Delhi District Court
Rajesh S/O Chet Ram vs . on 27 August, 2010
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IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 119/09
Unique ID Case No. 02402R0216372009
State
Vs.
1. Rajesh S/o Chet Ram, R/o E57/A204, Matawali Gali, Jhuggi Sunder
Nagri, Delhi.
2. Chet Ram S/o Harish Chand, R/o E57/A204, Matawali Gali, Jhuggi
Sunder Nagri, Delhi.
3. Yashoda W/o Chet Ram, R/o E57/A204, Matawali Gali, Jhuggi Sunder
Nagri, Delhi.
FIR No. 164/09
PS Nand Nagri
U/s 498A/306 IPC.
Date of Institution : 19.09.2009
Date of reserving the Judgement : 06.08.2010
Date of pronouncement : 19.08.2010.
J U D G E M E N T : Suicide, no doubt, is a self murder. But one who commits suicide places himself or herself beyond the reach of law and necessarily beyond the reach of any punishment too. As such, suicide is an offence for which the offender cannot be brought to justice. The only chance to punish him is when it stops short with an attempt. But where an act of suicide is not a voluntary act but is committed under compulsion of adverse circumstances, the law punishes those who could be held responsible for bringing it about, directly or indirectly, either by active suggestion or by creating objective conditions which drive the victim to it, but only if these are intended to S.C. No. 119/09 Page 1/45 2 achieve the desired object. Any person who goads or urges forward or provokes someone to commit suicide, would fall within the mischief of the provisions of section 306 of the Penal Code. A person abets the doing of a thing when he or she, interalia, instigates any person to do that thing. Instigation or abetment of suicide can be brought by callous attitude, apathetic and continued hostile behaviour and cruel treatment towards the person committing suicide, actively suggesting him or her that the only way out for him or her was to embrace death by committing suicide. Callousness and apathy in extreme form would certainly go to show that tense atmosphere was created which made the victim dropped down, thereby giving indication that persistent cruelty instigated the victim to commit suicide.
2. Here also, prosecution launched its case on 28.05.09 on receipt of DD No.7A, when SI C.P. Singh along with Constable Mukesh reached at GTB Hospital, where he collected MLC of Neeta, wife of Rajesh, wherein the doctor had declared her brought dead. Since the death had occurred within six months of marriage, as such information was given to SDM Sh. Vimal Kumar, who reached at GTB Hospital and recorded statement of Chanderwati, mother of deceased, wherein she stated that she got her daughter married with Rajesh, son of Chet Ram, according to Hindu rites. After few days of her marriage, her husband Rajesh started maltreating Neeta and despite efforts, he did not mend his ways. She did not make any complaint against her inlaws. She received messages at about S.C. No. 119/09 Page 2/45 3 11.45pm from her soninlaw that Neeta is unwell and she is in hospital. When she reached at hospital, she found her daughter dead. There she felt that her daughter was hanged after being tied with rope. She had suspicion on her soninlaw. Postmortem on the dead body of Neeta was conducted and doctor opined the cause of death due to asphyxia as a result of antemortem hanging. Case under section 498A/306 IPC was registered. Challan was submitted against accused Rajesh and it was mentioned in the charge sheet that no evidence has come on record against Chet Ram and Yashoda and they may be summoned. Trial Court summoned both these accused and after completion of proceedings under section 207 Cr.P.C, committed the case to the Court of Session.
3. Charge for offences punishable under sections 498A and 306 read with section 34 IPC was framed against all the accused persons, besides an alternative charge u/s 304B IPC, to which charge they pleaded not guilty and claimed trial.
4. To substantiate the charge, prosecution has examined Vimal Kumar, Executive Magistrate (PW1), Constable Mukesh Kumar (PW2), Bhagwan Dass (PW3), Babita (PW4), Chanderwati (PW5), HC Ramesh Chander (PW6), C.P. Singh SI (PW7), Dr. Juthika Debbarma (PW8), Dr. Amit Kumar Gupta (PW9) and SI Ashok Kumar (PW10) in the case.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were S.C. No. 119/09 Page 3/45 4 examined under section 313 Cr.P.C. They had denied all allegations levelled against them, except the fact that Neeta was married with Rajesh on 12.12.08. Their case has been of denial simplicitor. Rajesh projected that his married life with deceased Neeta was good. There was no dispute of any kind between them. He and his family members treated her with love and affection. He and his family members never demanded any dowry articles as alleged. He never beat, taunt, humiliated and harassed the deceased Neeta in any manner during her life span. She was pregnant and he and his family members were happy for this news. She was properly given treatment in this regard. One day prior to date of incident, she was willing to go to her parental home but he refused as on the next day, she was to go to the GTB Hospital to show her to the doctor for her treatment. She was a sensitive girl. He cannot tell why she had taken such a step. He pleads that he has been falsely implicated in the present case without his any fault. Chetram and Yashoda also projected that they never illtreated Neeta nor she was subjected to any cruel treatment. However, they were happy with the news of Neeta being pregnant. They claimed themselves to be innocent. They pleaded their false implication in the case. In order to defend themselves, they have examined Ms. Sharda Devi (DW1), Khacheru (DW2) and Santosh (DW3) in support of their case.
6. Sh. Vimal Kumar (PW1) unfolds that on 28.05.09, he was posted as Executive Magistrate, Seemapuri/Shahdara (DC North S.C. No. 119/09 Page 4/45 5 East). Inspector Satish Sharma, SHO Nand Nagri, telephonically informed him that one lady, namely, Neeta, who was brought to GTB Hospital in an unconscious condition by her husband, has expired. He was informed that marriage of deceased was solemnized before six months and he was requested by Inspector Satish Sharma to conduct inquest proceedings. On receipt of said information, he went to GTB Hospital. In the hospital, he met with Smt. Chanderwati, mother of deceased and Sh. Bhagwan Dass, father of deceased in the hospital. Rajesh husband of deceased was also present in the hospital. He made inquiries from Smt. Chanderwati and Bhagwan Dass and on the basis of their version, he recorded statement of Smt. Chanderwati and Sh. Bhagwan Dass, which are Ex.PW1/A and Ex.PW1/B. He had also recorded statement of Rajesh, husband of deceased, vide Ex.PW1/C. Thereafter, he recorded statement of Smt. Chanderwati and Sh. Bhagwan Dass regarding identification of dead body of deceased Neeta, vide memo Ex.PW1/D and Ex.PW1/E. He had directed the authorities to conduct post mortem vide Ex.PW1/F. His inquest proceedings are Ex.PW1/G. Thereafter, he along with IO SI C.P. Singh and SHO and other staff visited the place of occurrence, that is, E57C/204, Matawali Gali, Sunder Nagri, Delhi, at the first floor, where Rajesh produced two pieces of "chunnies" of pink colour. The same were taken into possession vide memo Ex.PW1/H. S.C. No. 119/09 Page 5/45 6 Constable Mukesh Kumar (PW2) narrates that on 28.05.09, he was posted at PS Nand Nagri. He was on emergency duty along with SI C.P. Singh. An information was received from GTB Hospital, which was recorded in the form of DD No.7A to the effect that one girl, namely, Neeta who was brought to the hospital has expired. He detailed those very investigative steps, which took place in his presence.
