilitate the commission of the offence. It cannot be said with any stretch of imagination that a person subjecting a woman with cruelty shall also be guilty of abetment. It is settled position of law that Sections 306 and 498A IPC are two independent Sections in the Indian Penal Code and while considering the guilt or otherwise of an accused for the offence punishable under Section 306 IPC., we have to read only Sections 306 and 107 IPC. Section 498A IPC is out of question so far as the question of abetment is concerned. There must be mens rea. Without knowledge or intention there can be no abetment and the knowledge and intention must relate to the crime and the assistance must be something more than a mere passive acquiescence. In the absence of proof of any direct or indirect acts of State Vs. Ashok Kumar - SC No. 212 of 2010 10/11 ID No.02403R0140072009 incitement to the commission of suicide or a conspiracy or any act facilitating the commission of suicide, it cannot be said that the accused was guilty of abetment to commission of suicide.
11. Thus, in view of aforesaid position of law, merely the fact that the husband was not treating the wife properly and used to beat her after consuming liquor will not be sufficient to establish the abetment. In this case, on the basis of the evidence noted above ingredients of offence of abetment to commit suicide as required under section 306 IPC are not attracted. Meera (PW3) landlady of accused has categorically deposed that accused used to beat her after drinking liquor and even on the day of alleged incident, she was beaten. Janki Devi (PW7) has supported her version in material particulars in this regard. The version of these independent witnesses has remained unchallenged. I, therefore, find that prosecution has proved that accused subjected deceased with cruelty of such a nature which was likely to cause grave injury or danger to her life, limb or her mental or physical health. Therefore, ingredients of section 498A IPC are fulfilled. For the foregoing reasons, accused is acquitted for the offence punishable under section 306 IPC but he is convicted for the offence punishable only under section 498A IPC.
12. Having convicted the accused for the offence u/s 498 IPC , I have heard convict and Sh. Wasi Ur Rehman Ld. Addl. PP for the State on the point of sentence. Convict submits that he is 36 years of age. He is in Judicial Custody during trial for more than three years i.e. since 26.05.2008 and is having old aged mother. The maximum punishment provided under section 498A is three years. In the circumstances, accused is sentenced for a period of three years and fine of Rs. 100/. In default of payment of fine, he shall undergo one day SI. Since, convict has already undergone three years detention during trial, therefore, said period is set off against three years imprisonment awarded to him. Fine has been deposited by convict and he has furnished requisite bail bond u/s 437A Cr. P. C. Convict is directed to be released, if not wanted in any other case. File be consigned to RR.
announced in the (VINAY KUMAR KHANNA) open court on Additional Sessions Judge04 State Vs. Ashok Kumar - SC No. 212 of 2010 11/11 ID No.02403R0140072009 31st March 2012. (SouthEast) Saket/New Delhi State Vs. Ashok Kumar - SC No. 212 of 2010 12/11 ID No.02403R0140072009 IN THE COURT OF SH. VINAY KUMAR KHANNA, ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST) SAKET COURTS: NEW DELHI Sessions Case No. 212/2010 Unique ID No.02403R0140072009 FIR No. 236/08 PS : Ambedkar Nagar U/s. 498A/304B IPC State Versus Ashok Kumar s/o Sh. Ganga Ram r/o BII/255, Ambedkar Nagar New Delhi ..........Accused ORDER ON SENTENCE Present: Sh. Wasi Ur Rehman Ld. Addl PP for the State. Convict Ashok produced from JC. announced in the (VINAY KUMAR KHANNA) open court on Additional Sessions Judge04 31st March 2012. (SouthEast) Saket/New Delhi State Vs. Ashok Kumar - SC No. 212 of 2010 13/11 ID No.02403R0140072009 State Vs. Mohinder & Ors. SC No. 143/10 FIR No. 347/08 PS : Lajpat Nagar 30.08.2011 Present: Sh. R. K. Gurjar Ld. Addl.PP for the State. Accused Mohinder produced from J/C. Accused Gajju Singh and Shanti Deive are on bail.
Sh. Ravi Qazi, Ld. Counsel for all the accused persons.
Vide separate judgment, announced in the open court, accused persons are acquitted from the charges. The bail bonds of accused persons shall remain valid for a period of six months as required u/s 437 Cr. P. C. File be consigned to record room.
(Vinay Kumar Khanna) Additional Sessions Judge04 (SouthEast) Saket/New Delhi State Vs. Ashok Kumar - SC No. 212 of 2010 14/11 ID No.02403R0140072009 This witness was partly examined earlier as PW2 and his examination in chief was deferred . Thereafter, he was again examined as PW8.
State Vs. Ashok Kumar - SC No. 212 of 2010 15/11