Delhi District Court
State vs Prashant Aggarwal on 3 June, 2010
ID No. 02402R0722282008
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
(01EAST): KARKARDOOMA: DELHI
SC No. 08 of 2008
FIR No. 260/08
PS Pandav Nagar
U/s 498A/304B IPC
Instituted on 20.10.2008
Argued on 03.06.2010
Decided on 03.06.2010
State vs Prashant Aggarwal
s/o Sh. B.P. Aggarwal
r/o 118C, Pocket4, Mayur Vihar,
Phase1, Delhi
J U D G M E N T
Accused in this case has been prosecuted for the commission of offence u/s 304B and 498A IPC. The factual matrix of the case as projected by the prosecution is that on 04.07.2008, DD No. 40A (Ex.PW10/A) was recorded regarding suicide of a female at Flat No. 107130, Pocket 4, Mayur Vihar - I, Delhi. ASI Vijender Pal (PW16) along with Ct. Shah Alam (PW12) reached at the spot where maid servant Julie (PW5) informed them that husband of Aarti had taken his wife to Kukreja Hospital. PW16 inspected the house. In the room one chunni was lying tied with the hook of the ceiling having a knot on both side of chunni. There was a wooden chowki on which 1/27 SC No. 08/08 ID No. 02402R0722282008 one black colour diary was lying having a pen. A suicide note dated 4.7.08 was noted in the diary(Ex.Pw4/A). The 'Chitkani' of the room which opened inside the room was found bent. Marks of hitting on the door were seen. ASI Vijender Pal Singh left Ct. Shah Alam to protect the spot . He collected MLC No. 16/08 (Ex.PW7/A) of the deceased Aarti w/o Prashant on which doctor mentioned `patient brought dead'. There were ligature marks on the neck of deceased. SHO reached at the spot. Crime team photographer took the photographs. Flat No. 118C was locked and ASI Vijender left for Kukreja Hospital. Dead body was taken to LBS Hospital . In the morning on 5.7.2008, Executive Magistrate (PW6) reached and inspected the spot. Executive Magistrate inquired from the parents of the deceased . Statement of Smt. Raj Bala (PW3), mother of deceased was recorded by him. Smt. Raj Bala in her statement reported that accused used to harass the deceased Aarti on account of dowry. Parents of the accused were not happy with the marriage since the deceased was widow. Father in law, mother in law, Jeth, Jethani and Nanad were residing at Mumbai and few months earlier father in law of the deceased had come and raised a quarrel. The mother in law and father in law used to reside at their home and used to raise quarrel. Thereafter their son in law harassed her deceased daughter and used to say that she was not doing service. It is stated that accused Prashant used to beat her. Maid servant Julie used to tell them that accused used to beat her and say that the children would be sent to orphanage and that he would marry again. A sum of Rs. 1 lac FDR and gold articles of Rs.1 lac to 1.5 lac and Rs.1 lac cash was given in the marriage to the daughter and thereafter purchased a Pulsar 2/27 SC No. 08/08 ID No. 02402R0722282008 motorcycle. A sofaset was given to him. Thereafter, several times Rs.25,000/ each were given. Despite that they did not spare their daughter who was beaten and in the end she committed suicide. On asking by the SDM as to whom they held responsible for the incident. Smt. Raj Bala (PW3) stated that they held responsible their son in law Prashant, father in law B.P. Aggarwal and mother in law whose name she could not remember and Nanad and Nandoi were suspected. It was stated that there daughter was not allowed to meet them and her deceased daughter used to narrate them all the incident telephonically . Their son in law used to say that they are rich people and nothing could happen to them. SDM made endorsement (Ex.PW6/A) on the statement (Ex.PW3/A) recorded by him and forwarded it to SHO, Police Station Pandav Nagar for necessary action. FIR No. 260/08 (Ex.PW1/A) u/s 498A/304B IPC was registered at 1350 hours on 5.7.2008. Postmortem of the dead body was got conducted . IO prepared site plan Ex.PW16/D at the instance of Julie (PW5). He seized 'diary and pen vide' memo Ex.PW12/A. He separated chunni from the hook and prepared pullinda and sealed the same vide Ex.PW12/B. IO interrogated the accused and arrested him vide memo Ex.PW12/D. Accused was got medically examined. Case property was deposited in the malkhana by the IO. On 07.07.2008, IO recorded the statements of parents and sister of the deceased. He seized marriage certificate of the deceased vide Ex.PW12/A and collected postmortem report on 24.07.2008 and marriage certificate of the accused from PW2. On conclusion of necessary investigation, charge sheet was filed in the court of Ld. Metropolitan Magistrate on 19.09.2008 who committed the case to the 3/27 SC No. 08/08 ID No. 02402R0722282008 court of Sessions on 17.10.2008. Accused was served with charge u/s 498A as well as 304B and alternatively u/s 306 IPC on 21.11.2008 to which accused pleaded not guilty and claimed trial.
