Delhi District Court
State vs . Vineet Kumar on 22 March, 2017
IN THE COURT OF SH. SIDHARTH SHARMA, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Sessions Case No. 26/2017
Case Registration No. 9111/16
State vs. Vineet Kumar
S/o Sh. Lalu Singh
Jhuggi No. 475, Israil Camp,
Rangpuri Pahari, New Delhi.
Also At:-
Village Fatehpur Utma, Tehsil
Sambhal, District Moradabad,
Uttar Pradesh.
FIR No. 391/2014
PS: Vasant Kunj (South)
U/s: 498A/306 IPC
Date of institution of the case : 30.07.2014
Case received by transfer to this Court : 25.01.2017
Date when the case reserved for judgment : 22.03.2017
Date of announcement of judgment : 22.03.2017
JUDGMENT
1 Vineet Kumar is facing trial in this Court for the offences under sections 498A and 306 of the Indian Penal Code (IPC).
2 The case of the prosecution as per the police report under section 173 (2) of the Code of Criminal Procedure (Cr. P.C) is that Vineet Kumar got married to Pooja (since deceased) on 19.05.2013. After their marriage, Pooja resided for some time in the village of the State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 1/16 accused at District Moradabad, Uttar Pradesh. She then came to Delhi and started residing with the accused at Israil Camp, Rangpuri Pahari, New Delhi. Pooja used to work as a domestic maid in Vasant Kunj, New Delhi. The accused Vineet Kumar used to regularly harass and beat Pooja and treated her with cruelty. On account of such acts of cruelty, Pooja committed suicide in the evening of 12.04.2014 by hanging herself with a chunni tied to a hook of the ceiling in her home at Rangpuri Pahari, New Delhi. Pooja was taken to Safdarjung Hospital where she was examined by doctor Deepak Kumar who found her to be brought dead. DD No. 47A was recorded in PS Vasant Kunj (South) about the incident. The same was assigned for inquiry to SI Deepak Panwar.
3 SI Deepak Panwar proceeded to Safdarjung Hospital along with Ct. Mahesh. Pappu and Malti, parents of Pooja who had gone to Garganga that day also reached Safdarjung Hospital upon getting news of the death of their daughter. SI Deepak Panwar recorded their statements and also intimated the area SDM of the death. He then proceeded to the place of the incident which was also inspected and photographed by the Mobile Crime Team of District South. Two pieces of chunni were found at the place of the incident, one tied to the hook on the ceiling and the other lying on the bed. The same were seized by SI Deepak Panwar. Request was made by SI Deepak Panwar to get postmortem examination of the body of Pooja.
4 On 13.04.2014, Rajiv Kumar Executive Magistrate went to the mortuary of AIIMS where the postmortem examination of Pooja was conducted. Sh. Rajiv Kumar recorded the statements of Pappu and State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 2/16 Malti, parents of Pooja who were also present and then directed the SHO of PS Vasant Kunj South to register an FIR under the appropriate sections of law. The body of Pooja was identified by her parents and was handed over to them. SI Deepak Panwar then prepared a rukka on the statement of Pappu recorded by the Executive Magistrate and sent the same for registration of an FIR through Ct. Mahesh. Upon registration of FIR, further investigation was assigned to SI Deepak Panwar.
5 Postmortem examination of the body of Pooja was carried out by Dr. Hari Prasad and Dr. Manta Ram Singh on 13.04.2014 as per which her cause of death was found to be asphyxia due to ante-mortem hanging. Therefore, the death of Pooja was found to be suicidal in nature. The viscera of deceased Pooja was preserved and sent to FSL Rohini for forensic examination. During the course of investigation, SI Deepak Panwar recorded statements of witnesses and after concluding the same, he filed the police report before the jurisdictional Metropolitan Magistrate. The report of FSL Rohini was made available subsequently. As per the same no poisons or other chemicals were found in the viscera of Pooja. The said report was filed in the court which is supplementary police report.
6 By order dated 20.05.2015 charges were framed against Vineet Kumar for the offences under sections 498A and 306 of the IPC to which he pleaded not guilty and claimed trial.
