Delhi District Court
State vs 1 Wasim on 18 February, 2017
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Sessions Case No. 53015/16
FIR No. 1376/15
PS Aman Vihar
U/s 498A/304B IPC
State Versus 1 Wasim
Son of Sh.Tanveer Hussain
Resident of H.No. 94 (Old No. 54)
Village-Nithari, Delhi.
Date of institution in Sessions Court: 29/02/2016
Date of conclusion of arguments : 04/02/2017
Date of pronouncement of judgment: 17/02/2017
JUDGMENT
PROSECUTION STORY 1.0 Moniya was a school teacher. She must be having tremendous hopes when she got married at a right age. She must have dreamt of a fabulous matrimonial bliss. She must have anticipated perfect tuning and compatibility with her life-partner who, too, was a teacher. Little did she realize as to what the cruel destiny had in store for her.
1.1 Within six months of her marriage, she was forced to finish herself.
1.2 She committed suicide by hanging herself at H. No. 154, Village- Nithari, Delhi on 27.10.2015. SI Bijender Dahiya (PW23) and Ct. Sandeep rushed to the spot. Dead-body of Moniya was found. She had committed suicide by hanging. Her brother Ashwani @ Sonu (PW12) and parents (PW10 Sukhbir and PW11 Sunita) were already present at the spot.
FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 1 of 231.3 Statement (Ex. PW12/DA) of Ashwani @ Sonu was recorded by the police, in which, he did not make any allegation against anyone with respect to the aforesaid suicide. He, however, did mention that two days after her marriage, Moniya had told him that accused Wasim was having relationship with some other woman and was even interested in marrying that other woman but could not do so as his family was against that match. It will be also important to mention here that Sh. Amit Kumar Singh (PW7), Executive Magistrate (Rohini) had also been requested to reach the spot. He also recorded statement (Ex. PW7/A) of Ashwani and In such statement too, Ashwani did not make any further allegation except that his sister Moniya was very much disturbed and depressed due to said extra-marital affair of her husband.
1.4 Inquest proceedings were carried out and as per report of autopsy surgeon, the cause of death was asphyxia as a result of antemortem hanging.
1.5 FIR came to be registered after Sunita (mother of Moniya) made statement before Executive Magistrate on 02/11/2015. In such statement, she revealed that there was demand of money from the side of accused Wasim who even used to beat-up Moniya. She also divulged that she had given a sum of Rs. 40,000/- on one occasion and a sum of Rs. 50,000/- on the other to accused Wasim without taking her husband and son in confidence. She also stated that Wasim used to taunt Moniya by claiming that he was a teacher and despite that he was not given a bigger car in the marriage and was rather given a small car i.e. Wagon-R. He also wanted airfare for travelling between Delhi and Tamil Nadu. She, too, substantiated the version of her husband and son by confirming about the extra-marital affair of Wasim.
1.6 On the basis of such statement of Sunita, FIR was registered and SHO, PS Aman Vihar was directed to take appropriate action. Investigation FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 2 of 23 was carried out and accused Wasim was arrested on 07/11/2015.
1.7 Admitted handwriting of Moniya was collected from the school where she used to teach. Suicide note as well as admitted handwriting was sent to FSL for obtaining expert opinion which, later on, confirmed that the suicide note was in the hand of none other than Moniya.
COGNIZANCE & CHARGES 2.0 Charge-sheet for commission of offences u/s 498A/304B IPC was accordingly laid before the concerned Magisterial Court on 05.02.2016.
2.1 Cognizance was taken and after compliance of provisions contained u/s 207 Cr.P.C., the case was committed to the Court of Sessions.
2.2 Case was received on allocation by this Court on 29.02.2016.
2.3 Arguments on charge were heard and vide order dated 15.03.2016, accused was directed to be charged u/s 498A/304B IPC. He pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence.