2 In order to establish accusations against the accused, prosecution examined 16 witnesses.
Pw2 Sh. Rajender Prasad, father of the deceased Aarti. Pw3 Smt. Raj Bala, mother of the deceased. Pw4 Kumari Ruchi Sharma, sister of deceased. Pw5 Julie, Maid Servant. Pw6 Sh. P.K. Jayant, Executive Magistrate. Pw7 Dr. R. Murli, Kukreja Hospital. Pw8 Dr. Vinay Kumar Singh conducted the postmortem on the dead body of the deceased. Pw9 Amit Prasad,PW14 Vijay Chandra and PW15 Dinesh Chand neighbours.
Pw1 W/HC Kamlesh, duty officer recorded the FIR Ex.PW1/A. She made endorsement thereon as Ex.PW1/B. Pw10 ASI Omveer Singh recorded DD No. 40A (Ex.PW10/A) at 2246 hours. PW11 Ct. Sanjeev, photographer, Mobile Crime Team took photographs Ex.PW11/A1 to Ex.PW11/A6. PW12 Ct. Shah Alam and PW13 Ct. Giri Raj joined investigation with PW16 ASI Vijender Pal Singh.
3 On conclusion of evidence statement of accused u/s 313 Cr.P.C. was recorded. Accused pleaded innocence and false implication. Accused admitted that he was married with deceased Aarti on 15.07.2005 . He stated that it was a love marriage . He admitted that he made a telephone call to his parents in law that deceased has closed the door from inside and she was not opening the door. He had taken Aarti to Kukreja Hospital. He stated that PW5 Julie was working in their house and getting remuneration of RS.2200/ 4/27 SC No. 08/08 ID No. 02402R0722282008 per month and she started serving in his house and sent there by PW2 (father of deceased.)He used to leave the house at 9.00 am and used to come back at 9.30 pm. He stated that he was arrested falsely and deceased was suffering from depression and was under treatment at AIIMS as well as other hospitals. Accused produced Sh. Devender Kumar Gaur as DW1, Sh. Nitin Goel as DW2, Dr. Alok Aggarwal, Senior Resident(SR), AIIMS hospital as DW3, Dr. Prashant Goyal, SR, Department of Psychiatry, AIIMS as DW
4.Accused himself appeared in the witness box as DW5.
4 I have heard submissions advanced by Sh. Sanjay Kumar, Ld. Additional PP for State and Sh. R.K. Jain ld. defence counsel and have perused the material on record carefully.
5 From the evidence on record, it is obvious that the deceased Aarti got married with accused Prashant Aggarwal on 15.7.2005 and she expired on 4.7.2008. As per medical evidence of Dr. Vinay Kumar Singh (PW8) cause of death was asphyxia due to antemortem haemorrage. On examination, PW8 found ligature marks 33 x 35 cm incised present over upper front, side and back of neck, hard and parchment type, margins regular, on disection, subcutaneous tissue pale,present 5 cm below right ear and 8 cm below chin and 7 cm below left ear. Doctor found no other marks of any other injury. There were no other injuries apart from ligature marks and time since death was 1420 hours. Autopsy was concluded at 2.30 pm on 5.7.2008.This medical evidence on record shows that deceased Aarti expired within seven years of her marriage under other than normal circumstances. 6 Now,the points to be considered in this case ,are 5/27 SC No. 08/08 ID No. 02402R0722282008 (I) Whether `soon before her death' deceased Aarti was subjected to cruelty or harassment by the accused in connection with any demand of dowry ?
(II) Whether accused abetted the commission of suicide by the deceased Aarti ?
