Delhi District Court
State vs . Joginder Yadav on 27 July, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
SC No.1286/16
FIR No. 19/2010
PS Pandav Nagar
u/s 304B/306 IPC
State Vs. Joginder Yadav
S/o Sh. Jiaut Yadav
R/o H. No.5, Gali No.1,
Samsapur Village, Pandav Nagar, Delhi
Date of Institution 29.10.2015
Arguments heard 19.07.2018
Date of order 27.07.2018
JUDGMENT
PROSECUTION CASE
1. Brief facts as per prosecution case are as under:
(a) That on 13.01.2010 an information was received in PS Pandav Nagar regarding suicide at H.No.5, Gali No.1, Samaspur Gaon, Delhi. The said information was reduced into DD No.22A and was marked to SI Krishan Pal Singh. On receipt of said DD, IO SI Kishan Pal along with other staff reached at H.No.5, Gali No.1, Samaspur Gaon, where one lady was found hanging from the ceiling fan in the room situated at the first floor of the said house. The room was locked from inside. On inquiry, the name of deceased lady was revealed as Nisha w/o Joginder. The SDM concerned was informed who came at the spot. Scene of the spot was got photographed, exhibits were collected, State vs Joginder Yadav FIR No.19/2010 1 of 26 dead body of the deceased was sent to LBS Hospital and relatives of the deceased were informed.
(b) That on 15.01.2010, complainant Jagdish, father of deceased came to Delhi, visited LBS Hospital and identified the dead body. SDM concerned recorded statement of complainant/father of the deceased. The father of the deceased stated that his daughter was got married with accused in April 2005. He had given dowry as per his capacity. There was no dispute at the time of marriage. The accused used to harass and beat his daughter. His daughter had talked to her mother on the day when she had committed suicide. While talking she was crying. She told that accused used to beat her every day after taking liquor and now she is fed up. His soninlaw (damad) had never demanded any dowry and he had promised to give one gold ring and one gold chain, however, he had only given gold chain to the accused due to which accused used to harass his daughter. Accused was residing on rent and he used to harass the deceased. He is quite sure that his daughter ended her life due to harassment caused by the accused.
(c) that on the basis of the statement of complainant (Ex.PW1/A), an FIR was registered against the accused u/s 304B IPC.
(d) that during pending investigation, IO SI Krishan Pal Singh was transferred and accordingly further investigation of the case was marked to Inspector Anil Kumar. During investigation, Inspector Anil Kumar, the 2nd IO visited the native place of complainant ie village Navada, Distt. Azamgarh, UP, he collected the marriage invitation State vs Joginder Yadav FIR No.19/2010 2 of 26 card and recorded statements of relevant witnesses. Complainant Jagdish Yadav also handed over to IO a hand written statement (Ex.PW1/D) in which the date of marriage of deceased with accused was mentioned as 23.05.2006.
(e) After completion of investigation, the charge sheet was filed u/s 304B/306 IPC.
2. After compliance of the provisions of section 207 Cr.P.C., the case was committed to the sessions court.
3. Vide order dt.28.11.2015, Ld. Predecessor framed charge U/s 306 IPC against the accused to which he pleaded not guilty and claimed trial. Thereafter, matter was posted for prosecution evidence.
4. During trial, accused stopped appearing from 26.08.2016 and despite issuance of warrants and process u/s 82 Cr.P.C., accused failed to appear before the court and accordingly, he was declared proclaimed offender on 26.10.2017.
5. On 06.11.2017, accused was arrested and he was produced before the court on 07.11.2017 along with kalandra u/s 41.1(c) Cr.P.C. and thereafter, a charge for the offence punishable u/s 174A IPC was framed against the accused to which he pleaded not guilty and claimed trial and case was again listed for prosecution evidence.
6. FACT IN ISSUE: Points which emerged for determination in this case are:
Whether accused subjected the deceased Nisha with cruelty, harassment, abetted her and created such adverse State vs Joginder Yadav FIR No.19/2010 3 of 26 circumstances against her that she embraced death on 13.01.2010 by hanging herself.
