Delhi District Court
State vs . (1) Smt. Shakuntala Devi on 23 January, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT:
SHAHDARA: KARKARDOOMA COURT: DELHI.
SESSIONS CASE No. 118/2013
Unique Case ID No. 162/2016
FIR No. 224/2013
U/S: Shahdara
P.S: 306 IPC
State Vs. (1) Smt. Shakuntala Devi
W/o. Late Sh. Dharam Singh
R/o. 1/5554, Gali No.16,
Balbir Nagar Extn.,
Shahdara, Delhi.
Date of Institution : 30.11.2013
Date of Arguments : 19.12.2017
Date of judgment : 23.01.2018
JUDGMENT
Case of Prosecution __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.1 of 27 State Vs. Shakuntala Devi
1. Criminal law was set into motion on 10.06.2013 at 2.47 pm upon receiving a PCR Call from HC Satyadev, who was on duty on 54Z PCR to the effect that 'at H.No.1/5554, Gali No.16, one lady Mamta w/o Parag put herself on fire after pouring kerosene oil due to altercation with her mother inlaw and they had extinguished the fire and were taking her to hospital'. The said information was recorded vide DD No.54B and the DD was assigned to SI Kishan Singh, who visited GTB Hospital and collected the MLC of injured Smt. Mamta, who was opined fit for statement by the doctor. SI Kishan Singh recorded the statement of Smt. Mamta, which was to the effect that ' in the afternoon, she went to kitchen for doing some household work and kerosene oil lying in a bottle in the kitchen spilled over her and most of the kerosene oil engulfed upon her clothes and while turning off the gas, her clothes caught the fire and no one is guilty for this and she does not have any complaint or want any police action in this regard. She stated that her marriage has completed 16 years.' On the next day i.e 11.06.2013, another statement of Smt. Mamta was recorded by SI Kishan Singh in presence of her father. The gist of the statement is that " her husband runs a shop in Dilshad Garden and yesterday her husband was at his shop and her __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.2 of 27 State Vs. Shakuntala Devi mother inlaw Shakuntla tortured her by asking her to vacate the house. Her younger sister inlaw, Jeth & Jethani also instigate her mother inlaw and on account of this, at about 2 pm, her mother inlaw came into her room and said that she is not aware about the time and has not given her food till that time and on her saying that food is not ready yet, her mother inlaw started taunting her while saying that she is incapable to do anything and why she does not die and leave them. Her mother inlaw said her that so many people are dying by burning and why does she also not die and due to this mental torture, she took out bottle of kerosene oil, on which her mother inlaw told her that if she has courage then set herself on fire after pouring the kerosene oil, so that they may also get rid of her. Due to this torture, she set herself ablaze after pouring kerosene oil upon her person." On the basis of the said statement of Smt. Mamta, case FIR No. 224/2013 was got registered. IO visited the spot and seized one plastic bottle without cap having smell of kerosene oil, one match box make ship and sealed the same with the seal of KS. On 16.06.2013, injured Mamta succumbed to her injuries in the hospital. Statements of witnesses were recorded. Further investigation was carried out and after completing other necessary __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.3 of 27 State Vs. Shakuntala Devi formalities, chargesheet was filed before the court.
2. On appearance copies were supplied to accused as per section 207 Cr.P.C and as offence punishable u/s. 306 IPC is exclusively triable by the Court of Sessions, the matter was committed to the Sessions Court.
Charge against accused.
3. Charge u/s. 306 IPC was framed against the accused, to which she pleaded not guilty and claimed trial.
Witnesses examined
4. To substantiate the charge, prosecution has examined 16 witnesses. The brief summary of the deposition of prosecution witnesses is as under.
5. PW1 is HC Brijbhushan Tyagi, who on 11.06.2013 was posted as duty officer at PS Shahdara and recorded the present case FIR (Ex.PW1/A). He also proved his endorsement on rukka as Ex.PW1/B. __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.4 of 27 State Vs. Shakuntala Devi
6. PW2 is Ct. Ajay Kumar, who on 10.06.2013 was working as DD writer from 9 am to 5 pm at PS Shahdara and recorded DD No.54B i.e Ex.PW2/A.
7. PW3 Dr. Md. Shadab & PW10 Dr. Brijesh Anand had conducted postmortem on the body of deceased Mamta and proved the postmortem report as Ex.PW3/A. They deposed that death is due to septicaemic shock as a result of infected antemortem thermal burn injuries caused by flames of fire involving 65% of total body surface area.