(III)Whether prosecution has proved any willful conduct on the part of accused of such nature as was likely to drive his (deceased) wife Aarti to commit suicide or cause grave injuries in ending her life, limb or health, whether mentally or physically ? or (IV)Whether accused harassed deceased Aarti with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand ?
7 At the outset, before I discuss the evidence, it is noteworthy to summarize relevant legal position to decide the aforesaid issues . In a criminal trial, however intriguing may be the facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirements of proof cannot lie in the realm of surmises and conjectures. The legal position is now well settled that requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 304B, 498A IPC and Section 113A, 113B of the Indian Evidence Act.
8 In Raman Kumar Vs. State of Punjab 2009 Cri. L.J. 3034 it was 6/27 SC No. 08/08 ID No. 02402R0722282008 held that :
"In order to attract application of Section 304B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv)Such cruelty or harassment should be for or in connection with demand of dowry.
(v)Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
As per the definition of "dowry death" in Section 304B IPC and the wording of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment "soon before her death" and that too "for or in connection with the demand for dowry". The legal position is well settled that on a joint reading of Section 113B of the Evidence Act and Section 304B IPC it would reveal that there must be cogent material to show that soon before her death the victim was subjected to cruelty or harassment, and that too in connection with any demand for dowry. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where presumption u/s 113B of the Evidence Act and Section 7/27 SC No. 08/08 ID No. 02402R0722282008 304B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption would operate. Evidence in this regard has to be led in by the prosecution and established beyond doubt. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would be the quantum to constitute a period of soon before the occurrence. The expression "soon before her death" used in the substantive section 304B IPC and section 113 B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
" In Hazarilal v. State of M.P. 2007 (8) SCALE 555 it was inter alia observed :
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ID No. 02402R0722282008 "There being no other material to show as to how the deceased was being harassed or subjected to cruelty and because the deceased committed suicide there must be some harassment and cruelty is insupportable and indefensible. Merely on surmises and conjectures the conviction can not be recorded. There is a vast difference between "could have been", "must have been" and "has been". In the absence of any material, the case falls to the first category. In such a case conviction is impermissible."
Before a presumption is raised under Section 113B Evidence Act, the foundation thereof must exist. Unless and until the preliminary facts are established beyond reasonable doubt by the Prosecution, it is not open to draw a presumption against the accused to invoke this Section.
Section 2 of Dowry Prohibition Act reads as under:
"2. Definition of "dowry"In this Act "dowry" means any 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;
(b) by the parent 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) applies."
'Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.
In Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon'ble Supreme Court observed that :
"In case of an offence under section 304B Indian Penal Code 9/27 SC No. 08/08 ID No. 02402R0722282008 an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution."
9 Section 306 IPC deals with abetment of suicide. The said provision reads as follows If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of IPC. In `State of West Bengal Vs. Orilal Jaiswal (AIR 1994 SC 1418)' it was observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the 10/27 SC No. 08/08 ID No. 02402R0722282008 cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petualance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Section 107 IPC defines abetment . The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (i) he instigates any person to do that thing; or (ii) engages with one or more other persons in any conspiracy for the doing of that thing; or (iii) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abeted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement 11/27 SC No. 08/08 ID No. 02402R0722282008 to the commission of suicide. The mere fact that the husband treated the deceasedwife with cruelty is not enough.[Mahinder Singh Vs. State of M.P. (1995 AIR SCW 4570)]. 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 and the presumption is not an irrebutable 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.' The explanation to Section 113A further clarifies that cruelty shall have the same meaning as in Section 498A of the IPC. 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 the word "cruelty" in section 498A IPC. Legal position is well established that the mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case.
