Delhi District Court
State vs Mukesh, S/O Late Sukh Ram, on 26 November, 2014
IN THE COURT OF RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS : DELHI
FIR No:219/2012
PS: Nand Nagari
U.Sec: 498A/304B IPC
Unique ID No.02402R0289902012
State Versus Mukesh, S/o Late Sukh Ram,
R/o I55, Sunder Nagri, Delhi
Sessions Case No. : 118/2012
Case assigned to this Court on. : 04.12.2012.
Date of conclusion of arguments. : 25.11.2014.
Date of delivery of Judgment : 26.11.2014.
:J U D G M E N T:
1.The above named accused was charge sheeted by SHO PS Nand Nagari U/Sec.498A/304B IPC and have faced trial for having committed the offences punishable under Sec.498A/ 304B IPC or in the alternative U/s 302 IPC.
2. FACTUAL MATRIX: It is the case of the prosecution that on 06.07.2012 on receipt of DD No.26A SI Dharmendra Kumar alongwith Ct. Gabbar Singh reached at the spot i.e. I55, Sunder Nagari, Delhi, where in a room, on the ground floor, dead body of one lady was found hanging with ceiling fan with the help of sari. The name of said lady was revealed as Pooja W/o Mukesh and it was also revealed that Pooja was married with Mukesh five months ago. Thereafter, SI told all the facts to SHO. SDM (SC No:118/2012) (State Vs. Mukesh) Page No.1 of pages 45 Seema Puri Sh. Kamal Deep Gupta and Crime Team were called at the spot. Accordingly SDM Seemapuri came at the spot and carried out the investigation. Father of the deceased namely Khem Chand S/o Narayan Das, R/o 1339, New Char Chaman Labh Singh Colony, Karnal, Haryana was informed about the incident telephonically. Dead body of the deceased was got deposited by the SDM in the GTB Hospital for its postmortem. Crime Team reached at the spot and took the chance prints and photographs of the place of occurrence. On 07.07.2012 SDM recorded the statements of the parents of deceased i.e. Khem Chand (father) and Ms. Rekha (mother). On 08.07.2012, postmortem on the dead body of Pooja was conducted and after identification of the dead body of deceased, it was handed over to the father of deceased namely Khem Chand. Thereafter, SDM directed SHO Nand Nagri to get register the case in the matter and accordingly on the statement of complainant namely Rekha, SHO got registered the case U/s 498A/304B IPC in the matter and handed over the investigation of case to SI Dharmendra Kumar. In her statement complainant Rekha had stated to the SDM that "after her marriage Pooja used to remain dull/depressed. In February, 2012 Pooja was married with Mukesh in arranged ceremony and after her marriage, only when her parents went her in laws house to take her, she came only 34 times to her matrimonial house. Last time, in April, 2012 when Pooja came to her matrimonial home, she told that her husband mostly remained influenced by her elder brother and bhabi. Around 23 months ago, Pooja told her that Mukesh had asked her to bring Rs,.5,000 - Rs.10,000/ and since they are poor, so on her failure to bring money, he gave beatings to Pooja. Pooja telephonically told her that Mukesh has illicit relations with his bhabhi namely Shashi (alag se talukat hai). Three months (SC No:118/2012) (State Vs. Mukesh) Page No.2 of pages 45 ago, when Pooja came to her matrimonial house, she (mother of Pooja) gave her Rs.5,000/. Even after giving Rs.5,000/, Pooja told her that Mukesh had further asked Rs.10,000/ and she (mother of Pooja) denied the same while stating that they are poor and they are not having more money. As regards to the hanging of Pooja, she (Rekha) told that due to her in laws, Pooja might have hanged herself. Further investigation of the case, by the order of SHO, was handed over to SI Dharmendra Kumar and accordingly he made inquiry from complainant Rekha, Khem Chand (father of deceased Pooja) and her brother Rajesh and then recorded the statements of witnesses and prepared the Site Plan of the place of occurrence. On 09.07.2012 accused Mukesh (husband of the deceased) was arrested in this case and then he was sent to JC. On 10.07.2012, I/C Crime Team and Photographer were joined in the investigation and their statements were recorded. On 10.07.2012, postmortem report of deceased Pooja was received wherein doctor mentioned the cause of death as "asphyxia as a result of antemortem hanging and ligature mark produce around neck is possible with the ligature material present around the neck". On 17.07.2012 brother of accused persons namely Baldev Raj and his babhi Shashi got anticipatory bail and then they were also joined in the investigation. During investigation photographs and marriage card of the marriage of Pooja and Mukesh were collected and then statements of witnesses were also recorded. Accused Shashi and Baldev Raj were kept in column no.12, as sufficient material against them for their arrest could not be found. Then after completion of investigation, challan for the offence punishable under section 498A/304B IPC was filed against accused Mukesh in the court of Ld. MM concerned.
3. After supply of copies etc, Ld.MM committed the case to (SC No:118/2012) (State Vs. Mukesh) Page No.3 of pages 45 the court of Sessions and vide order dated 10.01.2013, charge for the offence punishable under section 498A/304B IPC or in the alternative U/s 302 IPC was framed against the accused Mukesh to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined as many as fifteen witnesses.
5. PW1 W/HC Ranjeeta (the then Duty Officer at PS Nand Nagari) proved on record the copy of FIR of instant case as Ex.PW1/A and his endorsement made on rukka as Ex.PW1/B. During cross examination, he conceded that the date of recording of statement by SDM is 07.07.12 at about 11.45 a.m. PW2 Ct. Shyam Lal (photographer) stated that on 06.07.2012, he had gone to the spot i.e. I55, Sunder Nagri, Delhi with the Crime Team Incharge SI E.S. Yadav, where IO/SI Dharmender Kumar alongwith staff and SDM Seemapuri were found present there. He had taken 23 photographs of the spot with his official camera, which were developed in the lab and were handed over to the IO. He proved on record the said photographs as Ex.PW2/X1 to PW2/X23 and negatives thereof as Ex.PW2/A1 to PW2/A23.
PW3 Smt. Rekha (complainant and the mother of deceased Pooja) stated that her deceased daughter Pooja was married with accused Mukesh on 11.02.2012 according to Hindu rites and customs with pomp and show. The mediator of the marriage was Manju, who is daughterinlaw (bahu) of her Jethani. In the marriage she had given all the domestic articles. At the time of marriage no demand of any dowry articles was raised from the side of the accused Mukesh or his family members. She further stated that after the marriage, on the occasion of first Holi her husband and son went to the matrimonial house of her daughter and brought her back to her house and she handed over cash amount of Rs.5000/ to her (SC No:118/2012) (State Vs. Mukesh) Page No.4 of pages 45 daughter as she demanded the same from her while saying that accused Mukesh had demanded the same. This amount was given by her when she left her house for her matrimonial house after staying for about one month at her house. Thereafter, Katha was got performed by her Jethani and on that occasion they had made a call to accused Mukesh to attend the said Katha along with her daughter. Later on, accused Mukesh made a phone call and told that as he was not having time, so he asked them to take her daughter from her matrimonial house. Thereafter, he sent his son Rajesh to the matrimonial house of her daughter and he brought back her daughter to her house from there. Accused Mukesh did not come to her house for attending the Katha nor he came to take her daughter back to her matrimonial house. However, accused Mukesh came to her house after 1½ month and took her daughter back to her matrimonial house. Then after about 10/15 days her daughter made a phone call and she told that accused Mukesh had given her beatings as he (Mukesh) had demanded Rs.10,000/ from her daughter and her daughter had expressed him about the inability of her parents to meet such demand. She further stated that the engagement ceremony of her younger daughter had to perform and they had invited accused Mukesh and they also invited his Bhabhi at his instance. But before to the date of said engagement, her daughter had expired. She further stated that there were illicit relations between accused Mukesh and his Bhabhi and this fact was told by her deceased daughter. She also told that Mukesh used to do every work/job after seeking permission from his Bhabhi. On putting some leading questions by Ld. Addl. PP, she confirmed that her statement, Ex.PW3/A bearing her signature and thumb impression at Point A, was recovered by the SDM, Seema Puri and that statement of her (SC No:118/2012) (State Vs. Mukesh) Page No.5 of pages 45 husband was also recorded by the SDM. She further added that her deceased daughter had also told her that accused Mukesh never took her for outing.
