Delhi District Court
State vs . Ankush Kumar & Ors. Fir No. 649/16 Ps ... on 25 April, 2023
IN THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI
SC No. 732/2018
CNR No. DLSW01-016510-2018
JUDGMENT
(a) FIR No. 649/2016
(b) Police Station Dabri
(c) Name, Parentage and i) Ankush Kumar s/o Sh. Pyare Lal
addresses of the r/o D-50,Bharat Vihar, Delhi
accused persons. ii) Sarvesh Kumari w/o Sh. Gulzari
Lal r/o Vill. Baktpur, Distt. Hardoi,
UP
iii) Shakuntala w/o Sh. Pyare Lal
r/o D-50,Bharat Vihar, Delhi
(d) Offence 306/34 IPC
(e) Plea of accused Pleaded Not guilty
(f) Final Order Acquitted
(g) Date of Institution 27.07.2018
(h) Date of committal 05.09.2018
(i) Date of Transfer to this 07.11.2022
court
(j) Date of reserving 25.04.2023
judgment
(k) Date of judgment 25.04.2023
FACTUAL MATRIX
1. It is the case of prosecution that victim Mohini was married with accused Ankush on 02.12.2015 and she was mentally harassed by her husband/accused Ankush, her mother- in-law/accused Shakuntala and accused Sarvesh Kumari (sister of Shakuntala) during the subsistence of her marriage with the accused Ankush on 02.12.2015 till her death on 24.08.2016. The aforesaid accused persons committed such acts/omissions which caused mental cruelty/harassment to the victim and in State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 1 of 38 furtherance of their common intention the accused persons continued such acts and thus, they abetted the victim to commit suicide who died by hanging on 24.08.2016. On the basis of aforesaid facts, present FIR was registered.
2. On completion of usual investigation, present charge-sheet for offences punishable u/s 306/34 IPC was filed before the Ld. Magistrate Court who took cognizance of the alleged offences and committed the matter to Ld. Sessions Court after complying with the provisions of S.207 Cr.P.C.
3. After hearing detailed arguments on behalf of the accused persons and the State, as a prima facie case was made out, charge for the offence punishable under Section 306/34 IPC was framed against accused persons namely Ankush Kumar, Sarvesh Kumari and Shakuntla to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
4. In order to prove the guilt of the accused u/s 306/34 IPC, the prosecution has to prove the following essential ingredients of the said Sections:
Section 306 IPC:- Abetment to suicide
(i)There was suicide of a person (ii) it was committed in consequence of abetment by the accused Section 34 IPC:- Sharing of Common intention
(i)That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
(ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 2 of 38
PROSECUTION EVIDENCE
5. During the course of the trial, prosecution examined six witnesses to prove the aforesaid ingredients for substantiating the accusations levelled against the accused persons. During the examination of prosecution witnesses, documents Ex. PW1/A, Ex. PW2/A, Ex. PW3/A and Ex. PW3/B, Ex. PW4/1 to Ex. PW4/3, Ex. PW5/A to Ex. PW5/O and the case property Ex. P1(colly) & Ex. P2 (colly) were also tendered in evidence.
6. PW-1 Sh. Jangli Singh is the real brother of deceased. He deposed that Mohini @ Laxmi was his younger sister, that Mohini @ Laxmi was married on 02.05.2015 with accused Ankush, that the two ladies accused present in court were mother and Aunt(Mausi) respectively of accused Ankush and he does not remember their names, that the aforesaid marriage took place in their village, that all went well after the said marriage and Mohini alongwith her husband came to village, that date, month and year he does not remember but before Raksha Bandhan, accused Ankush had made phone call to his brother Rakesh but did not talk to him, that his sister Mohini @ Laxmi did not tell him anything or any fact regarding any of the accused persons, that his brother Rakesh received phone call from PS Dabri on date 24, month and year he does not remember and it was informed that his sister Mohini@ Laxmi had committed suicide by hanging, that he alongwith Rakesh, Rajesh, mother and other relatives came to Delhi but they did not find anyone at the matrimonial home of Mohini and then they went to PS Dabri, that they were enquired and taken to DDU hospital, that they State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 3 of 38 were also enquired by SDM, that Body of deceased Mohini was obtained after postmortem and was taken to village.
The Court permitted the Ld. Addl. PP to cross-examine the witness as the witness has partly resiled.
During the cross examination conducted by Ld. Addl. PP for State, PW-1 admitted that on 25.08.2016 his statement was recorded by Executive Magistrate, that he had signed the said statement Ex. PW1/A after reading it and said statement bears his signature at point A and that on 02.12.2015 his sister Mohini was married with accused Ankush.
He further deposed that he does not know the names of mother of accused Ankush and Aunt of accused Ankush, so he cannot admit or deny that name of mother of accused Ankush is Shankuntala and name of Aunt is Sarvesh Kumari. He admitted that after marriage his sister came with her husband to Delhi in matrimonial home.
He denied that Laxmi told him that she was troubled as her in laws complained that "uspe upri hawa aur bhoot pret hei" and that he had talked with accused Ankush in this regard.
He admitted that he had told SDM in statement that mother and aunt of accused Ankush told him to either get Laxmi treated or take her back, that they had asked them for compromise, that mother and aunt of accused Ankush had also talked of second marriage of Ankush and that because of that his sister Laxmi was troubled.
He admitted that on 24.08.2016 accused Ankush had given news of suicide of Laxmi. Vol. It was given to his brother Rakesh. He deposed that accused Ankush was not arrested in his presence. He further deposed that he does not know so he cannot State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 4 of 38 admit or deny that his sister Laxmi committed suicide as she was not got treated by her in laws and was mentally harassed.
During his cross examination conducted by Ld. Defence counsel he deposed that he had two brothers and seven sisters, out which two sisters are no more, that Mohini was his step sister and that they had no property dispute between their brothers. He denied that he had not participated in the marriage of Mohini with accused Ankush.