8. PW4 is Ms. Neetu Verma, sister of deceased Mamta. She deposed that on 10.06.2013 she alongwith her son had gone to the house of her sister Mamta. She deposed that accused Shakuntala, who is mother inlaw of her deceased sister Mamta used to reside on the first floor of the same house, where Mamta was living. She further deposed that at about 1.30/2 pm, accused Shakuntala came at the ground floor of the house, where she and Mamta were siting and enquired whether they have come back from Chandni Chowk and then asked for food. She deposed that Mamta told her mother inlaw that food is not ready, upon which accused started saying hot words to __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.5 of 27 State Vs. Shakuntala Devi Mamta. In the meanwhile her husband also came there and asked her to accompany him. She deposed that she told him that she had not yet taken bath and was not ready on which her husband left from there asking her to get ready. PW4 further deposed that she asked her sister Mamta as to why this had happened upon which Mamta told that it was an everyday affair and asked her to return to her house, thereupon she went to the bathroom to take bath. PW4 further deposed that suddenly she heard the cries of her sister Mamta, she immediately came out and saw that her sister Mamta had caught fire. Her son and daughter of Mamta also rushed there and they shouted for help. In the meanwhile two police officials also came there. They threw water on Mamta and covered her with bed sheet to extinguish fire. She deposed that till such time, Mamta was conscious and saying " meri saas ne mera jeena haram kar rakha hai, ye jo chahti thi wahi ho gaya hai, aaj isne mujhe maar ke chhoda hai". Mamta was then rushed to GTB Hospital by the PCR Van.
In her crossexamination by Ld. Defence Counsel, she deposed that she came to the house of her sister Mamta about one week prior to the occurrence with her son and while she was present at the house of her sister for a period of one __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.6 of 27 State Vs. Shakuntala Devi week, a verbal altercation had taken place between accused and her sister once prior to the occurrence. She further confirmed that on 10.06.2013, her statement was recorded at her house and one more statement at the hospital. When attention of PW 4 was drawn to her statement recorded u/s. 161 Cr.P.C Mark PW4/DA, she replied that the fact as mentioned in the statement at point A that she saw her sister had put fire upon her body, is not correct as she did not see how she caught fire and she further explained that half of the content of her statement is true and other half is not true. She further clarified that the fact as mentioned at point B that her sister told her that her inlaws would kill her, is not correct. She was also confronted with her statement Mark PW4/DA with respect to the fact that she got recorded in her statement that Mamta told that " Meri saas ne mera jeena haram kar rakha hai, ye jo chahti thi wahi ho gaya hai, aaj isne mujhe maar ke chhoda hai". She confirmed that her sister Mamta used to give food to her mother inlaw i.e accused. To a specific question, she deposed that she has no knowledge whether father inlaw of her sister Mamta had ever made any complaint dt. 14.08.2012 with regard to suicidal attitude of her sister and denied the suggestion that bottle of kerosene oil had negligently fallen __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.7 of 27 State Vs. Shakuntala Devi upon her sister or due to that reason, her sister caught fire.
9. PW5 Sh. Deshraj is the father of deceased, who deposed that his daughter Mamta got married about 1617 years ago and that initially she was kept well but later on she was harassed. He deposed that on 10.06.2013, he received a telephonic call from his younger daughter, who informed that Mamta had set herself on fire. He deposed that when he met Mamta in the hospital, she told him that she could not give the statement properly and on his efforts, police again recorded the statement of Mamta i.e Ex.PW5/A bearing thumb impression of the foot of Mamta at point B. He further deposed that his daughter Mamta told the police in his presence that "Shakuntala told her tu samay par khaana nahi banati hai, duniya mar rahi hai, tereko maut kyu nahi aa rahi, duniya jal ke mar rahi hai tu bhi jalke mar jaa, hamari bhi gahel chhoot jayegi, tu bhi chhoot jaa and thereafter, she set herself on fire after pouring kerosene oil".
In his crossexamination by Ld. Defence Counsel, he deposed that he and Parag i.e husband of deceased Mamta took Mamta to Sarvodaya hospital in Faridabad on 10.06.2013 in the evening but she was not admitted there, therefore, she __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.8 of 27 State Vs. Shakuntala Devi was brought back to GTB Hospital. He denied the suggestion that Mamta had suicidal tendency or that she used to threaten that she would commit suicide.
