Delhi District Court
State vs Abhishek Jain on 23 November, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08, WEST
DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-000384-2011
SC No. 57330/2016
FIR No. 99/2011
PS Kirti Nagar
U/s 498A/304B/34 IPC
In the matter of :
State
Versus
1. Abhishek Jain
S/o Late Sh. Lalit Jain
Address:
DISC, SAM System, 4574/15,
Padam Chand Marg, Opp. Happy School,
Dariya Ganj, Delhi
2. Swetanshu Jain
S/o Late Sh. Lalit Jain
Address:
DICS, SAM System, O-14
Lajpat Nagar-II, Delhi.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 1/42
3. Ms. Sushil Jain
W/o Late Sh. Lalit Jain
Address:
Sangeet Natak Academy, Rabindra Bhawan,
Feroze Shah Road, New Delhi.
(Discharged from the case vide
order on charge dated 10.01.2012).
..........Accused Persons
Date of Institution of case : 03-10-2011
Date of reserving for judgment : 13-09-2024
Date of pronouncement of judgment : 23-11-2024
Appearance:
For the State : Sh. Himanshu Garg, Ld. Addl. Public
Prosecutor.
For accused persons : Sh. Vijay Shukla, Ld. Counsel.
JUDGMENT
1. The accused persons namely Abhishek Jain, Shwetanshu Jain along with their mother Ms. Sushil Jain were sent for trial for the offences u/s 498A/304B/34 IPC by SHO PS Kirti Nagar. However, vide order dated 10.01.2012 of my Ld. Predecessor, accused Ms. Sushil Jain was discharged from all the offences. Accused Abhishek and Shwetanshu were discharged for the offences u/s 498A/304B/34 IPC however, they were charged for the offences u/s 306/34 IPC.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 2/42
2. The said order on the charge dated 10.01.2012 was challenged by the complainant Ms. Kamini Tandon as well as State by way of separate criminal revision petitions bearing nos. 141/2012 and 335/12 respectively. Both the revision petitions came to be disposed of vide order dated 02.09.2022 of the Hon'ble High Court. While disposing of the revision petitions, the Hon'ble High Court granted liberty to the revisionists to raise all the pleas and contentions before the Hon'ble High Court at the time of final arguments in this case. It is worthwhile to mention here that before the said order of the Hon'ble High Court the completion of the trial had already been completed, in as much as, the case was fixed final arguments for the first time on 04.09.2017.
3. In pursuance to the said directions of the Hon'ble High Court, the complainant filed an application u/s 216 and 319 Cr.P.C for addition of charges and summoning of discharged accused Ms. Sushil Jain. However, the said application was kept in abeyance vide order dated 06.11.2023 of this court with observations that the same shall be dealt with at the appropriate time in view of the observations of the Hon'ble High Court.
4. Thus, vide this judgment, the court shall take into consideration the said application of the complainant endorsed by the Ld. Prosecutor as well as the respective final arguments advanced by the parties. It is needless to mention here that if the court comes to allow the said application of the State/Complainant then the court shall not pass the judgment as the case in such situation shall take recourse in law as applicable State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 3/42 to Ss. 216 and 319 CrPC. Moreover, the court is required to discuss the evidence on the record from the beginning till the completion of trial to arrive its satisfaction which is needed for the disposal of the said application.
The case of the prosecution:
5. The facts of the prosecution case in brief are that one lady namely Priya Jain committed suicide on 27.03.2011 by hanging within seven years of her marriage with accused Abhishek Jain. No suicide note was found during the investigation. PW-10 Dr. Komal Singh opined the cause of death as asphyxia due to constricting force produced by ligature tied around neck during hanging. The hanging was also opined as suicidal in nature. He further, after having seen, the FSL result, negated the presence of common poison in the viscera. Therefore, the fact that the deceased died due to suicidal hanging, is on the face of it apparent on the record.
The complainant PW-3 Smt. Kamini Tandon, mother of the deceased got her statement recorded to the SDM. In her statement Ex.PW-3/A, she stated that her daughter Ms. Priya entered into a love marriage with accused Abhishek Jain. He along with his mother and brother committed cruelty and harassed the deceased in connection with the demand of dowry and further that the accused Abhishek Jain had an extra marital affair with on girl Ms. Neha examined in the case as PW15.
On the aforesaid statement of the complainant, the FIR was registered. Investigation was undertaken. After the investigation, State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 4/42 the SHO filed the charge-sheet against both the accused as well as their mother namely Ms. Sushil Jain for the offence u/s 498A/304B/34 IPC.
6. The Ld. Magistrate committed the case to the Court of Sessions after compliance of the relevant provisions.
The charge against the accused persons:
7. As already mentioned above vide order on charge dated 10.01.2012, accused Smt. Sushil Jain was discharged for all the offences and accused Abhishek Jain and Swetanshu Jain were also discahrged for the offences u/s 498A/304B/34 IPC. However, charge for the offence u/s 306/34 IPC was framed against accused Abhishek Jain and Swetanshu Jain who did not plead guilty for offences u/s 306/34 IPC.
The evidence by the prosecution:
8. To prove the afore-mentioned charge against the accused, the prosecution has led the following oral as well as documentary evidence: -
Oral evidence:
PW-1 Ct. Anil Photographer in the crime team, who on the Kumar directions of IO took 13 photographs of the spot including the dead body.
PW-2 ASI Azad Incharge crime team, who inspected the spot Singh and prepared crime scene report.
PW-3 Smt. Kamini Mother of deceased deceased, who deposed Tandon regarding the harassment caused to her daughter and dowry demands made by accused.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 5/42 PW-4 Ct. Prem He joined the investigation with IO SI Nathu Singh Lal and deposed about the investigation conducted in his presence.
PW-5 Ms. Shobhita The younger sister of deceased who Tandon deposed about the incidents of dowry demand and harassment by accused persons.
PW-6 ASI Tara Duty officer, who got registered FIR No.
Dutt 99/2011 PS Kirti Nagar on the basis of
tehrir produced by SI Nathu Lal on
28.03.2021.