He further deposed that he never visited Mohini in Delhi. He denied that before marriage Mohini was having the affect of evil spirits and her treatment was going on. He deposed that Rajaram had acted as mediator in marriage, that Rajaram is his brother in law, that when Ankush made phone call to him/PW-1 then he/accused also made him talk with his mother and aunt, other accused persons, that it so happened about 1 ½ or 2 months prior to death of Mohini, that he had talked on mobile phone of his brother Rakesh, that said phone was with him, that number of that phone was 7607218855, that said phone is at home now and that Laxmi was not got treated by accused persons.
He denied that accused got treated Laxmi and that after death of Laxmi and had demanded Rs. Five Lacs from accused persons for settlement. He further deposed that only motorcycle and two water tankis were received after death of Laxmi but no other articles of Laxmi were receieved. He admitted that in the absence of accused, they had taken the articles from native place of accused. He denied that he was deposing falsely.
7. PW-2:- Rakesh Kumar is the elder step brother of deceased. He deposed that Mohini @ Laxmi was his younger sister and she was married more than 3 years ago with accused State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 5 of 38 Ankush. He correctly identified accused. He further deposed that he does not remember the date, month and year of marriage of Laxmi but said marriage took place at our native village, that after 8 or 8 ½ months of marriage of Laxmi, he received phone call of accused Ankush and accused told him that "Laxmi ki tabityat kharab rahti hai isko le jaao aa ke", that 2-3 days later, he again received phone call of accused Ankush and he told him that Laxmi had committed suicide but he could not believe it, that when he had received the earlier phone call from accused Ankush then accused Ankush had told him " Laxmi ko le ja nahi to maar denge, 8-10 lakh rupaya lagega nibtane me", that at that time on the phone, Sarvesha, Mausi of accused Ankush had also told him "isko le jaao, hum Ankush dusri shadi kar denge". The witness pointed finger towards accused Sarvesh Kumari saying she is the Mausi of accused Ankush.
He further deposed that before her death his sister had told him on phone that " ye kahte hain, tum khana nahi banati ho", that he received phone call from police station about suicide of his sister, that he, his mother and his brother Jungli came to Delhi and went to home of accused first but they did not find body of their sister there and then they went to DDU Hospital where they found the body of his deceased sister, that his brother Jungli identified her body and that after postmortem of deceased Mohini @ Laxmi they received her body.
The Court permitted the Ld. Addl. PP for State to cross examine the witness as witness was resiling from his earlier statement.
State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 6 of 38During his cross examination he deposed that on 25.08.2016, SDM inquired from him but he does not remember whether SDM recorded his statement.
He admitted that his sister Mohini @ Laxmi was married with accused Ankush on 02.12.2015 and that he had told SDM in his statement that after said marriage for some period everything went well but prior to 3-4 moths of incident in question, some problem started coming.
He denied that his sister Laxmi had told him that her husband, mother in law and Mausi of Ankush used to mentally torture her and also levelled allegations of evil spirits upon her. He admitted that mother of Ankush and Mausi Sarvesha told him on phone that "Laxmi per bhoot pret ka saaya hai, is karan use vaapas le jaao aur faisala kara do, useke baad Ankush ki doosari shaadi kara dengey" and that upon that he had tried to make mother of Ankush and Mausi understand. He deposed that he does not remember whether he had asked his brother in law Raja Ram to meet mother & mausi of Ankush. He deposed that statement dated 25.08.2016 recorded before the Executive Magistrate bears his signatures at portion A and the same is Ex. PW2/A. He admitted that his statement was read over to him by the Executive Magistrate. He admitted that due to lapse of time he forgot certain facts which he recollected on asking. He further deposed that accused Shakuntala, present in court (correctly identified) is mother of accused Ankush.
During his cross examination conducted by Ld. Defence counsel he admitted that after marriage his sister had gone to native village of her husband with her husband. He deposed that his sister remained at native place of her husband for about 1 ½ State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 7 of 38 or 2 months and thereafter she was brought to Delhi. He denied that his sister remained at native place of her husband for onlv one week after marriage.
He further deposed that he does not remember the date of reception at Delhi but he and others had attended reception at Delhi, that he cannot admit or deny whether that reception was held on 10.01.2016, that Raja Ram had also attended that reception, that later to that he had not come to Delhi to meet his sister, that from Delhi once his sister had come to their place and from Delhi he took her to their place but he does not remember date, month and year, that accused Ankush had come at their place after 15-20 days to take back his sister to her matrimonial home, that accused Ankush did not stay there for night and that he was not aware whether before marriage his sister was suffering from evil spirits.
He denied that before marriage they were getting their sister treated for evil spirits, that he with his sister and her husband/accused had gone to village Hastsal to some Mullaji for treatment of evil spirits on 20.03.2016 and that his wife is also suffering from evil spirits problem and such problem arose from such problem suffered by his brother Jungli.
He further deposed that he had two brothers and seven sisters and that his brother Jungli is his step brother and his mother had earlier expired. He admitted that his sister Mohini @ Laxmi is his step sister and real sister of Jungli.
He further deposed that his mobile phone number is 7607218855, that on that number he received the phone call of accused Ankush, that he does not remember the mobile phone number of accused Ankush, that when he had received the phone State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 8 of 38 call of accused Ankush then he was at his home, that he had talked for about 10 minutes or 15 minutes or 20 minutes with accused Ankush when he had called him from his mobile phone and had asked him to take Laxmi back, that after receipt of that phone call he had not come to matrimonial home of Laxmi to make them understand why they are saying so and that he had told the Executive Magistrate in his statement that " Laxmi ko le jaao nahi to maar denge, 8-10 lakh rupaya lagega nibtane mei". The witness was confronted with Ex. PW2/A where it is not so recorded. He deposed that he neither met accused persons at their home nor when he had reached Hospital but the accused persons had come to Hospital later.
