Delhi District Court
State vs . 1. Ramesh on 4 July, 2009
1 FIR No. 680/05 PS Narela
IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V: OUTER:
ROHINI: DELHI
SC NO. 132/08
FIR No. 680/05
P.S. Narela
U/s 498A/306/34 IPC
State Vs. 1. Ramesh
S/o Paras Ram
2.Paras Ram S/o Kewal Singh
3.Laxmi W/o Paras Ram
All Resident of :
Village Katlu Pur,
P.S. Kundli Distt. Sonepat(HR)
Present: Q.No. P-96/97,
Air Force Station, Ghogha, Narela, Delhi.
Date of Institution in Sessions Court: 3.3.2006
Date of transfer to this Court: 5.12.2008
Date of Judgment: 4.7.2009
JUDGMENT
In brief, the prosecution story is that on 8.12.05 a DD No. 15A was recorded at P.S. Narela on information which was received through one Flight Lt. from Air Force Station Ghogha, that inside the said center one girl had committed suicide and police be sent there and consequently, the said DD No. 15A was marked to SI Suraj Bhan 2 FIR No. 680/05 PS Narela alongwith constable Neeraj Kumar for taking the appropriate action thereon and thereafter they proceeded to the spot and on reaching the Air Force Station at H.No. 96/97, they found one lady Salochna W/o Ramesh Kumar was lying in strangulated condition with a rope tied on a fan, who was lying dead at that time. Crime team was called to the spot and the body of the deceased Salochna was sent to BJRM Hospital for conducting her postmortem. Before that inquest proceedings pertaining to the said deceased was also carried out by the IO.
2. On 9.12.05 one Hawa Singh the brother of the deceased met the IO SI Suraj Bhan and made a statement before him that they had 4 sisters and they had got married their youngest sister Salochna with one Ramesh Kumar on 4.4.98 who was residing at Qr. No. 96/97, Air Force Station, Ghogha and they had given more dowry than there status, but immediately after the marriage, the in- laws of Salochana had started demanding scooter and fridge and due to this they started harassing their sister and they used to repeatedly demand scooter and fridge and whenever anybody used 3 FIR No. 680/05 PS Narela to go to meet her, she used to tell him regarding the aforesaid harassment meted out to her by her in-laws and he further stated that due to this reason Salochna was beaten up many a times by her husband Ramesh and her mother-in-law Lachhmi and regarding this they had reached a compromise many times and their sister had also given birth to one girl Muskan who was 4 years old and after the birth of said girl child, her mother-in-law and her husband started harassing her and last month her husband Ramesh and her mother-in-law had beaten up the Salochna and had made a call to them that their girl was of no use for them and they may take away their daughter and thereafter on receiving the said call their elder brother Suresh and two other inhabitants of the same village went to the house of Salochna and reached a compromise, but immediately thereafter, the accused persons started harassing their sister again raising the demand of scooter and fridge repeatedly. On 8.12.05 the husband, mother in law and father in law of Salochna alongwith her minor daughter Muskan reached their house at Najafgarh and told this fact to the wife of the 4 FIR No. 680/05 PS Narela complainant Hawa Singh, Smt. Jagwanti that Salochna had committed suicide and took her away forcibly in a car and in the said complaint the complainant Hawa Singh expressed suspicion of death of her sister Salochna upon her mother-in-law, father-in-law and husband.
3. On the said complaint made by Hawa Singh, the brother of deceased Salochna an FIR No. 680/05 was registered U/s 498A/306/34 IPC at P.S. Narela and the investigation(s) of the case were set into motion. Statement of the witnesses were recorded. Accused were arrested.
4. After completion of investigation(s), a charge sheet U/s 306/498A/34 IPC was filed in the court for trial.
5. Upon committal of the case to the court of sessions, a charge U/s 306/498A/34 IPC was framed against the accused persons vide order dt. 17.3.06 to which they pleaded not guilty and claimed trial.