3.1 It examined 23 witnesses. They can be classified as under:-
Public witnesses (I) PW3 Mauvli Gulam Rasool (Maulvi who performed nikah of accused and deceased)
(ii) PW10 Sukhbir (father of deceased)
(ii) PW11 Sunita (mother of deceased)
(iii) PW12 Ashwani (brother of deceased)
(iv) PW13 Santosh Devi (Principal of school where Moniya was working as teacher)
(v) PW14 Sheela Devi (Attendant of school where Moniya was working as teacher) Official witnesses
(i) PW7 Amit Kumar Singh (Special Executive Magistrate)
(ii) PW4 Israr Babu (Nodal Officer, Vodafone for proving CDRs) FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 3 of 23 Police witnesses
(i) PW2 HC Inder Kumar (duty officer)
(ii) PW5 HC Manoj Kumar (Call Operator, CPCR)
(iii) PW6 SI Harish Chander Pathak (Nodal Officer, CPCR/PHQ)
(iv) PW8 Ct. Rakesh Kumar (photographer Mobile Crime Team)
(v) PW9 SI (retd) Randhir Singh (Incharge Mobile Crime Team)
(vi) PW10 Insp. Rajender Prasad (final investigation officer)
(vii) PW16 SI Praveen Kumar (second investigation officer)
(viii) PW17 Ct. Vinod (official police who took the sealed pullanda to FSL)
(ix) PW18 Ct. Kapil Kumar (official police who took the sealed pullanda to FSL)
(x) PW19 HC Nem Singh (MHCM)
(xi) PW20 SI Jitender Singh (third investigation officer)
(xii) PW21 Ct. Sandeep (police official who assisted in the investigation)
(xiii) PW23 SI Bijender Dahiya (first investigating officer) Doctors/Expert
(i) PW1 Dr. Manoj Dhingra (autopsy surgeon)
(ii) PW22 M.L. Meena, (forensic expert) DEFENCE VERSION
4.0 Accused, in his statement u/s 313 Cr.P.C., pleaded innocence 4.1 He out-rightly denied that he was involved in any extramarital affair. He maintained that there was never any demand or any cruelty. He went on to claim that he had no knowledge as to why Moniya had committed suicide.
4.2 He, however, did not choose to lead any evidence in defence.
RIVAL CONTENTIONS 5.0 I have heard learned Addl. PP for State and learned defence counsel and carefully gone through the entire material available on record.
5.1 Learned Addl. PP has contended that prosecution has been able to prove its case beyond shadow of doubt. He has asserted that all the necessary ingredients have been duly established by the prosecution and it becomes very much evident that accused had demanded dowry and indulged in cruelty. According to him, Moniya had committed suicide within 6 months of her marriage and, FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 4 of 23 therefore, the element of "soon before death" is also found in existence. He has vehemently relied upon the testimony of close relatives of deceased as well as the handwritten note left behind by Moniya. According to Sh. Asthana, even as per such handwritten note, Moniya was feeling cheated at the hands of accused and, therefore only, took such a drastic step.
5.2 Sh. V.P. Katyal, learned counsel for complainant has also supported the prosecution version and has submitted written arguments as well. He has contended that Moniya was a teacher in a school of Mubarak Pur Dabas, Delhi and she confided in her mother, as generally is the case with girls, and it really does not matter if her mother, without telling her husband and son, gave any money to Moniya. This was done, as a concerned mother, to ensure that there was no further turmoil or disturbance in matrimonial life of her daughter. He has claimed that there is no reason whatsoever to disbelieve the statement of Sunita and since she was under acute shock when she saw her daughter hanging, neither the police nor SDM recorded her statement and, therefore, even if there is some delay in recording her statement, it cannot be said to be fatal. It has also been claimed that there are several facts which have gone totally uncontroverted and, therefore, it has to be necessarily inferred that defence admits evidence related to said uncontroverted facts. Finally, according to Sh. Katyal, even suicide note categorically indicates that she was very much upset and felt cheated because of the act and conduct of accused Wasim. It has been claimed that accused never wanted to marry Moniya and had relation with Poonam even prior to the present marriage and since parents of accused were against such match, accused married Moniya under pressure of his parents and then in order to get rid of her to marry his beloved, he started making demand of money so that Moniya leaves him. He has also claimed that as per suggestion put by defence, even when accused was in Tamil Nadu and had made call from there to his home in Delhi, his such paramour was with the accused in Nagar Kot. This clearly indicates that torture given by accused was of the highest order.
5.3 All the aforesaid contentions have been refuted by defence.
FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 5 of 235.4 According to learned defence counsel, entire case of prosecution smacks of malafide. He has contended that when police had reached at the spot, parents and brother of deceased were already there and police had contacted them and had made inquiries from them. No one whispered even a single incriminating word against the accused. Statement of Ashwani was recorded then and there which was also affirmed by his father. Even when SDM had made inquiries from Ashwani, he stuck to his previous version and did not make any allegation against accused Wasim. Thereafter, there was some manipulation and fabrication and a false story of 'demand of dowry' and 'cruelty' was introduced. It has been claimed that in such a peculiar backdrop, delay of eight days in registration of FIR is evidently fatal. It has been claimed that even 'suicide note' does not take the case of prosecution anywhere as if at all there was any demand related to dowry, deceased would have certainly mentioned the same in her last note. It has also been claimed that though there was no extramarital affair yet even such fact is assumed to be true, it, in itself, can neither amount to any abetment to commit suicide or can be permitted to fall within the scope and ambit of dowry death.