10. PW6 HC Satya Dev is one of the material witness, who on 10.06.2013 was posted at PCR North East Zone and on that day he was Incharge of Baker56. He deposed that on 10.06.2013 after receiving of a call about falling of a tree, he alongwith gunman and driver reached at 1/5552 at around 2.15 am and they informed the control room about the truthfulness of call and were waiting for local police. He deposed that meanwhile, one lady came outside House No. 1/5554 and that she was under fire and making hue and cry as " Bachao Bachao". He with the help of staff put blanket over that lady and stopped the fire and thereafter, took her to the hospital. He deposed that said lady told them that " I have committed suicide due to the harassment of my mother inlaw". He informed the control room about the condition of the lady and the statement given by her to him.
In his crossexamination by Ld. Defence Counsel, he confirmed that call pursuant to which he reached the spot was about falling of a tree. He further confirmed that when they __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.9 of 27 State Vs. Shakuntala Devi were on the way to the hospital, the said lady i.e Mamta stated that she got herself burnt by pouring kerosene oil on herself due to harassment caused by her mother inlaw but after her admission in the hospital, her husband also came there and she resiled from her earlier statement, which she gave to him and stated to doctor that she burnt herself without any harassment.
11. PW7 is Ct. Sanjeev Kumar, who alongwith SI Kishan Singh reached at the spot and in whose presence IO seized a small size bottle of kerosene and one matchbox vide seizure memo Ex.PW7/A. On 11.06.2013, he took the copy of FIR and rukka to the spot and handed over the same to the IO. In his crossexamination by Ld. Defence Counsel, he confirmed that he reached at the spot at 2.55 pm with SI Kishan Singh on his private motorcycle.
12. PW8 is Dr.Parmeshwar Ram, CMO GTB hospital, who proved the MLC of deceased prepared by Dr. Mayank as Ex.PW8/A.
13. PW9 Smt. Saroj is mother of deceased, who deposed that on 10.06.2013 after receiving telephonic call from __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.10 of 27 State Vs. Shakuntala Devi her younger daughter, she went to the hospital, where Mamta told her that " Akhir meri saas ne mujhe maar hi dala". In her crossexamination by Ld. Defence Counsel, she was confronted with her statement recorded u/s. 161 Cr.P.C Mark PW9/D1, where the previous fact as deposed by her was not recorded. PW9 further confirmed that she told the police that Mamta consumed phenyl once due to tension. To a specific question she deposed that she cannot admit or deny that her daughter used to take medicines for any mental ailment but admitted the fact that she told the police personnel that her daughter used to take medicines due to tension and volunteered that tension was due to harassment.
14. PW11 Priyal Verma is the daughter of deceased. She deposed that 10.06.2013 was holiday and she alongwith her mother, her mausi Neetu and grand mother was present at home. She deposed that at about 11/12 am, her grandmother had asked her mother as to why she had not served food to her thereafter, she went to her room for making her chart paper. She deposed that the volume of the T.V was on high tone and suddenly, she heard the cries of her mother, on which she came out of the room and saw her mother burning.
__________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.11 of 27 State Vs. Shakuntala Devi In reply to a leading question as put by Ld. Addl. PP, PW11 deposed that perhaps an altercation took place between her mother and grand mother but she does not remember as she was in her room.
In her crossexamination by Ld. Defence Counsel, she confirmed that her grandmother was dependent on family for food. She further confirmed that her grandmother i.e accused suffered paralysis and is also diabetic and suffers from blood pressure.
15. PW12 is retired SI Kishan Singh, who on receiving of DD No.54B alongwith Ct. Sanjeev reached at the spot. He deposed that when they reached at the spot, they came to know that injured Mamta was taken to GTB hospital and after leaving Ct. Sanjeev at the spot to guard the same, he went to GTB Hospital, where he found Mamta admitted vide MLC MLC Ex.PW8/A. He deposed that Mamta was fit for statement and her husband was also present there. He recorded the statement of Mamta Ex.PW12/A. He further deposed regarding the steps taken during investigation and proved various memos prepared by him during investigation.
In his crossexamination by Ld. Defence Counsel, __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.12 of 27 State Vs. Shakuntala Devi he confirmed that statement Ex.PW12/A was made by deceased Mamta voluntarily. To a specific question, he deposed that on the next day, statement of Mamta Ex.PW5/A was recorded in the presence of atleast her 15 relatives including her parents. He further confirmed that he informed the parents of Mamta that he was recording the statement as per her version in their presence and that the parents of Mamta became irritated after hearing the previous statement of Mamta Ex.PW12/A and that on their objection, he again recorded her statement Ex.PW5/A.