7. PROSECUTION EVIDENCE: In order to establish accusations against the accused, the prosecution has examined 14 witnesses. For the purpose of discussion, they are classified into the following categories and their testimony is briefly discussed as under: MATERIAL WITNESS (7.1) PW1 Sh. Jagdish Yadav, the father of the deceased. The present case was registered on the above discussed statement of PW1 which he brought on record as PW1/A. In addition to the facts stated by him in his previous statement, the PW1 deposed about certain more facts. He stated that his daughter got married the accused in April 2005. After marriage, accused shifted to Delhi with his daughter. On 13.01.2010, he received a telephone call from the police regarding the death of his daughter by hanging. On 14.01.2010, he reached Delhi at about 8 am and on next day ie 15.01.2010, went to the SDM office where his statement Ex.PW1/A was recorded. PW1 further deposed that after about 1 year of the marriage, his daughter started complaining to her mother on telephone that accused used to beat her after taking liquor but did not tell about the reason for beating her. This fact was revealed to her by his wife. PW1 further deposed that his daughter visisted his house after about one year of marriage and at that time she made no complaint to him although she told to his wife that accused takes liquor. At the time of marriage, accused had asked his daughter for gold ring upon which he State vs Joginder Yadav FIR No.19/2010 4 of 26 promised that he would arrange the ring but he did not give the ring because of week financial condition. The witness further deposed that on 16.01.2010, police had obtained writing from him forcibily with his signatures in the presence of the accused and filed the same with the charge sheet. The said writing is brought on record as Ex.PW1/D and refused to admit the contents of the said writing. This witness was cross examined by Ld. Addl. PP for the State in which PW1 stated that his son inlaw never made demand of dowry but he had made promise at the time of marriage to give a chain and ring. He gave the gold chain to his daughter and because he failed to give the gold ring, due to this reason, accused used to harass her. PW1 deposed that he is confident that his daughter hanged herself as accused harassed her.
(7.2) PW4 Sh. P.K. Jayant is the SDM concerned. He placed on record the statement of complainant/PW1 Sh. Jagdish Yadav recorded by him as ExPW1/A, form no.25.35 Ex.PW4/A filled by him and directions Ex.PW4/B for conducting postmortem on the dead body of deceased Nisha.
(7.3) PW5 Smt. Laungi Devi is the mother of deceased. PW5 stated that she performed the marriage of her daughter as per her capacity. After marriage Nisha started living in Delhi with accused and she and Nisha used to talk over telephone. PW5 further deposed that on the day of incident, in the evening time, Nisha made a phone call to her and told that accused had beaten her after taking liquor and Nisha asked PW5 to take her to the village. She further deposed that accused used to beat and harass deceased after consuming liquor. Her husband had given a State vs Joginder Yadav FIR No.19/2010 5 of 26 gold chain to the accused after the marriage, as per his promise made at the time of marriage and the gold ring could not be given due to financial problem. PW5 also deposed that on 13.01.2010, she was informed telephonically regarding the death of deceased and she along with her husband came to Delhi. PW5 deposed that her daughter committed suicide due to harassment caused by the accused on account of demand of dowry. This witness was also cross examined by Ld. Addl. PP for the State in which she categorically stated that accused and his family members did not make any demand of dowry articles at the time of marriage. About three and half months prior to her death, her daughter Nisha had gone to Delhi from her house and she was living with accused in Delhi. She used to talk to Nisha on telephone but she never made any complaint against the accused.
(7.4) PW6 Sh. Bhola Yadav is the uncle of deceased. PW6 deposed that he attended the wedding. No dowry demand was made in his presence. After marriage Nisha started living with her husband in the village and later on accused and Nisha shifted to Delhi. The witness further deposed that he, occassionally, had a talk with Nisha on telephone and she never made any complaint to him against the accused. PW6 also deposed that he lastly talked to Nisha on 01.01.2010 on the New Year Day. She made no complaint to him.
(7.5) PW8 Sh. Bhagwan Yadav and PW9 Sh. Birju, PW10 Sh. Rajender Yadav are also the uncles of deceased. These witnesses deposed that the accused and his family members did not demand any dowry at the time of marriage. Deceased Nisha never told them that State vs Joginder Yadav FIR No.19/2010 6 of 26 accused or his family members had demanded any dowry articles from her during her life time nor she told them that she was ever harassed by the accused or his family member. The witnesses also deposed that so far as they are aware that deceased was happily living with accused in Delhi and she never complained against the accused.
MEDICAL EVIDENCE: (7.6) PW2 Dr. Vinay Kumar Singh conducted the autopsy. He placed on record the postmortem report Ex.PW2/A He opined that the cause of death was asphyxia due to ante mortem hanging.
