Delhi District Court
State vs 1. Ankit Bansal on 1 July, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
SC No. 2203/2016
State Versus 1. Ankit Bansal
S/o Sh. Devender Bansal
R/o H. No. C-34, Rama Park,
40 Foota Road, PS Samaypur
Delhi.
2. Nisha Bansal
W/o Sh. Ankit Bansal
R/o H. No. C-34, Rama Park,
40 Foota Road, PS Samaypur
Delhi.
FIR No. : 211/2016
Under Section : 306/313/494/34 IPC
Police Station : Mandawali
Chargesheet Filed On : 17.08.2016
(Qua Ankit Bansal)
18.07.2017
(Qua Nisha Bansal)
Chargesheet Allocated On : 15.09.2016
(Qua Ankit Bansal)
: 29.08.2017
(Qua Nisha Bansal)
Judgment Reserved On : 01.07.2019 (Forenoon)
Judgment Announced On : 01.07.2019 (after noon
4 p.m)
SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 1 of 32
JUDGMENT
1. Filtered facts, necessary for disposal of the present case, are that on receipt of DD No. 25-A dated 12.05.2016 while SI Neeraj Kumar reached the spot i.e. C-17, 4 th Floor, Ganesh Nagar Complex, Delhi, one lady namely Kajal Gupta was found hanging with ceiling fan and on inquiry it came to know that her marriage was solemnised on 20.11.2015 with one Ankit Bansal. On it, matter was brought to the notice of Executive Magistrate. Spot was got photographed. Suicide note found at the spot was seized. In the said note, Ankit and Nishal were held responsible for the said crime i.e. abetment to commit suicide. During further investigations of the present matter, statement of complainant namely Smt. Anita Gupta (PW-1) - mother of Kajal Gupta was recorded. In the said statement, Smt. Anita disclosed that marriage between said Kajal and Ankit was soleminsed on 20.11.2015. She further disclosed that Ankit was already married and having one daughter aged about 3-4 years and quarrel used to take place with Ankit and Kajal and even abortion took place on account of physical atrocities at the hands of Ankit and since 23.04.2016 Ankit is absconding and SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 2 of 32 before that he (Ankit) had deserted said Kajal at her parental home and since then Kajal was residing there and even as per the suicide note left by deceased Kajal, accused persons Ankit and his earlier wife Nisha are responsible for abetment of suicide of deceased Kajal. On the basis of said statement of complainant - Smt. Anita Gupta (PW-1), present FIR bearing no. 211/2016 under Sec. 306/313/498-A/304-B/34 IPC PS Mandawali was registered against the accused persons.
2. During investigations of the present case, post-mortem on the body of deceased was got conducted. Medical report and record of deceased Kajal was obtained and verified. Earlier accused Ankit Bansal was arrested and then challan was filed against him. Later on accused Nisha Bansal was also arrested and supplementary challan was also filed against her before the court of learned MM.
3. After compliance of provisions of Sec. 207 CrPC by the court of learned MM, chargesheet against accused Ankit Bansal and supplementary chargesheet against Nisha Bansal were committed to the Court of Sessions as the Sections 306 and 304-B IPC are exclusively triable by it.
4. Vide order dated 10.11.2016 charge under Section 494 IPC; 313 IPC and 306/34 IPC was framed against accused Ankit Bansal SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 3 of 32 while vide order dated 23.11.2017 separate charge under Sec. 306/34 IPC was framed against accused Nisha Bansal. To the said charges, both accused persons pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused persons, prosecution took help of nineteen witnesses. These examined witnesses are as follows:
PW-1 Smt. Anita Gupta is the complainant and proved her statement as Ex.PW1/A and also proved other documents prepared in her presence during the investigation.
PW-2 ASI Raj Kumar, Duty Officer, proved copy of the FIR as Ex.PW2/A. PW-3 Mukul, brother of deceased, saw the deceased hanging with ceiling fan and then police was informed.
PW-4 Const. Nagender joined the investigations of this case with ASI Raghuraj on 12.05.2016 and proved the memos prepared in his presence.