Bhagwan Dass (PW3) is the father of deceased.
Babita (PW4) is the friend of deceased.
Chanderwati (PW5) is the mother of deceased Neeta. Ramesh Chander, Head Constable, recorded FIR and proved copy of the same as Ex.PW6/A. C.P. Singh SI (PW7) was posted at PS Nand Nagri, on 28.05.09. On that day, on receipt of DD No.7A, he along with Constable Mukesh Kumar went at GTB Hospital, where Rajesh, husband of deceased Neeta, met him. He collected MLC of deceased Neeta from the hospital. He stated all the facts to SHO. He requested SDM to reach at GTB Hospital. SDM came at the hospital and recorded statement of Chandrawati, mother of deceased, and Sh. Bhagwan Dass, father of deceased. SDM also recorded statement of Rajesh, husband of deceased. SDM prepared inquest papers. SHO had also reached at GTB Hospital. Thereafter, he along with SHO, SDM and Constable Mukesh went at the place of occurrence, that is, E57/204, Matawali Gali, Sunder Nagri, Delhi. S.C. No. 119/09 Page 6/45
7 Spot was inspected by them. Rajesh produced one Chunni in two pieces before the SDM and it was taken into his possession. Photographer was called who had taken the photographs of the place of occurrence. SDM made his endorsement on the statement of Chandrawati, mother of deceased, to register the FIR and same was given to Constable Mukesh for getting the case registered. Postmortem was got conducted and the dead body was given to the relative of deceased. Constable Mukesh came back at the spot and gave him copy of FIR and original tehrir as the investigation was assigned to him. He prepared site plan Ex.PW7/A. He recorded statement of witnesses. He interrogated accused and later on he arrested him vide arrest memo and personal search memo Ex.PW2/A and Ex.PW2/B. He had prepared the receipt of the dead body vide memo Ex.PW3/A, which bear his signature at point C. On 07.06.09, he recorded statements of Chandrawati, mother of deceased, and Babita, friend of deceased. On 01.07.09, he had taken marriage card and photograph vide memo Ex.PW4/A. On 07.08.09, investigation was handed over to SI Ashok Kumar, as he was transferred from police station.
Dr. Juthika Debbarma (PW8) conducted postmortem on the dead body of Neeta. She proved the postmortem report as Ex.PW8/A. Dr. Amit Kumar Gupta (PW9) proved MLC of deceased Neeta as Ex.PW9/A, which was prepared by Dr. Amit. Jr. Resident. S.C. No. 119/09 Page 7/45
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7. I have heard Sh. Subhash Chauhan, ld. Prosecutor for the State and Sh. A.K. Tiwari, Advocate for the accused persons, and have also perused the written submissions submitted by ld. Counsel for accused.
8. It was submitted by ld. Counsel for accused that prosecution has examined 10 witnesses in support of its case, out of whom three witnesses are mother, father and friend of deceased. These three public witnesses are relatives, interested and hearsay witnesses. On 28.05.08, Sh. Vimal Kumar, Special Executive Magistrate, Seemapuri, had recorded statement of Chanderwati, mother of deceased, and Sh. Bhagwan Dass, father of deceased. In their statement, both these witnesses had given clean chit to accused Chet Ram and Yashodha. They did not utter any word in relation to dowry demands either directly or indirectly against any of the accused persons. They did not state any date, month and year or specific instance of causing maltreatment/cruelty by Rajesh towards deceased during her stay in her matrimonial home. It was further submitted that prosecuting agency failed to cite on record, statement of any neighbour, in order to prove cruel treatment meted out to deceased at the hands of accused persons. Further more, as per testimony of Sh. Vimal Kumar, SDM, Constable Mukesh Kumar and SI C.P. Singh, some photographs were taken, but photographer was not examined by the prosecution. Moreover, according to SI C.P. Singh, investigation of the case was assigned to him on 28.05.09 S.C. No. 119/09 Page 8/45 9 and remained with him till 07.08.09 and during this period SI Ashok Kumar did not conduct any proceedings. However, according to SI Ashok Kumar, investigation was assigned to him on 11.07.09 and he recorded statement of Smt. Chanderwati and Babita on 24.07.09, and collected postmortem report of the deceased. He further referred to the conduct of the accused persons for submitting that sincere efforts were made by them to take the deceased to hospital for providing her medical treatment. Moreover, immediately after coming to know about the incident, they informed parents of deceased. They cooperated the investigating agency in investigation and never tried to run away. The conduct of the accused persons probabilizes that they had clean slate. Reference was further made to the testimony of three public witnesses for submitting that they have made material improvements in their statements, which were recorded by Special Executive Magistrate and police officials at the initial stage of investigation, and in their deposition before the Court. The material improvements have been made in order to level false allegations in relation to cruelty, maltreatment and dowry demand by the accused persons, so that accused persons may be prosecuted in this case. Accused persons have examined three defence witnesses, who have deposed that there were good relations between the deceased and the accused persons. Deceased Neeta committed suicide by hanging herself. In the postmortem report, doctor has not found any external injury on S.C. No. 119/09 Page 9/45 10 any part of her body. Burden is on prosecution to establish its case and no adverse inference can be raised against the accused persons. The prosecution has not brought on record any direct or indirect evidence to establish that accused persons had demanded dowry and treated the deceased with cruelty. Under these circumstances, it was submitted that accused persons are liable to be acquitted. Reliance was placed on a number of authorities, viz. (1) 2005 (4) Criminal Court Cases 585 (P&H), Sushil Kumar vs. State of Haryana.
(2) 1992 (1) C.C. Cases 524 (HC), Naraini Devi vs. State. (3) 2005 (1) Criminal Court Cases 61 (P&H), Nachhatar Singh & Ors. vs. State of Punjab.
(4) 2007 (3) Criminal Court Cases 706 (SC), Kishori Lal vs. State of M.P. (5) 2006 (3) Criminal Court Cases 022 (SC), T. Aruntperunjothi vs. State Through SHO Pondicherry.