He admitted that the accused persons and their relatives had attended the cremation of his sister Mohini @ Laxmi at his native village. He denied that his sister Mohini @ Laxmi was kept very well at her matrimonial home, that none of the accused persons had made any phone call to him nor stated anything to him as alleged by him and that his brother Jungli was not wanting to give share of property to sister Mohini @ Laxmi and because of that he was annoyed with her. He admitted that accused Sarvesh Kumari is native of village Bhaktupur, U.P. He further deposed that only some of the istridhan articles of his sister Mohini @ Laxmi were returned by accused persons. He denied that in the absence of accused persons, they had broken the lock at native place of accused persons and took away the istridhan articles of his sister Mohini @ Laxmi. He voluntarily deposed that the maternal grand father of accused Ankush had opened the lock and given some of the istridhan articles of Mohini@ Laxmi to them in the absence of the accused State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 9 of 38 persons. He denied that he was deposing falsely or that they had a demand of Rs. Five lacs from the accused.
8. PW-3: Sh. Satish Kumar is the Executive Magistrate. He deposed that on 24.08.2016, he was posted as Executive Magistrate, Dwarka, that at around 3.30pm on 24.08.2016, he received a call from PS Dabri about the hanging of Smt. Laxmi @ Mohini R/o D-50, 1" Floor, Gali no. 13, Bharat Vihar, Raja Puri, Dabri, that it was telephonically informed to him that the SHO Dabri is also present on the site and the crime team had also reached at the spot, that he telephonically directed the SHO Dabri to send the body of deceased to DDU mortuary and to call the parents and relatives for recording of statements before him, that on 25.08.2016, he visited the DDU hospital and inspected the body of deceased, that in the hospital premises, he recorded the statements of Jangli Prasad and Rakesh Kumar, the brothers of deceased which are previously Ex.PW-1/A and Ex. PW-2/A respectively, that the aforesaid statements were in his writing and his signatures are there at point B with his official seal, that thereafter, he wrote to HOD, DDU Hospital to carry out the autopsy on the body of the deceased, that his letter is Ex.PW3/A bearing his signatures at portion A and that he then gave written instructions to PS Dabri to proceed in the matter as per law and that the said instructions are Ex. PW- 3/B bearing his signatures at portion A. During his cross examination conducted by Ld. Defence counsel, he denied that he does not visit DDU hospital on 25.08.2016 and that he does not record the statements of brothers State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 10 of 38 of deceased but they were recorded by the IO and he endorsed them.
9. PW-4:- ASI Dharampal was the duty officer posted at police station Dabri.
He deposed that on 25.08.2016, he was posted as Duty Officer in PS Dabri from 04.00 PM to 12.00 Midnight, that on that day at about 04.45 PM, ASI Suresh Kumar presented rukka, on that basis he registered FIR no. 649/2016 under Section 306/34 IPC which was fed in the computer through Ct. Saurabh, CIPA Operator, that he had seen the copy of FIR no. 649/2016, present on record, that he had also brought original FIR register containing FIR no. 0649/2016, that the FIR placed on record is now Ex. PW- 4/1, bearing his signature at point A, that he made endorsement on the rukka brought by ASI Suresh Kumar, in his handwriting, same is now Ex. PW- 4/2, bearing his signature at point A, that he had handed over the rukka along with copy of FIR and certificate under Section 65B of the Indian Evidence Act to ASI Suresh Kumar and that the certificate under Section 65B of the Indian Evidence Act is now Ex. PW-4/3, which bears my signature at point A. The witness was not cross examined by the Ld. Defence counsel despite opportunity.
10. PW-5 SI Suresh Kumar was the Investigation Officer. He deposed that on 24.08.2016 he was posted at PS Dabri as ASI, that on that day, he received a DD no. 29 A regarding the hanging of caller's wife at house no. 15, Gali no.13, Bharat Vihar and that the said DD is already Ex. P-1. He deposed that he along with HC Anil reached to the spot where they noticed the dead body of State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 11 of 38 a lady namely Mohini @ Laxmi was lying on the floor, that he had called the crime team on the spot, that after inspection of the spot by the Crime Team, he had seized the chunni, knife and the nutbolt (chitkani), he kept the same in a pullanda and sealed the same with the seal of SKS and seized vide seizure memo as Ex.PW5/A bearing his signature at point A and that he called the beat officer namely Ct. Swaran and through him he had sent the dead body to DDU Hospital, Mortuary. He further deposed that he also informed the office of SDM about the death of Mohini @Laxmi as the marriage between accused Ankush and deceased was solemnized within one year of her death, that SDM/Executive Magistrate had come to the spot, who had stated that family members of deceased be called, that thereafter they came to PS, that Ct. Swaran had come to PS and handed over the jewellery i.e. nose pin, pair of ear tops, leg finger rings, which the doctor had handed over to him and sealed the same with seal of SKS and sized vide memo Ex.PW5/B bearing his signature at point A, that he had informed the parents of the deceased about the death of victim Mohini@ Laxmi and also called them to Delhi, that accordingly, brothers of the deceased namely Jangli Prasad and Rakesh Kumar had come to PS in the night and he informed the Executive Magistrate about the presence of the brothers of the deceased who had stated to produce them in his office at Najafgarh on next date, that on the next date, he produced both brothers of deceased Mohini @ Laxmi before the Executive Magistrate, who had recorded their statements already Ex. PW1/A and Ex. PW2/A and who had directed to proceed as per law and also to get postmortem conducted and that the State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 12 of 38 directions of the Executive Magistrate were followed vide memo already Ex. PW-3/B. He further deposed that Executive Magistrate had also addressed a letter Ex. PW-3/A to HoD Forensic Medicine, DDU Hospital for conducting the postmortem upon the body of deceased Mohini @ Laxmi, that thereafter request letter for conducting postmortem of Mohini @Laxmi was made, that the dead body was duly identified by brothers of the deceased and he got conducted the postmortem of deceased and after completion of postmortem, he handed over the dead body to brothers of deceased vide handing over memo Ex. PW/C bearing his signature at point A, that postmortem doctor also handed over the viscera, blood samples, along with sample seal duly sealed with the seal of PMDDUH, that he seized the same vide memo Ex.PW5/D bearing his signature at point A, that he made endorsement Ex. PW5/B on the basis of the statements of brothers of deceased and as per directions of Executive Magistrate and handed over the same to duty officer and got registered the FIR, that he handed over the exhibits to MHC(M), that after registration of the FIR, the investigation was marked to him and he had collected the copy of FIR and original rukka from the duty officer, that he along with Ct. Ram Prakash reached to the spot and prepared the site plan Ex. PW-5/F bearing his signature at point A at the instance of Ct. Ram Prakash, that on the same date at about 7.00pm, that he arrested accused Ankush Kumar vide arrest memo Ex. PW5/G bearing his signature at point A, that at that time Jangli Prasad, brother of deceased was also present, that he conducted the personal search of the accused vide personal search memo Ex. PW-5/H bearing State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 13 of 38 his signature at point A, that he also recorded the disclosure statement of accused vide memo Ex. PW-5/I bearing his signature at point A, that he had sent the accused to lock up and on the next date, that he produced the accused Ankush Kumar, who is present in the court today (correctly identified) before the court and sent him to JC and that other accused persons namely Sharvesh Kumari (mausi of deceased) and Shakuntala (mother in law of deceased) were not found at their house.