7 During the course of recording of evidence of the prosecution, 15 witnesses were examined. The parents of Pooja State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 3/16 namely Pappu and Malti were examined as PW1 and PW2 respectively. Neighbour of Pooja Rajwati was examined as PW3. Gudia, paternal aunt of the deceased was examined as PW9. Kajal, sister of Pooja was examined as PW4. Dr. Hari Prasad and Dr. Manta Ram Singh who carried out postmortem examination of the body of Pooja were examined as PW5 and PW6 respectively. Rajiv Kumar Executive Magistrate was examined as PW7, Duty Officer HC Dharmender Kumar who recorded the FIR as PW8, Ct. Mahesh Kumar as PW9, ASI Rajbir Singh Duty Officer who recorded DD no. 47A as PW11, Dr. Deepak Kumar who prepared the MLC of the deceased as PW12, Mobile Crime Team photographer as PW13, Ct. Virender who deposited exhibits at FSL Rohini as PW14 and SI Deepak Panwar, the IO of this case as PW15.
8 Statement of Vineet Kumar was recorded under section 313 of the Cr.P.C. in which he denied the incriminating evidence put to him. He stated that Pooja had committed suicide due to her own problems and the accused was not responsible for it. He denied having treated Pooja with any cruelty or ever having beaten her. He did not wish to lead evidence in defence.
9 Arguments were addressed by Sh. Irfan Ahmed, Ld. Addl. PP for the State and by Sh. Ravi Quazi Legal Aid Counsel on behalf of the accused. Sh. Irfan Ahmed had argued that the marriage of Pooja had taken place on 19.05.2013 and she had committed suicide on 12.04.2014 which was within 7 years of the marriage and thus the presumption as to abetment of suicide by a married woman under section 113A Evidence Act would come into play. He relied on the State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 4/16 statements of the parents and sister of the deceased to submit that the accused used to beat and harass his wife regularly and on account of such cruelty she committed suicide. He submitted that Rajwati and Gudia, neighbours of the deceased have also corroborated the statements of the parents and sister of the deceased and there was sufficient material on the record warranting the conviction of the accused for the offences with which he is charged.
10 On the other hand, Sh. Ravi Quazi had argued that the FIR was registered only on the directions of the Executive Magistrate had recorded that the parents of the deceased had not made any allegations of demand of dowry. Even the parents and sister of the deceased as well as neighbours had also not stated anything to the effect that the accused made any demands for dowry. He submitted that the allegations which have been made are that the accused used to beat and harass his wife but the allegations are bald and no specific dates of any of such incidents are mentioned. He further submitted that the witnesses have deposed that Vineet Kumar used to threaten his wife as he suspected her of having an affair and used to beat her up and say that he would leave her and get married to some other woman. He submitted that such acts cannot fall within the definition of cruelty under section 498A of the IPC. There was no medical evidence regarding the deceased having suffered any beatings. He further submitted that the presumption under section 113A of the Evidence Act would be attracted only if the prosecution was able to show that the accused had subjected the deceased to cruelty. In the present case there was no evidence to this effect and therefore the said presumption is not attracted.
State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 5/16 11 I have heard the Ld. Counsel for the parties and have gone through the evidence on record. My findings as under:-
12 Ex.PW1/B is the statement of Pappu recorded by PW15 on 12.04.2014. In the same, PW1 has told the IO that Vineet and Pooja used to fight frequently and the accused used to beat her sometimes. He has further stated that the accused used to suspect the character of Pooja. Pooja was good looking and for this reason the accused used to suspect her character. Ex.PW1/C is the statement of PW1 Pappu recorded on 13.04.2014 by PW7 Executive Magistrate. In the same, Pappu has told PW7 that his daughter Pooja used to tell him very often that she was not happy with her husband as he used to harass her. Accused used to threatened her that he would leave her and get married to some other person. On the day of the incident, both had fought with each other due to which his daughter committed suicide. Pappu held the accused responsible for the incident. However, Pappu told PW7 that the accused never made any demand for any dowry but he used to threaten that he would leave her.