6. Thereafter, the prosecution in order to prove its case, has examined 12 witnesses.
5 FIR No. 680/05 PS NarelaPW1 is W/ASI Jagroshani, duty officer, who has proved the copy of the FIR Ex.PW1/A and rukka Ex.PW1/B. PW2 is Constable Sushil, the photographer, who went to the spot on 8.12.05 alongwith the crime team and had taken the photographs of the place of occurrence. He has proved the photographs as Ex. P1 to P6 and the negatives as Ex.P7 to P12.
PW3 is the complainant Hawa Singh.
PW4 is Dr. Anil Shandil, Sr. Resident DDU Hospital, who had conducted the postmortem on the body of the deceased Salochna on 9.12.05.
PW5 Suresh Kumar and PW6 Shahabuddin, are the other brothers of the deceased.
PW7 is Sh. Jagbir Singh, a resident of the same village who had allegedly gone to the house of the deceased Salochna in September 2005.
PW8 is Smt. Jagwanti Devi, the sister-in-law(Nanad) of the deceased.
PW9 is H.C. Joginder, who has proved the relevant entries 6 FIR No. 680/05 PS Narela of register no. 19, regarding the deposit of various case properties with him by the IO between the period 8.12.05 and 19.12.05. He has also proved the relevant entries as Ex.PW9/A and the RC by which the case property was sent to FSL Rohini as Ex.PW9/B. PW10 is H.C. Suresh Kumar, who had taken the viscera of the deceased to the FSL Rohini on 19.12.05.
PW11 is constable Niraj Kumar, who had accompanied the IO SI Suraj Bhan on 8.12.05 on receipt of DD No. 15A and who had taken active part in the investigations of the present case including the arrest of the accused Ramesh.
PW12 is SI Suraj Bhan who is the IO of the case and he has deposed regarding the investigation(s) as carried out by him during the course of the investigation(s) of the case.
7. Thereafter, the statement of the accused persons were separately recorded U/s 313 Cr.P.C. in which the defence of all the accused persons, was that they had been falsely implicated in this case due to the malafide intention(s) of the complainant as the health of Salochna was not good and she generally used to remain 7 FIR No. 680/05 PS Narela sick and she might have committed suicide on account of her ill health but they chose not to lead any defence evidence.
8. I have heard Sh. Rashid Hashmi, Ld. Counsel for the accused persons as well as Shri G.S. Guraya. Ld. Additional PP for the State and perused the record.
9. Ld. Counsel for the accused Sh. Rashid Hashmi has submitted that in the present case, admittedly, the marriage of the accused Ramesh Kumar took place with the deceased Salochna as per Muslim Rites and Rituals on 4.4.98 and admittedly, the date of suicide of the deceased was 8.12.05, therefore, the occurrence had taken place more than 7 years after the marriage of deceased Salochna with accused Ramesh. Therefore, presumption U/s 113(A) and 113(B) of the Indian Evidence Act can not be invoked against the accused persons, simply because the death had taken place more than after 7 years of the marriage of the deceased Salochna. He has also argued that on receipt of DD No. 15A, the IO went to the spot and had recorded the statement of three witnesses Sunil, Sheetal Parshad and Vijender Singh which is annexed with 8 FIR No. 680/05 PS Narela the inquest proceedings conducted by the IO which are Ex.PW12/DA and the said statements are marked A,B&C and he has argued yet the said material witnesses were deleted from the list of witnesses when the charge-sheet was filed in the court, which shows the malafide intention on the part of the IO in order to cook up a false case against the accused persons.
10. He has also argued that a crime team was also called at the spot and the rope was also taken into possession and the postmortem of the deceased Salochna was conducted on strength of DD No. 15A, but by that time no FIR was registered, though, her relations were present, which is evident from the inquest proceedings which are Ex.PW12/DA which shows that the relations of the deceased were present at the time when the said form was filled up and also Ex.PW5/B which is the receipt of handing over the dead body of the deceased to her family members on 9.12.05, shows that her family members were very much present and were available with IO, yet no statement of the relatives of the deceased was recorded and the earliest statement had been recorded on 9 FIR No. 680/05 PS Narela 9.12.05 that was the brother of the deceased i.e. Hawa Singh, which shows that there has been a delay in lodging of the FIR, despite the presence of the relatives of the deceased on 8.12.05 and yet the FIR has been recorded on 9.12.05 which delay has not been explained at all by the prosecution.