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ID No. 02402R0722282008 10 Now, on the touchstone of aforesaid position of law, I will consider the submissions and the evidence adduced in this case. Learned Additional PP could not point out from the complaint or from the testimony of any other witness ,any allegation of cruelty 'soon before the death' of the deceased. In the diary, the 'suicide note' dated 4.7.2008 is stated to be noted by the deceased that " I, Aarti put an end to my life. I have been defeated by life. It cannot be further tolerated. I always tied to have happiness but I could not get it except sorrow and tears. I beg apology from my parents. My life now cannot be set right. Whosoever is behind my death, no one else but only god will punish them. I request you all to take care of my children. While leaving the world, I could not love them and have not properly seen them. I have no more courage. Mummy, please pardon me. I have been a looser." 11 Ld. Addl. PP for State at the outset referred to the testimony of PW5 Julie, the maid servant. He submits that deceased had written that she was harassed and she was not given any money for her domestic expenses. Admittedly,there are no specific allegations regarding demand of dowry in this suicide note dated 04.07.2008. Ld. defence counsel submitted that Prashant always cared for Aarti and never caused any harassment and torture. The accused married with Aarti as they both were in love with each other for the last 2/3 years and marriage was solemnized in a temple. And moreover, Aarti was widow at that time and parents of Aarti rather did not inform even to the parents of Prashant and after marriage Prashant purchased Pulsar motorcycle for a total sum of Rs.53,091/ out of which Rs.29,732/ was paid in case and Rs.23,420/ by his own credit card. The original bill of the same is Ex.DW5/A. Prashant also purchased a fridge, the receipt of the original receipt is 13/27 SC No. 08/08 ID No. 02402R0722282008 Ex.DW5/B in the sum of Rs.12,993/ and the payment was made by Prashant through ICICI credit card. In the instant case, there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. 12 Ld. defence counsel pointed out that Prashant purchased each and everything according to his budget and he did not demand any dowry nor any dowry was given by the parents of Aarti. As per evidence adduced by him Prashant purchased double bed from Agra from M/s Bombay Furniture. He drew attention of the court towards receipt Ex.DW2/C , the receipt of purchase and repair of sofa set ( Ex.DW2/A ) purchase of mattresses (Ex.DW3/C). Prashant also purchased Wagon R car in the year December, 2007, the copy of the receipt of which is Ex.DW5/D. AC was purchased by Prashant in April 2008, the copy of which is Ex.DW5/E. Ld. defence counsel argued that Prashant was employed as Computer Engineer with M/s F.L. Smith InfoTech Pvt. Ltd. and he used to maintain his household expenses with planning and used to prepare his budget accordingly. Prashant as well as Aarti used to write the expenses and accounts of newspaper, maid, milk, kurewala etc. and the relevant papers of the diary are Ex.DW5/F1 to Ex.DW5/F5. Ld.defence counsel submitted that Prashant made some investment in the LIC policies and mutual fund and 'Aarti' was made nominee in all the LIC policies. In one LIC policy, purchased before the marriage the 'nominee' was mother of Prashant namely Saroj Aggarwal but after the marriage Prashant changed the name of nominee as Aarti,his wife( Ex.DW5/G) which indicates his love for his wife . He argued that Prashant used to always take care for the happiness of 14/27 SC No. 08/08 ID No. 02402R0722282008 Aarti . He made several purchases of apparels and used to watch movies and also used to go in restaurants with Aarti. After the marriage ,Prashant also went to honeymoon and went to Vaishno Devi, Dalhousie, Amritsar, Dharamshala and many other places. He went to Nainitaal, Ranikhet, Jim Korbett National Park at different intervals of time during his married life. Prashant also opened a saving account in the name of Aarti and time to time used to save deposit amount in her account for her convenience. Aarti was holding a one ICICI Bazar Credit Card and she was also holding a Debit Card also.
13 Mr. Jain ld.counsel further submitted that when Aarti was not conceiving, Prashant took her to Dr. Anju Sharma in Agra and got her treated in Agra and after the treatment she delivered two twin babies at Sunder Lal Jain Hospital,Ashok Vihar, New Delhi. Ld. defence counsel submitted that , from the above facts and circumstances, it is clear that Prashant never harassed Aarti for demand of dowry rather he always helped her to keep her happy in the matrimonial home. Ld. Counsel for accused argued that the parents of Aarti did not disclose the true facts regarding ailment of Aarti as she was suffering from depression and she was under treatment and she was getting treatment from various hospitals like AIIMS, VIMHANS and from Dr. Alok Sarin Chikitsa Poly Clinic at Saket. She had developed suicidal tendencies and she tried to commit suicide by consuming Alprax tablet and was taken to Sarvodya Hospital at Faridabad, Haryana along with her Mama Rajesh and mother Raj Bala. She was shorttampered and used to react violently and used to throw household articles. She also used to utter that 'I 15/27 SC No. 08/08 ID No. 02402R0722282008 don't want life and don't want to die' and sometime in the state of unconsciousness she used to loose her senses and urinate, then Prashant used to change her dirty clothes. The statement of doctors(DW3 and DW4) proves that Aarti was chronic patient of depression and developed suicidal tendency. It is noteworthy that PW2 admitted that Aarti got treatment from AIIMS and VIMHANS in his crossexamination dated 06.02.2009. 14 It is argued that the allegations are fabricated and even in the suicidal note, though not admitted, does not show any demand of dowry and the present accused has been falsely implicated with ulterior motive. He argued that actually, the parents of Aarti wanted that the flat at Mayur Vihar, which was in the name of father of Prashant be transferred in the name of Aarti to which Prashant refused and they were annoyed with this. Ld. defence counsel relied upon `Suraj Mal Vs. The State (Delhi Admn.) AIR 1979 SC 1408 and Dhanna etc Vs. State of M.P. AIR 1996 SC 2478' wherein it has been held that "Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
Accused cannot be convicted on the basis of improvement made by said witness of trial."