PW-5 SI Raghuraj is the initial Investigating Officer of the case and proved the memos prepared in the present matter.
PW-6 Sh. Ashwani Kumar, the then Executive Magistrate, recorded the statement of family members of deceased and proved the SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 4 of 32 same as Ex.PW6/A to D. PW-7 Sh. Sanjay Kumar, Examination Branch, Delhi University, produced the documents required and proved the memo Ex.PW7/A which were seized for comparison of handwriting of the deceased.
PW-8 ASI Dinesh Dutt, Photographer, proved the photographs of the spot, which he snapped at the spot from different angles, as Ex.PW8/A1 to A9 with their negatives as Ex.PW8/B (colly.) PW-9 SI Ravi Kant inspected the spot and proved report Ex.PW9/A. PW-10 Dr. S. Lal conducted post-mortem on the body of deceased and proved post-mortem report as Ex.PW10/A. PW-11 ASI Deshraj proved the copy of DD No. 25-A dated 12.05.2016 as Ex.PW11/A. PW-12 Dr. Madhu Batra proved the medical record in respect of Kajal as Ex.PE12/A & 1/D. PW-13 Sh. Harkesh Nishad Raj, President of Arya Samaj Vedic Vivah Mandal, Amar Colony, Delhi, proved the marriage record of Ankit Bansal and Kajal as Ex.PW1/E and 13/A & B. SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 5 of 32 PW-14 Ajit Singh, Scientific Officer, proved the FSL report regarding handwriting of questioned documents as Ex.PW14/A. PW-15 ASI Mahesh MHC(M) proved the record Ex.PWQ15/A & B regarding sending the case property to FSL.
PW-16 Sh. Arvind Kumar is the father of deceased who narrated about the case and also proved the memo Ex.PW16/A prepared in his presence.
PW-17 Inspt. Neeraj is the part Investigating Officer of the case and proved the memos.
PW-18 Const. Akhilesh deposited the case property with FSL on 27.06.2017 in intact condition; while PW-19 Inspt. Arvind Pratap Singh is another partly Investigating Officer of the case and proved the memos prepared in this case during the investigation.
During prosecution evidence, on 20.10.2018 and 25.03.2019 accused persons vide their statement recorded under Sec. 294 CrPC admitted the proceedings conducted by Const. Azad Singh; Sl Ajay Swami and also Const. Vikash Tyagi and FSL report dated 29.09.2017 as Ex.C1 with record of arrest of accused Nisha; WhatsApp SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 6 of 32 messages between Kajal and Nisha as Ex.C3 and record of MHCM.
Detailed testimony of the witnesses concerned will be discussed at later stage.
6. All the incriminating evidence put to the accused persons, in their statement recorded under Section 313 CrPC to which both of them denied all the incriminating evidence against them. They pleaded their innocence and further pleaded their false implication.
7. Accused Ankit Bansal admitted his marriage with Kajal and documents produced and prepared at that time. Accused further pleaded that father of Kajal was against their marriage and used to tease Kajal and on account of that, Kajal used to remain upset and frustrated and only on that count, she committed suicide.
8. Accused Nisha further pleaded that she did not know about marriage between Ankit and Kajal, however, she admitted her marriage with accused Ankit. She further pleaded that she never knew about relations between her husband and Kajal and even she got lodged missing report of accused Ankit Bansal and that her name has been arrayed only to create pressure upon her being the wife of accused Ankit Bansal.
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9. Both these accused persons opted to lead evidence in their defence.
10. Accused Nisha Bansal appeared as DW-1 in the witness box and tender missing report lodged vide DD No. 3-B and complaint dated 27.04.2016 got lodged by her.
11. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges through evidence of witnesses duly coupled with medical evidence i.e. PW-1 Anita - mother of deceased; PW-3 Mukul- brother of deceased and PW-16 Arvind - father of deceased with testimonies of PW-10 Dr. S. Lal; PW-12 Dr. Madhu Batra and PW-14 Ajit Singh. He argued that there is no reason to disbelieve the testimony of the prosecution witnesses and it is admitted fact that accused Ankit solemnised his marriage with Kajal despite the admitted fact that his earlier marriage was survived with co-accused Nisha Bansal. Ld. Addl. PP also submitted that prosecution has also proved its case that abortion of Kajal was carried out only on account of physical atrocities of accused Ankit and then for going ill treatment by accused persons she was abetted to commit suicide which is well proved by suicide notes duly corroborated by prosecution witnesses in connivance with SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 8 of 32 testimonies of Expert witnesses and post-mortem report, ld. Addl. PP, therefore, prayed for conviction, as per charges framed against the accused persons.
12. Ld. defence counsel argued that the case of the prosecution is full of doubts as testimonies of the material public witnesses i.e. PW-1 Anita - mother of deceased; PW-3 Mukul- brother of deceased are contradictory with the statement of PW-16 Arvind - father of deceased. He also contended that there is no medical record qua that Kajal suffered any abortion on account of physical atrocities caused by accused Ankit.
13. Another contention of the ld. counsel is that the words "instigate" literally means to goad, urge, forward, provoke, incite or encourage to do an act and placed reliance on the cases reported as Randhir Singh & Anr. V. State of Punjab, 2004 (13) SCC 129; State Vs Ori Lal Jaiswal, 1994 AIR SCW 844; Amalelndu Pal @ Jhantu V. State of West Bengal, AIR 2010 SC 512 and Netai Dutta V. State of W.B., 2005 (2) SCC 659 in support of his contentions.
14. Apart from that, ld. defence counsel contended that evidence of defence witnesses be also treated at par and thus, accused persons are entitled for their acquittal.
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15. Having carefully gone through the entire material on record and have considered the rival submissions of the parties in the light of the law laid down in the judgments relied upon.
16. Firstly, court will deal with the contention of learned defence counsel regarding defence witnesses. It is well settled law that evidence of defence witnesses can not always be termed to be a tainted one and they are entitled to equal treatment and equal respect as that of the prosecution and for holding this view, court is taking support from the cases reported as State of Haryana Vs. Ram Singh, 2002 (1) JCC 385 (Supreme Court of India) and Anil Sharma & Ors V State of Jharkhand [2004 (3) RCR (Cri) 774].
17. Perusal of the record is clear to the aspect that accused Nisha Bansal appeared in the witness box taking shelter of Sec. 315 CrPC in defence and proved missing report and complaint got lodged by her. There cannot be no denial that the missing report have been got lodged - firstly for the reason that accused Ankit might have not come back to his home and secondly they knew about their marriage then report was got lodged on 24.11.2015 i.e. after their marriage on 20.11.2015.
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18. Apart from that, it is always to be kept in mind that defence is double edged weapon.
19. With these observations, court is of the view that defence witness is of no help to the accused persons.
20. Now, court will deal with the evidence of prosecution witnesses.
21. Perusal of the record is clear to the aspect that case has two pranks - one for accused Ankit Bansal for the offences punishable under Sec. 494 and 313 IPC and secondly for the offence punishable under Sec. 306/34 IPC for Ankit and Nisha. Now court shall deal with these charges one by one.
22. Firstly, court will analysis the evidence for the offence punishable under Sec. 494 IPC. In order to prove the said offence, prosecution took help of PW-1 Anita; PW-3 Mukul; PW-13 Harkesh Nishad Raj and PW-16 Arvind Kumar. Out of these witnesses PW-1 Anita; PW-3 Mukul; and PW-16 Arvind Kumar are parents and brother of deceased while PW-13 Harkesh Nishad Raj is the President of Arya Samaj Vedi Vivah Mandal, a Society, where marriage between Ankit and Kajal was solemnised. All these witnesses in unequivocal terms stated SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 11 of 32 that Ankit and Kajal solemnised the marriage and even record Ex.PW13/A & 13/B and also Marriage Certificate Ex.PW10/E itself speaks so. Family members of the deceased Kajal clearly deposed that it was second marriage of Ankit with Kajal. Apart from that accused Ankit in his statement recorded under Sec. 313 CrPC admitted that it was his second marriage with Kajal during the life time of his earlier wife and even said earlier marriage was still in existence. Though, he took the stand that he disclosed Kajal about existence of his earlier marriage with Nisha Bansal, before marriage with Kajal but still that does not dilute the crime committed by accused Ankit Bansal. Even ld. defence counsel during his written arguments and also oral arguments advanced before the court in clear tone admitted the factum of second marriage by accused Ankit during existence of first marriage and it is contrary to law. Even if consent was free for his wife.