11. He has further argued that the statement of Hawa Singh is not credible and in his statement there is no specific allegations against the father in law and none of the prosecution witnesses have deposed or given any dates levelling any specific allegations of cruelty or dowry harassment against the accused persons. He has further argued that the very story of the prosecution that the PWs Suresh alongwith two other inhabitants of his village had gone to Air Force Station, Ghoga in September 2005 is not believable as even as per the IO, there is no record of entry of any of the said accused persons inside Air Force Station, Ghoga, which is not possible due to the high security maintained at said vital installation. He has argued that all the prosecution witnesses have only made general allegations of cruelty under Section 498A IPC and no 10 FIR No. 680/05 PS Narela specific dates of instances when the deceased has been treated with cruelty by them has been mentioned and in the absence of any specific instances of cruelty the said holds no value in the eyes of law.
12. Regarding Section 306 IPC, he has relied upon the following judgments :
1. 2004(1)JCC 493;
2. 2005 Supreme Court Cases (Cri)543 3.1995 Supreme Court Cases (Cri)1157 4.2007(1) JCC 354
5.I(2006)DMC 217
6.II(2006)DMC382
7.(2007) 3 Supreme Court Cases (Cri)701 Ld. Counsel for the accused persons has further argued that in the present case, there is no abetment as defined U/s 107 IPC, as firstly, there is no instigation which has been proved by the prosecution made by the accused persons encouraging or inciting the deceased to commit suicide. Secondly, it is not the case of the prosecution that the accused persons had hatched a conspiracy in instigating the deceased to commit suicide. Thirdly, it is not the case of the prosecution that accused persons had intentionally aided by 11 FIR No. 680/05 PS Narela any act or illegal omission in commission of the suicide by the deceased and consequently, he has argued that as per the settled law in the judgment relied upon by him, there is no question of Section 306 IPC being made out against the accused persons.
13. On the other hand ld. Addl. PP for the State has argued that from the clear cut testimony of the prosecution witnesses including the complainant, the prosecution has been able to prove that accused persons had drove the deceased Salochna to commit suicide as there has been ample evidence on the record of continuous harassment of the deceased by the accused persons for the demand of dowry which the deceased could not meet nor her relatives could meet, due to this she was lead to commit suicide by the accused persons, as he has left with no alternative but to commit suicide, as the accused persons continuously harassed her for the demands of dowry. He has also argued that regarding the delay, the relatives of the deceased Salochna were in condition of shock on hearing the news of her death on 8.12.05 and on that day they were not in their senses, therefore, the FIR against the 12 FIR No. 680/05 PS Narela accused persons was registered on the next day, which can not be said to be inordinate delay by any stretch of imagination, so as to effect the prosecution case, which is even otherwise truthful as is borne out from the testimony of the prosecution witnesses recorded in this case. Therefore, the prosecution has been able to prove its case against the accused persons beyond all reasonable doubt.
14. I have gone through the rival contentions. It is admitted case of the prosecution that the marriage of the deceased Salochna took place with accused Ramesh on 4.4.98 and death of the deceased took place on 8.12.05 i.e. after more than 7 years after the date of marriage. Consequently, the presumption U/s 113(A) of the Indian Evidence Act can not be invoked against the accused persons.