FORMAL WITNESS: (7.7) PW3 HC Vinay Kumar is the duty officer who recorded DD No.22A Ex.PW3/A regarding suicide by deceased, recorded the FIR and he brought on record the copy of the same as Ex PW3/B and his endorsement on rukka as Ex PW3/C. MEMBERS OF INVESTIGATING TEAM: (7.8) PW7 SI Krishan Pal Singh is police official who had firstly reached the spot. He deposed more or less on the same lines as discussed in the para no.1.
(7.9) PW11 Inspector Mangesh Tyagi is the 3rd IO of the case. After taking charge of further investigation of this case, he collected 9 photographs and placed them on record.
(7.10) PW12 Inspector Anil Kumar Pandey is the 2nd IO. This witness, on receipt of further investigation, visited the native village of complainant State vs Joginder Yadav FIR No.19/2010 7 of 26 at Navada, Distt. Azamgarh, UP where he collected hand written statement of complainant Ex.PW1/D and marriage card Ex.PW1/E vide seizure memo Ex.PW12/A and recorded statements of relevant witnesses.
(7.11) PW13 Inspector Bharat Ram is the 1st IO. This witness deposed that on 15.01.2010, on receipt of complainant's statement recorded by the then Executive Magistrate and forwarded by SHO, he made endorsement Ex.PW13/A on the complaint, prepared rukka and got registered present FIR. Thereafter, IO prepared site plan Ex.PW13/B, collected parcel and sample from hospital, recorded statement of complainant Ex.PW13/D and deposited the case property in malkhana.
(7.12) PW14 SI Sudhir Kumar prepared the challan and filed before the Court.
8. STATEMENT OF ACCUSED On conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. Accused pleaded innocence and stated that no demand whatsoever was made by him and whatever was given, was given as per the wishes of family members of deceased. He never harassed or gave beatings to deceased at any point of time. She was living happily, however, she was unhappy as she could not bear any child for the last four years of marriage and nobody from her family side visited for a long time to see her, therefore, she used to remain depressed. He further stated that on the date of incident he had left the room at around 6.307.00 am for plying rickshaw and had come to know about the State vs Joginder Yadav FIR No.19/2010 8 of 26 incident when he came back in the evening for having food. Accused opted not to lead any defence evidence.
SUBMISSIONS ADVANCED:
9. I have heard Ld. Addl. P.P as well as Ld. defence counsel and Ld. Amicus Curiae and gone through the record of the case.
10. Ld. Addl. PP submitted that the prosecution has proved its case against the accused with the testimony of PW1 Sh. Jagdish Yadav, the father and PW5 Smt. Laungi Devi, the mother of the deceased. He submitted that the said witnesses have fully supported the prosecution case on the point that accused was harassing their daughter as they had failed to give him the gold ring and deceased committed suicide due to harassment caused by the accused on this account. Ld. Addl PP futher submitted that during trial of the present case, the accused had absconded and he was declared a proclaimed offender on dated 26.10.2017. Thus, he submitted that the accused may be convicted for the offences he is charged with.
11. On the other hand Ld. Amicus Curiae submitted that the none of the witnesses including the parents of the deceased have made any allegations regarding dowry demand prior to incident. The ingredient of 304B IPC have not been established as neither any demand nor any harassment on that account has been proved. There are material contradictions in the testimony of material witnesses i.e. father and mother of deceased and they are not reliable witnesses. It is also submitted that accused never harassed or beaten the deceased at any State vs Joginder Yadav FIR No.19/2010 9 of 26 point of time and they were living happily, however, she was unhappy as she could not bear any child during four years of marriage and also for the reason that nobody from her family side visited her for a long time. He submitted that there is no evidence that accused committed abetment of suicide due to which deceased committed suicide. In regard to the charge u/s 174A IPC, Ld. Defence counsel submitted that the accused did not knowingly evade his appearance before the court and he stopped appearing as he had to go to his native place due to the illness of his mother as an operation of her eye was to be carried out and thereafter, he could not come back to Delhi to attend the matter due to financial constraints. Thus, he prayed that the accused may be acquitted.
LEGAL POSITION:
12. At the outset, to appreciate submissions and before making discussions on the testimony of material witnesses, the legal position in regard to the provisions of section 498 A & 304B IPC is required to be noted. The ingredients of Section 498A IPC are as follows: "Section:498A: Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation For the purpose of this section 'cruelty' means
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on State vs Joginder Yadav FIR No.19/2010 10 of 26 account of failure by her or any person related to her to meet such demand."
13. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. As per settled law the provisions of Sections 304B and 498A, IPC are not mutually inclusive. These provisions deal with two distinct offences. Cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common background to these offences, meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence.
14. Essential ingredients of Section 304B IPC are as follows: Sec:304 B:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv)Such cruelty or harassment should be for or in connection with demand of dowry.
State vs Joginder Yadav FIR No.19/2010 11 of 26
(v)Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
15. The harassment has to be in connection with demand of dowry. In Appasaheb and another vs. State of Maharashtra, 2007 (1) Crimes 110 Hon'ble Supreme Court observed that: "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. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, I.P.C. viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."
16. As per the definition of "dowry death" in Section 304B IPC and the wording of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment "soon before her death" and that too "for or in connection with the demand for dowry". The legal position is well settled that on a joint reading of Section 113B of the Evidence Act and Section 304B IPC it would reveal that there must be cogent material to show that soon before her death the victim was subjected to cruelty or harassment, and that too in connection with any demand for dowry. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where presumption u/s 113B of the Evidence Act and Section 304B State vs Joginder Yadav FIR No.19/2010 12 of 26 IPC are pressed into service. In the case reported as 2014 (9) SCC 645 titled as Manohar Lal Vs State of Haryana Hon'ble Supreme Court has observed that prosecution is obliged to prove that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption under section 113B of Evidence Act would operate.
17. Evidence in this regard has to be led in by the prosecution and established beyond doubt. In a case reported as Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon'ble Supreme Court observed that the allegations of dowry death have to be carefully scrutinized keeping in view of the gravity of punishment.
18. In regard to the the term "Soon before" in the case of Hira Lal & Others v. State (Govt. of NCT), Delhi, (2003)8 SCC 80. the Hon'ble Supreme Court has made the following observations: "The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304 B Indian Penal Code are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304 B Indian Penal Code and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and State vs Joginder Yadav FIR No.19/2010 13 of 26 the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
19. In the case of Vipin Jaiswal Vs State of A.P. 2013(3) SCC 684 the Hon'ble Supreme Court has observed that the allegations of cruelty have to be specific. The relevant para of this judgment reads as under: "In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, Indian Penal Code, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased."
20. Hon'ble Supreme Court has taken the same view in the case of 2014 (9) SCC 645 titled as Manohar Lal Vs State of Haryana Hon'ble Supreme Court.
State vs Joginder Yadav FIR No.19/2010 14 of 26
21. In the recent case reported as Monju Roy & ors. Vs State of West Bengal 2015(3) Recent Apex Judgments (R.A.J.) 472 the Hon'ble Supreme Court has observed that for proving the offence under section 304B the harassment has to be proved alongwith demand. It is also held that prosecution is to also establish that all family members caused harassment.
22. In the light of above settled proposition of law, facts of the case in hand will be analyzed to ascertain as to whether prosecution has led sufficient evidence to bring home the guilt of accused persons for the offence punishable under Section 304B IPC or not.
23. In the present case the charge sheet was filed u/s 304B IPC, however, after considering the record, the charge u/s 306 IPC was framed. Thus, before proceeding further to analyze the evidence, the provisions of section 306 IPC and section 107 IPC as well as the legal position in regard to these provisions is required to be noted which is discussed 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 may 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, whoFirst.Instigates any person to do that thing; or Secondly.Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation1.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 State vs Joginder Yadav FIR No.19/2010 15 of 26 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 facilitates the commission thereof, is said to aid the doing of that act."
24. DEFINITION OF ABETMENT: In the case of M. Mohan v. State Tr. Dy. Supdt. of Police, 2011(2) Recent Apex Judgments 161 (SC) , the Hon'ble Supreme Court of India, has defined the abetment as under: "45. 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.
25. HOW ABETMENT IS DONE : in Brijlal and Anr. v. State (Delhi Administration) 1984 (2) Crimes 987, the Hon'ble Delhi High Court has explained as to when a person can be held liable for abetting the suicide. The relevant para no.8 of this case reads as under: Halsbury notices some of the recent English decisions in the matter of classification of offence and complicity in crime. Thus, a person who "assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable". According to R.V. Gregoryany person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender. Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission. Presence without more may, however, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some State vs Joginder Yadav FIR No.19/2010 16 of 26 form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not read the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is unaffected and not withstanding that person incited intends to inform on the inciter; but there can be no incitement unless one person seeks to persuade or encourage another.