During cross examination, she could not specify the date and month of giving cash amount of Rs.5000/, but she stated that the same were given at the time when her daughter was leaving her house after her stay for about 1-1½ months after her first Holi since her marriage. They performed Katha celebration at their home after about 12 months from the date of leaving her daughter to her matrimonial home. Further after her marriage, when she was first time brought to her house, at that time five members from her family and from relatives had gone to bring her back from her matrimonial house. She conceded that she had not made any complaint to the Mediator about the demand of Rs.5000/ from her daughter by the family members of her husband. Further she used to have telephonically talk with her daughter at the interval of around 2 or 3 days. She conceded that accused Mukesh had never demanded anything from her, her husband or her other family members directly. Further accused Mukesh visited her house for about two times after the marriage. Her daughter told her about the fact that accused Mukesh used to remain under the influence of her Bhabhi and Bhaiya. She stated that she never visited the matrimonial house of her deceased daughter. After the marriage, the family members of Mukesh i.e. Mukesh himself, his brother and Bhabhi and his sister and his nephew, had visited her house and during that time they did not raise any demand. Further she had not told to her husband about the fact of giving the payment of Rs.5000/ to her deceased daughter. Her daughter had studied upto Graduation level. At the time of marriage, they were told that Mukesh was 10th Pass and later on at the time of death of her (SC No:118/2012) (State Vs. Mukesh) Page No.6 of pages 45 daughter, she came to know that he was even 10 th fail. Further considering the fact that accused Mukesh was not having any bad habit and the size of family of Mukesh was small, she got the marriage of her daughter performed with Mukesh. When she had given cash amount of Rs.5000/ to her daughter, no one was present at that time and the said amount was given much prior to the Katha. Further when her daughter came to attend the Katha, she told her that accused Mukesh was having illicit relations with his Bhabhi. She further stated that she came to know from her deceased daughter that her husband was having the illicit relations with his bhabhi when her daughter (since deceased) had come to her house for first time after marriage and she intimated the said fact to the mediator Manju on the very same day when it was disclosed to her by her deceased daughter as Manju is her next door neighbour. She had disclosed the fact of giving Rs.5000/ to her daughter, to her husband only after 23 days. This fact was also told by her to Manju (mediator). Her statements were recorded several times by IO Dharmender and her first statement was recorded on the day of incident. She conceded that they along with the Mediator had never talked with the inlaws of her deceased daughter regarding the demand of cash. She conceded that neither Mukesh nor any of his family members had ever demanded any cash through Pooja from them. She stated that her son Rajesh visited the matrimonial house of her deceased daughter only once and after his return from there, he had not told them about the harassment of Pooja by her inlaws. She stated that she had not accompanied the police officials to the spot (room in which her daughter hanged) after the date of incident. Mediator Manju is bhua saas of the sister of Mukesh. She conceded of having stated to the police in her statement that her daughter had committed (SC No:118/2012) (State Vs. Mukesh) Page No.7 of pages 45 suicide as Mukesh was having illicit relations with his bhabhi. In the locality of the matrimonial house of her deceased daughter, no relative from their side resides there. She stated that her statement was recorded on 08.07.2012 at about 8.00 p.m and at that time she was alone and no subsequent statement was recorded by the police after 08.07.2012. She stated that her daughter told her telephonically about beatings given by accused Mukesh when he had demanded Rs. 10,000/ but she could not tell the date when she informed her about the same, however, she informed her after about 23 months from the marriage. She conceded that Mukesh had not made any demand from her. She further conceded that she did not have any talk with Mukesh regarding demand of Rs. 5000/ from her daughter when he came first time at her house for taking her back to her matrimonial house.
PW4 Khem Chand (father of deceased Pooja) confirmed that her deceased daughter Pooja was married with Mukesh on 11022012 according to Hindu Rites and Ceremony. However, after marriage, her daughter was not happy in her matrimonial house (JAISE EK SHADI SHUDA LADKI KO KHOOS REHNA CHAHIYE VESE NAHI REHTI THI). When they brought back Pooja from her matrimonial house after one week from her marriage, she was found not happy. Thereafter, when they again brought her back from her matrimonial house at the occasion of first Holi after her marriage, her daughter told to her mother that accused Mukesh used to ask her daughter to bring the money from them. Once, at the occasion of a Katha at his house, she was also brought back from her matrimonial house and that time she remained with them for about 15 days and at the time of her leaving from his house, his wife had given Rs.5,000/ to his daughter, to which she demanded at the instance of Mukesh to meet their household (SC No:118/2012) (State Vs. Mukesh) Page No.8 of pages 45 expenses. Than after some days, his daughter made a phone call wherein she told that Mukesh and his family members were harassing her. He claimed that his daughter Pooja further told that accused Mukesh used to remain or pass his most of the time with his Bhabhi and brother and also told that accused Mukesh used to tell that "MUJHE KISI AUR KI ITNI JAROORAT NAHI HAI JITNA BHAIYA BHABHI KI HAI". When, the engagement ceremony of his younger daughter was fixed, he made a phone call to Mukesh to come with Pooja in the said engagement. On the next day, Mukesh made a call and asked them to invite his Bhaiya and Bhabhi and accordingly, they invited his Bhaiya and Bhabhi. The engagement had to be held on Sunday but on Friday, his son namely Rajesh received a phone call from the police on his mobile phone and police official told his son and his wife that his daughter had hanged herself. Thereafter, he alongwith his family and other relatives came to the matrimonial house of his daughter and on reaching there, they came to know that his daughter had already been expired. Thereafter, they went to the Police Station Nand Nagari and there police officials told them that they could not see the dead body of their daughter in the hospital due to late hours and they asked them to come in the morning. The incident of hanging of his daughter had occurred at about 2.00-2.30 p.m. as per the police, but the in laws of his deceased daughter did not inform them. In the morning (it was Saturday), they went to the GTB hospital mortuary but they were asked to come on Sunday. On Sunday, they again visited the GTB Hospital and on that day, postmortem of the dead body of his deceased daughter was conducted. The identification of the dead body was also got established by the police and he had identified the dead body of his daughter. In this regard, his statement Ex.PW4/A was (SC No:118/2012) (State Vs. Mukesh) Page No.9 of pages 45 recorded which bears his signatures at pointA. Further after postmortem, the dead body was handed over to them vide handing over memo Ex.PW4/B bearing his signatures at point A and they performed her last ritual in Delhi itself. He further stated that after some days from when they handed over cash amount of Rs.5,000/ to Pooja, she again made a telephone call and told "PAISE OR MANGAAYE HAI". On their asking she told Rs.10,000/ but, they refused as they were not having such big amount. In the marriage, they had spent about Rs.1 lac to Rs.1.5 lacs in her marriage after borrowing the money. On putting some leading questions by Ld. Addl. PP, he confirmed that his statement Ex.PW4/C bearing his signatures and thumb impression at point X and statement of his wife were recorded by the SDM. He further confirmed that he had given the marriage card as well as photographs to the police and same were taken into possession by the police vide seizure memo Ex.PW4/D. During cross examination he stated that his first statement was recorded by the SDM at SDM office on 07.07.12 at about 9.00 a.m. His wife intimated to him regarding payment of Rs. 5000/ made to Pooja after 34 days. The abovesaid cash amount was given to Pooja when she came first time to their house on the occasion of Holi. At the time of giving of said cash amount, he as well as his son Rajesh were present at home apart from his wife and Pooja. The fact regarding illicit relation between accused and his bhabhi was disclosed by his daughter Pooja to his wife and later on his wife told him about the same. His daughter Pooja remained at his house for about 10 days when she came at the occasion of Holi. The katha was held in the month of April and his son brought his daughter Pooja from her matrimonial house at the time of said katha. That time, his daughter remained at his house for (SC No:118/2012) (State Vs. Mukesh) Page No.10 of pages 45 about 20 days and at that time during her stay for about 20 days after Katha, they did not pay any amount. Pooja used to talk to him on phone to know about their well beings but she never told him on phone or even directly about the harassment given by accused or his family members or demand of money. He conceded that he did not talk to accused or his family members or other prominent figures of the society regarding harassment given by the accused persons to his daughter. He further conceded that Mukesh or his family members did not directly raise any demand to him. He had disclosed the face of demand of Rs. 10,000/ to the SDM in his statement but on confronting with his statement Ex.PW4/C, the said fact was not fount recorded therein. Prior to fixing the marriage of his daughter, he came to know that accused Mukesh was 10th passed but after the marriage it was revealed that he was 10th failed. He claimed that no other person except him and his wife was present at PS Nand Nagari on 08.07.12. He claimed that he had signed his statement recorded on 08.07.12 after having gone through the same, however, on showing the statement u/s 161 Cr.P.C to the PW4, he conceded that it does not bear his signatures. He confirmed that whatever he had stated to the SDM in his statement, he had also narrated the same to the IO in his statement u/s 161 Cr. P.C. The name of bhabhi of accused is Shashi. He confirmed that due to fact of illicit relationship of accused with his bhabhi, his daughter Pooja remained unhappy at her matrimonial home. He stated that his daughter never disclosed him that Mukesh was under
the influence of his bhabhi, however, she told the said fact to his wife. His daughter had told him that accused did not care her. He confirmed that Mukesh used to live at the ground floor with her mother and wife Pooja separately from his brother and bhabhi, who reside at first floor. His daughter had also (SC No:118/2012) (State Vs. Mukesh) Page No.11 of pages 45 not told the fact of harassment and demand of money on the way from Delhi to Karnal. At that time his daughter remained at his house for about 57 days and thereafter, accused Mukesh along with his family members including Bhabhi and his sister came to his house to take back his daughter to his house but at that time, neither Mukesh nor the persons who had accompanied him to his house had raised any demand of money. Further in his presence police did not record the statement of any person except his wife. His daughter Pooja never made any complaint to Manju in his presence.