5.5 Both sides have also placed reliance upon several judgments.
5.6 Learned counsel for complainant has relied upon following judgments:-
i) Srichand & Shivan Das Vs The State, 28(1985) Delhi Law Times 360
ii) Surinder Singh Vs State of Punjab, I (1999) DMC 642 P&H High Court
iii) Kailash Vs State of M.P. AIR 2007 Supreme Court 107 5.7 Learned defence counsel has relied upon following judgments:-
i) Rohtash Vs State of Haryana, AIR 2012 SC 2297
ii) Manmohan Singh Vs State (GNCT of Delhi), 2012 (2) JCC 1350
iii) Sunil Bajaj Vs State of M.P., AIR 2001 SC 3020
iv) Shindo alias Sawinder Kaur & Anr Vs. State of Punjab, 2011 (11) SC 517
v) Thulia Kali Vs State of Tamil Nadu, 1972(3) SCC 393
vi) Puran Vs. State (GNCT of Delhi), 2012 Legal Eagle (DHC) 78
vii) Kanwar Pal Vs Shakuntala & Ors, 2015 Legal Eagle (SC) 127
viii) Durga Prasad & Anr. Vs State of M.P., 2010 Legal Eagle (SC) 387
ix) Phool Wati & Anr Vs State, Criminal Appeal. No. 82/2006, Date of decision 11/02/2014 High Court of Delhi.FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 6 of 23
x) State Vs Naresh & Ors., Criminal L.P. No. 367/2012, Date of decision 10/02/2014 of Hon'ble High Court of Delhi.
EVALUATION OF EVIDENCE 6.0 Parents and brother of Moniya are key witnesses and, naturally, they are in the best position to throw light regarding the alleged cruelty.
6.1 Suicide note is also equally important in the context of the present case.
6.2 The essential ingredients of the offence under section 304-B, IPC are (i) death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of marriage; (iii) soon before the death, the victim was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry. The legislative objective and thinking behind the words "soon before her death" is to emphasize the idea that death should, in all probabilities, be a direct consequence of such cruelty or harassment.
6.3 If all the aforesaid circumstances are established, a presumption of dowry death is required to be drawn against the accused under section 113(B) of the Evidence Act.
6.4 As far as Section 498A IPC is concerned, the cruelty can be of any nature and need not be limited to demand of dowry.
6.5 Moniya committed suicide within six months of marriage. Wedding knot was tied on 02.05.2015 and she committed suicide on 27.10.2015. It is also evident that the death of Moniya is otherwise than under normal circumstances. There is no qualm about the fact that it is a suicidal death.
6.6 Reference be made to the autopsy report. Postmortem was conducted by PW1 Dr. Manoj Dhingra and he has proved postmortem report as Ex. PW1/A. As FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 7 of 23 per such report, cause of death was asphyxia as a result of ante-mortem hanging. He was also, later on, shown ligature material i.e. white-sheet and he opined that injury mentioned in MLC No. 1024/15 and as suffered by Moniya was possible with such ligature material or similar cloth piece. Such subsequent opinion has also been proved as Ex. PW1/B. 6.7 Suicide is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. Apex Court has in, STATE OF WEST BENGAL V. ORILAL JAISWAL AIR 1994 SC 1418, observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
6.8 Therefore, it needs to be assessed whether a similarly circumstanced Indian wife belonging to same strata would have also chosen to finish herself on account of the alleged cruelty or not.
TESTIMONY OF RELATIVES OF DECEASED AND ITS IMPACT 7.0 Let me now evaluate and weigh up the testimony of relatives of Moniya.
7.1 PW12 Ashwani is the one who came in contact of the police on the date of incident itself. Undoubtedly, when police had recorded his statement on 27.10.2015, he did not mention anything incriminating against accused. His such statement is Ex. PW12/DA. He, however, did claim in such statement that when they had fixed up the marriage of his sister Moniya with Wasim, Wasim fled from his house and they, later on, learnt that there was some quarrel between him and his FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 8 of 23 mother. He claimed that two days after marriage, his sister Moniya revealed that Wasim was having affair and he wanted to marry someone else but his father (father of Wasim) was against such marriage and, therefore, he had to succumb to the pressure of his parents and married Moniya. There is no other attribution by Ashwani which may show any fault on the part of accused Wasim.
7.2 Similarly, when statement of Ashwani was recorded by Sh. Amit Kumar Singh, Executive Magistrate, on 28.10.2015, he reiterated all those facts and supplemented that his sister was hurt because of behaviour of Wasim and, therefore, was feeling depressed. No word was mentioned by him even remotely related to dowry in either of his said two statements.