15. Regarding the offence U/s 498A IPC, the prosecution has to prove firstly, the willful conduct of the offender. Secondly, that the nature of such conduct was likely to drive a woman to commit suicide or to cause grave injury or danger to her life or limb. It is not harassment of every type of cruelty that 13 FIR No. 680/05 PS Narela would attract Sec. 498A IPC. It must be established that beating/harassment was with a view to force the wife to commit suicide or to fulfill illegal demands of husband and the in-laws. In this background it is found that in the present case, the lodging of the complaint by the complainant Hawa Singh on 9.12.05 was an after thought as no statement of any of the witnesses were recorded on 8.12.05, though, the complainant was very much present when the inquest proceedings were conducted by the IO on 8.12.05 which are Ex.PW12/DA and on which date as per Column No. 4 of the said inquest proceedings Hawa Singh and Shahabuddin were very much present, yet they made no efforts to give a complaint to the IO to record their statements on 8.12.05. In this case, the FIR has been recorded on 9.12.05 which shows an after thought on the part of the complainant party to lodge a complaint against the accused persons. Further, the testimony(s) of the prosecution witnesses PW3 Hawa Singh, PW5 Suresh Kumar, PW6 Shahabuddin, PW7 Jagbir Singh and PW8 Smt. Jagwanti, does not inspire any confidence as all of the above witnesses have 14 FIR No. 680/05 PS Narela made material improvements in their testimonies, which render the entire prosecution story untrustworthy, as for instance PW5 Suresh Kumar has stated that between 9th and 20th September 2005, his sister was beaten up by the accused persons and they were telephonically informed to take her away as she was of no use to them and she was also beaten up for having not brought sufficient dowry articles and for having given birth to a female child and that he went to the house of accused persons with Panchayat where the accused Laxmi had promised that his sister would not be harassed or beaten up again and thereafter his sister Rajwati, Sumitra Rani alongwith Bhabhi Jagwanti went to the house of accused persons and they again promised that they would not harass or will beat up Salochna. In his cross-examination, the said PW5 Suresh Kumar has admitted that he had not stated to the IO that on the birth of female child accused persons said that they would married Ramesh again as they did not want a daughter. He further admitted in his cross-examination that he had not told the IO that his sister was beaten up between 9th and 20th September and that they were 15 FIR No. 680/05 PS Narela telephonically informed to take her away as she was of no use to them and he further admitted that he has not stated to the IO that his sister had told him that she was beaten up by the accused persons and had promised him that she will not commit suicide. In view of the said material improvements made by the PW5, his testimony is not trustworthy.
16. PW7 Jagbir Singh another material witness of the prosecution has deposed in his examination in chief that in September 2005 he alongwith Suresh went to the matrimonial house of the accused persons at 96/97 Air Force Station, Ghoga and there they discussed the issue, that accused persons and the mother in law of Salochna had admitted in their presence that she had caused beatings to the deceased, but on their counseling agreed not to repeat the same in future and Salochna told him that her husband used to taunt her, as she had not brought sufficient dowry and he would marry some one else and she also told him that her mother in law used to beat her. In his cross-examination PW7 Jagbir Singh was confronted with statement Ex.PW7/DA to 16 FIR No. 680/05 PS Narela the effect that he had visited the house of accused persons in September 2005 which fact was not recorded there. Similarly he was also confronted with his statement where he stated that accused Laxmi had admitted in his presence that he had caused beating to Salochna and had agreed not to repeat the same, which fact was also not recorded in his earlier statement U/s 161 Cr.P.C. Similarly, he was confronted with the said part of his statement, wherein he stated that Salochna told him that accused used to taunt her for not having brought sufficient dowry or he would marry else where as the said fact was not mentioned in his earlier statement Ex.PW7/DA.