PW5 Rajesh (brother of deceased Pooja) stated that his elder sister Pooja (since deceased) was married to accused Mukesh on 11.02.2012 according to Hindu Rites and Customs and his father had given sufficient stridhan articles to his sister in her marriage. After the marriage, whenever they used to talk to her on phone, she used to tell them that she was all right in low tone (dabi dabi awaz main). Accused Mukesh never brought Pooja to her parental house on any occasion, however, he used to bring her to their house. Even on the occasion of first Holi of his sister after her marriage accused Mukesh did not come to their house and he came to their house after many days of Holi and he stayed at their house only for two hours and took his sister back with him to her matrimonial house. Whenever he used to meet his sister at her matrimonial house or even at their house, she used to remain in sad mood and whenever he used to ask her about her sadness, she never disclosed the reason of her sadness while saying that "tujhe kya lena". Further whenever he used to ask his sister about his wellness through phone at her matrimonial house, she used to say "theek hun" in low tone (dabi awaz main). On 06.07.2012 his sister died at her matrimonial house due to hanging.
(SC No:118/2012) (State Vs. Mukesh) Page No.12 of pages 45 PW6 Smt. Usha stated that Pooja was the daughter of his Chachiya Saas and in that relation she was her nanad. The marriage of Pooja was solemnized on 11.02.12. The nature of Pooja was introvert. Whenever she met Pooja, she used to ask her about her married life and on this she used to reply that she was living theek thak. Lateron on 06.07.12 she was expired. She again clarified that she hanged herself. She stated that except this she does not know anything else.
With the permission of Court, Ld. Addl. PP cross examine the said witness, as she was declared a hostile witness and in her cross examination, she while denying that her statement was recorded by the police on 02.09.12, also disowned the contents thereof, when the same was read over to him. She although conceded that marriage was performed by the parents' of Pooja at karnal but she could not tell as to what stridhan articles were given by her parents' in her marriage. She denied all the suggestion put to her and also categorically denied that she was intentionally not deposing the true facts as she was won over by the accused.
PW7 Smt. Manju stated that deceased Pooja was her sister in law (nanand) in relation. She was the mediator of the marriage of Pooja, which was solemnized on 11.02.12 with accused Mukesh according to Hindu Rites and Customs. Accused Mukesh was dewar of his elder sister. The marriage was performed at Karnal in Aggarwal Dharamshala. The parents of Pooja had given sufficient stridhan articles to Pooja in her marriage. When Pooja had come first time after her marriage, she met her and was found upset and sad but she did not disclose anything about her sadness. When she came back from her matrimonial house for the second time, she told her that her inlaws used to harass her on the minor issues. She further told to her that her husband used to say jo bhi hai (SC No:118/2012) (State Vs. Mukesh) Page No.13 of pages 45 voh bhaiya bhabhi hai, jo woh kahenge mein wahi karunga, teri nahi sunuga. The mother of Pooja had asked Mukesh to come on the occasion of Holi but he refused while saying that pehle mere bhaiya bhabhi ko bulao. Pooja had also stated to her that once when she woke up late, Mukesh had given her slap in order to awake her. She further stated that in the 2012 (date and month she could not tell), one one day when she visited her parental house at Nand Nagari and she went to the matrimonial house of Pooja to see her and on meeting with her, Pooja started weeping and said that mein bahut dukhi rehti hun, meri mummy ko bhej dena but she did not disclose her any reason. At the time of engagement of the sister of Pooja (deceased), the parents of Pooja made a call to Mukesh to attend the engagement ceremony but he refused while saying that he has no time and said apne aap le jao. However, two days prior to the date of engagement, Pooja had expired.
On putting some leading questions by Ld. Addl. PP, she confirmed that Pooja had told to her that her husband used to harass and taunt her while saying tere ghar walo ne meri maa ko saree nahi di aur meri bhabhi ko samman nahi diya or that her husband used to give beatings to her on minor issues and that he used to put pressure upon her to bring money from her parents. She further stated that when on 06.04.2012 she came to her parental house at Nand nagari and met Pooja she also told her that her husband did not take care of her and apni bhabhi ke kehne mein chalta hai.
During cross examination she stated that she used to come to her parental home as and when she desires or for attending any function. She claimed that she had stated to the police in her statement Ex.PW7/DA that when she had come to her parental house at Nand Nagari, she went to the matrimonial house of Pooja to see her and Pooja on meeting (SC No:118/2012) (State Vs. Mukesh) Page No.14 of pages 45 with her started weeping, on seeing her, and said that mein bahut dukhi rehti hun, meri mummy ko bhej dena but she did not disclose her any reason. However, on confrontation with the statement Ex.PW7/DA, the said fact was not founded recorded therein. She conceded that Pooja stayed at her parental house after Holi for about one and a half months i.e. till 15th and 16th April, 2012. She confirmed that parents of Pooja had made complaint against the accused after calling her at their house after one and a half months of the marriage of Pooja. She further confirmed that they had made complaint to her about illicit relationship of accused with his bhabhi and whenever she had to visit the house of Mukesh to make him understand, she did not find him there, however, his bhabhi met him but she had not stated the above said fact to the police in her statement.
PW8 Mukesh stated that on one day in 2012 (date and month he could not tell) when he came back to his house from his work in the evening, he found that 1012 ladies were present at the door of house of accused Mukesh bearing no.I55 and they were knocking the door. He also knocked the door. One lady namely Shashi told him that wife of Mukesh namely Pooja had confined herself in the house and she was not opening the door. When on his knocking the door no response came from inside the house then he made a call at number
100. After some time PCR van reached there. Local police from the PS and SDM also reached there. The window of the said house was cut with the help of gas cutter and thereafter from the said window police officials entered into the house and opened the door. Thereafter, dead body of Pooja was removed from there and was taken to GTB hospital.
During cross examination he stated that wife of accused Mukesh Pooja used to visit his house to meet his wife as well (SC No:118/2012) (State Vs. Mukesh) Page No.15 of pages 45 as other neighbouring houses. Pooja never told to his wife or to him about the illtreatment and harassment made by the accused to her. He further stated that Pooja was residing at her matrimonial house happily.