26. INSTIGATION: In the case reported as Ramesh Kumar Vs State of Chattisgarh(2001(9) SCC 618 ) the Hon'ble Supreme Court has defined the term Instigation as under:
20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
27. MENS REA AND INTENTIONAL AID : In the case of M. Mohan v. State Tr. Dy. Supdt. of Police, the Hon'ble Supreme Court has held that there has to be mensrea to commit the offence under section 306 IPC. The relevant para reads as under:
46. The intention of the Legislature and the ratio of the cases decided by this court are 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/she committed suicide.
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28. INTENTIONAL AID WITH HARASSMENT HAS TO BE THERE ONLY HARASSMENT IS NOT SUFFICIENT: In the case of Randhir Singh & Anr. v. State of Punjab [(2004) 13 SCC 129], the Hon'ble Supreme Court has held that abetment involves a mental process of instigating a person or intentionally aiding a person in the doing of a thing. It is held that a positive act on the part of the accused to instigate or aid in committing suicide, the conviction under Section 306 IPC cannot be sustained.
29. BEATING NO ABETEMENT: In Han Singh v. State 1983 CLR 123, the wife had committed suicide by taking poison and the accused absconded soon after the incident. The prosecution version was that the accused gave beating to his wife and said to have spoken in anger that 'She could die by taking poison if she liked'. It was held that this fact by itself could not amount to culpable instigation or commission of suicide, beating alleged to have been given also did not amount to abetment to commit suicide.
30. Thus, in view of the settled law for proving the abetment of suicide, the prosecution is required to establish the following essential elements: i. the deceased committed suicide;
ii. the accused abetted and played positive role with the intention that it results in suicide;
iii. the suicide is the direct result of the instigation.
Now let us see whether in the present case, the aforesaid necessary requirements have been fulfilled by the prosecution.
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31. WHETHER DECEASED COMMITTED SUICIDE: Firstly, prosecution has to establish that it was a case of suicide. In order to establish that deceased had committed suicide the prosecution examined PW2 Dr. Vinay Kumar Singh who conducted the post mortem of the deceased. PW2 has placed on record the autopsy report of the deceased as ExPW2/A and opined that the casue of her death was asphyxia due to antemortem hanging. Thus, it is clear from the medical evidence that deceased committed suicide.
32. WHETHER THE ACCUSED INSTIGATED OR ABETTED THE SUICIDE:
(a) In view of the settled law, prosecution was required to establish that accused instigated the deceased to end her life and played active role in the incident. In order to prove the accusation, the prosecution has mainly examined two witnesses ie PW1 Jagdish Yadav, the father and PW5 Smt. Laungi Devi, the mother of deceased. PW1, the father of the deceased stated in his examination in chief that at the time of marriage, accused had asked his daughter for a gold ring and he had promised that he would arrange the ring but did not give the same due to his poor financial condition. In the testimony of the partents of the deceased ie PW1 and PW5, there are no other allegations regarding dowry demand except the above referred allegations regarding dowry demand, however, the statement of said allegations raised by the father are not trustworthy for several reasons as firstly it is clear from the record that he had given his statement after two days of the incident, however, in his first statement Ex.PW1/A, he had State vs Joginder Yadav FIR No.19/2010 19 of 26 categorically stated that accused had never raised any dowry demand, however, at the time of marriage, he had promised the accused to give a gold ring and a gold chain and he had only given a gold chain but could not give the gold ring. Further, in his cross examination conducted by Ld. Addl. PP, he cartegorically stated that the accused had never raised any dowry demand. Furthermore during cross examination conducted by Ld. Addl. PP, PW5, the mother of the deceased also stated that neither accused nor his family raised any dowry demand at the time of marriage. Furthermore, in view of the settled law, to invoke the provisions of section 304B IPC, the prosectuion has to prove on record that the demand was made soon before death. PW5 also stated in her examination in chief that her daughter committed suicide due to harassment caused by accused on account of demand of dowry. Firstly, the said allegation raised by PW5 cannot be relied as she has raised general allegations as no specific period or the demand raised by the accused, has been specified by her. It is held by the Hon'ble Supreme Court in the cases of Vipin Jaiswal and Manohar Lal (supra) that the allegations regarding dowry demand and harassment caused on account of dowry demand should be specific, however, in the instant case, it is clear from the statement of PW5 that she has raised general allegations which is wholely insufficient to constitute the offence u/s 304B IPC. Beside this, her allegations regarding dowry demand have not been corroborated by her husband. After registration of the case, PW1, the father of deceased gave a hand written statement Ex.PW1/D to the IO wherein State vs Joginder Yadav FIR No.19/2010 20 of 26 he categorically stated that his daughter was happy with marriage and his daughter never talked to him and never told him that accused ever beaten her or harassed her. He also stated that he is not aware the reason for the suicide of his daughter. Besides the evidence of these witnesses, the prosecution has not examined any other witnesses to establish the dowry demand. During investigation, the IO had recorded the statement of several relatives of the deceased as well as their neighbours and acquitances. The prosecution has examined four uncles of the deceased as PW6, PW8, PW9 and PW10 and these witnesses categorically stated that deceased was their niece and accused had not demanded any dowry at the time of marriage and deceased never made any complaint that she was ever harassed by the accused or his family members. During investigation, the SDM had recorded the statement of neighbour Subedar, Kalawati and their landlord Smt. Shakuntla. These statements have been brought on record by prosecution as Ex.PW7/C to F and in their statements they categorically stated that the accused and deceased were living happily in their room and they never saw any quarrel between them.