17. Similarly, his statement that he told him that her mother in law used to beat her was also not found mentioned in Ex.PW7/DA in his earlier statement. Similarly, this part of his statement that Suresh wanted to bring back his sister but on the assurance of the accused persons she was left at her matrimonial home was also not found mentioned in the said statement Ex.PW7/DA. Further in his cross-examination the said witness has admitted that he does not 17 FIR No. 680/05 PS Narela know the name of the accused persons. Similarly, in the testimony of PW8 Smt. Jagwanti Devi, she has also made some material improvements vis-a-vis her statement recorded by the police U/s 161 Cr.P.C. on 20.12.05, as in her examination in chief she has stated that "subsequently deceased gave birth to a girl child. Subsequent conceptions were aborted by the accused persons after determining the sex of child as they wanted a male child to be born. She used to be harassed and taunted for failure to give birth to a male child", which facts does not find any mention in her earlier statement recorded by the police U/s 161 Cr.P.C.
18. Similarly, she has further stated in her examination in chief that "myself and my two younger sister-in-law(Nanad) went to the house of accused persons about a month prior to death of Suochana to counsel the accused persons for not harassing Sulochana", which fact also does not find any mention in her earlier statement recorded by the police U/s 161 Cr.P.C. Further she has also made certain other material improvements in her testimony which effects the credibility of the said witness. 18 FIR No. 680/05 PS Narela
19. Regarding the testimony of PW3 Hawa Singh that he, his brother Suresh and uncle Jagbir went to the matrimonial home of his sister twice or thrice where the accused persons assured them that the harassment to their sister will not be repeated in future and the testimony of PW Suresh Kumar on the same lines that between 9th and 20th September their sister was beaten up by the accused persons and they were telephonically informed to take her away and thereafter they went to the house of the accused persons with a Panchayat where the accused persons had promised that their sister will not be harassed or beaten up again, coupled with the statement of Jagbir Singh that " in September 2005 he went with Suresh to the house of accused persons bearing no. 96-97, village Ghoga, near Airport, where they discussed the issue with the accused persons and on their counseling the accused persons admitted not to repeat the same in future".
20. These testimonies of the afore material prosecution witnesses, that they had visited the house of the accused persons in September 2005 are not credible as PW3 has admitted in his 19 FIR No. 680/05 PS Narela cross-examination that no proceedings were carried out by the Panchayat members who had visited the matrimonial house of their sister and PW6 in his cross-examination has admitted that the matrimonial house of their sister is in Cantt. Area and it is correct that to enter the cantonment area permission is to be sought at the Entry Gate/Guard Room of Cantonment.
21. Though, he has denied the suggestion that he had not visited the house of his sister. Similarly, the IO of this case SI Suraj Bhan in his testimony while appearing as PW12 has admitted that for going inside the cantonment area, the visitor has to make an entry in the visitor register but he did not try to seize the said visitor register. No reason has been given by the IO why he did not seize the said visitor register which is kept at the entry gate of Cantonment area, which was a vital piece of evidence to corroborate the story of the prosecution regarding the fact that the prosecution witnesses had visited the house of their sister in September 2005 to counsel the accused persons not to repeat their acts in future. Therefore, the entire story of the prosecution that the 20 FIR No. 680/05 PS Narela family members of the deceased had visited the house of the accused persons in September 2005 alongwith one Jagbir Singh is doubtful and it is not believable that a person who had allegedly gone to the house of the accused persons to counsel them, would not even know the name of the accused persons, which fact has been admitted by the PW7 Jagbir Singh when his cross- examination was carried out on 25.3.08 that he does not know the name of the accused persons. Further, as discussed above, all the material prosecution witnesses have made lot of improvements in their testimonies which makes the entire case of the prosecution and the story put forth by the prosecution as doubtful.
22. Further PW3 Hawa Singh has admitted in his cross- examination that no complaint was ever made to the police regarding the demands by the accused persons and he has also admitted in his cross-examination that he had not complained to the village Pardhan. It is not clear if the allegations of the prosecution witnesses were correct then why they did not lodge any complaint with the police earlier or even with the village Pardhan about the 21 FIR No. 680/05 PS Narela cruelties meted out to their deceased sister by the accused persons.