He relied upon `Raman Kumar Vs. State of Punjab II (2009) CCR 621 (SC)' referred above wherein accused was acquitted as there was no demand of dowry in letters and improvements in statement. It was observed that '' In a letter written by deceased there is not even a whisper 16/27 SC No. 08/08 ID No. 02402R0722282008 about demand but deceased categorically stated that she asked for money and articles on her own. Witness PW6 and PW7 introduced certain aspects for first time. There were improvements in their statements. '' 15 In Sohan Raj Sharma Vs. State of Haryana 2008 (2) Crimes 175 (SC), the petitioner filed an appeal against the conviction u/s 306 IPC. The factual background of the case was that in the FIR it was mentioned that deceased had written a letter that her husband/appellant was torturing her in many different ways and tired of the same she had poisoned her children and consumed poison herself. It was further alleged that the appellant because of the circumstances had compelled the deceased to consume poison. Complainant handed over one letter (Ex.PX) of eight pages to the police. It was held that it cannot be said that ingredients of section 306 IPC have been established. Conviction recorded was set aside. In Raj Babu and another Vs. State of M.P. 2008 (3) Crimes 313 (SC). Appellant/accused persons, husband and inlaws of the deceased were prosecuted u/s 306/498A IPC for treating deceased with cruelty and abettment of suicide. In this case,deceased died of burn injuries. A letter was allegedly written by the deceased mentioning the fact that the attitude of the family was not good towards the deceased and she was not treated well but there was no mention of any incident of cruelty. It was held that the appellant was entitled to benefit of doubt. It was further observed that mere fact that a woman committed suicide within 7 years of her marriage and she had been subjected to cruelty by her husband or any relative of her husband does not automatically give rise to the presumption that the suicide had been abetted by her husband or 17/27 SC No. 08/08 ID No. 02402R0722282008 any relative of her husband and one of the circumstance which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide.'' 16 Ld. Addl. PP drew attention of the court towards the previous pages of the diary Ex.PW4/A purported to have written on 04.11.2007 wherein inter alia it is stated that "Prashant had gone to America, then I thought that I will put an end to my life but I become pregnant. I felt that everything would be changed for better but I did not know that her life, would become worse. Not a single day had passed in the pregnancy when I did not weep. Doctor told me to remain happy and take good diet but I used to remain hungry the whole day and kept weeping. Prashant wants that some how all the three of us should die and by letting death as natural death he could go back to his family. I know that I become angry very easily and do not have control on myself. Prashant abuses and beats and for a minute I do not feel like living. Every time, I am made to feel that how much he had done for me."