7.3 In the aforesaid backdrop, let me now see what PW12 Ashwani has to offer in the witness box.
7.4 He deposed that in June 2015 Moniya had come to their house and told him that accused was having affair with another girl Poonam. Moniya also told that she learnt that accused had even brought Poonam to his house prior to marriage but his family was against such match. His sister also told him that accused was still interested in that other girl. As per Ashwani, he told his sister to bear for sometime assuring that he would contact Wasim in this regard. He did talk to Wasim who assured that everything would be all right. He also deposed that when his sister had come to their house in June 2015, she had talked to accused on phone and accused told her to marry someone else otherwise he would commit suicide. Thereafter, he has made reference to the information which he had received on 27.10.2015 from his father. His father told him on phone that Moniya was unwell and asked him to go to her house with his mother. They both accordingly went there and learnt that Moniya had committed suicide by hanging. He himself saw her hanging from ceiling fan and brought her down with the help of her jeth and by that time his father also reached there. In his further deposition, he claimed that later on his mother told that Moniya had informed her that accused used to beat her up and used to demand money and that his mother had given Rs. 40,000/- on one occasion and Rs. 50,000/- on another in connection with such demand. She (his mother) also told that she did not tell such fact to anyone. He FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 9 of 23 also deposed that accused used to demand a bigger car claiming that he had only been given a smaller car. He also identified handwriting of his sister Moniya on suicide note Ex. PW12/A. 7.5 In his cross-examination, he claimed that police had recorded his statement on 27.10.2015 and whatever he stated was recorded by the police and he signed his statement (Ex. PW12/DA) after ascertaining the correctness of its contents. It was suggested to him that Moniya had committed suicide as she was apprehensive about her husband's extra-marital affair. He denied such suggestion but supplemented that such extra-marital affair was one of the reasons behind the suicide. He did admit that he never revealed the fact regarding payment of Rs. 40,000/- and Rs. 50,000/- as told by his mother when he made statement on 27.10.2015 and on 28.10.2015. He also claimed that whatever was in his knowledge and whatever true facts he knew, he revealed the same to the police on 27.10.2015 and to SDM on 28.10.2015. As a necessary corollary, it has to be, therefore, assumed that till the time his sister committed suicide, he never knew about any such demand or cruelty. He was all along under the impression that reason behind suicide was alleged extra-marital affair.
7.6 When statement of Ashwani was recorded by SDM on 28.10.2015, Sh. Sukhbir (father of Moniya) was also present and even he confirmed the correctness of the same. Meaning thereby that by that time i.e. 28.10.2015, even Sukhbir did not know anything related to demand or cruelty related to demand.
7.7 Let me see as to what PW10 Sukhbir has deposed before the Court during trial.
7.8 According to him, he received call from the jeth of Moniya on 27.10.2015 who informed that Moniya was unwell and asked him to come there immediately. He then called up Ashwani and asked him to reach the matrimonial home of Moniya along with his mother. He reached there within 30-40 minutes and learnt that Moniya had committed suicide by hanging herself. He claimed that he went to Mortuary of SGM Hospital and signed on a paper which his son Ashwani had already signed claiming that at that time he was under shock. He claimed that his FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 10 of 23 wife was also under great shock and when she recovered from such shock, she told him on 30.10.2015 that Wasim used to beat Moniya and used to demand money. She also then told his that Wasim was having illicit relationship with one girl Poonam and even wanted to divorce Moniya. Thus, apparently even as per his examination- in-chief, he also did not know anything regarding alleged cruelty or demand before 30.10.2015. He did admit in cross-examination that Ashwani had made statement to SDM and also confirmed the correctness of the same and signed as witness to such statement. He also admitted that his daughter used to remain upset because of the alleged extra-marital affair of Wasim.
7.9 Thus, if PW10 Sukhbir is to be believed then he learnt about the act of cruelty and demand of accused on 30.10.2015. If at all Sukhbir had come to know about aforesaid revelation on 30.10.2015, he should not have wasted even a single second and should have rushed to the police. Fact remains that FIR was registered on 04.11.2015 on the basis of statement of Sunita which she had made statement before the SDM on 02.11.2015.
7.10 Let me now switch over to the testimony of PW11 Sunita.
7.11 According to PW11 Sunita, Moniya was married to Wasim on 02.05.2015 and it was a decent marriage. After two-three days, they both had come to their house and then Moniya revealed that her husband had asked her to bring money from her parents. Since she did not want any trouble in her married life, she gave Moniya a sum of Rs. 40,000/- so that she could hand over the same to her husband. Another sum of Rs. 50,000/- was given to Moniya in October 2015. She claimed that she did not tell the aforesaid fact of demand either to her husband or to her son. She also claimed that Moniya had told her that Wasim was complaining that he had been given a small car and he wanted a bigger car. According to her, Moniya also told her that Wasim wanted air-fare to go to his workplace and for return. Moniya also told her that Wasim wanted her to be out of his life as there was another girl i.e. Poonam in his life. According to Sunita, Moniya also told her that accused used to talk to Poonam for hours together even in her presence when she used to object, accused used to beat her severely. She has also proved her statement Ex. PW7/F which she had made before the SDM. In her cross-
FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 11 of 23examination, she claimed that she had paid Rs. 40,000/- and Rs. 50,000/- out of her personal savings. According to her, she was having income from sale of milk.