23. Further PW5 Suresh Kumar had admitted in his cross- examination that it is correct that accused Ramesh had purchased a Maruti Van in the year 2003 and that it was correct that he possesses a scooter before the marriage. PW3 Hawa Singh in his cross-examination has stated that he does not know that accused Ramesh Kumar had purchased a new scooter in the year 2002 and he does not know whether there was a fridge in the house of the accused persons. Therefore, it is not clear and it does not stand to reason when accused Ramesh was already having a Maruti van in the year 2003 and that he had purchased a scooter before his marriage, which fact has been admitted by PW then why would the said accused make a demand for scooter and fridge.
24. As no explanation has been put forth by the prosecution that why would the person who was already having a scooter before his marriage and was having a Maruti Van in the year 2003, would make the demand of scooter and fridge in the year 2005, as 22 FIR No. 680/05 PS Narela judicial notice can be taken of this fact, that the person who was having a Maruti Van and fridge would generally make a demand or something more than what he was already possessing instead of making a demand for small thing like scooter and fridge, when he was already possessing a Maruti Van there, in these circumstances is highly doubtful that the accused persons could have made a demand for scooter and fridge in the year 2003.
25. The conduct of the IO in this case is also not above board as the IO in his cross-examination has admitted that he had recorded the statement(s) of witnesses Sh. Vijender Singh and Sheetal Pd. On 8.12.05 but he stated that since the aforesaid witnesses were the witnesses of accused therefore, they were not cited as witnesses of prosecution in the present case. This explanation put forth by the IO in omitting to mention the aforesaid witnesses in the list of witnesses, is a material lapse on the part of the prosecution, as it is not the job of the IO to get the conviction of the accused persons some how, but it is the job of the IO to carry out the proper investigation in a fair manner and to bring out the 23 FIR No. 680/05 PS Narela truth in the case.
26. The counsel for the accused has also relied upon the judgment 2004(1)JCC 493(Supra), wherein it was held that:
"Prosecution alleges demand of money by husband 15 days prior to death and subsequent beatings-Couple married for 10-11 years-In the complaint to police by brother of deceased wife, no allegations regarding demand of money or beatings were made-All witnesses making improvements in material particular-Some deposing even beyond the prosecution case- Whether trial Court and High Court were right in convicting the appellant/husband under Secs. 498A/306 IPC-Held:(No)-Held: that Courts below have not properly appreciated the evidence and failed to notice the glaring improvements- Accused acquitted."
27. The facts of the said case are quite similar to the present case, as in the present case also, all the material prosecution witnesses have made improvements in material particulars which effects the creditworthiness of the prosecution case. Hence, it is not 24 FIR No. 680/05 PS Narela safe to base the conviction of the accused persons on the basis of said testimonies. Further, in the present case all the allegations made by the prosecution witnesses regarding the dowry harassment are general in nature and no specific instances of harassment have been proved by the prosecution on the record as to on what particular date and time what harassment or demand of dowry was made by the accused persons. There are only general averments that harassment was meted out by the accused persons to the deceased Salochna for the demand of T.V, Fridge and scooter without specifying the specific circumstances and dates when it was so demanded.
28. It is settled law, as has been held in judgment 1992 Cr.LJ 1017 "It is not sufficient to say that the deceased was subjected to torture and cruelty and the basic facts from which the cruelty is to be inferred are to be alleged and to be proved". Further it is settled law, as has been held in 1990 Cr.LJ 407 "unless it is conclusively established that the beating and harassment was with a view to force her to commit suicide or to fulfill illegal demands of the 25 FIR No. 680/05 PS Narela husband and in-laws the provision of Sec. 498A would not be attracted to make out a case of cruelty.
29. In view of the aforesaid discussion, since the oral evidence lead by the prosecution regarding the torture, harassment and the alleged non payment of dowry is not reliable, the prosecution has failed to make out a case U/s 498A IPC.