23. A relationship between the parties can be proved by reputation evidence as laid down in Section 50 Evidence Act, 1872 which stands as follows:
S.50 Opinion on relationship, when relevant - When the Court has to for an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of a such relationship, of any person who, SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 12 of 32 as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under Sec. 494, 495, 497 or 498 of IPC.
24. Section 50 Evidence Act is the only provision which allows reputation evidence. Evidence under Section 50 Evidence ct can come in only when the following requirements are fulfilled. The person whose opinion is sought to be given in evidence must be proved to have special means of knowledge on the subject. The opinion as expressed by the conduct only is evidence or in other words conduct only can be given in evidence, from the conduct given in evidence the court is to see whether it is the result or any opinion held by the person. The effect of the proviso to Sec. 50 Evidence Act is that on the basis of the opinion evidence alone, the Court cannot hold in a prosecution under Sec. 494 IPC, that the factum of marriage has been proved. Such opinion evidence about the relationship can be availed of along with other evidence to reach the conclusion that factum of marriage has been proved. The accused performed second marriage which was duly proved and conviction under Sec. 494 IPC was held proper. [Ref.:
Mantu Malik Vs. Kamla Malik (2002) CrLJ 358 (Cal.)]. SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 13 of 32
25. Apart from that, from the chat of WhatsApp, which has been admitted by the accused, on 09.05.2016 at about 8:53 - it is clear that - Kajal messaged to Nisha as - O sun mne tere sath kuch be nahi kia tere pati ne tujhe apni bhabi bola tha thik ha usne bola tu uski babhi h dost ki biwi ha or harshita uski batiji ha samji tu mujhe pata hota ki wo shadi shudha ha to me shadi nahi karti mere pass ladko ki kami nahi thi apne admi ko bol mujhe mat bol jo tere pati ne mere sath kia wo achacha nai kia... ..." As that WhatsApp chat also found to be incriminating in order to bring home the guilt of the accused for the alleged offence.
26. Hence, in view of the above discussion, court is of the view that prosecution has fully established its charges under Sec.494 IPC against accused Ankit Bansal beyond all reasonable doubt that accused Ankit Bansal has committed the crime for the offence punishable under Sec. 494 IPC.
27. With the above discussion, court is of the opinion that accused Ankit Bansal is held guilty for the offence punishable under Sec. 494 IPC and as such, he is convicted for the said offence.
28. Now come up on the evidence adduced for the charge framed SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 14 of 32 against accused Ankit for the offence punishable under Sec. 313 IPC. To prove this offence, prosecution has examined PW-1 Smt. Anita. Said witness in clear terms stated that abortion to Kajal was caused only on account of physical beatings and atrocities committed upon the deceased Kajal by accused Ankit.