PW 9 Ct. Pradeep confirmed that on 08.07.2012 had joined the investigation of this case with IO SI Dharmender and they went to the spot i.e I55 Sunder Nagari, Delhi. He stated that on reaching there IO had prepared site plan. Thereafter, they came back to the PS and SI Dharmender called Rekha, her husband Khem Chand and her son Rajesh to the PS and they were examined by the IO and their statements were recorded by SI Dharmender. Thereafter, he along with SI Dharmender went to the house of accused at his house and accused Mukesh found present there. Thereafter, Mukesh was arrested by the IO vide memo Ex.PW9/A and his personal search was also conducted vide memo Ex.PW9/B. He was interrogated and during that course he made disclosure statement Ex.PW9/C. During cross examination he stated that Site plan was prepared by the IO at his own at about 7.007.30 p.m. At that time Rekha, Khem Chand and Rajesh were not present there. In his presence, IO did not record the statement of any public person when the site plan was prepared by him. IO had made inquiry from the public persons, who were gathered there but none agreed to join the investigation. He reached at the spot about 7.00 p.m. The door of the house was lying open while the window was broken. No person from the family of accused Mukesh was present there at that time. They remained at the spot till 8.30 p.m. While leaving the spot/house of accused they did not lock the house nor any police official was deputed there by the IO. Accused was apprehended from his house in mid night.
(SC No:118/2012) (State Vs. Mukesh) Page No.16 of pages 45 PW10 Sh. Kamal Deep Gupta, (the then SDM Seema Puri) stated that on 06.07.12 he had received a call from SHO Nand Nagari regarding death of Pooja at Sunder Nagari due to hanging and with in 10 minutes, he reached at the spot at Sunder Nagari in the evening and found Pooja lying on the bed in a room on the ground floor measuring 22 sq yards. A bhigona was lying on the bed and there were ligature marks on the neck of the deceased Pooja. He was told by her husband accused Mukesh that he received a call in the evening at about 6.19 p.m about non opening of the door from inside by his wife Pooja (since deceased) from her bhabhi and reached his house nearly at about 7.15 p.m from Bhagirath Palace, where he was employed and he saw from the grill of the room along with the neighbours that Pooja was hanging. He along with neighbours brought down Pooja and put her on the bed. Thereafter, the statement of accused Mukesh Ex.PW10/A was recorded, bearing his signatures at point A and thumb impression/ signature of Mukesh at point X. On the next day when the parents of Pooja reached at his office at about 11.00 a.m, he recorded the statements of parents of Pooja in his own handwriting Ex.PW4/C (of Khemchand, father of Pooja) and Ex.PW3/A (mother of Pooja). He made endorsement that the above said statements were recorded by him in his own handwriting and the endorsement on the above said statements are encircled in red at point Y and bearing his signatures at point Y1. Thereafter, he directed the SHO to take action as per law and he also endorsed his endorsement in this regard on the above said statement which is encircled in red at point Y2. Thereafter, he handed over both the statements in original to SHO. Further on 08.07.12, the postmortem on the dead body on deceased pooja was got conducted at GTB Hospital. The inquest papers Ex.PW10/B, Ex.PW10/C, (SC No:118/2012) (State Vs. Mukesh) Page No.17 of pages 45 Ex.PW4/A & Ex.PW10/D all bearing his signatures at point B, were filled up by the IO of this case at his direction. Then, after getting the postmortem conducted, the dead body was handed over to the relatives of the deceased by the IO.
During cross examination, he stated that he remained at the spot for about 45 minutes. When he reached at the spot the police officials were already present there. The statement of accused Mukesh was recorded by him at about 10.00 p.m at PS Nand Nagari as at that time his office was closed. When the parents of Pooja had come to his office, police officials were with them. However, when their statements were recorded by him, no police official was present in his office. He recorded the statement of Sh. Khem Chan, father of the deceased first and he consumed about 1520 minutes in recording his statement. He had also taken about 2025 minutes in recording the statement of Smt. Rekha, mother of deceased. He had made inquiry from the persons present there and they did not disclose that the deceased had committed suicide due to harassment and maltreatment given by the accused persons. However, it was revealed from inquiry that relations between the deceased and her in laws were not good. He did not note down the names and addresses of those persons from whom he had made inquiry.
PW11 SI E. S Yadav stated that on 06.07.2012 on receiving a wireless message at his office at about 7.00 p.m, he along with member of crime team reached at the spot i.e house no. I/55, Sunder Nagari, Nand Nagari and on reaching there they found the room on the ground floor closed from inside. The police officials from local PS were already present there. Thereafter, the grill of the window was got cut through gas cutter and then after entering through the window the door of the room was opened. On opening the door they entered into (SC No:118/2012) (State Vs. Mukesh) Page No.18 of pages 45 the room and found that one lady whose name was revealed later on as Pooja was hanging with the ceiling fan and one corner of the saree was tied with the ceiling fan while the other corner was tied around her neck. One Bhigona was also found lying on the bed and on the box (cardboard box of T.V) a note was written in English language. The inspection was commenced at about 7.30 p.m and completed at about 8.00 p.m. Photographs were also taken by Ct. Shyam Lal at the direction of the IO. He prepared his report, Ex.PW11/A bearing his signatures at point A, regarding the visit and inspection and handed over the same to IO later on. The photographs Ex.PW2/1 to 23 reflect the position of the spot which he had found/seen on reaching at the spot.
During cross examination he stated that his statement was recorded by the IO on 10.07.12 in his office. In his presence SDM had not recorded the statement of any person. However, SDM had made inquiry from the persons who were present there. He remained at the spot till 8.00 p.m. He left the spot after leaving SDM and police officials at the spot. He handed over the inspection report to the IO on 10.07.12 when his statement was recorded by the IO.
PW12 Smt. Munni stated that deceased Pooja was her niece as she was the daughter of her dewar. Pooja was married with accused Mukesh on 11.02.12 according to Hindu Rites and Customs at Karnal and the parents of Pooja had given sufficient istridhan articles to Pooja on her marriage. When Pooja came to her parental house on the occasion of her first Holi and asking about her about her married life she said "poocho mat mein bahut pareshan hun". Except this she did not tell her anything. She further stated that once when Pooja had come to her house in Katha, she informed that "meri jethani aur pati mujhe bahut tang karte hai". On asking (SC No:118/2012) (State Vs. Mukesh) Page No.19 of pages 45 reason of harassment, she told that they used to say to bring cash amount from her parents. She claimed that except this she does not know anything else.
This witness was cross examined by Ld. Addl. PP, as she was resiling from her earlier statement given to the police, wherein she confirmed that when Pooja had come to her parental house at Karnal on the occasion of Holi she told her that her husband Mukesh used to harass her on minor things and also used to give beatings to her and that Pooja had also told her that her husband Mukesh used to taunt her while saying tere gharwale apne rishtedar ka samman karna nahi jaante aur tere gharwalon ne meri maa, bhai aur bhabhi ko ek kapda bhi nahi diya hai. She further conceded that Pooja also told her that her husband did not take care of her and he used to give beatings to her for not bringing the cash amount and that prior to the death of Pooja, when she had lastly talked with her in the month of June and at that time she had told her on phone that uska sasural mein mann nahi lagta hai aur woh apne ghar karnal wapis aana chahti hai and that she further told when she used to say to her husband to go to Karnal, on this Mukesh used to say tere ghar walo ke paas mujhe dene ko hai hi kya joh mein karnal jaun and she also told him that Mukesh used to say mere paas itne paise nahi hai ki mein roz roz karnal le kar aunjaun aur agar karnal jana hai toh apne maa baap ko bol ki tujhe le kar jayen. She stated that due to above said reasons she remained unhappy and she committed suicide in her matrimonial house.
During cross examination by Ld. Counsel for accused she could not specify the date when she had talked with Pooja in the month of June or the date when she had talked with Mukesh when he came to celebrate Holi festival at his in laws, however, she stated that her statement was recorded by the (SC No:118/2012) (State Vs. Mukesh) Page No.20 of pages 45 police at Delhi but the same was not read over to her. She could not tell as to whether she had put her signatures on her statement or not, however, she claimed that during the life time of Pooja she never visited her matrimonial house. She conceded that cash amount of Rs. 5000/ was not given to Mukesh in her presence but on the same day the mother of Pooja told her that she had given the cash amount of Rs. 5000/ to Mukesh. She could not tell as to where the statement of her daughter in law Manju (daughter in law of jethani) was recorded by the police.