PW-7 HC Satyapal He deposed regarding arrest of accused Abhishek Jain by the IO. He identified the accused in the court.
PW-8 Ms. Anju Being the then SDM, she recorded the Mangla, Dy. statement of mother of deceased and gave Director DUSIB direction to the sHO for registration of FIR.
PW-9 Sh. Ramesh The neighbours of accused. Bahadur
PW-10 Dr. Komal He conducted the postmortem examination Singh, HOD on the dead body of deceased Priya and Department of proved postmortem report Ex.PW-10/A Forensic Medicine, DDU hospital PW-11 Inspector On the day of incident, he was looking after C.R Meena the work of SHO concerned. He deposed about the investigation conducted in the case.
PW-12 Sh. The priest, who solemnized the marriage Gavender Shastri between accused Abhishek Jain and Priya (since deceased) as per the Hindu rites and customs.
PW-13 Sh. Roop The grand father of accused Abhishek Jain,
Chand who was a witness to the marriage of
accused and deceased before SDM,
Paharganj.
PW-14 Dr. R.K He proved MLC Ex.PW-14/A of deceased
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 6/42
Srivastav Priya.
PW-15 Ms. Neha Employee in the institute of accused
Abhishek Jain.
PW-16 Sh. The Secretary in Arya Samaj Mandir where
Narender Valecha accused and deceased performed marriage as
per Vedic rites.
PW-17 Sh. He produced the original record of marriage
Sandeep, Naib certificate no. 092/DC/Central.ADM/
Tehsildar, ADM Paharganj/446/12 of accused Abishek Jain
Office and Priya Tandon (since deceased)
PW-18 Sh. Bishan He proved the genuineness of marriage Chander between accused and deceased PW-19 Sh. Vipin He deposed about the fact of deceased living Bhatia with the family members of accused in the same house.
PW-20 Sh. Ashish Witness to the marriage between accused Verma and deceased before the Marriage Officer, Paharganj.
PW-21 Sh. Mohd. He proved the marriage certificate Ex.PW- Rafi Ur Rehman 18/B of accused and deceased.
PW-22 Sh. Sumit Employee in the institute of accused Kapoor Abhishek Jain. PW-23 Inspector He deposed about the investigation Brij Mohan conducted by him. PW-24 Sh. Pawan He proved CAF and CDR pertaining to Singh, Nodal mobile no. 9911085843 registered in the Officer, IDEA name of one Puran. Cellu
PW-25 Sh. Santosh He proved FSL result Ex.PW-25/A prepared Tripathy, Sr. by him.
Scientific Officer,
FSL
PW-26 Mohd. Employee in the institute of accused
Najeeb Ahmed Abhishek Jain.
PW-27 SI N.L He deposed about the investigation
Yadav, First IO conducted by him.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 7/42
Documentary evidence:
Ex.PW-1/PA Thirteen photograph of spot and dead body
taken by the photographer of crime team
Ex.PW-1/PB 13 negatives of abovesaid photographs
Ex.PW-2/A Crime scene report dated 27.03.2011
Ex.PW-3/A Dead body identification statement of Smt.
Kamini Tandon
Ex.PW-3/B Dead body identification statement of Smt.
Kamini Tandon
Ex. PW-3/C Seizure memo of photocopy of marriage
certificate of deceased and accused
Abhishek Jain
Ex. PW-3/DA Sale deed dated 28.07.2001
Ex. PW-4/A Seizure memo of Saree, knife and mobile
phone from the spot
Ex.PW-4/B to Ex. Seizure memo of belongings of deceased, PW-4/D viscera box, clothes of deceased alongwith sample seal Ex. PW-6/A Copy of FIR no. 99/2011 u/s 498A/304B/34 IPC PS Kirti Nagar Ex.PW-6/B The endorsement on the tehrir Ex. PW-6/C DD No. 22A dated 27.03.2011 PS Kirti Nagar Ex.PW-7/A Personal search memo of accused Abhishek Jain Ex.PW-8/DA Death report form 25.35 Ex.PW-10/A Postmortem report no. 369/11 dated 28.03.2011 Ex.PW-10/B Final opinion regarding cause of death Ex.PW-11/A Endorsement of Inspector C.R Meena on the statement of Smt. Kamini Tandon State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 8/42 Ex.PW-14/A MLC of patient Priya Jain prepared at Kalra hospital Ex. PW-16/A Seizure memo of copy of application of accused Abhishek Jain and deceased moved before Sh. Narender Valecha, Secretary, Arya Samaj Mandir for marriage Mark PW-18/A Declaration made by accused Abhishek Jain and deceased for marriage Ex. PW-18/B Photocopy of marriage certificate bearing sl.
no.092/DC(Central)/ADM/Paharganj/449/12 Ex.PW-23/A Arrest memo of accused Shwetanshu Jain Ex. PW-23/B Arrest memo of accused Sushil Jain Ex. PW-23/C Personal search memo of accused Sushil Jain Ex. PW-23/D Disclosure statement of accused Sushil Jain Ex.PW-1/PA 13 photographs of the spot Ex. PW-23/E Application of Inspr. Brij Mohan seeking final opinion Ex. PW-24/A Copy of CAF pertaining to mobile no.
9911085843 in the name of Puran S/o Suraj
Bhan
Ex. PW-24/B Copy of ID proof of one Puran
Ex.PW-24/C (colly) CDR pertaining to mobile no.9911085843 from 01.03.2011 to 31.03.20211 Ex. PW-24/D Certificate u/s 65 B IEA in support of record pertaining to mobile no. 9911085843 Ex. PW-25/A Chemical examination report dated 12.08.2011 prepared by Sh. Santosh Tripathy, Sr. Scientific Officer FSL Ex. PW-27/X Sile plan of the spot dated 27.03.2011 Ex. PW-27/Y Copy of the application for preserving the dead body Ex. PW-27/A Dead body identification statement of Abhishek Jain State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 9/42 Ex. PW-27/B Dead body identification statement of Abhishek Jain Ex.PW-27/C Request for conducting postmortem of deceased Priya Jain Ex. PW-27/D Receipt regarding handing over the dead body to Shwetanshu Jain Ex. PW-27/D1 Brief facts of the case Ex.PW-27/E Arrest memo dated 29.03.2011of accused Abhishek Jain The statement of accused persons u/s 313 Cr.P.C:
9. The statements u/s 313 Cr.P.C of accused namely Abhishek Jain and Shwetanshu Jain were recorded. The incriminating circumstances appearing in evidence against the accused persons were brought to their notice and their explanation was sought.