He further deposed that on 02.09.2016, he received information that accused Shakuntala and also Smt. Sharvesh Kumari were at their houses and he went along with WCt. Urmila to house of accused Sharvesh Kumari and got her arrested vide arrest memo Ex. PW5/J bearing his signature at point A, that he directed Wt. Urmila to conduct the personal search of accused Sharvesh Kumari and got her personal search conducted vide personal search memo Ex. PW5/K bearing his signature at point A, that thereafter he along with WCt. Urmila and accused Sharvesh Kumari went to the house of Shakuntla and arrested accused Shakuntla vide memo Ex. PW5/L, bearing his signature at point A, that he directed WCt. Urmila to conduct the personal search of accused Shakuntla and after the personal scarch, he prepared the personal search memo Ex. PW5/M bearing his signature at point A, that he also recorded the disclosure statement of Shakuntla vide memo Ex. PW5/N bearing his signature at point A, that thereafter he got medical examination of both the accused conducted and produced them before the court, which sent them to JC, that he had collected the MLC and PM report, that during investigation, he had moved an application to the doctor for obtaining a subsequent opinion, that State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 14 of 38 his application is Ex. PW-5/O bearing his signature at point A, that he recorded a subsequent Opinion that the cause of death is asphyxia consequent upon hanging and the final report will be given after the receipt of viscera report and that thereafter he was transferred and he handed over the case file to MHC(R).
He correctly identified the case property ie one steel bracelet and three chutki (bichuaa), a pair of ear ring and one nose pin as Ex.P-1(colly), one knife having blue colour handle, one upper part of chitkani and one chunni having violet and green colour and another one small piece of chunni which was having knot as Ex.P-2(colly). He correctly identified the accused persons.
During his cross examination conducted by Ld. Defence counsel he admitted that he had not mentioned the length and breadth of knife in seizure memo Ex. PW5/A, that he had not mentioned address/house number of the place of incident in site plan Ex. PW5/F and that he had not mentioned the height of the roof from the ground in the site plan Ex. PW5/F. He denied that he had not conducted the investigation in the present case fairly and that he had not seized anything as deposed by him in his examination-in-chief, that he had informed the SDM after telephonic consultation with the family members of the deceased, that SDM never visited the spot in his presence, that statement of the brothers of the deceased regarding the incrimination of accused persons are false, that the said statements were made by brothers of the deceased under the influence of tutoring to work out the case and that he had not recorded the statements of brothers of deceased.
State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 15 of 38He admitted that he was present at the time of recording of statements of brothers of deceased before the Executive Magistrate.
He denied that Executive Magistrate has not ensured the absence of the fear or pressure on the brothers of the deceased at the time of recording of their statements, that he exercised his influence upon the brothers of the deceased at the time of recording of their statements before the Executive Magistrate as he was present at that time and for the same reason the said statements are false, that he has falsely implicated the accused persons in connivance with the complainant and that he was deposing falsely.
11. PW-6:- Retd. ASI Lacchi Ram was the 2 nd IO. He deposed that on 12.10.2016, he was posted at PS Dabri as ASI, that on that date, the case file was marked to him by the order of SHO for further investigation and that accordingly, he received the case file of the present case from MHC (R).
He further deposed that on 13.08.2017, he obtained the FSL result from FSL Rohini and that on completion of the investigation, he prepared the charge sheet and filed the same in the court. The witness was not cross examined by the Ld. Defence counsel despite opportunity.
12. Accused admitted the factum of recording of GD No. 29-A dated 24.08.2016 Ex. P-1, MLC of deceased prepared by Dr. B.M. Mrathousha Ex. P-2, post mortem report prepared by Dr. Jatin Bodwal Ex. P-3, FSL Result prepared by Sri Narayan Ex. P- 4, relevant record of malkhana register and acknowledgment reciept of case property Ex. PW-5/A and B, factum of dead body State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 16 of 38 identification of deceased by PW Rajesh and the subsequent opinion of Dr. Jatin Bodwal dated 12.09.2016 Ex.P6. Accordingly, the relevant witnesses were dropped from the list of witnesses. In view of the admissions made U/s 294 Cr.P.C, the contents of the said documents are deemed to be proved by the prosecution. Perusal of the afore discussed testimonies reveals that prosecution has proved the statements of PW1 & PW2 recorded by Executive Magistrate, the various steps taken by the investigating agency during investigation alongwith various documents, seizure memos and other memos prepared by the investigating agency, the factum of conducting of postmortem of the victim, the identity of case property and the identity of the accused persons.
13. Thereafter, the prosecution evidence was closed vide order dated 13.03.2023 on the submissions of Ld. Sub. Addl. PP for State and the matter was fixed for recording of statement of accused persons.
STATEMENT OF ACCUSED PERSONS
14. In the statement recorded under section 313 Cr.P.C all incriminating circumstances appearing in the evidence were put to accused who denied the correctness of the same. The accused persons opted not to lead Defence Evidence. Therefore, Defence evidence was closed and matter was listed for final arguments.