I have gone though the entire writing. If the writings in the diary are read as a whole, it indicates that the deceased used to remain in a disturbed state of mind. It is significant to note that in the purported writing written on 04.07.208 soon before he death, she has not given any specific incident or incident of beating or abuse against the accused and has not specified that it was the `accused' who was responsible for creating circumstances so that she will put an end to her life or in other words that it was accused who provoked or incited in any manner to the deceased to 18/27 SC No. 08/08 ID No. 02402R0722282008 commit suicide. In this context, what defence witnesses have stated also requires to be noted. DW1 Devender Kumar Gaur testified that he had participated in the Hawan ceremony in January 2008 at Mayur Vihar residence of the accused where his father also participated on the occasion of birth of twin daughters of accused and the deceased. He stated that everybody was happy and no dispute had taken place. He placed on record the photograph Ex.DW1/A to DW1/C. DW3 Dr. Alok Aggarwal, Sr. Resident, AIIMS who deposed that on 03.06.2005 i.e. prior to her marriage with accused deceased Aarti had come to the hospital for treatment and he found loss of consciousness. He placed on record casualty card Ex.DW3/A and his detailed report is Ex.DW3/B. He stated that as per his knowledge in case of this type of moderate depression possibility of suicide could not be ruled out with certainty. There is nothing in the crossexamination to show that documents placed on record by him were fabricated or his opinion was incorrect. Accused himself appeared in the witness box as DW5. Accused testified that he never caused any harassment or torture or beaten Aarti on account of dowry and never demanded any money and stated that he was having cordial relation with the parents of deceased and he used to inform the mother of Aarti regarding her ailment who used to assure him that everything would be alright in future. He testified that Aarti was suffering from depression and she was getting treatment before marrying with him. Another witness produced by accused was Dr. Prashant Goyal, Sr. Resident, Deptt. Of Psychiatry, AIIMS as DW4 who deposed that on 12.06.2005 he examined deceased for the history of alleged consumption of 1015 tablets of Escitalopram (Anti 19/27 SC No. 08/08 ID No. 02402R0722282008 depressant) 10 mg and clonazepam 0.5 mg reason for consumption reported to be difficulty in falling asleep and some stress. His detailed report is Ex.DW4/A. On examination of her and on the basis of information it appeared to him that the patient attempted to commit suicide. Dw4 deposed that patient had expressed suicidal thoughts during her examination mentioned in the report Ex.DW4/A. The testimony of defence witnesses indicates that even before her marriage, deceased was suffering from depression and as per the doctor's opinion she she had suicidal tendencies.
17 Ld.Additional PP submitted that after arriving to the house accused used to drink liquor . He used to abuse Aarti and used to utter that if Aarti will not bring dowry, he will kill her daughter. Whenever Aarti used to fall ill, he used to ask her what happened on which she would told that her father in law used to harass and tease her for bringing more dowry. Her father in law used to say that if she has not to work then she should return back to her parents. Prashant used to say that he will grant divorce her. She used to remain disturbed and weep. She further stated that on 4.7.2008 Prashant had came from office at about 7.00 pm and consumed liquor. She stated that after drinking liquor, he had beaten Aarti and closed the door after dragging her. Prashant had gone to another room and shut the same. He stated that let her die and he will not open the door. Room was actually found closed from outside. In the crossexamination, witness was confronted with her previous statement Ex.PW5/DA u/s 161 CrPC where many of the facts referred above were not mentioned. In the statement u/s 161 CrPC it was not mentioned that Prashant used to torture her and told her that if she will not bring dowry he will 20/27 SC No. 08/08 ID No. 02402R0722282008 kill her and daughters. It is not mentioned that when she fell ill she used to ask her as to what happened, on which she would told her that her father in law and accused used to harass her and tease her for bringing more dowry. It was not mentioned that accused used to say that he will grant divorce to her if she will not bring dowry. It is not mentioned therein that she used to remain disturbed and weep. On asking to clarify, she stated that accused had bolted her and closed the door from outside, on 4.7.2008 and she stated that what she stated in the court is correct. It means that door of the room was closed from outside. In this regard, the testimony of Amit Prasat (PW9) is relevant who stated that on receiving a telephone call of his wife about the incident. He rushed to the house of Prashant where public persons were already present and knocking the door. He also tried to break the said door but it was bolted from inside and the door was ultimately broken. PW14 Vijay Chandra neighbour testified that he did not hear or saw any quarrel between the accused and his wife. In the crossexamination, he deposed that in his presence accused never harassed or quarreled with his wife. Similarly, neighbour Dinesh Chand (PW15) testified that to his knowledge relations of Aarti and Prashant was alright and he never heard any noise between them and he heard about the incident at about 10.00 pm on 4.7.2008 from Prashant, who told him that his wife had locked the door. He went to flat no. 118C where many persons were collected and he saw Vijay Chandra (PW