(6) 2004 (2) Criminal Court Cases 258 (SC), Surinder Kaur & Anr. vs. State of Haryana.
(7) 2004 (2) RCR (Criminal) 58 (SC), Hans Raj vs. State of Haryana.
(8) 2008 (3) Criminal Court Cases 966 (SC), Rajbabu & Anr. vs. State of M.P. (9) 2005 (3) Criminal Court Cases 357 (P&H), State of Haryana vs. Ravi Kumar.
S.C. No. 119/09 Page 10/45
11 (10) 2003 (2) Criminal Court Cases 1 (SC), Gurdhar Shankar Tawade vs. State of Maharashtra.
(11) 2008 (1) JCC 542, Sambhaji Hindurao Deshmukh & Ors. vs. State of Maharashtra.
9. Per contra, it was submitted by ld. Prosecutor that in the instant case, death has occurred within 7 years of marriage and it was unnatural death. As per section 113A of the Evidence Act, 1872, presumption as to abetment of suicide has to be raised against the accused persons and it is for them to rebut this presumption, which they have failed to rebut. The witnesses have deposed regarding the demand of dowry articles and maltreatment to the deceased, which compelled her to take extreme step of taking her life by hanging. Under these circumstances, it was submitted that prosecution has been able to bring home guilt of the accused beyond reasonable doubt, and as such accused persons are liable to be convicted of the offences alleged against them.
10. I have given my considerable thoughts to respective submissions of the ld. Counsel for the parties and have perused the record.
11. Out of 10 witnesses examined by the prosecution, material witnesses are PW3 Sh. Bhagwan Dass, PW4 Babita and PW5 Chanderwati.
12. PW3 Bhagwan Dass is the father of deceased and has unfolded that his daughter Neeta was married to Rajesh about one S.C. No. 119/09 Page 11/45 12 year ago. For initial two or three months, she was kept peacefully. Thereafter, Rajesh started harassing her. He was unemployed and used to do nothing. Many a times, he made him understand, but he did not mend his ways. Sometime, he used to demand something at one place and sometime used to demand something else. He thought that he is a boy of maturity would mend his ways. He used to beat his daughter. On the fateful day, Rajesh came at his house and stated that Neeta is not feeling well and has been admitted in the hospital. At that time, his daughter was having pregnancy of two or three months. He along with his family members and Rajesh immediately reached GTB Hospital. There was injury on the neck of his daughter and she had been killed by the accused persons. Rajesh used to demand vehicle, Chet Ram used to demand an amount of Rs.50,000/ and his wife used to demand gold chain for her and on these issues they used to harass his daughter. His statement was recorded in the hospital, which is Ex.PW1/B. After postmortem examination, dead body of his daughter was given for funeral rites.
13. PW4 Babita claims herself to be friend of deceased. According to her, deceased Neeta was her friend since birth. She was married to Rajesh on 12.12.08. She remained happily for some period at her matrimonial home. Whenever Neeta used to come at her parental home, she used to come at her house and used to tell her that she has been harassed at her matrimonial home and that her husband S.C. No. 119/09 Page 12/45 13 used to demand vehicle, her fatherinlaw demanded an amount of Rs.50,000/ and motherinlaw demanded a chain. She used to complain to her that she is being harassed mentally as well as physically and due to excessive harassment by her inlaws, she sometime used to think of committing suicide. Neeta was in dilemma as to how she can put up illegal demands of her inlaws before her parents, as she had two other unmarried sisters.
14. PW5 Chanderwati is the mother of deceased. She has testified that her daughter Neeta was married to Rajesh. Initially, her daughter was kept well by her inlaws. After sometime, they started beating her and demanded dowry articles. Father of Rajesh used to demand a sum of Rs.50,000/ and her motherinlaw Chanderwati used to demand gold chain. Whenever Neeta came to her house, she used to weep and complained regarding the same. Rajesh used to demand motorcycle. Many a times, she along with her husband went at the inlaws house of Neeta and tried to make them understand. They did not mend their ways. One day Rajesh, after giving beatings to Neeta made a telephone to her son Ram Gopal that if motorcycle is not given to him, then he would hang and kill Neeta. On that day, he had made call at about 11pm. Then they went to matrimonial home of Neeta and tried to console accused persons. Accused Chet Ram, father of Rajesh, stated that nowa days even a rickshaw puller is given a motorcycle in his marriage and they have not been given motorcycle in marriage. She stated S.C. No. 119/09 Page 13/45 14 that they are not in a position to give these things as her husband is earning by selling kachories. Thereafter, they came back to the house. On 28.05.09, Rajesh along with two three other boys came at their residence on motorcycle, and stated that he got admitted Neeta in the hospital as she was not well. Thereafter, she along with her husband went to GTB Hospital, where they found their daughter dead. She identified dead body of her daughter and after postmortem examination, same was given to them. Her statement was recorded, which is Ex.PW1/A. According to her, her daughter died due to beatings, maltreatment and illegal demands of the accused persons.
15. It is the case of prosecution that on receipt of DD No.7A, SI C.P. Singh along with Constable Mukesh went to GTB Hospital, where Rajesh, husband of deceased, met him. He collected MLC of deceased Neeta from hospital and informed the SHO. He requested SDM to reach GTB Hospital. Sh. Vimal Kumar, Special Executive Magistrate, Seemapuri, reached GTB Hospital. He was informed that marriage of deceased was solemnized before six months and he was requested by Inspector Satish Sharma to conduct inquest proceedings. He met Smt. Chanderwati, mother of deceased, and Sh. Bhagwan Dass, father of deceased in the hospital. Rajesh, husband of deceased, was also found present in the hospital. He made inquiries from Smt. Chanderwati and Sh. Bhagwan Dass. On the basis of their versions, he recorded statements of Chanderwati S.C. No. 119/09 Page 14/45 15 and Bhagwan Dass, which are Ex.PW1/A and Ex.PW1/B respectively. Ex.PW1/A is the statement of Smt. Chanderwati, mother of deceased. Perusal of this statement goes to show that she had stated before Sh. Vimal Kumar, Special Executive Magistrate that she got married her daughter with Rajesh about six months ago, according to Hindu rites and customs. After sometime of the marriage, her soninlaw Rajesh started illtreating her daughter and he did not mend his ways, despite the fact that he was tried to understand. Behavious of inlaws of her daughter was good and she had no complaint against them. On that day, at about 11.45pm, her soninlaw informed her that Neeta was unwell and is in hospital. In hospital, she was found dead. On seeing the girl, it seems that she was hanged as a result of which she expired. She suspected her soninlaw Rajesh and wanted action. This statement became bedrock of the investigation and FIR was registered on the basis of this statement.