(b) Thus, it is clear from these discussions that the allegations of dowry demand raised by the parents ie PW1 and PW5 are not trustworty as neither these witnesses are consistant in their statements nor their allegations are specific. The allegations raised by PW1 and PW5 are general in nature, thus, same are not reliable. Besides, there is no other evidence on record to show that the accused had ever raised State vs Joginder Yadav FIR No.19/2010 21 of 26 any kind of dowry demand from the deceased or he ever harassed the deceased on that account.
(c) Now let us see whether there was any abetment from the side of the accused for commisson of offence u/s 306 IPC. It is clear from the aforesaid discussions that neither any relative nor the neighbours had stated anything against the accused during investigation the neighbours categorically stated that the deceased was living with her husband happily and they never observed any quarrel between them. The uncles of the deceased also stated that deceased never made any complaint to them against the accused. Thus, entire prosecution case rests soley on the testimony of her parents ie PW1 and PW5. The testimony of PW1 is not reliable as this witness has not been consistant and changed his stand in every subsequent statement. Besides that as per his statement Ex.PW1/A, all the facts regarding harassment caused by the accused were told by his daughter to her mother and thus the testimony of this witness is based upon the information derived by him from his wife PW5. Besides, there are material contradictions in his statements given by him time to time. In his first statement, he stated that accused was harassing his daughter as he could not give the gold ring as promised by him at the time of marriage, however in his subsequent statement, he changed his entire stand and stated that earlier he was not in proper mental state due to the demise of his daughter and therefore, he is giving a hand written statement Ex.PW1/D wherein he stated that his daughter never talked to her and she never told him that accused ever beaten her or State vs Joginder Yadav FIR No.19/2010 22 of 26 harassed her and he is also not aware of the reason of her suicide. He further stated that his wife PW5 had told him that on the date of incident his daughter had called her mother and told her that the accused had put up a quarrel with his daughter on the point of asking dung cake for lighting (angithi) and he was not aware that accused sometimes used to beat his daughter after consuming liquor. PW1 stated that IO had forcibly got his statement Ex.PW1/D but PW1 never raised any protest about the same. Moreover IO/PW12 Inspector Anil Kumar Pandey also stated that PW1 had himself given the statement Ex.PW1/D. Thus, it is clear that PW1 is not consisant with his first statement and even during investigation he changed his version and this witness again changed his version during his evidence and the cross examination conducted by Ld. Addl. PP and stated that accused used to harass his daughter as he had failed to give a gold ring to him. During cross examination, he voluntarily stated that deceased used to talk to them over telephone while in his statement he stated that deceased never spoken to him. Thus, the testimony of this witness is not reliable as firstly there are material contradictions in his testimony and secondly, for the reason that he has changed his version time and again. Further, his testimony is also not reliable as his testimony is based upon the information derived by him from his wife PW5.