14), Amit Prasad (PW9) and some other persons and the door of the bed room was broken. All these witnesses were crossexamined by the Ld. Addl. PP but nothing could be elicited in their crossexamination which could be of 21/27 SC No. 08/08 ID No. 02402R0722282008 any help to the prosecution. The testimony of these three witnesses falsifies the testimony of PW5 that the accused had closed the door of the room from outside after drinking liquor. IO Vijender Pal Singh (PW16) stated that he recorded the statement of PW5 on 5.7.2008 when he reached at the spot, whereas Julie (PW5) has deposed that police did not make any inquiry from her on 4.7.2008. She accompanied Ruchi to the parents's home of Aarti on 4.7.2008 in the night hours. The flat was locked by the police. She deposed that after the night on 4.7.2008 she never visited the flat no. 118C, Mayur Vihar. Police did not record her statement after the intervening night of 04.07.2008. She never visited police station nor police met her thereafter. She had shown ignorance for the fact she apeared in the court at the instance of Rajesh, brother of Smt. Raj Bala (mother of the deceased). The legal position is well settled that witness who takes shifting stand is not worthy of credence. It is significant to note that PW5 Julie admitted that on the day when she appeared for deposing in the court she was working in the house of Rajesh i.e. maternal uncle of the deceased for the last more than one year. She also stated that she was sent to matrimonial house of Aarti through Rajender, father of the deceased. The possibility of Pw5, maid servant being tutored cannot be ruled out and it will be highly unsafe to convict the accused on her testimony alone and the court has to consider the evidence as a whole. 18 It has already been noted that there are no averments in the complaint of Smt. Raj Bala (PW3) recorded by the SDM regarding any incident of cruelty soon before the death of deceased. In the complaint 22/27 SC No. 08/08 ID No. 02402R0722282008 Ex.PW3/A recorded by the SDM, Smt. Raj Bala, mother of the deceased has stated that a few months before, the father in law of her daughter had come and he was the root cause of the quarrel and thereafter her son in law used to harass her daughter and stated that she was not doing any service. Executive Magistrate (PW6) questioned her as to whether her son in law demanded any dowry and when and where. In Hari Gopal Wadhwa Vs. State IV (2007) CCR 91 it was observed that "the job of the SDM was to record statement voluntarily made and not to lead the maker of the statement into giving predetermined and designed statements and it was further observed that ''there was no need to specifically put questions, whether the deceased was being harassed for dowry and whether she was being beaten. It is not the job of the SDM to put words in the mouth of the witness or the complainant.'' On being asked the aforesaid question, thereafter only complainant (PW3) stated that her son in law was always harassing her daughter for dowry and used to beat her. He used to say that he will marry again. It was stated that in the marriage Rs.1 lac was given in the fixed deposit, gold of about Rs.1,00,000 to 1.25,000/ and Rs.1 lac cash was given and thereafter he got Pulsar vehicle and he always demanded money and then he brought sofa set and several other items and RS.25,000/ each were also given. In the statement recorded by him, Executive Magistrate further probed and asked to whom they held responsible. On this, complainant stated that they held responsible their son in law and father in law of the deceased B.P. Aggarwal and she also named the mother in law, whose name she could not recollect and also the sister in law and brother in law (Nanad 23/27 SC No. 08/08 ID No. 02402R0722282008 and Nandoi) of the deceased who were suspected. In the initial portion of the complaint, it was mentioned that father in law and mother in law, Jeth, Jethani, Nanad and Nandoi, all of them were residing in Mumbai. It was further alleged that her daughter was not allowed to meet her. Her daughter used to disclose all the facts telephonically. Admittedly, there is no complaint lodged by the deceased or any of the member of the family, with the police or any authority regarding any harassment, cruelty or demand of dowry. Ld.counsel submitted that the parents of Aarti never paid cash Rs.1 lac or FDR of Rs.1 lac or Pulsar motorcycle or Rs.40,000/ at the time of birth of son at brother's house.