FINAL ARGUMENTS
15. Ld. Additional Public Prosecutor for State argued that the prosecution has successfully established all the ingredients State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 17 of 38 necessary for completion of offence punishable under section 306/34 IPC. He further argued that the evidence led by the prosecution duly proved that the accused persons in furtherance of their common intention abetted the commission of suicide of victim by harassing her from the date of marriage of victim with accused Ankush I.e. 02.12.2015 till her death on 24.08.2016. He also argued that presumption under Section 113A Indian Evidence Act is clearly attracted in the present case and thus it can be safely presumed that the suicide of the victim was abetted by accused persons Ankush, Sarvesh Kumari and Shakuntla. He further averred that the accused persons have failed to shatter the credibility of the public witnesses (PW-1 and PW-2), brothers of the victim and other prosecution witnesses who have fully supported the prosecution version. Ld. Addl. PP further argued that the firm testimonies of prosecution witnesses and the factum of not leading any defence evidence by the accused persons shows that they failed to rebutt the presumption under Section 113A Indian Evidence Act. In view of the aforesaid submissions, Ld. Addl. PP submitted that the accused persons are liable to be convicted for the offences charged with.
16. On the other hand, Ld. counsel for accused persons argued that the accused persons have been falsely implicated by the brothers of the deceased in this case. He submitted that as PW-1 and PW-2 being the brothers of deceased and to take revenge have falsely implicated the accused persons in the present case. He further submitted that both PW-1 and PW-2 are interested witnesses and they have also resiled from their earlier statements which is clear from the fact that they both were duly cross State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 18 of 38 examined by the Ld. Addl. PP for the State. He referred to various lacunas, discrepancies and inconsistencies in the testimonies of PW-1 and PW-2 and the over all prosecution version to infer that there is no reliable incriminating material/witness available on record to connect the accused persons with the alleged offences. He further submitted that there is no material available on record to say that the accused persons committed any act or omission amounting to cruelty with the victim which abetted her to commit suicide and hence no presumption under Section 113A Indian Evidence Act is attracted in the present case. In view of the aforesaid submissions, Ld. Defence counsel stated that the accused persons deserve to be acquitted.
17. This court heard the Ld. Additional PP for the State as well as the Ld. Defence counsel and perused the record.
APPRECIATION OF FACTS/ EVIDENCE//CONTENTIONS & REASONING.
18. The case of the prosecution is that the accused persons namely Ankush Kumar, Sarvesh Kumari and Shakuntla in furtherance of their common intention abetted the commission of suicide by Mohini @ Laxmi by harassing the victim from the date of marriage of the victim with accused Ankesh i.e. 02.12.2015 till her death on 24.08.2016. It is further evident from the chargesheet that the case of prosecution is that the accused persons used to harass the victim by imputing/saying that the victim was possessed with evil spirit, that her parents should get her treated which they were not doing and that her parents should State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 19 of 38 take her back and compromise the matter so that accused Ankush could be remarried.
19. The version of the accused persons is that they have been falsely implicated in the present case by the complainant/PW-1 and that the deceased was never tortured by them in any manner.
20. In order to bring home the guilt of the accused persons Ankush, Sarvesh Kumari and Shakuntla for the offence punishable under Section 306/34 IPC, it is imperative for the prosecution to establish the presence of mens rea/guilty intention on the part of the accused persons to cause the victim to commit suicide, the sharing of such guilty intention by all the accused persons, the acts/omissions amounting to cruelty which instigated the victim to commit suicide, the commission of suicide by the victim and the direct relation/nexus between the abetment by way of instigation/aid/conspiracy and the commission of suicide.
21. Keeping in view the charge for the offence punishable under Section 306 IPC framed against the accused persons, it is necessary to presumption under Section 113A of Indian Evidence Act, which provides as under:-
2 [113A. Presumption as to abetment of suicide by a married woman. --When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 20 of 38 or by such relative of her husband.
Explanation. -- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]
22. With respect to the offence punishable under Section 306 IPC,it is relevant to refer to the following pronouncements made by the various Hon'ble Higher Courts.
23. In Parveen Pradhan vs. State of Uttranchal, 2012 (10) JT 478, it has been laid down that offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person, who has abetted. Abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 of the Code.
24. In State Of West Bengal vs Orilal Jaiswal And Another, AIR 1994 SC 1418 the Hon'ble Apex Court has observed that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 21 of 3825. In Sanju @ Sanjay Singh Sengar v. State of M.P., AIR 2002 SC 1998, the Hon'ble Apex Court has observed that even prosecution story that the appellant did tell the deceased 'to go and die' is accepted, that itself does not constitute the ingredient of 'instigation'; the word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite; presence of mens rea, therefore, is the necessary concomitant of instigation; it is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea as it is in a fit of anger and emotional. It was held in the said case that suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998.
26. In Satish S/O Narayan Ate vs State Of Maharashtra, 1997 CriLJ 935, the Hon'ble High Court of Mumbai has observed that to invoke Section 306 of the Indian Penal Code, it must be first proved that the accused has instigated some person to commit sui- cide or has engaged with anybody in any conspiracy for obtaining the desired result, i.e., the suicide on the part of the lady, and acts or illegally omits to act in pursuance of such conspiracy.
27. In order to proceed further, it is also imperative to peruse section 107 IPC which is reproduced hereunder as:-
"107. Abetment of a thing.--A person abets the doing of a thing, who-- (Firstly)-- Instigates any person to do that thing; or (Secondly)-- Engages with one or more other person or persons in any conspiracy for the doing of State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 22 of 38 that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly)-- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation
1.-- A person who, by 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."
28. In Criminal Appeal NO. 1301 of 2002, titled as Gangula Mohan Reddy Vs State of Andhra Pradesh decided on 05.01.2010, the Hon'ble Apex Court has observed as under:-
"20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
21. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."
29. As per law enunciated in the aforesaid pronouncements, in order to bring a case within the purview of Section 306 IPC, the accused who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. In other State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 23 of 38 words, it is necessary to prove the act of abetment by the person charged with the offence under section 306 IPC.
30. In light of the aforementioned observations of Hon'ble Higher Courts, this Court now proceeds further to analyse the testimonies of prosecution witnesses to check as to whether the presumption under Section 113A of Indian Evidence Act is attracted and the other basic ingredients of the offence punishable under Section 306/34 IPC are proved beyond reasonable doubt or not.