Both the accused claimed to have been falsely implicated in the present case in order to extort money. Both the accused led evidence in their defence.
Defence Evidence :
10. In their defence, accused examined following witnesses:-
i. DW-1 Sh. Nitin Kumar, Clerk, Bank of India, Kamla Nagar ii. DW-2 Sh. Sunil Kumar, Head Warder, Tihar Jail iii. DW-3 Sh. Rajat Chhabra, Assistant Manager, Canara Bank iv. DW-4 HC Vipin Kumar PS Hauz Qazi State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 10/42 v. DW-5 Sh. Tarun Gupta, AR of SMC Global Securities Ltd. New Delhi Submissions by Ld. Prosecutor duly assisted by Ld. Counsel for the complainant:
11. On the aspect of the addition of charge, Ld. Prosecutor argued that the charge needs to be amended in view of the evidence recorded in this case and the accused Abhishek Jain and Shwetanshu Jain are also liable to be charged for the offence u/s 498A/304B/34 IPC. They further argued that the evidence recorded in this case also show that the discharged accused namely Ms. Sushil Jain should be summoned and put to face the trial.
On the final arguments, it is submitted that the prosecution has been able to prove the case against the accused beyond reasonable doubt. They referred to the testimonies of mother and sister of the deceased as well as the other official witnesses including the doctor and the SDM. They argued that the testimonies of the PWs show that the accused persons instigated the deceased to commit suicide and the deceased had no other option to commit suicide due to the continuous cruelty and harassment by the accused persons.
Submissions by Ld. Counsel for accused persons :-
12. On the other hand, on the application of the complainant u/s 216 and 319 Cr.P.C, Ld. Counsel argued that no ground to allow the application is made out, in as much as, as neither the State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 11/42 prosecution nor the accused has any right to move the application u/s 216 Cr.P. C. As far as section 319 Cr.P.C is concerned, Ld. Counsel argued that once the accused had been discharged, he cannot be summoned under section 319 Cr.P.C.
13. On the merits of the case, Ld. Counsel argued that the prosecution has miserably failed to prove the offence u/s 306/34 IPC as it is clear on the record that the deceased entered into a love marriage with accused Abhishek Jain without any dowry and further that the complainant did not participate in the marriage which shows that the relations between the complainant and the deceased were not cordial. He further argued that no suicide note has been recovered and thus, the version of the deceased is not available on record. He further argued that the prosecution has failed to prove that the alleged love affair between accused Abhishek Jain and PW-15 Neha was the reason for suicide of the deceased. Moreover, the prosecution has not placed any CDRs to prove the fact that the deceased was in consistent touch with the complainant and her sister PW-5 Ms. Shobhita.
14. I have heard the arguments advanced by the Ld. Prosecutor and perused the record carefully.
Analysis:
15. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 12/42 preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
16. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses.
Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 13/42
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
17. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v.
Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 :
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC)
315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 14/42
18. Let me first take the aspect of addition / alteration of charge. Section 216 Cr.P.C provides that the Court may alter or add to any charge at any time before the judgment is pronounced. The Section further provides certain conditions which the court is required to undertake when the charge is altered or added.
19. The accused have argued that there is no vested right either in the prosecution or the accused to move an application under section 216 CrPC. Although, the submission of the Ld Counsel is legally valid but the court is of the view that the court can also see if the charges are required to be added or altered in order to justice in the case. Hence, the court is of the opinion that there is no bar on the power of the court from undertaking the said exercise as there is no denial to the fact that the court has the power to alter or add the charge if the facts of the case require the same. Admittedly, accused Sushil Jain stood discharged of all the offences. As of today, no charge exists against her. The question arises for consideration is that whether any charge can be altered or added against her when there is no charge against her on the record. To my knowledge, alteration or addition can be to something which exists and there cannot be any alteration or addition to something which does not exist on the record. I am supported in view by the judgment of Sohan Lal & Ors Vs State of Rajasthan (1990) 4 SCC 580 where it was held that the application seeking alteration or addition of charge against an accused, who has already been discharged, is not maintainable. Hence, the present application is not maintainable for the State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 15/42 addition or alteration of charge as far as accused Sushil Jain is concerned.
20. As far as the addition of charges against accused Abhishek Jain and Shwetanshu Jain is concerned, admittedly, they both have been charged for the offence u/s 306/34 IPC. Thus, the addition of charge can take place against them. However, it is to be seen whether considering the material on the record including the initial complaint and the evidence collected in the investigation or the evidence brought during the trial on the record, a case is made out for the addition of charges u/s 498A/304B/34 IPC.
21. At this stage, it would be apropos to discuss the law in regard to the addition of charge as provided u/s 216 Cr.P.C.
22. In the case of Nallapareddy Sridhar Reddy vs. The State of Andhra Pradesh and Ors. (21.01.2020-SC):
MANU/SC/0057/2020, as reported by MANUPATRA, the Hon'ble Supreme Court after having considered the previous judgments enunciated the law on the subject. The relevant observations are quoted hereinbelow as under: -
"14. In order to adjudicate upon the dispute, it is necessary to refer to Section 216 of Code of Criminal Procedure:
216. Court may alter charge.--(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the Accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the Accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 16/42 made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the Accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
15. Section 216 appears in Chapter XVII of the Code of Criminal Procedure. Under the provisions of Section 216, the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the Accused. The phrase "add to any charge"
in Sub-section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Section 216 provides that the addition or alteration has to be done "at any time before judgment is pronounced". Sub-section (3) provides that if the alteration or addition to a charge does not cause prejudice to the Accused in his defence, or the persecutor in the conduct of the case, the court may proceed with the trial as if the additional or alternative charge is the original charge. Sub- section (4) contemplates a situation where the addition or alteration of charge will prejudice the Accused and empowers the court to either direct a new trial or adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the Accused. Section 217 of the Code of Criminal Procedure deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial.