PW13 Ct. Gabbar Singh stated that on 06.07.2012 SI Dharmender Kumar received DD No.26A and he had accompanied him to the spot, i.e. I55, Sunder Nagri, Delhi, and on reaching there they found that at the ground floor of the said house, one room was found locked from inside. From ventilation of the door, they saw that dead body of one lady was hanging with ceiling fan with the help of a dupatta. Thereafter, IO told all the facts to the SHO through phone and SHO along with staff also reached there. SHO made inquiry wherein it was revealed that the name of the deceased lady was Pooja, wife of Mukesh. Thereafter, the crime team and SDM were called at the spot. The grill of the window was got cut through a gas cutter from a private person and thereafter the door of the room was got opened. Crime team and SDM also reached at the spot. Crime team took photographs of crime scene. Thereafter, dead body was got removed from the ceiling fan and he removed the same to mortuary, GTB Hospital and it was got preserved there. On 08.07.2012, IO and SDM came to mortuary, GTB Hospital and after establishing identity of the dead body, its postmortem was got conducted. After postmortem, the dead body was handed over to its relatives. When the dead body was got removed from the ceiling fan, the (SC No:118/2012) (State Vs. Mukesh) Page No.21 of pages 45 cloth piece of dupatta by which dead body was hanging with the ceiling fan was also taken into possession after sealing the same in a cloth pullanda with the seal of DKS, vide seizure memo Ex.PW13/A bearing his signature at point A. Two pieces of card board (TV box) on which something was written were also taken into possession vide seizure memo Ex.PW13/B bearing his signature at point A. One Pateela/Bhagona from the bed was also taken into possession vide seizure memo Ex.PW13/C bearing his signature at point A. He correctly identified the bhigona Ex.PW15/P1 to be the same which was taken into possession by the IO from the spot. He also correctly identified the 2 pieces of card board on which FLATRON AND FRONT is printed there is writing in the ball pen mentioning the names of many persons I WISH YOU HAPPY MARRIED LIFE BECAUSE I AM NOT HAPPY IN LIFE, NOTHING LIFE, SHADI IS NOT GUD and on another piece I AM NOT HAPPY IN THIS LIFE and one mobile phone number is written twice as Ex.PW15/P2 to be the same which was taken into possession by the IO from the spot. He further identified two pieces of chunni (one piece is small in length to other) as Ex.PW15/P3 to be the same which were taken into possession by IO from the spot.
During cross examination he stated that he remained part of the investigation since the call was received by the IO till the dead body was preserved in the mortuary. IO made inquiry from the neighbours. He could not tell as to whether those neighbours disclosed the facts that accused persons used to harass the deceased or not. He could not tell the time when SDM reached at the spot.
PW14 Dr. Shaliney Razdan, who appeared before the court (on behalf of Dr. Rahul Ambulkar, who had left the services of the hospital and his present whereabout are not (SC No:118/2012) (State Vs. Mukesh) Page No.22 of pages 45 available in the hospital) stated that he has seen the postmortem report no.1152/12 dated 08.07.2012 conducted by Dr. Rahul Ambulkar at 10.40 a.m to 11.30 a.m. As per the postmortem report General Observations are: Dead body of an adult female wrapped in a white plastic sheet wearing orange saree, red petticot, orange blouse, eyes are partially opened, cornea opaque, mouth partially opened. All other natural orifices NAD. Greenish discolouration over body seen due to decomposition, marbelling present over chest and shoulders, rigormortis passed off, postmortem staining cannot be commented due to decomposition, ligature material orangered saree present around neck measuring 400 cms in length.
EXTERNAL ANTEMORTEM INJURIES: Reddish brown dry hard parchmentised ligature mark present around the neck above thyroid cartilage obliquely placed. Neck circumference 28 cms. Ligature mark is placed 4 cms below chin in mid line and is 2 cms in width. On right side mark touches angle of mandible and is 1.8 cms in width. On left side mark is placed 3 cms below left angle of mandible and is 2 cms in width. Further posteriorly mark is placed 3 cms below tip of left mestoid and is 2 cms in width. It goes posteriorly and is placed 11 cms below occipital protuberance and is 1.8 cms in width. Mark is absent on right side posteriorly for a distance of 12 cms.
INTERNAL EXAMINATION: Head and Neck
1. Scalp NAD
2. Skull NAD
3. Brain 1330 gm, congested & oedematous
4. Neck Extravasation of blood present into bilateral soft tissues of neck. Osteo (SC No:118/2012) (State Vs. Mukesh) Page No.23 of pages 45 cartilagenous structures is NAD Chest
1. Rib cage NAD
2. Lungs Right 480 gms, Left 430 gms (both lungs are congest ed and odematous. Petechial haemorr hages present on inter lobar surface of both the lungs)
3. Heart 200 gms Abdomen and others
1. Stomach Empty Walls NAD
2. Intestine Distended due to gases of decomposition Walls NAD Small Polyp 1 x .5 cms present over lower part of descending colon
3. Liver 1200 gms congested
4. Spleen 130 gms congested
5. Kidneys Right is 110 gms and left is 110 gms, both are congested
6. Uterus Empty Walls NAD
7. Bladder Empty Walls NAD
8. Pelvis and Vertebra NAD Time since death is about a day and half.
Cause of Death is Asphyxia as a result of Antemortem hanging.
Articles preserved:
1. Sealed envelope containing ligature material along (SC No:118/2012) (State Vs. Mukesh) Page No.24 of pages 45 with a sample seal.
Remarks - Ligature material produced around the neck is possible by the ligature material present around the neck. He proved on record the postmortem report as Ex.PW14/A, which is in the handwriting of Dr. Rahul Ambulkar, the then Sr. F. M and bearing his signatures at point A. During cross examination he stated that he is not aware as to whether the present whereabouts of Dr. Rahul Ambulkar are available in the hospital or not. At the time of postmortem Dr. Rahul did not consult with him about the postmortem of this case.