29. Contention of the ld. defence counsel that said alleged beatings were not caused in the presence of witnesses is not tenable in the eyes of law. It is admitted position that Kajal suffered abortion. Defence of the accused is that said abortion took place on account of urinary track infection. First of all, it is to be seen that PW-12 Dr. Madhu Batra under whose supervision Kajal got treatment in clear and unequivocal terms stated that - It is wrong to suggest that whenever there is urinary track infection, it may be termed as threatened abortion. Secondly, no such suggestion was ever put to PW-1 Smt. Anita that abortion occurred on account of urinary track infection. In fact suggestion was put to this tone and denied by witness as - "It is wrong to suggest that abortion of my daughter was caused due to urinary infection of which she was not following proper medical treatment..." Perusal of the record on the other hand is that Kajal got treatment of early pregnancy and urinary tract infection. PW-3 Mukul and PW-16 SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 15 of 32 Arvind - brother and father of deceased Kajal also toed on the same lines. PW-3 Mukul stated that Kajal was being harassed by accused Ankit while PW-16 Arvind - father of deceased - in clear tone stated that
- "My daughter Kajal told to me on one occasion that when a quarrel took place between Kajal and Ankit, accused Ankit gave a leg blow on the stomach of my daughter and due to this reason, she suffered miscarriage of her pregnancy." No such suggestion was ever put to this witness to the effect that no such information was ever conveyed to the said witness by Kajal. Only suggestion is that too denied by witness is that - "It is wrong to suggest that abortion of my daughter was caused due to urinary infection of which she was not following proper medical treatment."
30. Qua contention of the ld. defence counsel that there are contradictions and improvements in the statement of the witnesses, at this juncture, it would be helpful to look at the observations made in case S. Govindaraju Vs. State of Karnataka, 2013 (10) SCALE 454:
"It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 16 of 32
Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial Court, after going through the entire evidence available, must from an opinion about the credibility of the witness, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s)amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies I the evidence of eye witnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 17 of 32 beyond reasonable doubt".
31. Further, in Harijana Thirupala and Ors. vs. Public Prosecutor, High Court of A.P., Hyderabad, (2002)6 SCC 470:
"In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence or the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in ind in coming the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and access the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case."
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32. In Raju v. State of Tamil Nadu MANU/SC/1019/2012 : AIR 2013 SC 983 Hon'ble Apex Court observed that in evaluating the evidence of an interested witness, the Court must scrutinise their evidence carefully so as to ascertain whether it has the ring of truth. While their testimony is not to be viewed with suspicion merely because of their relationship with the victim, the Court must be satisfied that it is consistent and cogent.
33. Besides the above, it is also admitted position of law that it must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of Law. For holding this view I am supported with case reported as Nallabothu Venkaiah Vs. State of Andhra Pradesh, 2002 VI AD (SC) 521.
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34. With the above discussion, court Has come to the conclusion that prosecution has proved its case against accused Ankit Bansal for the offence punishable under Sec. 313 IPC and as such, accused Ankit Bansal is held guilty for the offence punishable under Sec. 313 IPC and is convicted as such.
35. Apart from that, accused Ankit Bansal and Nisha Bansal are facing trial for the offence punishable under Sec. 306/34 IPC with the allegations that they abeted the commission of suicide committed by Kajal.
36. As per the Black's Law Dictionary (Tenth Ed. - Bryan A. Garner) word "abet" is defined as "1. To aid, encourage or assist (someone) esp. in the commission of a crime and 2. to support (a crime) by active assistance.
The gravamen of the offence punishable under Sec. 306 IPC is abetting suicide. Section 107 IPC defines abetment as comprising
(a) instigation to commit the offence
(b) engaging in conspiracy to commit the offence; and
(c) aiding the commission of an offence.
37. 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 commit suicide, conviction cannot be sustained. The intention of the legislature and the SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 20 of 32 ration of the cases decided by the Supreme Court are clear that in order to convict a person under Sec. 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 that act must have been intended to push the deceased into such a position that he/she committed suicide. (S.S. Chheena Vs. Vijay Kumar Mahajan & Anr. 2010 (22) SCC 1990).
38. A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, it is perverse reasoning. (Mangat Ram Vs. State of Haryana, 2014 CrlLJ 2425).
39. Besides the above, as mentioned above, suicide note left by the deceased also named the accused persons. Accused persons admitted the conversations between accused persons and deceased. Defence of the accused is that deceased committed suicide on account of pressure created by parents of the deceased. For this conduct of the accused, Section 106 Indian Evidence Act can be taken into SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 21 of 32 consideration. Said Section is reproduced here to facilitate the matter:
40. Section 106 Indian Evidence Act - Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
41. In case reported as Alamendu Pal (supra), it is observed that -
Section 107 IPC defines abetment of a thing.