16. The decision of a two-judge Bench of this Court in P Kartikalakshmi v. Sri Ganesh MANU/SC/1321/2014 : (2017) 3 SCC 347, dealt with a case where during the course of a trial for an offence Under Section 376 of the Indian Penal Code, an application Under Section 216 was filed to frame an additional charge for an offence Under Section 417 of the Indian Penal Code. Justice F M Ibrahim Kalifulla, while dealing with the power of the court to alter or add any charge, held:
6.... Section 216 Code of Criminal Procedure empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 17/42 there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided Under Section 216 Code of Criminal Procedure to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.
(Emphasis supplied)
17. In Anant Prakash Sinha v. State of Haryana MANU/SC/0279/2016 :
(2016) 6 SCC 105, a two judge Bench of this Court dealt with a situation where for commission of offences Under Sections 498A and 323 of the Indian Penal Code, an application was filed for framing an additional charge Under Section 406 of the Indian Penal Code against the husband and the mother-in law. After referring to various decisions of this Court that dealt with the power of the court to alter a charge, Justice Dipak Misra (as the learned Chief Justice then was), held:
18.... the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 Code of Criminal Procedure.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 18/42
19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the Accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 Code of Criminal Procedure. It is the duty of the trial court to bear in mind that no prejudice is caused to the Accused as that has the potentiality to affect a fair trial... (Emphasis supplied)
18. In CBI v. Karimullah Osan Khan MANU/SC/0167/2014 : (2014) 11 SCC 538, this Court dealt with a case where an application was filed Under Section 216 of Code of Criminal Procedure during the course of trial for addition of charges against the Appellant under various provisions of the Indian Penal Code, the Explosives Act 1884 and the Terrorist and Disruptive Activities (Prevention) Act 1987. Justice K S P Radhakrishnan, speaking for the Court, held thus:
17. Section 216 Code of Criminal Procedure gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the Accused.
18. Section 216 Code of Criminal Procedure confers jurisdiction on all courts, including the Designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and Sub-
sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the courts can exercise the power of addition or modification of charges Under Section 216 Code of Criminal Procedure, only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. (Emphasis supplied)
19. In Jasvinder Saini v. State (Govt. of NCT of Delhi) MANU/SC/0642/2013 : (2013) 7 SCC 256, this Court dealt with the question whether the Trial Court was justified in adding a charge Under State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 19/42 Section 302 of the Indian Penal Code against the Accused persons who were charged Under Section 304B of the Indian Penal Code. Justice T S Thakur (as he then was) speaking for the Court, held thus:
11. A plain reading of the above would show that the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment.
The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.
(Emphasis supplied)
20. From the above line of precedents, it is clear that Section 216 provides the court an exclusive and wide-ranging power to change or alter any charge. The use of the words "at any time before judgment is pronounced" in Sub-section (1) empowers the court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of the court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence. Addition of a charge merely commences the trial for the additional charges, whereupon, based on the evidence, it is to be determined whether the Accused may be convicted for the additional charges. The court must exercise its powers Under Section 216 judiciously and ensure that no prejudice is caused to the Accused and that he is allowed to have a fair trial. The only constraint on the court's power is the prejudice likely to be caused to the Accused by the addition or alteration of charges. Sub-section (4) State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 20/42 accordingly prescribes the approach to be adopted by the courts where prejudice may be caused."
23. Therefore, in view of the aforesaid propositions of law, it is clear that the charges can be amended or added at any stage, before the pronouncement of judgment. However, the Court has to see that the material on the record has a direct link or nexus with the ingredients of the alleged offence. The court can also alter or amend the charge if there is a defect in the charge or there is some material to support the same.
24. The prosecution has sought the addition of charges u/s 304B/498A/34 IPC. The court is duty bound to see if there is material available on the record justifying the addition of the aforesaid charges against them.
25. Section 304 B which defines and provides the punishment for dowry demand, reads as under:-
"304B. Dowry death. --(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation. --For the purpose of this sub section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
Section 304B (1) defines 'dowry death' of a woman. It provides that 'dowry death' is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry. Subclause State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 21/42 (2) provides for punishment for those who cause dowry death.
26. In Major Singh v. State of Punjab, (2015) 5 SCC 201, the Hon'ble Supreme Court held the following essential ingredients of 304B IPC. The relevant observations are reproduced hereunder:-
"10. To sustain the conviction under Section 304B IPC, the following essential ingredients are to be established:
(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; and
(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death."
27. Now, let us discuss if there is material on the record to support the addition of charge u/s 304B IPC against the accused Abhishek Jain and Shwetanshu Jain.
I. Death of a woman by burn or bodily injuries or otherwise than a 'normal circumstance':
28. The first essential ingredient for the offence u/s 304 B IPC is that the death of the woman should be caused by burns or bodily injury or otherwise than under a 'normal circumstance'. PW-10 Dr. Komal Singh opined that the cause of death was asphyxia due to constricting force produced by ligature tied around neck during hanging. The hanging was suicidal in nature. He further after having seen the FSL result negated the presence of common poison in the viscera. Therefore, it is apparent that State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 22/42 the deceased died due to suicidal hanging. Therefore, the first ingredient of Section 304 B IPC is satisfied.
II. The death should have occurred within seven years of marriage:
29. The second requirement to frame charge for offence u/s 304 B IPC is that the death of the woman should have occurred within seven years of marriage. From the material available on record, the marriage of deceased with accused Abhishek Jain on 31.10.2006 and her death on 27.03.2011 stand proved. Accordingly, it is held that the deceased died within seven years of her marriage. Accordingly, it is held that the second ingredient of section 304B IPC also stands proved.