16. On the same day, that is, on 28.05.09 Sh. Bhagwan Dass, father of deceased, also gave a statement to Sh. Vimal Kumar, Special Executive Magistrate, which is Ex.PW1/B. His statement was also on the same lines as that of his wife Chanderwati. He stated that after sometime of marriage of his daughter Neeta, she started making complaint against her husband Rajesh that latter gave beatings to former and also abused her. He did not mend his ways, despite requests. On that day, at about 11.45pm, his soninlaw S.C. No. 119/09 Page 15/45 16 informed regarding hospitalization of his daughter in the GTB Hospital. When he reached there, he found his daughter dead. There was a ligature mark on her neck. It seems that after tying rope on her neck, she was hanged. He suspected his soninlaw. A perusal of statement Ex.PW1/A goes to show that mother of deceased gave clean chit to her inlaws, whereas father of deceased did not level any allegations against them. It was precisely for this reason that when charge sheet was filed under section 173 Cr.P.C, it was mentioned therein that during the course of investigation, no evidence has come on record against Chet Ram and Yashodha so as to arrest them.
17. A perusal of record reveals that statement of Sh. Bhagwan Dass was recorded by investigating officer SI C.P. Singh on the same day and in this statement he reiterated the averments, which were made by him before the Executive Magistrate.
18. There is a statement under section 161 Cr.P.C of Babita dated 07.06.09, wherein she stated that Neeta was her good friend. She used to help her in household problems. Neeta used to tell her that her husband did not do any work and remains in the company of bad boys. He asked her to bring money and articles from her parents and harassed her. He is the only son of his parents, therefore even his parents are unable to say anything to him. Neeta used to tell her that she did not want to live and some day she will commit suicide, as she did not want to live in such a hell. She used to make Neeta S.C. No. 119/09 Page 16/45 17 understand that things will become alright after some passage of time, but Neeta used to tell that she did not find source of light, so that her matrimonial life will become good. Neeta used to remain depressed.
19. Thereafter, there is another supplementary statement of this witness recorded on 15.07.09, wherein she stated that before her death, Neeta had informed her that now she has become fed up with her husband, motherinlaw and fatherinlaw due to their persistent demands of dowry and physical and mental cruelty, because her fatherinlaw demanded Rs.50,000/, motherinlaw demanded a gold chain, while her husband demanded a motorcycle. Her parents had already given dowry articles much more than their capacity and how can they fulfill their further demands. In case, she has to save her parents, then she will have to finish herself.
20. There is supplementary statement of Chanderwati dated 15.07.09, where she also stated that her daughter informed her regarding demands made by her fatherinlaw, motherinlaw and her husband regarding Rs.50,000/, gold chain and motorcycle respectively, and due to nonfulfillment of demands, she used to be mentally and physically harassed. Before her death, Neeta had informed on telephone that she has been harassed by all the accused persons physically and mentally to the extent that now she will be killed.
21. A perusal of aforesaid statement made by the witnesses S.C. No. 119/09 Page 17/45 18 during investigation and during trial goes to show that there is substantial improvement, inasmuch as, as seen above, when Bhagwan Dass and Chanderwati gave their statement before Sh. Vimal Kumar, Executive Magistrate, at that time they did not level any allegations against fatherinlaw and motherinlaw. There was absolutely no averments in that statement that any demand of dowry was made by any of the accused persons. Only a plea was taken in that statement that behaviour of Rajesh was not good and he was not mending his ways, despite repeated requests. It is pertinent to note that except for statement made by Bhagwan Dass before the ld. SDM, and before SI C.P. Singh, which was recorded on the same day, there is no other statement under section 161 Cr.P.C. When he appeared in the Court for the first time, he made material improvements in his statement by deposing that Rajesh was unemployed and used to do nothing. Sometime, he used to demand something at one place and sometime he used to demand something else. He used to beat his daughter. He thought that he is boy of immaturity and would mend his ways. At the fag end of his examinationinchief, he deposed that Rajesh used to demand vehicle, Chet Ram used to demand a sum of Rs.50,000/ and Yashodha used to demand gold chain. He was confronted with his statement Ex.PW1/B and he admitted that he did not state these facts in his statement recorded in the hospital. He went on stating that he was in state of shock at that time. However, he went on S.C. No. 119/09 Page 18/45 19 stating that he had stated in his statement that accused persons used to demand vehicle, Rs.50,000/ and gold chain. He was confronted with his statement Ex.PW1/B, where this fact was not recorded. In crossexamination, for the first time he gave a new version by stating that his daughter along with Rajesh resided at Samoli, near Mandoli, for a period of 15 days. According to him, one day at about 10pm, accused Rajesh made a call to him and stated that he is beating Neeta and asked him to do whatever he can do. Thinking that it was dispute between husband and wife and matter would be pacified, he did not take any action at that time. Again Rajesh made call at 11pm and again for the third time then his family members went at Samoli to pacify the matter. However, no complaint was made thinking the matter would be pacified in days to come. It is pertinent to mention here that this incident has been mentioned by the witness for the first time in his crossexamination and neither this fact was stated by him either before the ld. SDM or in his statement recorded by investigating officer or even in his examinationinchief.
22. Coming to the testimony of PW5 Chanderwati, as seen above, in her statement Ex.PW1/A, recorded by ld. SDM, she was categorical in stating that behaviour of inlaws of her daughter was good and she had no complaint against them. As regards accused Rajesh is concerned, her grievance was that he had started harassing her after sometime of the marriage and did not mend his ways. It was only in her supplementary statement dated 15.07.09, S.C. No. 119/09 Page 19/45 20 which was recorded after about more than one and half month of the incident that she stated regarding demand of dowry made by husband, fatherinlaw and motherinlaw of deceased. It was not specified as to when these demands were made by the accused persons. When she appeared in the witness box, she made material improvements in her statement by deposing that accused persons used to make demand of dowry articles, viz Rs.50,000/, gold chain and motorcycle. She also deposed regarding the fact that one day, Rajesh after giving beatings to Neeta made a telephone call to her son Ram Gopal and uttered that if motorcycle is not given, then he would hang and kill Neeta. Call was again made at about 11pm, then they went at "matrimonial home" of Neeta and tried to console accused persons. At that time Chet Ram, father of Rajesh, told her that nowadays a motorcycle is given even to rickshaw puller in his marriage and the same is not being given in the marriage of her son. She expressed her inability to fulfill this demand as her husband was earning his livelihood by selling kachories only. Then, according to her, they came back to the house. Firstly, it may be mentioned that this entire incident has been narrated by her for the first time, when she appeared in the witness box. Moreover, according to this witness, this incident had taken place, when Neeta was residing at her "matrimonial home". However, as seen above, Bhagwan Dass, father of deceased, deposed that such incident had taken place when Neeta was residing with Rajesh at "Samoli". Under these S.C. No. 119/09 Page 20/45 21 circumstances, besides the fact that this incident is being narrated by parents of deceased for the first time in their statement, even they did not corroborate each other regarding the place where this incident had taken place, either at Samoli or at the matrimonial house of the deceased. This witness was also confronted with material portion of her statement Ex.PW1/A made before ld. SDM, where there was no allegation regarding beating of Neeta by accused persons or demand of any dowry articles by any of the accused persons.