16. PW13 Sh. Parag is the husband of deceased, who deposed that on 10.06.2013 he was present at his shop and at about 12.30 pm, he received a call from his mother i.e accused, who told him that till that time no breakfast or tea was prepared and after that he received a call of his wife, who told him that "
kaha suni chal rahi hai" and he told that he was coming back home. He deposed that when he was on the way to home, he received a call from his neighbour, who told him that his wife got burnt and was taken to GTB Hospital by the police. He further deposed that in his presence, police made enquiries from his wife and recorded her statement Ex.PW12/A. __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.13 of 27 State Vs. Shakuntala Devi In his crossexamination by Ld. Defence Counsel, he confirmed that statement Ex.PW12/A was given by his wife voluntarily in his presence and in the presence of doctors. He further confirmed that on 14.08.2012, his father lodged a complaint at PS Shahdara against deceased due to her suicidal attitude.
17. PW14 is ASI Rohtas, who on 16.06.2013 was posted as Duty Officer at PS Shahdara and who received a telephonic call made by duty constable Yogender regarding death of Mamta, which he recorded vide DD No.8A i.e Ex.PW12/D.
18. PW15 is Ct. Mahesh, who on 10.06.2013 was working as Duty Constable at GTB Hospital. He deposed that on 10.06.2013 at about 3.15 pm, one injured namely Mamta in burnt condition was admitted in the hospital and that doctor gave him one sealed pullanda and sample seal, which he gave to the IO.
19. PW16 is ASI Roshan Lal, who was posted as MHC(M) at PS Shahdara. He deposed that on 10.06.2013, SI __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.14 of 27 State Vs. Shakuntala Devi Kishan Singh deposited one sealed pullanda duly sealed with the seal of GTB Hospital and in this regard, he made entry in register no.19. He proved the copy of the entry as Ex.PW16/A. Statement and Defence of accused
20. Statement of accused u/s. 313 Cr.P.C was recorded, wherein she claimed herself innocent and did not lead any defence evidence. In reply to question no.4 of her statement u/s. 313 Cr.P.C, she stated that she asked only for the food but no hot words had taken place between her and her daughter inlaw. Accused examined herself u/s. 315 Cr.P.C as DW1.
Arguments and Conclusion
21. Arguments have been addressed by Sh. Ashok Kumar, Ld. Addl. PP for the State as also by Sh. S.K.Verma, Ld. Defence Counsel for accused. I have also gone through the written submissions filed on behalf of accused.
22. Ld. Addl. PP for the State argued that first __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.15 of 27 State Vs. Shakuntala Devi statement of the deceased was recorded in the presence of her husband and later on she informed her parents that the said statement was not her voluntary statement. Ld. Addl. PP further argued that in her subsequent statement i.e dying declaration recorded on 11.06.2013, deceased has clearly stated that her mother inlaw instigated her to commit suicide. It has been further argued that in her first statement given to HC Satya Dev, deceased Mamta also stated that she committed suicide due to harassment caused by her mother inlaw and she elaborated her statement later on when her parents reached in the hospital. Thus, it was argued that prosecution has proved its case beyond reasonable doubt being based on the dying declaration of the deceased.
23. Per contra, Ld. Defence Counsel for accused argued that deceased changed her version on 11.06.2013 due to pressure of her parents, which fact is also admitted by the IO. It has been argued that there was no complaint by parents of deceased that statement of deceased Mamta Ex.PW12/A was made under any pressure and thus, there was no need for recording second statement of the deceased. It has been argued that no efforts were made to get the statement of victim __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.16 of 27 State Vs. Shakuntala Devi recorded by the SDM. It has been further argued that sister of deceased and her daughter were also present when accused asked for the food from the deceased but none of them have deposed about the facts as alleged in subsequent tutored statement of the deceased, which was recorded under pressure of her parents.
24. The case of prosecution hinges upon three statements given by deceased Mamta prior to her death. Her first statement regarding the incident was given to HC Satya Dev just after the incident when she came outside her house making hue & cry as " BachaoBachao". PW6 HC Satya Dev, who was posted at PCR NorthEast Zone and was Incharge of Baker 56 went to the spot alongwith gunman and driver for attending one another call regarding falling of a tree and when they were waiting for the local police, deceased Mamta came outside her house shouting 'BachaoBachao' and HC Satya Devi alongwith other police officials extinguished the fire and took Mamta to the hospital. As per PW6 HC Satya Dev, deceased told them that she committed suicide due to harassment caused by her mother inlaw. Second dying declaration was made by deceased Mamta when she was __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.17 of 27 State Vs. Shakuntala Devi admitted in GTB Hospital, to SI Kishan Singh. As per PW12 SI Kishan Singh, Mamta was fit for statement and he recorded her statement Ex.PW12/A wherein she stated that the incident was an accident and none was responsible for the same. The third statement of deceased Ex.PW5/A was recorded next day i.e on 11.06.2013 in presence of her family members, wherein she stated that her mother inlaw had instigated her to set herself on fire, if she had courage to do so.