31. Perusal of the record reveals that out of the various witnesses examined by the prosecution, it is the testimony of PW-1 and PW-2 which the most relevant and important one as both of them are brothers of victim (close relatives of the victim) and PW-1 happens to be complainant also while the rest of the witnesses are either police witnesses who conducted the usual investigation after happening of the incident, the doctors who conducted the medical examination/postmortem on the body of the victim and the Executive Magistrate who recorded the statements of the relative of the victim i.e. PW-1 and PW-2.
32. At the very outset, it is apposite to state that it is a settled law that facts admitted need not to be proved. In the present case, the testimonies of the prosecution witnesses and the record shows that the factum of the victim being a married woman as well as the factum of her death caused by way of suicide by hanging within few months of her marriage is not disputed, so there is no need to discuss the the said ingredients which are two of the three conditions required for attracting presumption under Section 113-A Indian Evidence Act.
State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 24 of 3833. It is evident from the deposition of PW-1 that he stated that before Rakshabandhan, accused Ankush had made phone call to his brother Rakesh Kumar/PW-2 but he did not talk to him. PW-1 further deposed that he does not remember the date, month and year of the above said conversation. This testimony shows that PW-1 is making the said statement regarding phone call and conversation in the air and thus the same deserves to be discarded. PW-1 further deposed that marriage of his sister was held on 02.05.2015 whereas the said marriage was held on 02.12.2015. PW-1 further deposed that his sister Mohini @ Laxmi did not tell him anything or any fact regarding any of the accused persons. This part of the testimony of the PW-1 shows that the victim did not tell him anything pertaining to the alleged harassment caused by any of the accused persons and that before Rakshabandhan even the accused Ankush had not spoken to him. It is clear that PW-1 did not say anything to bring home the charge for the offence punishable under Section 306 IPC at the very first instance and even did not state about the factum of recording of his statement Ex. PW-1/A by the Executive Magistrate.
34. Record shows that PW-1 was duly cross examined by Ld. Addl. PP for the State as he has partly resiled and in the said cross examination he stated that he does not know the name of the mother of accused Ankush and Aunt of accused Ankush and thus he cannot admit or deny that the name of mother of accused is Shakuntla and name of his Aunt is Sarvesh Kumari. This testimony further supports the version as deposed in his examination in chief that his sister never told him about anything State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 25 of 38 pertaining to the accused persons and further shows that PW-1 is not aware of any material fact about the present case. This manner of deposition of PW-1 further creates grave doubt upon the very credibility of his version.
35. The testimony of PW-1 to the effect that it is incorrect that victim Laxmi told him that she was troubled as her in laws complained that "uspe upri hawa aur bhoot pret hain" and that he had talked with accused Ankush in this regard, further shatters the prosecution version as mentioned in the statement recorded under Section 161 Cr.P.C and statement recorded before the Executive Magistrate. It again reinforces the truthfulness of his testimony as stated in his examination in chief that victim never told him anything or any fact regarding any of the accused persons.
36. In the cross examination conducted by Ld. Addl. PP for the State, he further stated that he had told SDM in his statement that mother and aunt of accused Ankush told him either get her treated or take her back or that they asked them for compromise or that they had also talked of second marriage of accused Ankush. The very fact that PW-1 did not depose about the said facts in his examination in chief at the very first instance creates grave doubt on the authenticity of the aforesaid versions which is stated at the time of cross examination conducted by the Ld. Addl. PP for the State. The aforesaid deposition extracted by the Ld. Addl. PP for the State is further rendered nugatory by his statement made in the further cross examination conducted by the State that he does not know so he cannot admit or deny that his State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 26 of 38 sister Laxmi committed suicide as she was not got treated by her in laws and was mentally harassed. It follows from the aforesaid statement of PW-1 that any sort of harassment or cruelty having been committed by the accused persons which abetted the victim to commit suicide is not established from his testimony.
It emerges from the afore-discussed of testimony of PW-1 that he is not a consistent and reliable witness and that the prosecution failed to extract any material in its favour despite detailed cross examination.
37. Perusal of testimony of PW-2 reveals that he failed to tell date, month and year of the marriage of his sister in his examination in chief. He further deposed that he received phone call of accused Ankush after 8 or 8 ½ months of marriage of Laxmi and Ankush stated that "Laxmi ki tabiyat kharab rahti hain isko le jao aa ke" He also deposed that 2-3 days later, he again received phone call of accused Ankush who told him that Laxmi had committed suicide but he could not believe it. He further deposed that when he received the earlier phone call from accused Ankush then accused Ankush had told him "Laxmi ko le jaao nahi to maar denge, 8-10 lakh rupaya lagega niptane mein"
and at that time Sarvesh, Mausi of accused Ankush had also told him "Isko le jaao, hum Ankush ki dusri Shaadi karwa denge". He further deposed that before her death his sister told him on phone that "Yeh kehte hain, tum khana nahi banati ho".
38. Record shows that PW-2 partly resiled from his previous statement and hence was duly cross examined by Ld. Addl. PP for the State, wherein he admitted the factum of inquiry made by State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 27 of 38 the SDM but failed to tell whether the SDM recorded his statement. PW-2 shattered the prosecution version by denying the suggestion in this cross examination that his sister Laxmi had told him that her husband, mother in law and Mausi of Ankush used to mentally torture her and also levelled allegations of evil spirits upon her. This denial firmly established that Laxmi, the victim never told PW-2 about any sort of harassment being committed by the accused persons in the aforesaid manner as alleged by the prosecution.
39. In the said cross examination, PW-2 admitted that mother of Ankush and Mausi Sarvesh told him on phone that "Laxmi par bhoot paret ka saaya hain is karan se use wapas le jaaao aur faisla kara do, uske bad Ankush ki dusri shaadi kara denge" and that he tried to make mother and mausi of Ankush understand. The fact that PW-2 did not state the name of mother of the accused in the aforesaid conversation as well as the fact that "Laxmi par bhoot paret ka saaya hain is karan isko le jaao" in the examination in chief at the very instance makes the aforesaid deposition extracted in the cross examination conducted by the Ld. Addl. PP for the State highly suspicious as no reasonable person in such circumstances can forget to tell such important facts despite their being no substantial time lag.