13 In Court Pappu as PW1 made the same statement in his examination-in-chief i.e. that the accused used to harass and beat his daughter. He used to suspect the character of his daughter as she was very beautiful. He used to threaten that he would leave her and would get marry with some other woman. In cross-examination, PW1 admitted that he also used to reside in Israil Camp, Rangpuri. He stated that at the time of her marriage Pooja was happy and did not make any complaint against the accused. He was not present at the house of the accused on the date of incident i.e. 12.04.2014. No quarrel State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 6/16 had taken place between them in his presence on 11.04.0214 and 12.04.2014. Voluntarily, he stated that his daughter had come to him on 12.04.2014 at 7.00 a.m. and had told him that she was not well. The accused had taken his jhuggi on rent at Rangpuri Pahari and had not asked for any help from him. He stated that about one and half months prior to the incident of death, his son Rahul had told him that Pooja and the accused were quarreling and he went and brought her to his house but he could not remember the date and month of the said incident. He stated that he had told the police about the said incident but the same was not found recorded in his statement given go the police. He did not get his daughter medically examined at that time and he did not make any complaint to the police. He had informed the parents of the accused.
14 Ex.PW2/A is the statement of PW2 Malti recorded by PW15 on 12.04.2014. She told him that her daughter was beautiful and the accused used to suspect her character and for this reason there used to be fights between them and the accused used to beat her daughter. Pooja had told her that she was not happy with her marriage but Malti used to counsel her. She further told PW15 that the accused never demanded any dowry from them. In court Smt. Malti as PW2 has stated that her daughter was not happy after the marriage and she used to complain that the accused to beat and harass her and used to say that he would get married with another girl. She stated that Pooja committed suicide due to the harassment of the accused. She however stated that the accused never made any dowry demand. She stated that the accused was present in the hospital on 12.04.2014. In cross- examination, she admitted that she was residing close to the State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 7/16 matrimonial home of Pooja. Pooja had not made any complaint against the accused when she had first come back home after the marriage. Neither she nor her husband had made any complaint against the accused after the marriage and till death of their daughter.
15 Kajal, sister of the deceased is PW4. She had stated that on 12.04.2014, her sister Pooja had gone to her house from where they went to Vasant Kunj to work. Pooja then came back home at 9.00 a.m. while she i.e. PW4 came back at 2.00 p.m. Pooja was present who told her that the accused had quarreled with her and left their jhuggi after bolting it from outside. At about 3.00 p.m., the accused came to take Pooja who refused to go with him as she wanted to wait for her parents. However, the accused forcibly took her away. PW4 has stated that she wanted to accompany Pooja but the accused did not permit her to do so. She has stated that previously the accused used to beat Pooja and on one occasion, the accused had broken her hand. She has stated that the accused used to suspect the character of Pooja and used to say that he will marry some other girl. The accused used to beat her sister and treated her with cruelty due to which she committed suicide. She stated that on 12.04.2014 accused had told Pooja that he was no longer interested in her and that he will get married with some other person.
16 In cross-examination, PW4 stated that prior to her marriage Pooja used to work in a beauty parlour but discontinued because the accused did not permit her to work there and Pooja then started working as a domestic maid. PW4 stated that Pooja told her that the accused had left after quarreling on 12.04.2014 but she did not know the reason for the quarrel. Her brothers and sisters also did not State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 8/16 tell her about the reason for the quarrel. She had told her parents about the incident of 12.04.2014 later on.
17 PW9 Gudia is the paternal aunt of the deceased. She has stated that Pooja used to tell her that the accused used to suspect her fidelity and on this account used to beat and harass her. Pooja had told her on the day of incident that Vineet was beating her and might even kill her. She told Pooja that she will ask the accused to improve himself. She did not visit the house of Pooja on her death. In cross- examination, she stated that she did not know the date, month or time when Pooja told her that the accused was harassing her. Pooja had told her only once about the harassment. She had assured Pooja to visit her jhuggi to counsel the accused but she could not do so. She knew both the families.