19 PW3 in her testimony has not specified any incident of cruelty or harassment in connection with dowry. Similarly, PW2 Rajender Prasad, father of the deceased has also not specified any date or time or the manner of any alleged incident of cruelty or harassment. All the allegations are general and vague in nature. PW2 deposed that at the time of marriage of her daughter, he gave cash amount of Rs.60,000/ for purchase of Pulsar motorcycle as demanded by accused. He also arranged fridge and double bed as demanded by accused at the time of marriage of his daughter. He used to meet out the demands of accused so that his daughter live happily. At the time of birth of a son at his brothers house at Bombay accused demanded Rs.50,000/ from him. He had paid only Rs.40,000/ to him. He also paid several times Rs.10,000/ and 20,000/ to the accused as and when demanded by him. Similarly, PW3 deposed in similar terms in the examination in chief. In the crossexamination, PW2 admitted that it was a 24/27 SC No. 08/08 ID No. 02402R0722282008 simple marriage and initially the marriage was without dowry. He deposed that accused was in love with Aarti. PW2 testified that his deceased daughter used to tell Ruchi and Hemlata that accused used to torture her and accused was not paying household expenses and used to ask for the account of the amount spent. His deceased daughter visited his residence after about 6 months/1 years from the date of her marriage. In the crossexamination he admitted that he used to come to know about the demands of Rs.60,000/, fridge and double bed from his wife and daughter as well as from his deceased daughter. He could not tell the date, month and year when Aarti told him for the first time about the aforesaid demands. He could not tell the date, month and year, when he had withdrawn amount of Rs.60,000/ from PNB Bank,East of Kailash. He could not even give the estimate whether it was fifteen days, one month, two months or six months, one year after the marriage when the said amount was withdrawn. He had shown ignorance as to from which showroom the aforesaid pulsar motorcycle was purchased. He could not say whether motorcycle was purchased from Rs.60,000/. On being confronted with bill Ex.PW5/A showing that motorcycle was purchased in a sum of Rs.53,091/ of his own funds from Gautam Auto, Okhla Industrial Area, Phase II,New Delhi and that out of it RS.29,725/ was paid in cash and Rs.23,420/ was paid through credit card,witness had shown ignorance . Similarly regarding purchase of fridge from M/s EM Dee Electronics by the accused, ignorance was shown. DW2 placed on record receipts of sofaset purchased from Agra from M/s Bombay Furniture, Ex.DW2/C. Regarding purchase of AC copy of receipt is Ex.DW5/E. PW3 in the crossexamination 25/27 SC No. 08/08 ID No. 02402R0722282008 stated that she came to know that Prashant was harassing her daughter after 2/3 days of the marriage. She deposed that she had paid Rs.1 lac in the hands of Prashant. She also shown ignorance that when she was confronted with copy of FDR of Rs.1 lac in the name of deceased having No. 3559984 prepared on 26.6.2001. from Union Bank of India having maturity date 26.6.2006 and maturity amount of Rs.1,59,911/. She could not comment on the same and she also could not tell whether FDR was prepared 1 month, 2 months or 1 years before the marriage. She could not admit of deny the suggestion that FDR was made on 26.6.2001 on account of compensation received by her daughter Aarti on the death of her previous husband Sh. Dharam Chand Bhardwaj.
20 PW2 deposed that he never visited the house of Prashant after solemnzation of the marriage. He could not specify whether it was 1 month, 1 year or two year after the marriage. He did not know about the facts of granting divorce to her by the accused. He stated that he had no contact with the accused in this regard. He did not visit the house of his daughter at the time of birth of twin daughters even after the discharge of the deceased from the hospital. He admitted that he had arranged maid Julie on the asking of the deceased and accused for taking care of twin daughters. Similarly, PW4 Ruchi Sharma who is sister of the deceased stated that she did not visit the house of her sister Aafti after marriage. She had no idea when deceased disclosed about the harassment to her sister. She also had no idea when she disclosed the incident to her parents. She could not tell the date, month or year when she disclosed to her parents. She could not recall whether she 26/27 SC No. 08/08 ID No. 02402R0722282008 shared the information with her mother in the year 2007 for the first time. 21 To conclude, the aforesaid evidence on record considered as a whole, shows that the deceased was hyper sensitive to ordinary petualance, discord and differences in domestic life and was suffering from depression having suicidal tendencies . In view of discussion of evidence in the preceding paragraphs, all the points referred in para 6 above are decided against the prosecution. I hold that prosecution has failed to prove that the deceased was treated with 'cruelty soon before her death.' Prosecution has further failed to prove that the accused abetted the offence of suicide and also failed to prove beyond the shadow of reasonable doubts that accused treated deceased with cruelty as required u/s 498A IPC. Resultantly, accused is hereby acquitted from the charges. Accused shall furnish a bond u/s 437A CrPC. File be consigned to record room.
Announced in the (VINAY KUMAR KHANNA)
open court on 03.06.2010 Additional Sessions Judge
(0IEast)/Karkardooma :
Delhi
27/27 SC No. 08/08