7.12 The unexplained aspect related to delay in informing the police about demand of dowry and cruelty is puzzling and baffling. The explanation given by prosecution does not seem to click.
7.13 Mother of deceased had reached at the spot immediately. She was present when body of Moniya was brought down from hanging condition. I can very well understand the mental trauma and shock which very sight of said condition of her daughter must have given to her. However, fact remains that her son had made a detailed statement to the police then and there. If at all, she knew that there was demand of dowry and there was cruelty related to dowry, her immediate reaction would have been to inform the police or at least to her son and husband about the aforesaid fact so that the culprit is brought to books immediately. She did not bother to divulge any such fact to them or to the police.
7.14 Testimony of PW23 SI Bijender Dahiya is also of immense importance. He had reached the spot immediately on hearing the news that a lady had committed suicide. He and Ct Sandeep found that the body of deceased had already been brought down from hanging condition and he took in possession the suicide note and also informed the concerned SDM about the incident. He claimed that he had recorded statement of Ashwani same day. In his cross-examination, he categorically claimed that when he had reached at the spot, parents and brother of deceased had met him. He even went to the extent of deposing that when he made inquiries from them, even they did not blame anyone for the suicide of Moniya. He was involved with the investigation on 28/10/2015 as well when SDM had recorded statement of Moniya and according to PW23 SI Bijender Dahiya, as long as he remained associated with the case, there was no complaint from the side of Moniya against anyone.
7.15 I have already noticed above that Sukhbir had allegedly learnt from his wife about the demand of dowry on 30/10/2015 and if at all, such important fact had come to his knowledge on 30/10/2015, he should have rushed to the police immediately or should have taken his wife to the police immediately. Nothing of that FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 12 of 23 sort was contemplated and statement of Sunita was eventually recorded two days later. This has potential to indicate that the story of prosecution, so far as it relates to demand of dowry and cruelty related to such demand, is an afterthought. Moreover, the suicide note, to which I would advert at a later stage, also does not incorporate any such thing which may even remotely signify that Moniya had been maltreated on account of dowry or that there was demand of any money.
7.16 Thus, the crucial aspects regarding demand of dowry and cruelty related to any such demand do not stand substantiated in the desired manner. Delay in recording of statement of Sunita, in view of the aforesaid peculiar circumstances, cannot be digested casually and nonchalantly. Thus, it would be hard to believe that there was any demand of dowry or cruelty related to such demand.
SUICIDE NOTE 8.0 Suicide note has been proved as Ex. PW12/A. 8.1 There does not seem to be any qualm that it was not in the handwriting of Moniya. Since she was a teacher, her admitted handwriting was also collected. Reference in this regard may be made to the testimony of PW13 Ms. Santosh Devi and PW14 Ms. Sheela Devi. Their version is unrebutted. They had provided the admitted handwriting of Moniya from school record.
8.2 Such suicide note and admitted handwriting were eventually examined in FSL. Sh. Ajit Singh, FSL Expert, has given report dated 22/06/2016 and during the course of proceedings, learned defence counsel very fairly apprised the Court that he had no question to ask from the concerned FSL expert and since such report was per se admissible in evidence u/s 293 Cr.P.C., it was tendered in evidence by Ld. APP and was accordingly exhibited as Ex. PX on 03/01/2017.
8.3 As per such report, the person who had written admitted handwriting had also written the questioned handwriting i.e. suicide note. Such expert opinion was given after observing various similarities, formation of characters and other minute details, writing movement, speed, spacing, alignment besides nature of commencing and terminating the strokes etc. FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 13 of 23 8.4 In such suicide note, Moniya revealed her woes. It reads as under:-
8.5 As per said note, she dreamt about a happy married life but her dreams got completely devastated. She categorically claimed that she had not done anything wrong and was not in a position to bear the situation anymore. She wanted to live with her husband, whom she referred as "Masterji" in her suicide note and eventually claimed that even he had betrayed her.
EXTRA-MARITAL AFFAIR 9.0 Cruelty as defined u/s 498A IPC need not be confined to dowry. Such cruelty can be physical as well as mental. As per the legislative intention as appearing in explanation attached to Section 498A IPC, cruelty would also mean any willful conduct which is of such nature as is likely to drive the woman to commit suicide.
FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 14 of 239.1 The things, which have emerged during the trial, clearly suggest culpable conduct of accused Wasim. He is a school teacher. His age, as appearing in conviction slip, is 25 years. Thus, he was mature and sensible enough to understand the consequences of his action. He did not want to marry Moniya. He was rather interested in marrying Poonam whom he had even brought to his house but since his parents did not approve such match, he could not take such relationship to its logical end.