18 PW3 Rajwati has stated that she was a neighbour of the accused and family of the deceased as she was also residing at Israil Camp, Rangpuri Pahari, Delhi. She stated that whenever Pooja visited her, she used to say that the accused used to harass and beat her as he doubted her character. In cross-examination, she stated that she had not visited the deceased since 10 days prior to her death. Two days, prior to her death Pooja was walking past her in the locality when they had a conversation.
19 As evident from the statements of witnesses recorded in the trial, there is no allegation against the accused of having made any unlawful demand for any property or relevant security from the deceased or her family. In fact since day one, both PW1 and PW2 have State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 9/16 maintained that no demand for dowry was ever made by the accused. However, from the statements of all the witnesses what is established is that the accused used to suspect the fidelity of the deceased and used to threaten her that he would leave her and get married to some other woman. There is however no allegation to the effect that the accused had any affair with any other woman. As regards the allegations of beatings are concerned no particular date or particular instance is mentioned. The allegations in this regard are vague without any material particulars. Further as per PW4, the deceased met her on 12.04.2014 and told her that the accused had fought with her. However, PW4 could not state the reason for the altercation. PW1 and PW2 have not corroborated what PW4 their daughter has deposed about. Omission on the part of PW1 and PW2 in having done so is unnatural as PW4 is their daughter and in the ordinary course of natural events and human conduct PW4 would have shared these facts with PW1 and PW2 especially since the same pertains to the death of their daughter. In fact, PW4 in cross-examination has stated that she had disclosed these facts to PW1 and PW2 but they have not corroborated the said statement.
20 The Hon'ble Supreme Court in the case of U. Suvetha vs. State by Inspector of Police & Anr., reported in (2009) 6 Supreme Court Cases 757 has held in para no.9 as under:-
"9. The word "cruelty" having been defined in terms of the aforesaid Explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498-A of the Penal Code.
State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 10/16 An offence in terms of the said provision is committed by the persons specified therein. They have to be the "husband" or his "relative". Either the husband of the woman or his relative must have subjected her to cruelty within the aforementioned provision. If the appellant had not (sic) been instigating the husband of the first informant to torture her, as has been noticed by the High Court, the husband would be committing some offence punishable under the other provisions of the Penal Code and the appellant may be held guilty for abetment of commission of such an offence but not an offence under Section 498-A of the Penal Code."
(Emphasis supplied) 21 In the case of Sunita Jha vs. State of Jharkhand and Another, reported in 2010 (4) RCR (Criminal) 342 the Hon'ble Supreme Court in para no. 13 observed as under:-
"13. Section 498A IPC, as extracted herein above, is clear and unambiguous that only the husband or his relative could be proceeded against under the said Section for subjecting the wife to "cruelty" which has been specially defined in the said Section in the explanation thereto. The question as to who would be a relative of the husband for the purpose of Section 498A has been considered in detail in U. Suvetha's case (supra). We are entirely in agreement with the views expressed in the said case and we agree with the submissions made on behalf of the Appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, a member of Mukund Chandra Pandit's family. The doctrine of acknowledgment would not be available in the facts of this case. No doubt, there is direct allegation against the Appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U. Suvetha's case (supra), the same would enable the Respondent No. 2 to proceed against her husband under Section 498A I.P.C. and State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 11/16 also against the Appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A I.P.C."
(Emphasis supplied) 22 The Hon'ble Supreme Court in the case of Pinakin Mahipatray Rawal vs. State of Gujarat, reported in (2013) 10 Supreme Court Cases 48 has held in para no. 23 as under:-
"23. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC.
Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extramarital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide."
(Emphasis supplied) 23 In the case of U. Suvetha (Supra), the Hon'ble Supreme Court was of the view that living with another woman may be an act of cruelty on the part of the husband for the purposes of judicial separation or dissolution of marriage but the same would not attract an offence under Section 498A IPC. In the case of Sunita Jha (supra), the Hon'ble Supreme Court while placing reliance on the judgment in the case of U. State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 12/16 Suvetha was pleased to hold that it was only the husband who could be prosecuted under Section 498A and not woman with whom the husband had an affair. Subsequently, in the case of Pinakin Mahipatray Rawal (supra), the Hon'ble Supreme Court was of the view that merely because the husband had developed some intimacy with another during the subsistence of marriage and failed to discharge marital obligations would not be cruelty within the meaning of Section 498A but should be of such a nature as would be likely to drive the spouse to commit suicide for it to fall within the explanation to Section 498A.