PW15 SI Dharmender (IO of the case) confirmed that on 06.07.2012 at about 6.30 p.m, on receipt of DD No.26A Ex.PW15/A, he alongwith Ct. Gabbar Singh went to the spot i.e. I55, Sunder Nagari, Delhi, where many persons were found present and the door of the house at ground floor was found locked from inside and he came to know that one lady had confined herself in the said house after locking the door from inside. Thereafter, he knocked the door and also raised alarm to open the door, but nobody responded. Then he peeped from the ventilator situated above the door of the house and saw that one lady was hanging with ceiling fan with the help of cloth. Thereafter, he gave information to the SHO and after some time SHO Insp. Harish Chander alongwith his staff also reached there. The name of the said lady was revealed as Pooja by the jethani of the said lady. She further disclosed that the Pooja was married with one Mukesh in February, 2012. Thereafter, the information was also given to concerned SDM. SHO also called the Crime Team. After some time, Sh. Kamaldeep Gupta, SDM Seemapuri reached there. Crime Team also reached there simultaneously. Since the door and window were of iron, so gas cutter was arranged to get the (SC No:118/2012) (State Vs. Mukesh) Page No.25 of pages 45 window cut and opened. Accordingly, the window was cut with the help of gas cutter and after entering through window by some boy, the door was got opened through him. Thereafter, he, SHO, SDM and other staff entered into the house and found that one lady was hanging with the ceiling fan and one corner of printed dupatta was tied around her neck and other corner was tied with the ceiling fan. One bhagona (big utensil for preparing food) was lying on the bed. Crime Team inspected the spot and took the photographs. Thereafter, the dead body was removed from hanging. He inspected the spot and tried to search any suicide note but could not find any suicide note. The bhagona was taken into possession vide seizure memo Ex.PW13/C bearing his signature at point B. He further stated that from the spot one carton box of T.V was found and some contents were written on the said Carton at two places and thereafter, both the portions of the said carton were cut and same were taken into possession vide memo Ex.PW13/B bearing his signatures at point B. The ligature i.e piece of dupatta with which the dead body was found hanging, was also sealed by him after putting the same in a polythene and polythene was converted into sealed parcel with the seal of DKS and the said parcel was taken into possession vide memo Ex.PW13/A bearing his signatures at point B. The parents of the deceased were also informed by SHO Insp. Harish Chand. The husband of deceased also reached at the spot and he was inquired by the SDM. The dead body was removed from the spot to GTB hospital and same was got preserved there. Thereafter the husband of the deceased namely Mukesh was taken to the PS by SDM for inquiry and in the PS SDM made inquiry from accused Mukesh and also recorded his statement Ex.PW10/A. On the next day i.e 07.07.2012 the parents of the deceased came to the PS and in the office of SDM and SDM (SC No:118/2012) (State Vs. Mukesh) Page No.26 of pages 45 recorded their separate statements after making inquiry from them. Thereafter, he along with SDM and parents of the deceased went to GTB hospital mortuary for getting the postmortem of the deceased but on that day no proceeding could be conducted due to paucity of time. Thereafter, on the next day i.e on 08.07.2012, he along with SDM and parents of the deceased again went to mortuary of GTB hospital. In the hospital inquest papers, Ex.PW10/B & Ex.PW10/C bearing his signatures at point B, were filled up by him on the direction of SDM. The dead body was got identified through parents of the deceased and their statements Ex.PW4/A & Ex.PW10/B were recorded by him at the direction of SDM. After the postmortem the dead body was handed over to the father of deceased vide handing over memo Ex.PW4/B bearing his signatures at point B. On the same day at about 7.00 p.m the investigation of the present case was assigned to him at the direction of SHO. After receiving the copy of FIR Ex.PW1/A and statement of parents of the deceased Ex.PW3/A and 4/C, he along with Ct. Pradeep went to the spot where the Site Plan Ex.PW15/B was prepared by him bearing his signatures at point A. Accused Mukesh was not found present there. Thereafter, he recorded the statements of parents of deceased and her brother separately at PS. Then he along with Ct. Pradeep went to the house of Mukesh in his search and he was found present there and he was arrested by him vide arrest memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B, both memos bearing his signatures at point B. Accused was interrogated and during that course he made disclosure statement Ex.PW9/C bearing his signatures at point C. On the next morning accused was produced before the court concerned and from there he was remanded to JC. On 10.07.2012 he collected the photographs Ex.PW2/X1 to X23 and Crime (SC No:118/2012) (State Vs. Mukesh) Page No.27 of pages 45 Team inspection report Ex.PW11/A from crime team office and statements of crime team officials were also recorded by him. Thereafter, he went to GTB hospital mortuary and from there, he had collected one sealed envelope sealed with the seal of RMA on which ligature material recovered from the body of Pooja was written and one sample seal of RMA and same was taken into possession by him vide memo Ex.PW15/D bearing his signatures at point A. On that day he had also collected the postmortem report Ex.PW14/A from the hospital. Thereafter, he came to the PS and the sealed envelope was deposited with the MHC(M). The statement of Ct. Gabbar was also recorded by him on that day regarding his participation in the proceeding on 06.07.2012. On 02.09.2012, he went to Karnal where the statement of witnesses were recorded by him and father of deceased had handed over him one marriage card of deceased Ex.PW15/E and six photographs of marriage Ex.PW15/F1 to F6 which he seized vide memo Ex.PW4/D bearing his signatures at point B. During cross examination he stated that during inquiry/ investigation in the neighbourhood of the parents of the deceased, he recorded the statements of Usha, Manju and Munni. He stated that in his whole investigation he did not collect call details of any mobile. The parents of the deceased had stated in their statement that they used to talk to their daughter (deceased Pooja) but they did not disclose the phone number on which they used to talk with their daughter Pooja nor they provide their own number. Since no number of any mobile phone was disclosed by the parents of the deceased that is why he did not collect the call details of any mobile. The disclosure statement of accused Mukesh was recorded by him in the intervening night of 89/7/2012 at his house at about 12:30 AM in which the signature of accused Mukesh was (SC No:118/2012) (State Vs. Mukesh) Page No.28 of pages 45 obtained by him. He confirmed that accused Mukesh had come in the police station on the day of incident. He further confirmed that during inquiry in the neighbourhood the fact that deceased was being harassed by her inlaws had not come in his knowledge, however, the illicit relations of accused Mukesh with his bhabi had come. The arrest memo of accused Mukesh was prepared by him at his house. He could not tell as to whether any over writing was made in the said arrest memo or not. He conceded that there is over writing at points X and Y encircled in red. He further conceded that during investigation it had come that accused Mukesh used to act as per the direction/will or under the influence of his bhabi and that during the investigation the parents of the deceased had stated in their statement that accused Mukesh used to act as per the direction/will or under the influence of his bhabi and due to this reason Pooja was not happy.
6. Statement of accused Mukesh was recorded under section under section 313 Cr.P.C wherein he stated that he is innocent and he has been falsely implicated in this case. The deceased had herself committed suicide out of frustration as he is having inferior qualification than her and she was not happy with her marriage with him and she had to forcibly marry with Mukesh on the pressure of her parents and she took the extreme step out of frustration. He also stated that she was having suspicion upon him that he was under the influence of his bhabi and was having physical relation with her but her suspicion was not correct. Further he never demanded any dowry from the deceased or from her parents nor he had ever tortured or harassed her mentally or physically. Further while giving answers to the questions put to him, he stated that his signatures were obtained on blank papers and he was already confined in the PS since the night of 06.07.2012. He also (SC No:118/2012) (State Vs. Mukesh) Page No.29 of pages 45 claimed that in order to extort money only, this case was made out by the parents of deceased against him.
7. In his defence, accused examined two witnesses i.e. Smt. Shami Khatoon as DW1 and Smt. Kaushalya as DW2 and they both deposed on the same lines. They stated that accused Mukesh and his family reside in their neighborhood and they are having visiting terms in the house of Mukesh. Further after the marriage of Mukesh, his wife Pooja wad also having visiting terms in their houses. They had never seen any quarrel between accused Mukesh and deceased Pooja on account of dowry or ever mentally or physically harassed Pooja. Further the parental family of Pooja had also visiting terms in the matrimonial house of Pooja and they never made any kind of complaint or grievance against the accused Mukesh and his family members.
During cross examination they stated that they had come to know that Mukesh had been sent to Jail. They claimed of having stated the above said facts to the police in their respective statements to the police. They denied that they have been deposing falsely at the instance of accused Mukesh or that they had not made any statement to the police in this case.
8. I have carefully heard the submissions of both the sides. I have also carefully perused the entire material placed on record.
9. As per Ld. Addl. PP for the State the prosecution has been successfully able to connect the accused with the offence charged with. During his three folds arguments, Ld. Addl. PP for the state has contended that by way of consistent and trustworthy evidence of the material witnesses i.e. PW3 Smt. Rekha (mother of deceased Pooja), PW4 Sh. Khem Chand (father of deceased), PW5 Rajesh (brother of deceased) and (SC No:118/2012) (State Vs. Mukesh) Page No.30 of pages 45 PW7 Smt. Manju (Nand of deceased) coupled with the testimonies of official witnesses and the scientific evidence brought on record, the prosecution besides proving its case against the accused U/s 498A IPC has also been able to establish its case against the accused. Even for the sake of arguments, if it is conceded that the ingredients of offence U/s 304B IC is not made out than certainly the conviction of accused U/s 306 IPC, for abetment of suicide is made out. Both PW3 & PW4 have clearly deposed that the accused used to harass the deceased by raising demand of money. PW3 has also stated that there were illicit relations between accused Mukesh and his bhabi and this fact was told to her by the deceased. PW4 has also stated that his daughter Pooja had told him that accused Mukesh used to remain or pass his most of the time with his bhabi and brother and accused Mukesh used to tell that "mujhe kisi or ki itni jaroorat nahi hai jitna bhaiya bhabhi ki hai". It is not a disputed fact that the death of the wife of accused i.e. deceased was an unnatural death. The facts and circumstances of the case reveal that soon before her death, the deceased was subjected to cruelty or harassment by the accused by raising of demand of money. Ld. Addl. Public Prosecutor has also added that in this case as suicide was committed by a young woman within seven years of her marriage and she was subjected to mental cruelty by accused, offence under section 306/498A IPC against him are amply proved with aid of section 113 A Evidence Act .