9.2 Either he should have mustered courage and should have shown guts to marry such other girl against the wishes of his parents or he should have terminated such affair altogether. He did not go for either of the options. For totally inexplicable reasons, he married, albeit unwillingly Moniya, and simultaneously, kept the extra-marital relationship alive.
9.3 When the marriage between Moniya and Wasim was fixed-up, he fled from the house. This, too, indicates that he was least interested in marrying Moniya. However, the message, which was received by family of Moniya, was a different one. It was portrayed as if he had left the house as there was quarrel between him and his mother. Instead of revealing the truth to Moniya, he rather spoiled her life by marrying her and denying her the legitimate expectations which she had from her newly-wedded husband.
9.4 It must have come as a rude and crude shock to her.
9.5 Such extra-marital relationship remained alive as according to Ashwani, his sister was hurt and depressed because of such extra-marital relationship. So much so, when Moniya came to her parental home in June, 2015 and had talked to accused on phone, accused told her to marry someone else, else he would commit suicide. This clearly shows that he was hell-bent in continuing with such extra- marital affair and when Moniya kept on objecting, he threatened that he would finish his own life. This was, naturally, going to create further misery for Moniya.
FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 15 of 239.6 According to Sunita, Moniya had even revealed to her that accused used to talk to Poonam for hours together even in her presence and when she used to object, accused used to beat her severely. I do not find any reason to disbelieve or discard such version of Sunita.
9.7 There is one more important aspect of the case which I cannot resist commenting upon.
9.8 Wasim was employed in Southern part of India. He was posted in Nagarkot, Tamil Nadu. Moniya was posted as teacher in Delhi. PW10 Sukhbir entered into witness box and was cross-examined on 22/09/2016 and he admitted in his cross-examination that accused was posted in Tamil Nadu and that it was correct that his daughter Moniya used to remain upset because of the alleged extra- marital affair of Wasim. In his cross-examination, PW10 Sukhbir had also claimed that he learnt from the father of accused that on 27/10/2015 at 12 noon, accused had made call from Tamil Nadu and such call was attended by Moniya also and thereafter, she had taken such step. Thereafter, a suggestion was put by the defence and the answer given by PW10 Sukhbir to such suggestion is recorded as under:-
"It is wrong to suggest that father of accused had also revealed that at the time of such call, Poonam was with accused. It is wrong to suggest that on hearing this news, Moniya had become more upset."
9.9 No such fact was ever mentioned by PW10 Sukhbir in his examination- in-chief. His testimony is conspicuously silent about any such call made by accused Wasim to Moniya on 27/10/2015. If the aforesaid suggestions are read in the right perspective, then it shows only one thing. It clearly implies that such other girl was with Wasim in Tamil Nadu at the time of such call, which fact must have made Moniya more saddened and, therefore, she was compelled to take such a drastic step.
9.10 CDR of accused and his alleged paramour has been placed on record and duly proved as well. Reference be made to deposition of PW4 Sh. Israr Babu, Nodal Officer.
FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 16 of 239.11 Accused was having mobile number 9911625212 and Poonam had mobile number as 9953240261. Accused, in his statement, tried to disown his own number but fact remains that his such assertion is too feeble to be accepted. Their CDRs do reflect that they used to indulge in long conversation with each other.
9.12 On the aspect of extra-marital relationship, unfortunately, no judgment as such was cited either by defence or by complainant. However, while dealing with some other matters of similar kind, this Court had taken note of few judgments and it would be appropriate, if I make reference to them.
9.13 In Pinakin Mahipatray Rawal Versus State of Gujarat (2013) 10 SCC 48, the cruelty pertained to extra-marital relationship only. Following observations made by Apex Court are noteworthy:-
"We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or Page 20 acted in such a manner which under normal circumstances, would drive the wife to commit suicide." (Emphasis supplied) 9.14 In Ghusabhai Raisangbhai Chorasiya & Ors. Versus State of Gujarat CRIMINAL APPEAL NO. 262 OF 2009 ( DoD: 18.02.2015), it was observed by Apex Court as under:-
".....True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 17 of 23 under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted." (Emphasis supplied) 9.15 There is one more recent judgment of Apex Court.