25. It has been held by Hon'ble Supreme Court in number of judgments that "A dying declaration made by a victim, accusing a person of having been responsible for his/her death, cannot form the basis of conviction if it suffers from infirmity.
The Hon'ble Apex Court in P.Mani vs. State of Tamil Nadu reported in (2006) 3 SCC 161 has held as follows : Section 32 of the Evidence Act, 1872 - Dying Declaration - Must be wholly reliable - In case of suspicion, the Court should seek corroboration - If evidence shows that statement of deceased is not wholly true it can be treated only as a piece of evidence but conviction cannot be based solely upon it. It is further held in the very same decision that, __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.18 of 27 State Vs. Shakuntala Devi "Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, if may be considered only as piece of evidence in which event conviction may not be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them."
26. Sh. Parag, husband of the deceased, who has been examined as PW13 deposed that on 10.06.2013, he was present at his shop and at about 12.30 pm, he received a phone call from his mother i.e accused, who told him that still no breakfast or tea has been prepared and thereafter, he received a call of his wife, who told him that " kaha suni chal rahi hai"
and when he was coming back to home, on the way, he __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.19 of 27 State Vs. Shakuntala Devi received a call that his wife had put herself on fire.
27. PW4 Ms. Neetu Verma, real sister of the deceased and PW11 Priyal Verma, daughter of the deceased, both were present in the house when deceased committed suicide but none of them have deposed anything regarding any instigation or abetment by accused to her daughter inlaw i.e deceased Mamta to commit suicide. PW4 Neetu Verma deposed that on 10.06.2013, accused Shakuntala came at the ground floor of the house, where she alongwith Mamta (since deceased) was sitting and accused enquired from Mamta if they had come back from Chandni Chowk and then asked for food, on which Mamta told her that food was not ready and upon this, accused started saying hot words to Mamta. What those hot words were, has not been explained by this witness. PW4 Ms. Neetu Verma further deposed that thereafter, she went to take bath and suddenly heard the cries of her sister Mamta and then she alongwith her son and daughter of Mamta shouted for help. She while deposing before the court made certain improvements from her statement recorded u/s. 161 Cr.P.C but remained stick to the point that she had not seen her sister while she set herself on fire.
__________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.20 of 27 State Vs. Shakuntala Devi
28. PW11 Priyal Verma, daughter of deceased also deposed that at about 11/12 pm, her grandmother i.e accused had asked her mother as to why she had not served food to her and that thereafter, she went to her room for making chart paper. In reply to a leading question put by Ld. Addl. PP, she deposed that perhaps an altercation took place between her mother and grandmother but she does not remember as she was in her room. Thus, none of the prosecution witness claims as to how and when deceased put herself on fire as at that time her sister was in the bathroom and her daughter was in her study room. As such, the important question arises whether the three dying declarations made by the deceased Mamta were made voluntarily in a fit state of mind and without any tutoring & prompting by anyone.
Reliance is placed upon the judgment of Hon'ble Supreme Court in K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618, wherein it was held that " The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
__________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.21 of 27 State Vs. Shakuntala Devi
29. As already noted, the first dying declaration was made by Mamta to PW6 HC Satya Dev just after the incident that she committed suicide due to harassment caused by her mother inlaw. Regarding her second dying declaration made in GTB Hospital i.e Ex.PW12/A, PW12 SI Kishan Singh deposed that statement of Ms. Mamta Ex.PW12/A was made voluntarily and further admitted that at that time husband of deceased was also present there. Thus, the second dying declaration, which was made in the hospital on the day of incident that incident was an accident appears to have been made under the influence of her husband. The third dying declaration made by the deceased on the next day of incident i.e Ex.PW5/A was recorded in presence of her parents and other relatives. IO/SI Kishan Singh deposed that he informed the parents of Mamta about the previous statement of Mamta Ex.PW12/A on which they became irritated and thereupon, he recorded her third statement Ex.PW5/A on the asking of senior officer i.e SHO. PW5 Sh. Deshraj, father of deceased also deposed that on account of his efforts, police again recorded statement of Mamta Ex.PW5/A. The third dying declaration made by deceased, therefore, appears to have been made under the influence of her parents.