23. Coming to the testimony of PW4 Babita, before discussing her testimony on merits, it will be relevant to mention her conduct, inasmuch as, she claimed herself to be friend of Neeta since birth. She tried to suppress that she was related to deceased in any manner. However, in crossexamination she admitted that Dhanwanti is her motherinlaw. Chanderwati is her neighbour at her matrimonial house and she used to call her motherinlaw because of neighbourhood. She denied the suggestion that Dhanwanti and Chanderwati are real sisters. However, PW5 Chanderwati in her crossexamination admitted that Dhanwanti is her elder sister and she resides in her neighbourhood. Under these circumstances, there is close relationship of Babita with deceased Neeta. Although this fact is not very significant, but it assumes importance in order to ascertain the conduct of the witness, who in his examinationinchief claimed Neeta to be her friend from since birth. However, in cross S.C. No. 119/09 Page 21/45 22 examination, she denied the same and deposed that Neeta was not known to her since her childhood. With this background, her testimony is to be scrutinized. As stated above, she has deposed that Neeta used to complaint her regarding demands made by her husband and inlaws and that she was being harassed mentally as well as physically and she thought of committing suicide due to harassment by her inlaws. She went on stating that Neeta was in a dilemma as to how she can put illegal demands of her inlaws before her parents as to from where they would arrange all these demands as she has two unmarried sisters. In crossexamination, she admitted that Neeta has two sisters. One was elder to her and she was married. That being so, the deposition of this witness that Neeta was in dilemma as to how she would inform her parents regarding the demands as she had two unmarried sister is belied by her own admission in crossexamination that one of the sisters of Neeta was already married. Further more, according to this witness her statement was recorded by police on the date of incident itself and thereafter her statement was not recorded. However, on record there is no statement of Babita, recorded on 28.05.09. There is one statement recorded on 07.06.09, wherein she did not level any allegations regarding any specific demand made by any of the accused persons. However, when her supplementary statement was recorded on 15.07.09 at that time, she stated about demands made by all the three accused persons and also stated that before death, S.C. No. 119/09 Page 22/45 23 Neeta had informed her on telephone that now she is fed up with her life due to persistent demands of accused persons. However, this statement made before the police did not find mention in her deposition before the Court. This witness was also confronted with material portion of her statement made before police.
24. Having discussed the evidence on record, it becomes amply clear that prosecution has sought to improve its case by introducing new facts and allegations which were never stated before the SDM and during investigation.
25. The question arises as to whether in view of facts and circumstances of the case, prosecution has been able to prove the charge u/s 306 IPC with the aid of presumption under section 113A of the Evidence Act.
Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment which may extend to ten years and with fine. Section 107 IPC defines "abetment" which reads as under : "A person abets the doing of a thing, who First-- Instigates any person to do that thing; or Secondly-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-- Intentionally aids, by any act or illegal omission, the doing of that thing.
S.C. No. 119/09 Page 23/45
24 Explanation.1 A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation.2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
This section has to be read with section 113A of Evidence Act, 1872 which reads as under : "When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation. For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)".
26. A perusal of this section goes to show that any person, who abets commission of suicide is liable to be punished under section 306 IPC. Section 107 IPC lays down ingredients of abetment, which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that S.C. No. 119/09 Page 24/45 25 thing, or intentional aid by any act or illegal omission to the doing of that thing. As per definition of abetment as laid down u/s 107 IPC, there has to be instigation to commit suicide on behalf of the accused persons. There is no averment in the statement of the witnesses that any of the accused instigated the deceased to commit suicide. There is no direct evidence to establish that the accused either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide.
In Sanju @ Sanjay Singh Sengar vs. State of M.P., (2002) Cr.L.J. 2796, it was observed : "Where suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and dies, no offence u/s 306 IPC is made out."
In Kishori Lal vs. State of M.P., 2007 (3) RCT (Crl.) 385, it was observed : "Mere fact that the husband treated the deceasedwife with cruelty is not enough to bring the case within the parameter of Section 306 IPC."
27. In the absence of direct evidence the prosecution has relied upon Section 113A of the Indian Evidence Act under which the Court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to section 113A further clarifies that cruelty shall have the same meaning as in section 498A of the Indian Penal Code which means : S.C. No. 119/09 Page 25/45 26 "(a) any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
28. Unlike section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in section 113A of the Indian Evidence Act. Under section 113A of the Indian Evidence Act the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband and in laws (in this case) had subjected her to cruelty. Even if these facts are established that the Court is not bound to presume that the suicide had been abetted by her husband. Section 113A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in section 498A IPC. The mere fact that a woman committed suicide within seven years of her marriage and the she had been subjected to cruelty by her husband and inlaws does not automatically give rise to the presumption that the suicide had been abetted by her husband and inlaws. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the S.C. No. 119/09 Page 26/45 27 alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar vs. State of Chhattisgarh, 2001 (9) SCC 618: 2001 (14) RCR (Cr.) 537 (SC) wherein Hon'ble Supreme Court observed : "This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or inlaws and incriminating evidence was usually available within the four corner of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be S.C. No. 119/09 Page 27/45 28 drawn the Court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression "the other circumstances of the case" used in Section 113A suggests the need to reach a causeandeffect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in section 113A is defined in section 4 of the Evidence Act, which says "Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it".
29. The same principle has been reiterated in Sanju alias Sanjay Singh Sengar v. State of M.P., 2002 (2) RCR (Crl.) 687 (SC): (2002) 5 SCC 371.
30. In the State of West Bengal v. Orilal Jaiswal and anr., 1994 (3) RCR (Crl.) 86 (SC): 1994 (1) SCC 73, Hon'ble Apex Court observed : "We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A IPC and S.C. No. 119/09 Page 28/45 29 section 113A of the Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater, 1950 (2) All ER 458, 459 has observed that the doubt must of a reasonable man and the standard adopted be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subjectmatter".