9.16 Reference be made to K.V. Prakash Babu Vs State of Karnataka, Criminal Appeal No. 1138-1139 of 2016, Decided on 22/11/2016. In that case, accused had been found guilty u/s 498A IPC and u/s 3 of Dowry Prohibition Act, 1961 by the learned Trial Court while he was acquitted of charge u/s 302 IPC. On appeal, Hon'ble High Court held that prosecution had failed to establish conviction u/s 3 of Dowry Prohibition Act, 1961 Act but it found accused guilty for offence u/s 306 IPC. Feeling aggrieved, appellant filed special leave to appeal before the Apex Court. Hon'ble Apex Court observed that deceased felt extremely hurt and failed to withstand the conduct of the accused who was allegedly involved in extra-marital affair put an end to her life. However, the factual matrix of said case also needs to be observed. In that case, it was noticed by the Apex Court that the father of the deceased had not stated anything regarding any kind of cruelty except that his daughter quite often complained to her parents about the visit of her husband to the house of a lady and that she had suspicion against her husband that he was going to have a second marriage. The other witnesses including investigating officer had deposed that there was discussion in the locality about the illicit connection of accused with one other lady. It was also observed by the Apex Court that there was only suspicion and rumor and it was manifest that the deceased was guided by the rumor which aggravated her suspicion which had no boundary. Moreover, in said case, the marriage had taken place on 12/10/1997 and the suicide took place on FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 18 of 23 20/08/2004. Thus, there was a very long hiatus between the marriage and suicide. Hon'ble Supreme Court went on to hold as under in para-19:-
"Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify." (emphasis supplied) 9.17 In Pinakin Mahipatray (Supra), the couple was leading a happy married life and it was only later on that the husband-accused came in contact of his colleague and such relationship developed into an intimacy, which according to prosecution, was extra-marital in nature. In that case, it was observed that the fact that husband had developed some intimacy with another woman would not amount to cruelty unless it was of such nature as was likely to drive the spouse to commit suicide. It was also observed that mental cruelty varies from person to person depending upon the intensity and the degree of endurance and while some may meet with courage, some may suffer in silence and a weak person may think of ending once life. Keeping in mind the peculiar facts of that case, the Hon'ble Apex Court held that at best, husband-accused had developed some liking towards his colleague. Moreover, as per the contents of the suicide note left behind by deceased in said case, she had completely exonerated her husband as she mentioned in her last words that her husband was not responsible for her death. She rather, in that case, described herself as extremely selfish, egoist and not suitable for her husband. Hon'ble Apex Court felt that suicide note rather inferred that deceased was extra possessive which led to serious emotional stress and there was no evidence to show that husband-accused ever wanted to marry the other lady who even otherwise got married later.
9.18 In Ghusabhai (supra), marriage was solemnized eight years prior to the suicide. As per prosecution, husband-accused had illicit relationship with one divorcee. The issue which was whether there was any cruelty which could have driven the deceased to commit suicide particularly when the husband-accused had FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 19 of 23 already divorced the deceased and was staying separately. Though, the fact of divorce was not believed but admittedly, husband-accused and wife had started residing separately albeit in the same house. Observing that though there was some evidence about the illicit relationship, Hon'ble Apex Court held that even if the same was proved, it would be difficult to hold that mental cruelty was of such a degree as could have driven the wife to commit suicide. It was held that the evidence available on record with regard to cruelty was absolutely sketchy and not convincing and accused was acquitted for want of other acceptable evidence.
9.19 All the aforesaid three judgments of Hon'ble Apex Court are germane to the present controversy. The crux of the observations and dictum appearing in said three judgments is quite apparent and comprehensible. Mere suspicion and rumor about extra-marital relationship would not be enough. A mere lurking feeling or apprehension of any wife would also not be sufficient. In order to bring such extramarital affair within the scope of cruelty in a criminal trial, the court is required to find out whether the prosecution has been able to bring some evidence on record to show that the accused, while subsisting with such affair, had conducted himself in such a manner which could have easily driven her legally wedded wife to commit suicide. If the aspect of extra-marital affair stands proved, it can, in given situation, invite conviction u/s 306 IPC. It is also apparent from the aforesaid judgments that such extra-marital relationship, though would be illegal and immoral, but it would take different character and criminal angle if the prosecution was successful in adducing evidence to show that accused had conducted in such a manner that he left no other option for his wife but to commit suicide.
9.20 In the present case, the accused was having affair with that other lady even prior to his marriage. There was no reason for him to have succumbed to the pressure of his parents and thereby spoiling the life of a lady whose dreams got shattered when, within two days of her marriage, she learnt that her husband was not interested in marrying her and wanted to spend his life with someone else. The mental cruelty is writ large as accused did not relent and even threatened Moniya to marry elsewhere while also claiming that else he himself would commit suicide. Talking to said other FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 20 of 23 lady, for hours together on phone in the presence of Moniya, was also enough to disturb her mental equilibrium. She eventually got shock of her life when she learnt that such other girl was with accused even in Tamil Nadu. Such fact seems to have acted like a catalyst and she found no other option but to finish herself. Thus, accused did not leave any other option for her. His relentless involvement with his paramour was enough to drive Moniya to commit suicide. In her last words also, she categorically claimed that she was feeling cheated and betrayed.