__________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.22 of 27 State Vs. Shakuntala Devi Hon'ble Supreme Court of India in AIR 2007 SC 1368, Sanjay Vs. State of Maharashtra has held that " In our opinion in view of the different dying declarations it would not be safe to uphold the conviction of the appellant and we have to give him the benefit of doubt. It cannot be said in this case that the prosecution has proved the appellant's guilt under Section 306 IPC of abetting the suicide beyond reasonable doubt".
30. Adverting back to the facts of the present case, there are three dying declarations made by the deceased at different points of time. The first dying declaration made to PW6 HC Satya Dev just after the incident appears to be the true statement in which deceased told him that she committed suicide due to harassment by her mother inlaw. The second and third dying declarations were recorded in the presence of husband and parents of deceased and in both these statements deceased Mamta gave completely contradictory versions regarding her setting herself ablaze. Whereas in one statement she said that the incident was an accident in other statement she she said that she committed suicide due to abtement by her mother inlaw. Harassment by someone is altogether different __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.23 of 27 State Vs. Shakuntala Devi from abetment. Admittedly, accused and deceased were residing on separate floors but accused was dependent for food upon the family of her son. PW4 sister of deceased and PW 11 daughter of deceased, who were present in the same house at the time of incident have deposed that accused used hot words as the food was not ready till 1.30/2.30 pm.
31. As per settled law, in context of Section 306 IPC, the important facet is what the accused intended and not what the deceased felt. Ingredients of suicide would be satisfied only when the suicide is committed by the deceased due to direct encouragement or incitement of accused leaving no option but to commit suicide.
It should come on record that such conduct created immense disturbance and resulted in psychological imbalance and any normal and reasonable human being would have also been compelled to suicide due to such behaviour, act, conduct or omission on the part of the accused persons.
Hon'ble High Court in Vedprakash Bhaiji v.
State of M.P., 1995 Criminal Law Journal 893 held that the accused persons were intimated by the deceased that if they do not repay the loan advanced to them, then they will have to __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.24 of 27 State Vs. Shakuntala Devi face with dire consequences and immediately thereafter he committed suicide. This Court has held that it could not be said that the accused persons provoked, incited, urged or encouraged the deceased to commit suicide. A person is said to "instigate" another to an act when he actively suggests or stimulates him to the act by any means of language, direct or indirect for commission of the offence.
In Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh, 2002 AIR SCW 2035, Hon'ble Supreme Court observed that even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the word uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional.
32. Applying the settled law to the facts of the present case, I find that prosecution has miserably failed to prove that there was any mens rea on the part of accused or any such __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.25 of 27 State Vs. Shakuntala Devi instigation to the deceased by accused which led the deceased to commit suicide. The alleged harassment of deceased by the accused itself does not constitute the ingredient of 'instigation'. Apart from this, one another important fact is the deposition of PW9 Smt. Saroj, mother of deceased, who in her cross examination admitted that she told the police that her daughter Mamta had consumed phenyl once due to tension. She further confirmed that she told the police personnel that her daughter used to take medicines due to tension and volunteered that tension was due to harassment. Thus, a doubt also arises that deceased was having suicidal tendency and that is why she consumed phenyl once prior to the incident and was also taking medicines.
33. In view of the evidences & other material on record alongwith the judgments cited & relied upon hereinabove, the prosecution has failed to prove that there was any direct incitement or instigation on the part of accused, which left the deceased with no option but to commit suicide and further there are three contradictory dying declarations, which create a doubt on the story of prosecution. Accused is accordingly given benefit of doubt and is acquitted of the __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.26 of 27 State Vs. Shakuntala Devi offence with which she was charged. Her bail bonds stand cancelled. Surety is discharged. However, she is directed to furnish personal bond u/s 437A Cr.P.C. for a period of six months in the sum of Rs.15,000/ with one surety in the like amount. After furnishing the bail bond, file be consigned to record room. SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR Announced in the open court MALHOTRA Location: Karkardooma Courts, Delhi Date: 2018.01.23 16:21:40 on 23.01.2018 +0530 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi __________________________________________________________________ FIR No.224/2013, PS. Shahdara Page No.27 of 27 State Vs. Shakuntala Devi