30. Regarding the offence U/s 306 IPC, the counsel for the accused persons has relied upon number of judgments cited above, including the judgment 2007(3) SCC (Cri)701, in which it has been laid down:
Section 107 IPC defines abatement of a thing. The offence of abatement is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when(1) he instigates any person to do that thing; or(2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to 26 FIR No. 680/05 PS Narela 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. "Abetted" 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 to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See Mahendra Singh v. State of M.P) Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable.27 FIR No. 680/05 PS Narela
31. Further in a judgment II(2006)DMC 382, the Hon'ble Delhi High Court relied upon the judgment of the Hon'ble Supreme Court in Mahendra Singh Vs. State of M.P.1995 Supp.(3)SCC 731, in which it has been held that :
"The appellant was charged for an offence under Sec. 306 IPC basically based upon the dying declaration of the deceased, which reads as under:
`My mother in law and husband and sister in law(husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.' This court, considering the definition of `abetment' under Section 107, IPC, found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This court further held that neither of the ingredients of abetment are attracted on the statement of the 28 FIR No. 680/05 PS Narela deceased".
The Supreme Court further observed in paragraph 12 of the said decision that 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 words uttered in a quarrel or in the spur of the moment can not be taken to be uttered with mens rea. It is in a fit of anger and emotional. The words expressed in the case before the Supreme Court were `to go and die'. As a result of such an utterance, the deceased went and committed suicide. Yet, the Supreme Court was of the view that an offence under Section 306, IPC was not made out because there was no element of mens rea.
32. Coming now to the facts of the present case, I find that the case of Mahendra Singh v. Stated of M.P., 1995 Supp.(3) SCC 731, referred to in Sanju @ Sanjay Singh Sengar(supra), is quite apposite. A similar allegation of harassment was made against the in-laws, but that was not considered to fall within 29 FIR No. 680/05 PS Narela the four corners of Section 306 IPC. In that case, there were allegations of beating as well which are absent in the present case. Apart from all this, in the present case, I find that there is no element of mens rea, which is an essential ingredient, even if the allegations, as per the case of the prosecution, were to be taken to be true and correct. In my view, the learned Additional Sessions Judge was entirely wrong in coming to the conclusion that a charge under Section 306 IPC could be framed against the present petitioners. The deceased(Shobha) may have been treated harshly and unfairly, if the allegations were to be believed, but, it can not be said that the petitioners instigated, goaded or incited her to commit suicide. There is nothing on record to suggest that the petitioners had the mens rea to drive the deceased (Shobha) to commit suicide.
33. In view of the aforesaid preposition of law laid down by the Hon'ble Supreme Court in the aforesaid judgments, it is clear that to make out an offence U/s 306 IPC, the prosecution has to firstly prove that the person accused of the offence has instigated any 30 FIR No. 680/05 PS Narela person to do that thing. Secondly, the said person engages with one or more persons in any criminal conspiracy for committing of that particular thing. Thirdly, the said person intentionally aids by any act or illegal omission for doing of that particular thing and the word `instigate' literally means to provoke,incite, urge on or bring about by persuasion to do any particular thing by the deceased and that in the cases of alleged abetement of suicide, there must be proof of direct or indirect acts of incitement to the commission of offence and the mere fact that the husband treated the wife with cruelty is not enough and merely on the allegations of harassment, conviction U/s 306 IPC can not be sustained.
34. Further, it is settled law laid down in the aforesaid judgment that presence of mens rea is necessary part of instigation and the words "uttered in a quarrel or in the spur or moment can not be taken to have been uttered with mens rea".