31. Having regard to the principles aforesaid, adverting to the facts of the case, it is established that marriage of Rajesh with Neeta had taken place on 12.12.08 and unnatural death had taken place within six months of the marriage, inasmuch as, as per testimony of Dr. Juthika Debbaram, who conducted postmortem on the dead body of deceased, cause of death was asphyxia as a result of antemortem hanging. However, it is further required to be proved that Neeta was subjected to cruelty by her husband and his relatives. As seen above, all the three material witnesses have improved their case from stage to stage, inasmuch as, in the initial statement before ld. SDM, there were absolutely no allegations of demand of dowry and in fact the clean chit was given to accused Yashodha and Chet Ram, however, subsequently they have tried to set up a case that deceased was subjected to cruelty by all the three accused on account of demand of dowry.
S.C. No. 119/09 Page 29/45
30
32. State of Punjab vs. Anant Ram, 1991 (2) Recent Criminal Reports 380, was also a case u/s 306 and 304B of the Indian Penal Code. Father of the deceased who happened to be present at the time of postmortem examination did not lodge FIR. Subsequently, father sent a complaint to Prime Minister that it was a case of dowry death. The story of maltreatment was introduced at belated stage and accused were acquitted of the charge.
33. In Naraini Devi (supra), there was no demand at the time of marriage from the side of accused persons, even before the death or soon after the death of deceased when the near relative reached the spot. No complaint or protest was made in any corner and no report of complaint was even filed. It was held by Hon'ble High Court that it gives the impression that the entire theory of demand of cash/dowry was an afterthought.
34. Nachhatar Singh and Ors (supra) was also the case, where the witnesses deposed that demand of dowry was made soon before the death. This fact was not mentioned by witnesses when his statement was recorded in a complaint case and also before police when his statement was recorded u/s 161 Cr.P.C. It was held that deposition of witnesses is not reliable as he had tried to make improvements.
35. In Suraina Kaur & Anr also Hon'ble Supreme Court set aside the conviction of sisters on account of improvements.
36. In Hans Raj (supra) also some facts were not mentioned in the FIR or during investigation. Improvements were made at the time of trial. It was held by Hon'ble Apex Court that these facts could not be taken into S.C. No. 119/09 Page 30/45 31 consideration to convict the accused.
37. In view of these authoritative pronouncements, in the instant case also as discussed above, material improvements has been made by the witnesses regarding demand of dowry as such, on such evidence it is not desirable to invoke the presumption u/s 113A of the Evidence Act to held accused persons guilty of the offence u/s 306 IPC.
38. Besides that conduct of accused cannot lost sight of, inasmuch as, it is the case of prosecution itself that accused Rajesh had removed Neeta to GTB Hospital and also informed the parents and relatives of the deceased. Even during the course of investigation, accused remained present in hospital, which is reflected from the fact that when SDM recorded statement of parents of deceased, he also recorded statement of Rajesh which is Ex.PW1/C, wherein he had stated that Neeta wanted to go to her parents house on 27.05.09. However, he asked her not to go on that day, and she may go later on, as a result of which she became annoyed and went to her room for sleeping. In the morning, his mother found room bolted from inside. Then she informed him. He went to the room from roof and found Neeta hanging. He made her to lie down and called the doctor. Thereafter, he took her in rickshaw to GTB Hospital. He also informed her fatherinlaw. In Sushil Kumar (supra), the deceased had died of hanging within six months of marriage. Accused immediately after coming to know about hanging informed the parental relative of deceased. It was observed by Hon'ble High Court that if there had been bad and malafide intention on the part of accused, he would have not reported the matter either to parents or relatives of the deceased and would have taken steps to dispose off the dead body from the scene of S.C. No. 119/09 Page 31/45 32 crime. Therefore, this conduct of the accused probabilize that he had clean slate. In T. Aruntperunjothi (supra) also Hon'ble Apex Court took into consideration conduct of accused, who gave information to police as one of the factor to set aside conviction.
39. In view of these authoritative pronouncements, conduct of accused Rajesh in taking deceased to hospital, informing her parents about her hospitalization assumes importance.
40. Further more, as per testimony of Bhagwan Dass, when he went to hospital and touched dead body of his daughter, there were injury on her neck. However, this submission does not find corroboration from postmortem report. Dr. Juthika Debarrma (PW8() conducted postmortem of Neeta. According to her, cause of death of Neeta was asphyxia as a result of antemortem hanging. She admitted in crossexamination that there were no marks on the body other than ligature mark on the neck of deceased. That being so, ocular testimony of Sh. Bhagwan Dass that there was injury on the neck of his daughter, does not find corroboration from medical record. Narayani Devi (supra) was also a case where unnatural death had taken place. It was observed by Hon'ble High Court that since death had taken place in suspicious circumstances, postmortem was conducted and cause of death was given due to hanging, and doctor did not find any external injury or any mark of violence on the body of deceased. It was observed that this rules out any possibility of torture or homicide. Even otherwise some resistance by an able bodied person of 22 years is quite natural. In the instant case, as seen above, doctor did not find any injury mark on the dead body of Neeta except ligature mark.
41. Presumption under section 113A of Evidence Act is not mandatory. S.C. No. 119/09 Page 32/45
33 It is only permissive as the employment of expression "may presume"
suggests that Court may or may not draw such presumption, even if it is shown (1) the woman has committed suicide, (2) such suicide is committed within a period of 7 years from the date of her marriage, and (3) husband or relatives who are charged had subjected her to cruelty. Before presumption under section 113A can be drawn, the Court has to keep in mind other circumstances of the case. The discussions made above goes to show that there may be some quarrel between husband and wife, but the same would not be sufficient enough to draw presumption that accused had abetted her suicide. Moreover, this presumption is not irrebuttable one.
42. Accused persons have examined three witnesses in support of their case. DW1 Sharda Devi, DW2 Khacheru and DW3 Santosh. All these witnesses are living in neighbourhood of the accused persons and all of them have deposed that relations between accused persons and Neeta were cordial and no dispute had taken place between them. They were crossexamined by ld. Prosecutor, but nothing material could be elicited to discard their testimony.
43. As observed by Hon'ble Rajsthan High Court in Gurdeep Singh vs. State of Rajasthan, (1) 1992 CCR 471, where a wife dies in the house of her husband within short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined in four walls of the house. That being so, the Court have to be vigilant to scrutinize evidence regarding harassment and torture carefully, if witnesses are relatives of S.C. No. 119/09 Page 33/45 34 the deceased.