(i) Banarsi Dass etc. vs. State, 2014 Law Suit (SC) 1094;
(ii) S.S. Cheena vs. Vijay Kumar, 2010 (12) SCC 190;
(iii) Ashok Rai vs. State, 2010 (3) Criminal Court 815;
(iv) Pinakin vs. State, 2013 (3) Apex 258;
(v) Om Parkash Jain vs. CBI, 2014 (3) Criminal Court Cases 330; and
(vi) Pallam vs. State, 1997 Vol.-I Crime Page 499.
24 I have heard the submissions of the Ld. Counsel for the parties and have perused the record of the case. My findings are as under:-
25 The offence for which the accused is on trial is under Section 306 of the IPC. Section 306 of the IPC makes punishable the act of abetment to commission of suicide. Abetment of a thing is defined under Section 107 of the IPC to mean firstly, instigating a person to do that thing, secondly, engaging with one or more other persons in any conspiracy for doing of that thing or thirdly, intentionally aiding by any act or illegal omission, the doing of that thing. Thus from the provisions of Section 306 of the IPC read with Section 107, it appears that there State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 13/16 must be a positive act on the part of an accused to instigate or aid in commission of suicide.
26 In the case of S.S. Chheena v. Vijay Kumar Mahajan (supra), the Hon'ble Supreme Court was pleased to hold that with respect to abetment, that there should be intention to provoke, incite or encourage the doing of an act by the latter. It was held that abetment involved a mental process of instigating a person or intentionally aiding a person in doing of a thing and that without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. It was observed that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. The same requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he or she committed suicide.
27 Keeping the provisions of Sections 306 and 107 of the IPC in mind and the ratio laid down in the above mentioned case, I shall now proceed to examine the evidence led by the prosecution for the said offence.
28 Section 113A of the Evidence Act provides that where a woman has committed suicide within seven years of marriage and it is shown that her husband had subjected her to cruelty, the court may presume, having regard to all other circumstances of the case, that such suicide was abetted by her husband. The explanation to Section 113A provides that the word cruelty would have the same meaning as defined State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 14/16 under Section 498A of the IPC.
29 The import of Section 113A of Evidence Act has been considered by the Hon'ble Supreme Court in several cases. In the case of Mangat Ram Vs. State of Haryana (2014) 12 SCC 595 the Hon'ble Supreme Court held that the presumption under the said provision would not apply automatically merely because a married woman committed suicide within 7 years of her marriage. In order to draw the said presumption, it will have to be shown by the prosecution that she was subjected to cruelty by her husband.
30 Therefore, the drawing of presumption under Section 113A of the IPC is not automatic the moment it is found that a married woman is found to have committed suicide within seven years of her marriage. It will have to be demonstrated by the prosecution that she was subjected to cruelty by her husband.
31 In the present case, there is no reliable evidence or statement of any witness to hold that the accused had subjected Samita to cruelty by bringing girls to his home behind her back; that he had made any demand for money; or that he and his parents had humiliated her. In the absence of any such evidence, the presumption under Section 113A of the IPC cannot be drawn.
State vs. Vineet Kumar FIR No. 361/2014, PS: Vasant Kunj (S) 15/16 CONCLUSION
17. The net result of the above discussion is that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused Vineet Kumar is therefore acquitted of all the charges framed against them. Bonds under section 437 A of the Cr.P.C filed by the accused has already been accepted for a period of six months from today .
18. File be consigned to the Record Room.
Announced in the open Court (SIDHARTH SHARMA )
on 22th March, 2017 ASJ-02/FTC, PHC/NDD
22.03.2017
State vs. Vineet Kumar
FIR No. 361/2014, PS: Vasant Kunj (S)
16/16