III. The deceased woman must have been subjected to cruelty or harassment 'by husband or any relative of husband':
30. The third ingredient of offence u/s 304B IPC is that the deceased woman must have been subjected to cruelty or harassment by husband or any relative of husband. In the judgment of State of Punjab Vs Gurmit Singh (2014) 9SCC 632, the Hon'ble Supreme Court discussed the previous case law on the subject and elucidated the concept of 'relative of husband' for the purpose of section 304 B IPC. The relevant observations are reproduced here as under :- (SCC page 636 and 637) "9. It is relevant here to state that the expression "relative of the husband" has been used in Section 498-A of the I.P.C.
While interpreting the said expression, this Court in the case of U. Suvetha vs. State by Inspector of Police and Anr.(2009) 6 SCC 787 held it to mean a person related by blood, marriage State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 23/42 or adoption. Relevant portion of the judgment reads as follows:
"10. In the absence of any statutory definition, the term "relative" must be assigned a meaning as is commonly understood. Ordinarily it would include father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of any person. The meaning of the word "relative"
would depend upon the nature of the statute. It principally includes a person related by blood, marriage or adoption."
10. The expression relative of the husband further came up for consideration in the case of Vijeta Gajra vs. State of NCT of Delhi (2010)11 SCC 618 and while approving the decision of this Court in U. Suvetha (Supra), it was held that the word relative would be limited only to the blood relations or the relations by marriage. It is appropriate to reproduce the following passage from the said judgment:
"12. Relying on the dictionary meaning of the word "relative" and further relying on Ramanatha Aiyar's, Advance Law Lexicon (Vol.4, 3rd Edn.), the Court went on to hold that Section 498-A IPC being a penal provision would deserve strict construction and unless a contextual meaning is required to be given to the statute, the said statute has to be construed strictly. On that behalf the Court relied on the judgment in T. Ashok Pai vs. CIT (2007) 7 SCC 162. A reference was made to the decision in Shivcharan Lal Verma vs. State of M.P. (2007) 15 SCC 369. After quoting from various decisions of this Court, it was held that reference to the word "relative" in Section 498-A IPC would be limited only to the blood relations or the relations by marriage."
11. It is well known rule of construction that when the Legislature uses same words in different part of the statute, the presumption is that those words have been used in the same sense, unless displaced by the context. We do not find anything in context to deviate from the general rule of interpretation. Hence, we have no manner of doubt that the word "relative of the husband" in Section 304 B of the IPC would mean such persons, who are related by blood, marriage or adoption."
31. In view of the aforesaid settled propositions of law, it is to be seen whether the accused persons are the husband or any State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 24/42 relative of the husband. Accused Abhishek Jain was the husband of the deceased and accused Shwetanshu Jain was the Jeth of the deceased. Thus, accused Abhishek Jain is the husband and accused Shwetanshu Jain was the relative of the husband of the deceased being the real brother. Thus, the third essential ingredient of section 304 B IPC also stands satisfied.
IV. Cruelty and harassment of the woman by husband or relative for dowry in connection with the marriage :
AND V. Such cruelty or harassment for or in connection with any demand for dowry should have taken place soon before death:
32. Now, let us discuss if there is material available on the record to indicate or prove the afore said two essential ingredients.
33. As settled on the aspect of addition or alteration of the charge, the court not only as to see whether any charge is left to be framed by the court when the charge was already framed or whether any evidence has come on record which required addition of the charge. For the said purpose, the complaint Ex.PW-3/A needs to be taken into consideration. The FIR was registered on the said statement of PW-3 Smt. Kamini Tandon. In brief, the crux of her statement is that her daughter namely Priya got married with accused Abhishek on 31.10.2006 out of her own will and she had no objection about the same. Priya told her about the same after two days of her marriage. Priya got State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 25/42 acquainted with Abhishek during her computer court at Pusa. Accused Abhishek would take her to his house to meet his family. In the summer of 2006, Sushil Jain, mother of accused Abhishek came to her for the marriage of Priya and Abhishek to which she agreed. However, she refused to the request of Sushil Jain that Priya be allowed to go to a vacation with accused Abishek as she did not want them to go alone before the marriage. In the month of September, 2006 she arranged for their marriage in a Mandir at Ballimaran but Abhishek and his family members did not come. On 02.11.2006, Abhishek and his family members took Priya to her in-law's house at Pahar Ganj but she was not aware where Priya was residing. She also was not allowed to come to the house of Priya's in-laws. Priya used to talk to her sister Shobhita but she was not allowed to talk to her. Priya gave birth to a daughter and Shobhita went to see Priya in the hospital. Shobhita informed the complainant that Priya would tell her that she was being harassed for the dowry and further that Priya had tole Shobhita that the flat in the name of complainant be transferred to Priya. It was before ten months before her death but she refused as she has another daughter Shobhita. Thereafter, on 27.03.2011, she came to know about the death of Priya. Shobhita also told her that she had a talk with Priya and Priya was happy but did not talk property. She also stated that Abhishek had an affair with a girl namely Neha who was working at the computer institute of Abhishek near Happy School, Dariya Ganj.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 26/42 The said statement was endorsed by Ms. Shobita, sister of deceased who supplemented that accused Shwetanshu would cause harassment to Priya and wanted that Priya and Abhishek should take divorce. Abhishek also did not have any attachment for the last 5-6 months with Priya and remained indulged in his affair. She had a talk with Priya on 26.03.2011 at about 2.30 p.m and also on 17/18.03.2011 when Priya was weeping and stating that she was being maltreated by her in-laws and they would throw out from her matrimonial house.