44. Coming to the factual matrix of the case, the witnesses are close relatives of the deceased, inasmuch as, PW3 Bhagwan Dass and PW5 Chanderwati are parents of the deceased, while Babita is her distant relative. Although the mere fact of their being the close relatives of deceased would not have been the ground for not placing implicit reliance on their testimony because in such like cases normally outsiders do not become aware as to what is happening inside the house and in case any demand is made or harassment is caused, the girl normally confides with her parents, brother and sister. But keeping in view circumstances of the present case, where the witnesses have made material improvements in their testimony, coupled with their conduct, absence of injury on the person of deceased, it will not be safe to draw a presumption that accused persons had abetted her suicidal, keeping in mind the facts and circumstances of this case, as discussed above.
45. In Swarn Singh Ratan Singh Vs. State of Punjab, AIR 1957 SC 637, Chanchal Kumari & ors vs. Union territory, Chandigarh, 1985 (2) C.L.R. 361, Naraini Devi (supra), it was held by Hon'ble Apex Court and Hon'ble High Court that in criminal cases mere suspicion, however, strong, cannot take place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof.
46. Under these circumstances, simply because a young lady has brought her life to a tragic end by committing suicide, it cannot be said that she had embraced death on account of any demand of dowry by her S.C. No. 119/09 Page 34/45 35 husband, motherinlaw or fatherinlaw. In absence of any material to bring home guilt of the accused persons beyond reasonable doubt, accused persons are entitled to get benefit of doubt.
47. It is next to be seen whether charge for offence u/s 498A IPC is made out or not.
48. In this regard, record reveals that when statement of Chanderwati, mother of deceased, Ex.PW1/A was recorded by ld. SDM, she had stated that after sometime of marriage, her soninlaw Rajesh had started harassing her daughter. They tried to make him understand, but he did not mend his ways. Even Bhagwan Dass, father of deceased, gave a statement before the SDM Ex.PW1/B wherein he also stated that his daughter started complaining that Rajesh used to beat and harass her and despite the fact that he tried to make him understand, he did not improve. These facts were reiterated by them while deposing in court. Rajesh himself in his statement Ex.PW1/C made before the SDM admitted that there used to be petty quarrel between him and his wife. It is admitted case of the parties deceased was pregnant and died of hanging. Had every thing been normal, deceased would not have committed suicide that too when she was in family way and marriage lasted hardly for six months. Cruelty as defined u/s 498A IPC does not amount only to physical cruelty, but it also attracts mental cruelty as well. As regards, accused Rajesh is concerned, evidence on record is sufficient to prove charge u/s 498A IPC qua him.
49. However, as regards Yashodha and Chet Ram are concerned, keeping in view the fact that in the statement made by parents of the deceased at the first available opportunity to ld. SDM, they have given a S.C. No. 119/09 Page 35/45 36 clean chit to them by stating that their behaviour was alright and they had no complaint against them, the subsequent allegation against them seems to be an afterthought and therefore charge against them is not proved beyond reasonable doubt and they are entitled to benefit of doubt and are accordingly acquitted of this charge also.
50. It is now required to be seen whether in view of acquittal of all accused for offence u/s 306 IPC, accused can be convicted for the offence under section 498 A IPC. In this regard, it may be mentioned that charge u/s 306 IPC and 498A IPC are independent of each other and acquittal of one does not lead to acquittal of other. It was held by Hon'ble Apex Court in Gurdhar Shankar Tawade (supra) that acquittal of offence u/s 306 IPC is not a ground for acquittal u/s 498A IPC. Similar view was taken in Ramesh Kumar vs. State of Chhatisgarh, 2001 IX AD (SC) 133, where Hon'ble Supreme Court held as under : "Section 498A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence u/s 498A and may also, if a case of conduct amounting to cruelty is establish leaving no other option for the woman to commit suicide, amounts to abetment to commit suicide. However, merely because an accused has been held liable to be punished u/s 498A IPC, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by woman concerned.
51. In the backdrop of this legal position as emerges from the above observation of Hon'ble Supreme Court, simply because Rajesh has been granted benefit of doubt for offence under section 306 IPC, it cannot be S.C. No. 119/09 Page 36/45 37 said that he can not be held guilty of offence u/s 498A IPC. Accordingly, accused Rajesh is held guilty of offence u/s 498A IPC.
52. There is alternative charge under section 304B IPC against the accused persons. Now it has to be seen whether that charge is established or not?
53. The dowry system is in existence from the time immemorial in different forms in different sects of society. It having taken the form of a wide spread epidemic became a matter of concern for the State as well as the social reformatory institutions. The Legislature became alert to the urging necessity of eradicating this social evil by appropriate enactment. True it is that Legislation cannot by itself solve the deep rooted social problem and it is only the education of the society in a particular direction and the efforts of the reformative bodies that social problems can be solved, however, the Legislation has played an important role in curbing the lust of dowry hungry persons who though not perturbed by the pathetic condition of the victim of the system have at least fear of suffering penal consequences. The Legislature, as such enacted the Dowry Prohibition Act, 1961 and introduced subsequent amendments in the provisions thereof to help the helpless weaker section of the society i.e the women folk from the torture and harassment, mental and physical at the hands of the husband inlaws on account of their parents being unable to quench the ever increasing thirst for the property in the form of dowry. Not only those who want to raise their status by managing to get the necessities, comforts and luxuries of life though marriage but the effluent section of the society even in certain cases has a lust for easy money or material through the institution of marriage. Thus the sacred ties of the marriage S.C. No. 119/09 Page 37/45 38 are given deplorable form and the vows taken by the husband at the alter of marriage are pushed in oblivion and a continuous demand every now and then in either directly made by the husband and his relatives to the parents of the bribe at the time of marriage or subsequent thereto.
Sec. 2 of the Dowry Prohibition Act, 1961 (hereinafter to be referred as 'the Act') defines the term 'dowry' as under : Sec. 2 Definition of 'Dowry' : In this Act "dowry" means and property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim personal Law (shariat) applied.
54. The insertion of the word "or any time after the marriage" and "in connection of the marriage of the said parties" by amendments in the year 86 has significance because clever parties initially do not enter into any agreement or make a demand but subsequent to the marriage after the lapse of some period make the demand directly or through the wife in order to make a show that it is not dowry. It is for this reason that Legislation in its wisdom included subsequent demands and the things given as inclusive in the definition of "dowry". Along with these amendment, provisions were inserted in the Indian Penal Code and in the Indian Evidence Act. Section 304B was inserted as a new provision in the category of offences falling under sections 302, 304A and 307 IPC, in S.C. No. 119/09 Page 38/45 39 order to curb the lust of procurement of the dowry in the past marital life; Section 304B reads as under : "304B. Dowry death: Where the death of a woman is caused by any burns of 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 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 subsection "dowry" shall have the same meaning as in Sec.2 of the Dowry Prohibition Act, 1961 (2B of 1961). 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.