The offence of abement is a separate and distinct offence provided in IPC. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for doing or that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid, as provided in he three clauses of Sec. 107. xxxxxxx In order to bring a case within the purview of Sec. 306 IPC, there SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 22 of 32 must be a case of suicide and in the commission of the said offence, the person 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.
42. In Dalip Singh V. State of UP (2010) 2 SCC 114, Hon'ble Apex Court observed that a new creed of litigants have cropped up in the last 40 years who do not have any respect for truth and shamelessly resort to falsehood and unethical means for achieving their goals. The observations of Hon'ble Apex Court are as under:
"1. For many centuries, Indian society cherished two basis values of life i.e. Satya (truth) and Ahimsa (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences.
However, post-independence period has seen
SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 23 of 32
drastic changes in our value system. The
materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate shelter of falsehood, misrepresentation and suppression of facts in the court proceedings."
43. Post-mortem report Ex.PW10/A clearly depicted that cause of death is due to antemortem hanging. It is not under dispute that deceased Kajal died on account of hanging on the date, time and place of incident. Suicide note is also in the handwriting of the deceased which also mention the name of the accused persons.
44. Instigation has to be gathered from the circumstances of the case. All the cases may not be of direct evidence in regard to instigation having a direct nexus to the suicide. There could be cases where the circumstances created by the accused persons are as such that a person feels totally frustrated and finds it difficult to continue to be in existence. (Ref.: Amit Kapoor V. Ramesh Chander, JT 2012 (9) SC
312). In case reported as Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) 2009 (16) SCC 605, Hon'ble Apex Court reiterated the legal position laid down in its earlier three Judges Bench judgment in the SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 24 of 32 case of Ramesh Kumar V. State of Chattisgarh, AIR 2001 SC 3837 and held that where the accused by his acts of continued course of conduct creates such circumstances circumstances that the deceased was left with no other option except to commit suicide, an instigation may be inferred. In order to prove that the accused abetted commission of suicide by a person, it has to be established that -
(I) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
45. In the present case, though deceased knowing well being second wife was residing with the accused Ankit Bansal, she also suffered abortion on account of physical atrocities committed upon her by accused Ankit Bansal and then accused left her at parental home and absconded and accused persons Ankit Bansal and Nisha Bansal SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 25 of 32 then created the circumstances to abet the deceased to commit suicide.
46. Apart from that it is also to be seen that accused persons admitted various documents including CDRs during their statement recorded under Sec. 294 CrPC. Let the sanctity of the said Section be seen and it is to be seen that Section 294 CrPC defines - (1) where any document is filed before any court by the prosecution or the accused, the particulars or every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document (2) the list of document shall be in such form as may be prescribed by the State Government (3) whether the genuineness or any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code without proof of the signature of the person to whom it purports to be signed - provided that the court may, in its discretion require such signature to be proved.
47. The object in enacting this new Section is to shorten the proceedings. It provides the mode or manner in which the documents relied upon by the prosecution and defence can be proved without any formal proof thereof. In case reported as Shabbir Mohammad Vs. SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 26 of 32 State of Rajasthan, 1996 CrLJ 2015 (Raj.-FB), it is mentioned that where the genuineness of the document, filed by one party is admitted by the other party, the document can be read as substantive evidence by the Court.
48. In case reported as Dharampal Singh Vs. State of Rajasthan, 1998 CrLJ 3372 (Raj-DB), it is clearly observed that - where the genuineness of arrest memo of the accused, seizure memo of rifle and live and empty cartridges is admitted by the counsel under Sec. 294 (3) CrPC, and their formal proof is also dispensed with, the examination of the sub-inspector who made the arrest and recoveries is not necessary.