(d) The most material witness is PW5 Smt. Laungi Devi, the mother of deceased, who used to talk to deceased. However, this witness is not firm on her stand. Though in her examination in chief, PW5 stated that deceassed committed suicide due to harassment caused by the State vs Joginder Yadav FIR No.19/2010 23 of 26 accused on account of demand of dowry but nowhere she has stated in her examination in chief that accused or his family members ever demanded dowry. PW5 stated that on the date of incident her daughter had called her telephonically and told that accused had beaten her after consuming liquor and PW5 pacified her and told that she would be sending her father to meet her. Except these statements, no incriminating evidence has come on record in the statement of PW5 which could suggest that accused created an adverse circumstances due to which deceased committed suicide. This wintess was cross examined on behalf of Ld. Addl PP for the state and for the just decision of the case, relevant portions of cross examination conducted by Ld. Addl. PP are reproduced below: "...The accused and his family members did not amke any demand of dowry prior to her death, my daughter Nisha had gone to Delhi from our house and she was living with accused in Delhi thereafter. I used to talk to Nisha on telephone but she never made any complaint on telephone during the said talks against the accused. On the date of incident in the noon time, my daughter Nisha had called me telephonically and she was weeping at that time and when I asked her as to why she was weepoing, she told that she had asked the accused to bring upla (cowdung cake) for burning angithi, she was slapped by the ccused on this account. I pacified my daughter Nisha and told her that I will be sending her father to meet her and to bring her back to our house and thereafter the phone was disconnected. Later on I came to know that my daughter Nisha had committed suicide."
(e) It is clear from the statement of PW5 that there was no dowry demand by the accused or by his family members. It is also clear from her statement that accused never harassed the deceased. The only allegation against the accused which has been made by the PW5 is that the accused slapped the deceased on the date of incident when deceased had asked the accused to bring the dung cake. The State vs Joginder Yadav FIR No.19/2010 24 of 26 statement of PW5 has not been corroborated by PW1 regarding the incident of slapping. In his hand written statement, he simply stated that PW5 had told him that accused had put up a quarrel with his daughter. Thus, even the allegation regarding slapping is doubtful as being not corroborated by the other mterial witness. Thus, it is to be seen whether the said incident can be considered to be abetment u/s 107 IPC. In view of the settled legal position there has to be instigation or aid from the side of the accused to constitute the abetment. Thus, even if these allegations are assumed to be correct, that a quarrel had taken place and during that accused slapped his wife, yet it cannot be taken as abetment as the necessary ingredients of instigation, aid are missing in the instant case. It is held in the case of Han Singh (supra) that beatings given during quarrel by the accused to deceased would not amount to abetment to suicide. Thus, in the facts and circumstances discussed above and in view of settled law, no offence u/s 304B/306 IPC is made out.
(f) So far as the offence u/s 174A IPC. is concerned, it clear from the record that accused stopped appearing before the court since 26.08.2016 and despite issuance of process u/s 82 Cr.P.C (Ex.P1) and process u/s 83 Cr.P.C (Ex.P2), he failed to appear before the court and accordingly, he was declared proclaimed offender on 26.10.2017. Thereafter, on 06.11.2017, accused was arrested and he was produced before the court on 07.11.2017 along with kalandra u/s 41.1(c) Cr.P.C. In his statement u/s 313 Cr.P.C, accused simply stated that owing to his mother's illness and operation of her eye, he State vs Joginder Yadav FIR No.19/2010 25 of 26 went to his native village and due to this and financial constraints, he could not come back to Delhi and attend the court. Thus, this admission on behalf of the accused is sufficient to hold the accused guilty for the offence punishable u/s 174A IPC.
(g) In the present case no element of abetment has come on record. Nothing has come on record to show that accused had caused any harassment or cruelty to the deceased or in any manner instigated or provided aid in committing suicide. Thus, it is held that in the present case, the state has failed to bring on record any evidence regarding harassment as well as qua abetment.
(h) In view of the these discussions it is held that prosecution has failed to prove the allegations regarding harassment as well as abetment.
33. CONCLUSION Keeping in view of these facts and circumstances, it is held that prosecution has failed to prove that accused harassed the deceased for dowry as well as that he had abetted or instigated the suicide. Consequently, accused is directed to be acquitted for the offence punishable u/s 306 IPC. However, prosecution has been able to prove its case against the accused for the offence punishable u/s 174A IPC. Accordingly, accused is held guilty and convicted for the offence Digitally signed by punishable u/s 174A IPC.
AJAY AJAY GUPTA
Location: Delhi
GUPTA Date: 2018.07.27
16:56:56 +0530
(Ajay Gupta)
ASJ02/ Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 27.07.2018
State vs Joginder Yadav FIR No.19/2010 26 of 26