34. Now, let us see the depositions of the mother and sister of the deceased recorded during the trial. PW-3 complainant Smt. Kamini Tandon deposed that deceased Priya married Abhishek Jain on 31.10.2006 in the court. She received a notice to appear in the court, she went there but Abhishek and his family members did not attend the court. She was agreeable to the marriage. However, later on she was informed that the deceased had married with Abhishek. On 02.11.2016, Abhishek and his family members came to deceased Priya and later on she came to know that Priya was residing at Kamla Nagar with her in-laws. Whenever she would go to meet Priya, she was not allowed to meet her. She was informed through telephone by her daughter that Abhishek, Shwetanshu and Sushil Jain were pressurizing her to get the flat in the name of the complainant transferred in the name of Priya. She further deposed that on 27.03.2011, she came to know about the death of Priya and accordingly, she reached at Kalra Hospital.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 27/42 In the cross-examination, she was confronted with her statement Ex.PW-3/A with regard to the fact that "she alongwith Priya, Shobhita and her brother Manish Mehra went to attend the court, but Abhishek and his family did not attend the court". Clearly she did not mention the same in her very first statement given to the SDM. She further stated that she was not present at the time of marriage of deceased Priya. She was also confronted with regard to the fact that she wanted to organize a function after the court marriage, but in-laws of Priya did not agree to the same. She also did not mention the same in her very first statement. She further stated that Priya never told her or Shobhita the address of Kamla Nagar. The same shows that the relations between the deceased and her mother were not good else it is not probable that a daughter after marriage would not tell her address after the marriage. She further stated that Priya gave birth to her daughter in Ganga Ram Hospital. She was confronted with her statement Ex.PW-3/A that Priya was pressurized to get the flat in the name of the complainant transferred to her name. However, the said confrontation is not valid as the same fact is mentioned in the complaint Ex.PW-3/A with a slight change that it was ten months before the death of Priya. She further stated that she or Shobhita never met with girl Neha.
35. PW-5 Shobhita is the real sister of the deceased. She deposed that after the marriage, Priya used to talk her on mobile and also used to meet her in the mall. Priya informed her that accused Abhishek, Shwetanshu and their mother Sushil used to State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 28/42 tell Priya that she did not bring the sufficient dowry. Priya used to tell her that Sushil Jain used to ask Priya to get the flat in the name of their mother transferred in her name. She stated that 10- 12 days before her death, Priya talked with her and stated that she had been harassed to great extent by accused and they also beat her. Priya told her that Abhishek had an extra marital affair with a girl Neha and did not take care of her.
In the cross-examination, she stated that Priya met Abhishek in the computer classes and Priya told her that she was in love with Abhishek. She did not go to attend the court marriage of Priya and Abhishek. No dowry articles were given at the time of marriage to Priya. She stated that Priya, their mother and she were using mobile phones and she had also mentioned all the numbers thereto. She further stated that when Priya got married, her mother was doing stitching work of suits and they were getting some rent from the shop on the ground floor and some income from the interest.
36. Apart from complainant Ms. Kamini Tandon and Shobhita, there is no other witness who were allegedly privy to the cruelty or harassment meted out to the deceased at the hands of accused persons.
37. As discussed hereinabove, for the purpose of addition of the charge, the court has to see whether there is sufficient material on record to have a reasonable nexus or connection with the alleged offence left out at the time of framing of charge to be added in the charge already framed.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 29/42
38. A careful perusal of complaint Ex.3/A duly supplemented by PW-5 Shobhita would show that there are no specific particulars as to the date, time and place when such cruelty or harassment had taken place. The complaint would only reveal that the complainant was never allowed to enter the house of Priya's in-laws and she was not permitted to talk to Priya as well. In fact, there is not a single specific instance in the complaint where there was any incident of cruelty or harassment to Priya in connection with the marriage and demand of dowry. Thus, the complaint is silent regarding any harassment or cruelty. As far as the demand of dowry is concerned, for the purpose of section 304B IPC, the demand of dowry has to be soon before the death of the bride. In the complaint, the complainant stated that when the in-laws of Priya had demanded her flat to be transferred in the name of Priya, it was ten months before the death of Priya. Here question arises if the demand of dowry ten months before the death, can be said or not to be soon before the death. The term "soon before death" is an elastic term and no straight jacket formula or fix criterion can be laid down. In the judgment of Kans Raj vs. State of Punjab and Ors. (26.04.2000-SC) :
MANU/SC/0296/2000, the Hon'ble Supreme Court explained the term "soon before death" in the following observations:-
"14. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 30/42 expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long before the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances sowing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be soon before death' if any other intervening circumstance showing the non -existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."
39. Hence, the term "soon before death" is an elastic term and it does not specify any time duration before the death of the bride. What it pre- supposes is that the demand of dowry must have been a reasonable connection or nexus with the death and the demand should have travelled for a reasonable period of time.
40. In her deposition, PW-3 complainant has not mentioned any time period of his said demand of flat to be transferred in the name of Priya. She has not even deposed that the said demand was even made 10 months before the death of deceased. Therefore, she has failed to give any time line regarding the demand of flat. Thus, her testimony fails to prove that this demand of flat was made soon before the death of deceased.
41. PW-5 Ms. Shobhita also made omnibus allegations in her deposition regarding the demand of flat. She has also not spoken State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 31/42 as to when the said demand was made or told to her by Priya. Although she had deposed that on 10-12 days before the death of Priya she had talked to her when she was weeping and telling her only about the harassment and beatings by her in-laws. Hence, she has not deposed about raising said demand even 10-12 days before the death of Priya.
42. She has further deposed that in December, 2010 when she visited Priya's house, she found her condition not to be good. She was also weeping. She had talked with Priya who was informed her about the taunts of her mother-in-law for not bringing the dowry. Thus, these allegations that too three months before her death is an omnibus allegation and does not talk about any demand of dowry. It is settled law that in-laws taunting the woman for not bringing sufficient dowry as per the status of the family, is not a demand of dowry. Therefore, from the perusal of the initial complaint and deposition of PW-3 and PW-5, mother and sister of deceased respectively, the essential ingredients of "soon before death" in section 304B IPC has not been brought on the record. Thus, this Court has no hesitation in holding that prosecution has not brought any new material on record justifying the addition of charge u/s 304 B/34 IPC.