49. Where genuineness of the CDR of the mobile phones is not disputed by the defence, it can be relied upon as a substantive piece of evidence even if the Nodal Officer is not examined in the case. Section 294 (3) CrPC covers the said doocument, if the genuineness of the said document is not disputed by the accused persons, it may be read as substantive piece of evidence without examining its author/prover. This view is supported from the case reported as Sadre Alam Mullick Vs. State, 1997 Crl LJ 2441 (Cal.-DB) and Boraidh V. State (2003) 1 Kant
368. SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 27 of 32
50. So far as the contentions raised by the learned defence counsel that does not pertain to the authenticity and genuineness of document as admitted under Sec. 294 CrPC. Proceedings of the CDR Ex.C3 is not disputed. Hence, same has been admitted as substantive piece of evidence. It is observed in case reported as Ram Lakhan Sheo Charan Vs. State of UP 1991 CrLJ 2790, 2792(All-DB) that where the witnesses do not support the prosecution story in the court, then their statements under Section 164 CrPC cannot be used as substantive piece of evidence. The proper way is first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction.
51. It is also matter of record that accused persons have made calls at different intervals on the relevant period and time as mentioned therein. Record is clear to the aspect that deceased and accused Nisha SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 28 of 32 Bansal were in touch with each other till 10.05.2016. Deceased committed suicide on 12.05.2016.
52. Accused persons in their statement recorded under Section 313 CrPC stated that they have been implicated falsely. Plea of the accused Ankit Bansal is that deceased committed suicide on account of pressure of her father and said defence has already been discussed while accused Nisha Bansal took the plea that she has been implicated falsely being the wife of accused Ankit, is also of no value.
53. Ordinarily, every man is responsible criminally act done by him. No man can be held responsible for an independent act and wrong committed by anther. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the IPC makes an exception to this principle. It lays sown a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of a criminal act in furtherance of common intention. In such situation, each person is liable for the result that as if he had done that act himself. The soul of Sec. 34 IPC is the joint liability in doing a criminal act. Section 34 SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 29 of 32 IPC is part of the original Code of 1860 as drafted by Lord Macaulay. The original section as it stood as "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." However, on account of certain observations made by Sir Barnes Peacock C.J. in Queen Vs. Gora Chand Gope & Ors., (1865) 5 South WR (Crl.) 45 it was necessary to bring about a change in the workings of the section. Accordingly, in the year 1870 an amendment was brought which introduced the following words after "when a criminal act is done by several persons...." "..in furtherance of common intention ..." After this change, the Section has not been changed or amended ever.
54. Under Section 34 every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is terms as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although his individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 30 of 32 'common intention' on the one hand and 'mens rea' as understood in criminal jurisprudence on the other.
55. Circumstances and evidence leading to conclusion that these two accused also shared common intention with another to commit the charged offence.
56. The WhatsApp chat between Nisha Bansal and Kajal, deceased, clearly indicate that they were in touch just before the day of incident and were annoying each other and even threats were being extended and even abetted to implement the threats and were blaming each other for the episode till 10.05.2016 while deceased committed suicide on 12.05.2016.
57. Judgments cited by accused persons are of no help to the accused persons as each criminal case has its own peculiar facts and circumstances.
58. With these discussion, court is of the view that prosecution has fully established its case beyond all reasonable doubts against accused persons Ankit Bansal and Nisha Bansal for the offence punishable under Sections 306/34 IPC.
59. Sum up of the above discussion is that prosecution has fully established its case against accused Ankit Bansal for the offence SC No. 2203/2016 State Vs. Ankit Bansal etc. Page 31 of 32 punishable under Sec. 494 IPC & 313 IPC and also for the offence punishable under Section 306/34 against accused persons Ankit Bansal and Nisha Bansal. Accordingly, accused Ankit Bansal is held guilty for the offence punishable under Sec. 494 IPC; 313 IPC and 306/34 IPC and is convicted accordingly. Accused Nisha Bansal is held guilty for the offence punishable under Sec. 306/34 IPC and is convicted accordingly.
Announced in the open Court Digitally signed by
on 01st day of July, 2019. SATINDER SATINDER KUMAR
KUMAR GAUTAM
Date: 2019.07.01
GAUTAM 16:29:26 +0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
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