35. In the present case on 8.12.05 when the deceased Salochna was found dead at the matrimonial home, at that time inquest proceedings were conducted by the IO SI Suraj Bhan which 31 FIR No. 680/05 PS Narela are Ex.PW12/DA and alongwith the inquest proceedings, IO had recorded the statement of three witnesses namely Sunil, Vijender Singh and Sheetal Parshad on the said date which statements have been marked as Mark A, B and C respectively, in the statement of the IO SI Suraj Bhan. However, the said statements have been duly proved as per the Indian Evidence Act, as the person who had recorded the statement of said witnesses has clearly stated on oath that he had recorded the said statements. Consequently, the said statements which have been marked as mark A,B&C are clearly admissible in evidence and can be read as such. The perusal of the said statements Mark A,B&C shows that on 8.12.05 none of the accused persons were even present at the matrimonial house of the deceased Salochna and IO recorded statement of one Sunil in this regard and on the said date accused Paras Ram made a call to one Jitender that at his house nobody was picking up the phone and the wife of his son Ramesh was alone at that time in his house and the said Jitender in turn informed the other persons present in the canteen or mess inside the Air Force Station Ghoga and all of 32 FIR No. 680/05 PS Narela them thereafter went to the house of the accused Ramesh which was found locked at that time and thereafter, after breaking the Jally and the door of the said quarter/house by one Naresh, it was found that the deceased was hanging from the fan of the said house and thereafter all of them came outside and informed their Commanding Officer. Similar is the statement of Jitender Singh Dahiya who had received the call from accused Ramesh who had told him on telephone that since his wife was alone at his house, therefore, he requested him that he should go and find out what she was doing and thereafter, he went to the canteen where some other persons were present and thereafter they went to the house of Ramesh and broke into his house as no one was answering the knocks on the door and there they found the deceased was hanging from the rope on a fan. Similar is the statement of Sheetal Pd. in this regard, another witness whose statement was recorded by the IO. The said statement clearly establishes that the none of the accused persons were present at their house at the time of commission of the offence i.e the suicide of the deceased 33 FIR No. 680/05 PS Narela Salochna.
36. No evidence has been lead by the prosecution on the record to prove, that there had been any incitement, provocation or urge on behalf of the accused persons which lead the deceased Salochna to commit suicide. In the testimonies of all the prosecution witnesses who have been examined on record including the complainant Hawa Singh(PW3), Suresh Kumar(PW5), Shahabuddin(PW6), Jagbir Singh(PW7) and Smt. Jagwanti(PW8), there are only general allegations of harassment for the demand of Fridge and Scooter and that the accused Ramesh and Laxmi had beaten the deceased for this reason many a times. However, there has been no evidence lead on the record that the said harassment was to such an extent that the deceased Salochna had no other alternative but to commit suicide.
37. Regarding the offence U/s 306 IPC, since the prosecution has failed to make out a case U/s 498A IPC and there is also no evidence lead on the record, direct or indirect that there were any acts of incitement made out by the accused persons to the 34 FIR No. 680/05 PS Narela commission of suicide nor there is any evidence on the record that accused persons engaged themselves in conspiracy in intentional aiding by any act or illegal omission in furtherance of the commission of suicide by the deceased. In the Judgments(Supra) (2007)3 Supreme Court Cases (Cri) 701 and II(2006)DMC 382, it has even been laid down, that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide and the mere fact the husband treated the deceased wife with cruelty is not enough and merely on the allegations of harassment conviction U/s 306 IPC is not sustainable and it has been further held that presence of mens rea is also essential ingredient to make out a case U/s 306 IPC. In the present case, as discussed above, the prosecution has failed to make out a case U/s 498A IPC beyond reasonable doubt and the prosecution has also failed to prove the cruelty as defined U/s 498A IPC. As the prosecution has failed to prove that there was any beating and harassment meted out to the deceased Salochna with a view to force her to commit suicide or to fulfill the illegal demands of 35 FIR No. 680/05 PS Narela husband and in-laws , consequently, the prosecution has also failed to make out a case U/s 306 IPC beyond reasonable doubt. Therefore, in view of the aforesaid detailed discussion all the accused persons stand acquitted of the charges U/s 306/498A/34 IPC by giving them benefit of doubt. Their bail-bonds are cancelled. Sureties discharged. Original documents, if any, of the accused persons and surety(s) be returned to them after cancelling endorsement on the said documents. File on completion be consigned to record room.
Announced in the open court Sanjeev Aggarwal
on dt. 4.7.2009 Addl. Sessions Judge:
Rohini Courts: Delhi.