40. In the cross examination conducted by Ld. Counsel for the accused persons, PW-2 admitted that he and others had attended the reception of the marriage of his sister which was held in Delhi and that he had not come to Delhi to meet his sister thereafter. He further admitted in the later part of the cross State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 28 of 38 examination that he received the phone call of accused Ankush, that he was at his home at that time, that he had talked for about 10-15-20 minutes with the accused Ankush who had called from his mobile phone and asked him to take Laxmi back and that after receipt of that phone call he had not gone to the matrimonial home of Laxmi to make them understand why they are saying so. It is clear from the aforesaid testimonies of PW-2 that he admittedly did not visit his sister's house after the reception despite the fact that the marriage subsisted from 02.12.2015 to 24.08.2016 which was a substantial period of time for PW-2 to intervene in the affairs of his sister's matrimonial life for redressing her grievances as would have been done by any other brother placed in such circumstances. Furthermore, he admittedly did not go to the matrimonial house of Laxmi despite receiving the phone call from accused Ankush asking him to take Laxmi back. This is again highly unusual conduct which is not expected out of brother in the circumstances like the present one. These omissions in the conduct of PW-2 in not behaving as normal prudent person/concerned brother create grave doubt upon the very factum of making of any call by accused Ankush to him wherein aforementioned conversation took place. It further indicates that the allegations mentioned above which form the basis of abetting the victim to commit suicide are not reliable and trustworthy. It is further important to mention here that the version of the defence is that none of the accused persons had made any call to PW-2 or had stated anything to him as alleged. Considering the aforementioned omissions and the self contradictory testimony of PW-2, it was necessary for the prosecution to establish the factum of making of said call by the State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 29 of 38 accused Ankush to PW-2 but PW-2 failed to tell even the mobile phone number of accused Ankush. Furthermore, neither any CDR pertaining to the relevant period with respect to the mobiles of PW-2 and accused Ankush nor any other material to connect the accused Ankush with making any phone call has been brought on record. These are material omissions which establish that there is not even iota of evidence to prove that any such call was ever made.
41. It is further seen from the testimony of PW-2 that he was confronted with his statement Ex. PW-2/A recorded before the Executive Magistrate and he stated that he had told Executive Magistrate that "Laxmi ko le jaao nahi to maar denge, 8-10 lakh rupaya lagega niptane mein" but no such fact was found mentioned in the aforesaid statement. This testimony shows that PW-2 is not reliable witness as he has improved his version by referring/mentioning the aforesaid facts in the court which were not mentioned before the Executive Magistrate.
42. Perusal of the testimony of the PW-3 Shri Satish Kumar, Executive Magistrate reveals that he nowhere stated that he ensured the voluntariness of the PW1 and PW2 at the time of recording of their statements. The perusal of the duly proved statements Ex. PW1/A and PW2/A reveals that nothing is mentioned therein suggesting that their voluntariness was ensured while recording their statements by PW3. Perusal of the testimony of IO PW-5 SI Suresh Kumar reveals that he had called PW1 & PW2 telephonically prior to recording of their statements before Executive Magistrate and that he admitted that State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 30 of 38 he was present at the time of recording of statements of brothers of deceased before the Executive Magistrate. The aforesaid omissions made by the Executive Magistrate, the factum of recording of statements of brothers of the deceased in the presence of IO and the inconsistent manner of deposition of PW1 and PW2, show that chances of recording of tutored version of PW1 & PW2 cannot be ruled out. This observation further shatters the truthfulness of the prosecution version.
43. It thus follows from afore stated analysis of testimonies of PW-1 and PW-2 that none of them are reliable witnesses and the factum of causing of abetment to the victim for committing suicide in the alleged manner is not established at all.
44. Record further shows that PW-2 deposed in his examination in chief that his sister told him on phone that "Ye kehte hain, tum khana nahi banati ho". In the entire prosecution case, this is the only statement made by the victim to his brother over phone though this statement has also not been proved by calling the CDR or other relevant evidence but still considering the same as proved, this testimony by any stretch of imagination can not be treated as such an act or conduct which would have abetted the victim to commit suicide. So, even this testimony is not sufficient to prove the guilt of the accused persons beyond reasonable doubt. This finding is fortified by the observations of Hon'ble Supreme Court in Orilal Jaiswal's case as mentioned in paragraph 24 of this judgment wherein hypersensitivity to ordinary petulance, discord etc. have not been considered as a ground for conviction for charge of abetment of suicide.
State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 31 of 3845. Perusal of the record further reveals that apart from PW-1 and PW-2, all other prosecution witnesses examined by the prosecution are the witnesses of investigation and their testimony does not throw any light on the manner of abetting the victim to commit suicide which is sine qua non for establishing the guilt of the accused persons beyond reasonable doubt.
46. Record shows that in the instant case neither any suicide note of the victim nor any other evidence i.e. recordings/mobile phone etc. of the victim qua the cause which abetted her to commit suicide, has been brought to prove as to how she was abetted by the accused persons for committing suicide. It is further seen that there is no allegation of any imputation made by the accused persons to the victim regarding the victim being possessed by evil spirit or that due to the said fact the accused persons asked her to go away or that they tortured her by imputing the said things for getting the accused re-married as PW-1 and PW-2 nowhere stated that the accused persons used to harass their sister by uttering aforesaid imputations/statements to their sister.
47. It is further apt to state here that all the allegations as discussed above were derived from the conversation between the accused persons and the PW-1 and PW-2. Though the same have not been proved still for the sake of arguments if considered as proved, the same cannot be considered to be having such effect as would have compelled the victim to commit suicide. So these allegations do not have such evidentiary value as is sufficient to State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 32 of 38 convict the accused persons for instigating the victim to commit suicide.