9.21 What accused intended by his conduct is not unfathomable. Ingredients of suicide would be satisfied when the suicide is committed by the deceased due to direct or inferential instigation by the accused leaving no option for Moniya but to commit suicide. It definitely has surfaced on record that the unyielding attitude of Wasim created immense disturbance and resulted in psychological imbalance and any other lady coming from same strata, would have also been compelled to take such extreme step.
9.22 Undoubtedly, there is no charge u/s 306 IPC but as per the various judicial pronouncements, in such a situation, if the offence u/s 304-B IPC is not found made out, the accused can still be held guilty u/s 306 IPC. Reference be made to K. Prema S. Rao and another Vs. Yadla Sriniwasan Rao and Others, 2003 (1) SCC 217 and one recent judgment of Apex Court cited as Satish Shetty Vs. State of Karnataka, Criminal Appeal No. 1358 of 2008, Date of Decision- 03/06/2016. Moreover, the ingredients of Section 306 IPC are more or less inbuilt within Section 304B IPC as the crucial element of cruelty is sine qua non for both the said offences. There does not seem to be any kind of prejudice to accused even if he is eventually held guilty for abetment.
OTHER INVESTIGATIONAL ASPECTS 10.0 Investigational aspects are not in dispute.FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 21 of 23
10.1 PW23 SI Bijender Dahiya and PW21 Ct. Sandeep had rushed to the spot on receipt of information regarding hanging. PW21 Ct. Sandeep was posted as DD Writer and he recorded DD entry and also accompanied IO to the spot. They both are material witnesses with respect to seizure of suicide note. Memo in this regard has also been duly proved. PW5 HC Manoj Kumar was working as Call Operator in CPCR/PHQ and as per him, on 27.10.2015, at about 6.30 PM, one call was received from mobile number 9911775599 to the effect that one lady had committed suicide (bahu age 23 years ne phansi laga lee hai, jo mar gayi hai). PCR form has been proved as Ex. PW5/A and the correctness of the contents of PCR form have been confirmed by PW6 SI Harish Chander Pathak who had issued certificate under Section 65B Indian Evidence Act. FIR was got recorded through duty officer PW2 HC Inder Kumar and has also been duly proved.
10.2 Marriage in question is not in dispute and prosecution has even examined concerned Maulvi in whose presence nikah had taken place. Nikahnama has also been proved as Ex. PW3/A. 10.3 PW9 SI Randhir Singh was posted as Incharge Crime Team and on receipt of information regarding the incident in question, he along with his photographer PW8 Ct. Rakesh Kumar had reached the spot. Inspection report has been proved as Ex. PW9/A and the photographs as Ex. PW8/A1 to A14 and the negative strip as Ex. PW8/A15.
10.4 PW15 Insp. Rajender Prasad and PW16 SI Praveen Kumar also remained involved with the investigation. PW15 Insp. Rajender Prasad was posted as SHO PS Aman Vihar on 03.11.2015 and he came into picture only when Sunita had already made statement before the Executive Magistrate and on the basis of endorsement of Sh. Amit Kumar Singh, Special Executive Magistrate, he got FIR registered. PW7 Sh. Amit Kumar Singh has also graced the witness box and has deposed that he met brother and father of deceased in the mortuary on 28.10.2015 and recorded statement of Ashwani. He also recorded identification statements and prepared inquest papers and concerned doctor was requested to conduct the postmortem. On 02.11.2015, he had recorded statement of Sunita which has been FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 22 of 23 proved as Ex. PW7/F. CONCLUSION 11.0 Before summing-up, I would certainly like to add that since I have already observed about the delay in lodging of FIR and improvement-aspect and have rejected the angle of dowry-death as well, I need not discuss judgments cited in said connection by the defence. There is also no dispute that if any fact goes unrebutted and uncontroverted, it can well be assumed that adversary does not dispute such fact. Be that as it may, judgments relied upon by both the sides have been carefully perused and while there cannot be any question with respect to settled legal position, I must hasten to add that each case has its own peculiarity and unique backdrop and precedents cannot be applied mechanically. Courts should not place reliance on decisions without discussing how the factual situation fits in with the fact situation of the decision on which reliance is placed.
11.1 As an upshot of my foregoing discussion, I though acquit accused of charge u/s 304B IPC yet hold him guilty u/s 498A IPC and sec 306 IPC and convict him thereunder.
11.2 Let he be heard on quantum of sentence.
Announced in the open Court (MANOJ JAIN)
On 17th February 2017 Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
Digitally
signed by
MANOJ JAIN
MANOJ Date:
JAIN 2017.02.18
13:02:27
+0530
FIR No. 1376/2015 PS Aman Vihar (State Vs. Wasim) Page 23 of 23