55. Their lordship of the Supreme Court in Sunil Bajaj vs. State of MP, 2002 (1) Criminal Court Cases 196 (SC) after noticing the provisions of section 304B IPC had opined that in order to establish an offence u/s 304B IPC, following ingredients must be established before any death can be termed as dowry death: (1) The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstances.
(2) Such death must have occurred within 7 years of marriage. (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or relative of her husband. (4) Such cruelty or harassment must be for or in connection with demand of dowry.
S.C. No. 119/09 Page 39/45
40
56. Since the torture and harassment are normally confined in the four walls of the house, the cases depend upon the circumstantial evidence and it ordinarily becomes difficult to prove the allegations levelled and as a safeguard to that, the legislator enacted Section113B in the Evidence Act, which reads as under : "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 purpose of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).
57. The Dowry Prohibition Act is both a remedial and penal statute. As such, its provisions are required to be construed in such a way that the purpose is fulfilled through and within the limits of the language complied in the statute.
58. Now it is to be seen whether in view of the evidence on record, essential ingredients of section 304B IPC are fulfilled or not?
59. From the evidence coming on record, it is established that death had occurred within 7 years from the date of solemnization of marriage. It was unnatural death. Accordingly, it can safely be said that first two essential ingredients as laid down by their Lordship of Hon'ble Supreme Court in Sunil Bajal (supra) to constitute an offence u/s 304B IPC were established.
S.C. No. 119/09 Page 40/45
41
60. Now it is to be seen whether on the basis of evidence remaining two essential ingredients to constitute the offence are proved or not?
61. Evidence as discussed above, clearly indicates that allegations regarding demand of dowry seems to be an afterthought. In the initial statement Ex.PW1/A, which became bedrock of investigation, there were absolutely no allegations regarding demand of dowry. It was only in the supplementary statement of Chanderwati that she levelled allegations regarding demand of dowry and reiterated the same before the Court. However, even here none of the witness have stated as to when and in which month demand was made by accused persons. Under these circumstances, general allegations are not sufficient to prove demand of dowry.
62. Moreover, to bring home the guilt of the accused within the four corners of section 304B IPC, it is incumbent upon the prosecution to prove that "soon before her death" deceased was subjected to cruelty or harassment by her husband or inlaws.
The expression "soon before death" has not been defined and the legislation has not specified any time which would be the period prior to death that would attract the provisions of section 304B IPC. In Sunil Bajaj (supra), it was observed as under : "Though there is no thumb rule as to what is meant by the expression "soon before" death of a woman u/s 304B IPC despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. Hon'ble Supreme Court has held in Kedya Perumal vs. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda vs. State of M.P., 2004 III AD 305 = 2004 (3) SCC 98 that there should not be S.C. No. 119/09 Page 41/45 42 too much of the time lag between cruelty and harassment in connection with demand of dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence".
63. In the instant case, not a single instance has been cited by the prosecution witnesses that "soon before the death of deceased", she was subjected to cruelty or harassment by the accused in connection with any demand of dowry. Under these circumstances, prosecution has failed to prove demand of dowry and cruelty inflicted upon the deceased soon before her death.
64. Presumption under section 113B of the Evidence Act can be drawn only when prosecution first establishes the essential ingredients of section 304B IPC. Since prosecution has failed to discharge the onus of proof which lays upon it, question of drawing presumption against the accused u/s 113B does not arise. Under these circumstances, I hold that prosecution has not been able to establish charge u/s 304B IPC.
65. In view of the foregoing discussions made above, it is crystal clear that prosecution has not been able to established its case u/s 304B and 306 IPC against any of the accused persons, besides offence u/s 498A IPC against accused Chet Ram and Yashodha. As such they are entitled to benefit of doubt. Accordingly, they are acquitted of these offences alleged against them. However, there is overwhelming evidence to hold accused Rajesh guilty for offence punishable under section 498A IPC. Consequently, accused Rajesh is held guilty and convicted for offence u/s 498A IPC.
Announced in the Open Court (Sunita Gupta)
On this 19th day of August, 2010 District JudgeVII/NEcumASJ,
Karkardooma Courts, Delhi.
S.C. No. 119/09 Page 42/45
43
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 119/09
Unique ID Case No. 02402R0216372009 State Vs. Rajesh S/o Chet Ram, R/o E57/A204, Matawali Gali, Jhuggi Sunder Nagri, Delhi.
FIR No. 164/09 PS Nand Nagri U/s 498A/306 IPC.
Date of Institution : 19.09.2009 Date of reserving the Judgement : 19.08.2010 Date of pronouncement : 27.08.2010.
ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been prayed by Sh. A.K. Tiwari, Advocate, for convict Rajesh, on the ground that he is a young boy, aged about 20 years. He belongs to a poor family. He is the only son of his parents. He remained in custody for about one year, two months and 29 days. He is not a previous convict and has clean antecedents. Under these circumstances, it was submitted that lenient view be taken and convict may be released for period already undergone in detention.
2. On the other hand, it was submitted by ld. Prosecutor that offence committed by the convict is very serious in nature, inasmuch as, he is the husband of deceased and treated her with cruelty, mental and physically, which compelled a lady under 19 years of aged, having two or three months pregnancy, to commit suicide. S.C. No. 119/09 Page 43/45
44 Under these circumstances, he does not deserve any leniency.
3. Neeta was married with Rajesh on 12.12.08. After her marriage, she went to her matrimonial home. For initial two or three months, she was kept peacefully. Thereafter, convict Rajesh started harassing her. He was unemployed and used to do nothing. Many a times, Bhagwan Dass, father of deceased Neeta, made him understand, but he did not mend his ways. Sometime, he used to demand something at one place and sometime used to demand something else. He used to beat Neeta often and then. On 28.05.09, the fateful day, Rajesh came at his house. He found Neeta had committed suicide. He informed his inlaws about the incident. Neeta had met her untimely death within six months of her marriage. Thereafter, statement of Bhagwan Dass was recorded, wherein in hold convict Rajesh responsible behind committing of suicide by Neeta.
4. Keeping in view facts and circumstances of the case, coupled with the fact that untimely death of Neeta had taken place within six months of her marriage, due to cruel behaviour of her husband Rajesh, as such convict does not deserve any leniency. Consequently, he is sentenced to undergo RI for three years and to pay a fine of Rs.15,000/ for offence punishable under section 498A IPC. In default of payment of fine, he would further undergo RI for six months.
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5. Fine, if realized, be paid to parents of deceased Neeta as token of compensation. Convict shall get benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to him free of cost.
Announced in the Open Court (Sunita Gupta)
th
On this 27 day of August, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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