43. Considering the aforesaid propositions, it is clear that there is nothing in the complaint that there is evidence either in the initial complaint or in the depositions of the mother or the sister of the deceased that she was made subject to the cruelty or harassment in connection with the demand of dowry soon before her death. The mother has stated in her initial complaint that the State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 32/42 demand of the transfer of the flat was made ten months before the death. Hence, the demand was made long time before the death. Though the time period is not material to decide if the same was soon before the death but at the same time there is nothing also on the record if the said demand carried on with the passage of time and played a role in the suicide of the deceased. Hence, the court is not hesitant to hold there is no sufficient material for the offence under section 304B IPC on the record.
44. Moving to offence u/s 498A IPC, at the cost of repetition, it can be said that the allegations in the complaint Ex.PW-3/A and depositions of PW-3 and PW-5, are not specific. There are omnibus allegations regarding the cruelty or harassment to deceased. As far as section 498A IPC is concerned, it is to be seen whether a married woman has been subjected to cruelty by her husband or relatives of her husband either for harassment with a view to coerce meeting a demand of dowry or willful conduct by her husband or his relative of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life, limb or health. For the purpose of Section 498A, the cruelty can be either physical or mental. A careful perusal of record would show that since there are no specific particulars regarding time, place and date, the essential ingredients of section 498A are not attracted.
45. Furthermore, the evidence led by the prosecution is not believable due to several reasons. Firstly, it is not believable that accused Abhishek having married Priya out of love without any dowry, he or his family members would demand dowry in the State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 33/42 form of the flat from the mother of deceased. Secondly, this court is in agreement with the Ld. Counsel for accused that the relations between deceased Priya and her mother were not cordial. The reasoning of the court gets support from the fact that her mother was not invited by Priya in her marriage. Her marriage was a court marriage. It has come in the evidence of the complainant that she was not aware about the day of marriage and it was only after the marriage, she was informed about the same by deceased Priya, which clearly shows that Priya never informed the complainant about her marriage. Thirdly, it is beyond any comprehension that had the relations been cordial between the deceased and her mother, the mother would not have known about the address of in-laws of deceased. The complainant had deposed that deceased never told her or Shobhita the address of Kamla Nagar where deceased used to reside with her in-laws after shifting from Pahar Ganj. Fourthly, it has come on record that Priya had delivered a girl at Ganga Ram Hospital. The judicial note of the fact that Ganga Ram Hospital is a private hospital and reasonable expenses are required to be incurred at the time of delivery of a woman, show that accused Abhishek and his family members took good care of Priya.
46. Thus, in view of the aforesaid discussions, no ground for addition of charge for the offence u/s 304B/498A/34 IPC is made out against accused Abhishek and Shwetanshu. Hence, this prayer of the prosecution stands dismissed.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 34/42 Summoning of Ms. Sushil Jain (since discharged) u/s 319 Cr.P.C:
47. Next comes the question of summoning of Ms. Sushil Jain. Admittedly, she stands discharged vide order on the point of charge. Section 319 Cr.P.C provides for the summoning of additional accused. In the judgment of Hardeep Singh Vs State of Punjab (2014) 3 SCC 92 apart from other questions, one question came for consideration of the court whether power u/s 319 Cr.P.C extends to persons not named in the FIR or named in the FIR, but not charged or who have been discharged. While answering the question, the Hon'ble Supreme Court said that the person who has been discharged can be summoned again provided that before summoning of such discharged accused, inquiry as contemplated by Ss. 300 (5) and 398 is held and only after such inquiry is done and there appears to be evidence against such person warranting his arraignment as accused, the powers under Section 319 Cr.P.C can be exercised.
48. In the judgment of Deepu @ Deepak Vs State of Madhya Pradesh CA No. 1277/2010 dated 14.12.2018, the Hon'ble Supreme Court considered the judgment of Hardeep Singh and held that if the court is of the opinion that new material on the record are sufficient to summon the discharged accused u/s 319 Cr.P.C then the court is empowered to summon him. In the said case, Ld. Trial Court summoned the accused on an application u/s 319 Cr.P.C after receipt of the supplementary charge-sheet alongwith the FSL results and supplementary statements, although initially the accused in the case was State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 35/42 discharged. Therefore, it is clear that discharged accused can be summoned u/s 319 Cr.P.C and the only cavil is that there must be some material on record.
49. It is also settled principle of law that power u/s 319 Cr.P.C is an extraordinary power and should be sparingly used. The yardstick on which the accused is to be summoned u/s 319 Cr.P.C is more than a prima facie case which the court needs to see while framing the charge. The material or evidence on record must be stronger than the prima facie case. In Shankar vs The State Of Uttar Pradesh on 2 May, 2024, Criminal Appeal NO. 2367 OF 2024, the Hon'ble Supreme Court had the occasion to deal with the similar proposition of law. The Apex Court took into consideration the judgment of Hardeep Singh (supra) and observed as follows: -
"16. The degree of satisfaction required to exercise power under Section 319 Cr.P.C. is well settled after the above- referred decision. The evidence before the trial court should be such that if it goes unrebutted, then it should result in the conviction of the person who is sought to be summoned. As is evident from the above- referred decision, the degree of satisfaction that is required to exercise power under Section 319 Cr.P.C. is much stricter, considering that it is a discretionary and an extra-ordinary power. Only when the evidence is strong and reliable, can the power be exercised. It requires much stronger evidence than mere probability of his complicity."
50. Hence, the degree of the satisfaction of the court before summoning an accused under section 319 CrPC is that the nature of the evidence should be that if the evidence against the accused goes unrebutted then it should result in the conviction of the accused to be summoned under section 319 CrPC.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 36/42
51. Now, coming to the facts of the case. I have already discussed the material available on record before the court in the charge sheet and also in the depositions of the complainant PW-3 Ms. Kamini Tandon and PW-5 Ms. Shobhita. The material on the record throughout from filing of the charge-sheet till the completion of the deposition of the mother and sister of the deceased as well as other witnesses would show that that evidence lacked the essential ingredients of section 304B and 498A IPC. I have already held that the evidence including the complaint, FIR and depositions was not sufficient for the addition of the charge u/s 304B and 498A IPC against the accused namely Abhishek and Shwetanshu and thus the said evidence can safely be said to be not sufficient for the summoning of accused Sushil Jain after her discharge. No new material has been brought on the record by the prosecution which may justify her summoning. The oral or documentary evidence on the record since the beginning till the end brought on record by the prosecution is not of such a nature which if goes unrebutted would result in the conviction of the proposed accused Ms. Sushil Jain. Thus, this court has no hesitation in holding that the prayer of the prosecution / complainant to summon accused Sushil Jain u/s 319 Cr.P.C also be not allowed. Hence, the prayer for summoning of accused Sushil Jain for the purpose of section 304B and 498A IPC is declined.