48. The deposition of witnesses i.e. PW-1 and PW-2 shows that no offence was committed in their presence and their knowledge about the commission of the offence against their sister entirely depend upon the information given to them either by the victim Lakshmi or by accused persons itself which shows that the depositions of these witnesses clearly fall in the category of the hearsay evidence and the same cannot be relied upon in view of the rule of the Best evidence as envisaged in Section 60 of the Indian Evidence Act which reads as :-
Oral evidence must be direct-Oral evidence must, in all cases whatever, be direct; that is to say-
i) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
ii) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
iii) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
iv) if it refers to an opinion or to the
grounds on which that opinion is held, it must
be the evidence of the person who holds that
opinion on those grounds;
49. The hearsay evidence is not admissible and the same was explained by the Hon'ble Supreme Court in Laliteshwar Prasad v. Bateshwar Prasad AIR 1966 SC 580 and in State of Haryana v. Ram Chand AIR 1976 SC 391.State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 33 of 38
50. It is settled law that there should be direct nexus between the incitement/acts of cruelty/harassment and committal of suicide. However, in the present case, prosecution has failed to show any direct connection between the alleged acts of incitement and committal of suicide. It is also evident from the record that prosecution failed to show any active act or direct act which led the deceased to commit suicide seeing no option and that the said act must have been intended to push the deceased into such a position that she committed suicide. It is further apt to mention here that the direct nexus between the said two facts is also not established with respect to proximity of time. It is further pertinent to mention here that victim has admittedly expired on 24.08.2016, however, no specific dates/time of the alleged acts of harassment/cruelty have come on record which ultimately abetted the victim to commit suicide. It shows that there is no material suggesting proximate and live link between the alleged acts of cruelty and harassment (though the same have not been proved) which instigated the victim to commit suicide by hanging on 24.08.2016.
51. Furthermore, as per PW2, the alleged phone call was made by accused Ankush two/three days before the commission of suicide by the victim and in the said call, the accused had stated that "Laxmi ki tabiyat kharab rahti hain isko le jao aa ke", that "Laxmi ko le jaao nahi to maar denge, 8-10 lakh rupaya lagega niptane mein" and at that time Sarvesh, Mausi of accused Ankush had also told him "Isko le jaao, hum Ankush ki dusri Shaadi karwa denge". Considering the aforesaid allegations to be proved for the sake of arguments, the same can not be said to be State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 34 of 38 proximate enough to the commission of suicide by the victim as she committed suicide after 2/3 days and there was ample time for change of mental state of the victim i.e. cooling down of the victim if she was actually feeling mentally harassed by the said assertions made by the accused persons. So, it can be said that contiguity, continuity, culpability and complicity of the alleged indictable act or omission which are the concomitant indicises of abetment, are missing in the present case. This finding is further reinforced from the observations made by Hon'ble Supreme Court in Kashmiri Lal Vs. State of Haryana 2008 (4) RCR (Criminal) 497, wherein it has been held as under :-
"15. Needless to say, there was clear-cut interval of 3 days in between 26th April, 1993 and the date of occurrence i.e. 30.4.1993. If the deceased had taken decision to commit suicide, her passions for this act might have cooled down during this interregnum. Now it is to be noticed as to what has to be established by the prosecution to earn conviction under Section 306 of Indian Penal Code. The accused will be guilty of abetment in case of suicide if the cruelty meted out to the deceased had the effect of inducing her to end her life by committing suicide. He will not be guilty of the same if the victim was hypersensitive to ordinary discord and differences in domestic life. It is not enough that the husband treated the deceased with cruelty. There must be proof of direct or indirect acts of incitement to the commission of suicide. The abetment involves mental process of instigating a person or intentionally aiding that person in doing of a thing.
52. In the present facts, it is apt to refer to the judgment titled as Gurcharan Singh v. State of Punjab AIR 2017 SC 74, wherein, the Apex Court held that to constitute abetment, the State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 35 of 38 intention and involvement of the accused to aid or instigate the commission of suicide is imperative; remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Section 306 IPC thus criminalizes the sustained incitement for suicide.
53. It thus emerges from the afore-discussed observations and analysis of testimonies/circumstances that the prosecution failed to establish that accused Ankush or his relatives i.e. the other accused persons subjected the victim to any sort of cruelty which abetted her to commit suicide. It implies that there is no material available to attract the presumption under Section 113A Indian Evidence Act as well as to attract criminal penalty for abetting her suicide.
54. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as "Sadhu Singh Vs. State of Punjab : 1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that-
"In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
55. Following the aforesaid observations and considering the inconsistencies, omissions, contradictions and incoherent testimonies, this Court is of the view that prosecution has not State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 36 of 38 been able to travel the entire distance from 'may have' to 'must have' and thus it cannot be said that prosecution has been able to prove its case beyond reasonable doubts.
56. Considering the present factual matrix, it is pertinent to mention that the Hon'ble Supreme Court observed in the case titled as 'Bhagwan Singh and Ors. Vs. State of M.P. [2002 (4) SCC 85], that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing out to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that the miscarriage of justice is avoided. So, following the aforesaid observation and the testimony of witnesses, benefit of doubt also accrues in favour of the accused persons.
57. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove the presence of mens rea/guilty intention on the part of the accused persons to cause the victim to commit suicide, the sharing of such guilty intention by all the accused persons, the acts/omissions amounting to cruelty/harassment which instigated the victim to commit suicide and the direct relation/nexus between the abetment by way of instigation/aid/conspiracy and the commission of suicide which are essential elements for completion of offence punishable u/s 306/34 IPC.
State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 37 of 3858. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Addl. PP for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused persons have been falsely implicated are found to be justified.
59. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused persons Ankush, Sarvesh Kumari and Shakuntla are hereby acquitted of the charge u/s 306/34 IPC levelled against them. Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
60. Fresh bail bonds and surety bonds already furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted.
61. File be consigned to the Record Room after due compliance.
Announced in open Court (VIPLAV DABASS) today on 25.04.2023 ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT DWARKA COURTS, SOUTH-WEST NEW DELHI/25.04.2023 State Vs. Ankush Kumar & Ors. FIR No. 649/16 PS Dabri Page 38 of 38