Per contra, according to Ld. Counsel for accused, the prosecution has been miserably failed to prove its case under any of the sections, for which he has been charged. Further the plea of Ld. Addl. PP that the accused can be convicted for the offence punishable U/s 306 IPC is also not tenable and is liable to fail in the absence of necessary material/evidence on record.
(SC No:118/2012) (State Vs. Mukesh) Page No.31 of pages 45
10. In the instant case, the charge U/s 498A & 304B IPC has been framed against the accused.
The provisions of Sec.498A IPC provides as under: "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 purposes of this section 'cruelty' means -
(a). any wilful 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;
(b). harassment of the woman whether such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Cruelty has been defined by the explanation added to the Section itself. The basic ingredients of Section 498A IPC are cruelty and harassment.
In Mohd. Hoshan Vs. State of A.P (2002) 7 SCC 414, Hon'ble Apex court held that "mental or physical torture should be 'continuously' practiced by the accused on the life.......... Whether one spouse has been guilty of cruelty to the (SC No:118/2012) (State Vs. Mukesh) Page No.32 of pages 45 other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."
In Smt. Raj Rani Vs. State (Delhi Administration) AIR 2000 SC 3559, the Hon'ble Supreme Court held that "while considering the case of cruelty in the context to the provisions of Section 498A IPC, the Court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt."
In Sushil Kumar Sharma Vs. Union of India AIR 2005 SC 3100 Hon'ble Apex court while explaining the distinction of cruelty as provided under Section 306 and 498A observed that "under Section 498A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306 IPC, suicide is abated and intended. Therefore, there is a basic difference of the intention in application of the said provisions."
In Girdhar Shankar Tawade Vs. State of Maharashtra AIR 2002 SC 2078 Hon'ble Apex court held that "cruelty has to be understood having a specific statutory meaning provided in Section 498A IPC and there should be a case of continuous state of affairs of torture by one to another."
"Cruelty" for the purpose of Section 498A IPC is to be established in the context of Section 498A IPC as it may be (SC No:118/2012) (State Vs. Mukesh) Page No.33 of pages 45 different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty".
It is clear from the above settled law laid down by the Hon'ble Supreme Court in catena of decisions that for cruelty to come U/s 498A, mental or physical torture has to be continuously practiced by the accused on his wife. Allegations must be of a very grave nature and should be proved beyond reasonable doubt. Cruelty has to be understood having a specific statutory meaning provided U/s 498A IPC and there should be a continuous state of affairs of torture by one to another. For proving cruelty, it is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint.
11. To establish charge under Sec.304B IPC, it is incumbent upon prosecution to prove the ingredients of section 304 B. Sec.304B of the Indian Penal Code reads as under: 304B. Dowry death. - (1). Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with, any (SC No:118/2012) (State Vs. Mukesh) Page No.34 of pages 45 demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose of this sub section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death, the deceased as subjected to cruelty or harassment by her husband or any of his relative; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The parliament has also inserted Section 113 B of the Indian Evidence Act by Act No. 43 of 1986 with effect from 1.5.1986 which reads as under: "113 B Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
Explanation. For the purposes of this section, "dowry death", shall have the same meaning as in section 304B of the Indian Penal Code (45 of (SC No:118/2012) (State Vs. Mukesh) Page No.35 of pages 45 1860)".
From a conjoint reading of Section 304B of the Indian Penal Code and Section 113B of the Indian Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304B of the Indian Penal Code.
The ingredients of the aforementioned provisions are:
(i). That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;
(ii). Such death occurs within 7 years from the date of her marriage;
(iii). That the victim was 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; and
(v). It is established that such cruelty and harassment was made soon before her death.
The essential ingredient of Section 304B is that soon before her death woman was subjected to cruelty or harassment by her husband or his family in connection with demand of dowry.
12. Section 306 IPC reads as under: "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".
Abetment means to instigate, to compel or to intentionally aid, by any act or illegal commission, the doing of (SC No:118/2012) (State Vs. Mukesh) Page No.36 of pages 45 some thing. It has come on record in dying declaration of the deceased that she had committed suicide because she was tired of on frequent quarrels between her and her mother in law wherein her husband never supported her and favoured her mother in law. Section 113(A) of Indian Evidence Act provides " in such a situation if it is shown that her husband or any relative of her husband had subjected the woman to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband". The explanation annexed to section 113 (A) provides that the cruelty for the purpose of this section has the same meaning as section 498A of IPC.
In case reported as 2008(3) R.C.R. (Criminal) 890 Rajbabu & Anr. Vs. State of M.P., the girl had committed suicide. Prior to suicide she wrote a letter to her parents that she was unable to tolerate the atmosphere in the family in matrimonial home and would prefer to live in hell because in laws have done such acts with her which are of no use to mention. She further wrote that she was treated like an enemy and that her mother told that if she (bride) is kept in their house then nothing will remain. Hon'ble Apex Court held that "In the letter there was no reference of any act or incident whereby the accused were alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to commit suicide. Evidence showed that deceased was unhappy because her husband was illiterate and family was poor and she was asked to do certain household jobs which she was not (SC No:118/2012) (State Vs. Mukesh) Page No.37 of pages 45 accustomed to do. In the circumstances Section 113A of Evidence Act was not attracted . Conviction was set aside".
In another case reported as Randhir Singh & Anr. Vs. State of Punjab, 2004(4) RCR(Criminal) 740 : 2004(3) Apex Criminal 683 : 2004(13) SCC 129 was observed that "more active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence U/Sec.306 IPC."
In another case reported as State of West Bengal Vs. Orilal Jaiswal, 1994(3) RCR (Criminal) 186 : 1994(1) SCC 73 it was held 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 the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her inlaws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC. However, in our opinion mere harassment of wife by husband due to differences per section does not attract Sec.306 (SC No:118/2012) (State Vs. Mukesh) Page No.38 of pages 45 read with Sec.107 IPC, if the wife commits suicide".
In yet another case reported as 2007(3) R.C.R. (Criminal) 87 Bhagwan Das Vs. Kartar Singh & Ors, where wife was harassed as she could not give birth to child for 7 years, and when she gave birth to a female child, she was taunted for bringing bad luck, suicide was committed by bride, Hon'ble Apex Court held that abetment under Section 306 IPC read with Section 107 IPC was not made out.
In case reported as 2007(2) R.C.R.(Criminal) 678, Sanjay Versus State of Maharashtra , both husband and wife used to quarrel with each other and husband used to come late in drunkard condition. Wife committed suicide. Husband was acquitted by Hon'ble Supreme Court.
13. In the instant case, the specific case of the prosecution is that deceased Pooja ended her life because of harassment caused to her by the accused for or in connection with demand of money on various occasions, which the parents of deceased could not fulfill on the occasions, and also on the ground that accused was having illicit relations with her bhabi, which compelled her to end her life untimely. It is, therefore, necessary to briefly examine the main evidence of prosecution witnesses regarding the alleged demand of Rs.5,000/ and subsequent demand of Rs.10,000/ and harassment to the deceased at the hand of accused and also regarding the conduct of accused which subjected the deceased to the cruelty and compel her to commit suicide and they are PW3 & PW4, who are mother and father of deceased respectively.
The careful scrutiny of the testimony of PW3 Smt. Rekha reveals that in her statement she has stated that after the marriage, on the occasion of first Holi her husband and son went to the matrimonial house of her daughter and brought (SC No:118/2012) (State Vs. Mukesh) Page No.39 of pages 45 her back to her house and she handed over cash amount of Rs. 5000/ to her daughter as she demanded the same from her while saying that accused Mukesh had demanded the same. She has further stated that thereafter, on the occasion when her (Rekha) Jethani performed Katha, Mukesh was called to attend the same but he refused on the ground that he was not having time and accordingly her son namely Rajesh brought back Pooja to her matrimonial house to attend the Katha and after about 1½ month accused Mukesh came to her house and took her daughter back to her matrimonial house and then after about 10/15 days her daughter made a phone call and she told that accused Mukesh had given her beatings as he (Mukesh) had demanded Rs.10,000/ from her daughter and her daughter had expressed him about the inability of her parents to meet such demand. However, during the course of cross examination, she categorically stated that accused Mukesh had never demanded anything from her, her husband or her other family members directly. Moreover, if the accused was harassing the deceased Pooja by raising the demand of money from time to time at least the parents of the deceased must have taken some action against him in the form of filing of complaint before the police or other higher authorities or at least they should have talked to the accused through mediator of the marriage of Mukesh and Pooja or the elders in their community but there is no material on record to suggest so. Even during cross examination PW3 Smt. Rekha has admitted that they alongwith the Mediator had never talked with the inlaws of her deceased daughter regarding the demand of cash. Further PW3 has also admitted in her cross examination that neither Mukesh nor anyone of his family members had ever demanded any cash through Pooja from them. Her said deposition further strengthen the defence of (SC No:118/2012) (State Vs. Mukesh) Page No.40 of pages 45 accused that no demand of money was ever raised by him. Even otherwise perusal of the testimonies of PW3 & PW4 suggests that their financial condition was not sound and that is why when accused Mukesh allegedly raised demand of Rs. 10,000/, their daughter expressed to the accused about the inability of her parents to meet his said demand. In that scenario, it can not be easily believed upon that PW3 Rekha would have given Rs.5,000/ in cash to her daughter on her own without consulting or taking the permission of her husband. Further the testimony of PW3 can not be safely relied upon for the reasons firstly, she was not sure about the dates on which she gave amount of Rs.5,000/ to the deceased to giving the same to accused Mukesh. Even further PW7 Smt. Manju (the mediator of the marriage of deceased with accused Mukesh), no where in her testimony has stated about giving of Rs.5,000/ or asking of Rs.10,000/ by accused from the deceased or told to her by the parents of deceased. Further in her statement recorded before the Court, PW4 has stated that deceased Pooja had told her that accused Mukesh was having illicit relation with his bhabi but in the absence of any corroborative material, it remained a bald assertion or allegation. Whereas, on the other hand the witnesses examined by the accused Mukesh in his defence have categorically stated that the parental family of Pooja was also having visiting terms in the matrimonial house of Pooja and they never made any kind of complaint or grievance against the accused Mukesh and his family members. In these circumferences, the claim of the prosecution that the accused used to demand money from the parents of deceased through deceased and on non fulfillment of his demand for cash, he used to threaten her and beat her up specially in the circumstances when he did not make any complaint to that (SC No:118/2012) (State Vs. Mukesh) Page No.41 of pages 45 regard, is a vague and bald claim and can not be the basis of conviction.
Further the public witness examined in this case by the prosecution i.e. PW6 Smt. Usha did not support the case of prosecution. Nowhere in her entire statement, PW6 has stated that accused used to maltreat or harass the deceased in any manner. Rather, she stated that on 06.07.2012 Pooja expired, but she does not know as to how she was expired. The said witness was declared a hostile witness and was duly cross examined by Ld. Addl. PP for the State where she stated that police did not record her statement. She categorically denied that Pooja told her that her husband does not care her and used to put pressure upon her time to time to bring money or that he used to give beatings for not brining money. She further denied that Pooja told her on phone in the month of June that uske sasural mein uska mann nahi lagta aur weh apne ghar karnal wapis aana chahti hai or that she further told that whenever she asked her husband to take her parental house at karnal, on this her husband used to say tere gharwalon ke paas mujhe dene ko hai hi kya joh mein karnal jaun or that Pooja told her that whenever she asked her husband to go to Karnal on this Mukesh told her mere paas itne paise nahi hai ki main tumeh roz roz karnal le kar aaun jaun aur agar karnal jana hai toh apne maa baap ko bol aa kar le jayen. She further denied that due to the above said reason Pooja was unhappy and due to the above said reason she committed suicide by hanging herself.
14. In the light of aforesaid, case of the prosecution fails U/s 498A/304B/34 IPC.
15. Now let us see, as to whether the case of the prosecution succeeds U/s 306 IPC or not?
Sec.306 IPC provides as under: (SC No:118/2012) (State Vs. Mukesh) Page No.42 of pages 45 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.
To bring home an offence U/s 306 IPC, it has to be established that the accused persons had abated in commission of the suicide. So far as the term abetment is concerned, it has been defined U/s 107 IPC and Sec.108 of IPC defines the word abettor. As per said section, a person abets an offence by commission of an act, which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. From the perusal of Sec.108 IPC, it is cleared that the abettor must have same intention of knowledge as that of abettor in committing an offence.
As the word "abetment" in respect of suicide was used under Section 306 of the Indian Penal Code, it has to be read in the sense in which the word "abetment" was defined and used under Sections 107 and 108 of the Indian Penal Code. In other words, in order to convict a person for an offence under Section 306 of the Indian Penal Code, the prosecution must show that there was abetment as understood in the aforesaid sections for the commission of the said offence.
According to Section 107 of the Indian Penal Code, "abetment" can take place in any of the three forms viz., (1) by instigation, (ii) by conspiracy; and (iii) by intentional aiding. Section 107 with its explanation may shortly be stated as under: "A person commits 'abetment', if he
(i). 'instigates a person to commit an offence',
(a) by willful misrepresentation or (b) by willful concealment of a material fact which he is (SC No:118/2012) (State Vs. Mukesh) Page No.43 of pages 45 bound to disclose, causes a thing to be done; or
(ii). engages in a conspiracy to commit an offence and if an act or illegal omission takes place in pursuance of such conspiracy; or
(iii). Intentionally aids a person by any act or illegal omission to commit an offence by any act or illegal omission."
16. In the case in hand, the careful scrutiny of evidence placed on records reveals that even the ingredients of Sec.306 IPC are not satisfied in the present set of circumstances, as the claim of the prosecution that the deceased was instigated or she was forced to end her life by the act and conduct of the accused (her husband) i.e. having illicit relations with her Bhabi and due to that reason she used to remain upset and ultimately she chosen to end her life by hanging with the ceiling fan has not been substantiated by any evidence. Except the bald assertion that too in the form of hearsay evidence, there is no whisper that the said alleged act of accused was intending that she should commit suicide or he was knowing that she was likely to commit suicide. Further perusal of the statement of the mother of deceased namely Rekha Ex.PW1/B revealed that no specific allegations regarding accused having illicit relation with his bhabhi has been there in the said statement of the mother of deceased, rather, it has been stated in the state statement that "Pooja ko shak tha ki Mukesh ke apni bhabhi (Shashi) ke saath alag se taluqat the". It has not been specify as to what type of specific relations actually the accused had with his bhabi. Moreover, the scrutiny of said statement of the mother of deceased, made to the SDM, shows that even deceased was not confirmed about the said illicit relations between accused and his bhabhi, rather, and she was having only suspicion. In this circumstances, it can be seen (SC No:118/2012) (State Vs. Mukesh) Page No.44 of pages 45 that it was an independent act on the part of deceased, who in the heat of anger and depression took the said extreme step. It has come on record that the accused was much less qualified than to the deceased and similarly, there is no material on record to show that the accused had instigated the deceased to commit suicide either by willful misrepresentation or by willful concealment of a material fact which he was bound to disclose. There is also no whisper to show that the accused was engaged in a conspiracy to commit an offence or he had intentionally aided the deceased to drive her to commit suicide. Thus the role attributed to accused does not fall within the purview of Sec.306 IPC.
17. In the light of aforesaid, I hereby hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt as mandated by law. Accused Mukesh is accordingly acquitted of the offences charged with. Accused Mukesh be set at liberty, if not required to be detained in any other case. He is further directed that after his release from jail, he will furnish his bail bond in the sum of Rs.10,000/ with one surety of like amount in terms of the order of the Hon'ble High Court and the bail bond shall be furnished on 02.12.2014.
18. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open Court today on 26.11.2014) (RAKESH KUMAR) Addl. Sessions Judge (N/E) Karkardooma Courts, Delhi (SC No:118/2012) (State Vs. Mukesh) Page No.45 of pages 45