52. Now, there remains the question whether the prosecution has proved the offence u/s 306 IPC against accused Abhishek and Shwetanshu as well as summoning of accused Suresh for the said State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 37/42 offence. Section 306 IPC provides the punishment for the abetment of a suicide of a person. Abetment has been defined u/s 107 IPC. It says that a person abates the doing of a thing who instigate any person to do that thing or engages with one or more persons in any conspiracy for the doing of that thing and intentionally aids, by any act or illegal commission in the doing of that thing. The prosecution case at best is covered under the first clause of section 107 i.e. of instigation only.
53. It is not necessary that the actual words must be used to that effect or what constitute instigation must necessarily and specifically be suggestive of that consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt. It is also settled law that whether the person has abetted the commission of suicide of another or not is a question to be gath- ered from the facts and circumstances of the case and to be found out by the continuous conduct of the accused involving his men- tal element.
54. In Amlendu Pal vs State of West Bengal (2010) 1 SCC 707, the Hon'ble Supreme Court after considering the several ear- lier pronouncements on the concept of abetment under section 107 IPC held as under:-
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 38/42 the commission of suicide. Merely on the allegations of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of section 306 IPC is not sustainable."
55. To prove the aforesaid offence against accused Abhishek and Shwetanshu, the prosecution was required to prove that accused Abhishek and Shwetanshu had abetted the death of deceased. Similarly, for summoning accused Sushil Jain, the prosecution needs to bring on the record the material justifying the summoning of accused Sushil Jain. Again, for the aforesaid purpose, we have to see the depositions of PW-3 and PW-5. They are the best witnesses to depose about the facts whereby the court can infer if the accused Abhishek and Shwetanshu had instigated the deceased to commit suicide. I have already discussed that in the initial complaint or testimonies of PW-3 and PW-5, have not elaborated about the instigation by the accused persons. No evidence about the instigation by the accused person to deceased, is available on the record. Another allegation which has been raised by PW-3 and PW-5 in the initial complaint/ statement/depositions is that accused had an affair with one girl namely Neha, who was working in the computer center of accused Abhishek. She has examined by the prosecution as PW-
15. She deposed that Priya used to doubt her relationship with Abhishek Jain as on some occasions during out door presentation in schools, Abhishek and she had to take lunch together. She further deposed that Abhishek was her boss and she was his employee and there was nothing between them. She did not State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 39/42 support the prosecution case. Accordingly, she was cross- examined by the Ld. Prosecutor but nothing favourable to the prosecution could come on record.
56. PW-22 Sumit Kapoor is the employee of accused Abhishek. He was also examined by the prosecution to prove the fact that Abhishek and Neha had an affair. However, he did not support the case of the prosecution. He deposed that Priya used to suspect that Neha and Abhishek had an illicit relationship and on the said issue, there used to be commotion between Neha and Priya. He denied the suggestion of the prosecution that at the instance of Neha, Priya was transferred to Lajpat Nagar. He also denied that he shared the said information with the deceased.
57. PW-26 Sh. Mohd. Naheeb Ahmed was examined by the prosecution to prove that Abhishek and Neha had an affair. He deposed that when he was working with Abhishek and Priya at Darya Ganj Branch, the relation between Abhishek and Priya were normal, but when Priya was moved to Lajpat Nagar Branch, she appeared to him to be disturbed. He further deposed that Priya used to inquire from him if he had any idea of any affair between Abhishek and Neha, but he warded off her apprehension by replying him in negative. He further deposed that the relationship between Abhishek and Priya had turned sour and talks between them were lesser. Therefore, this witness also not proved the fact that accused Abhishek had an extramarital relation with his employee Neha. Even Neha also denied to have any affair with Abhishek. Thus, the prosecution has not proved any extramarital relation of accused Abhishek with Neha.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 40/42
58. Even otherwise if it is accepted for the sake of arguments that there used to be an affair between Abhishek and Neha still, the said fact by itself cannot amount to an act which could have instigated Priya to commit suicide. The mere fact that husband is having an extramarital affair with another girl or woman, cannot amount to instigation to the wife so that the wife can commit suicide, unless and until the attending circumstances in this regard are proved on record, which may fall in the legal definition of instigation to complete the abetment as provided u/s 107 IPC. The prosecution is under the statutory duty to prove those circumstances on record, which court feels, the prosecution has utterly failed to prove. The prosecution was required to bring on record that accused persons with their mother made the life of the deceased so miserable or she was pushed to the wall to such an extent the she was left with no other option but to commit suicide. However, there is nothing on the record either to convict accused Abhishek and Shwetanshu for the offence u/s 306 IPC or to summon Sushil Jain for the said offence u/s 319 Cr.P.C despite her discharge from the case. Thus both the accused Abhishek and Shwetanshu stands acquitted. The prayer of summoning of discharged accused Sushil Jain under section 319 CrPC also stands declined.
Conclusion:
59. In view of the aforesaid facts and circumstances, it is held as under: -
i. The prayer of the prosecution u/s 216 Cr.P.C for the addition of charges u/s 304B/498A/34 IPC against accused Abhishek Jain and Shwetanshu Jain stands dismissed.
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 41/42 ii. The prayer of the prosecution to summon the discharged accused Smt. Sushil Jain u/s 319 Cr.P.C for the offences u/s 304B/498A/306/34 IPC also stands dismissed.
iii. Both the accused namely Abhishek Jain and Shwetanshu Jain stand acquitted for the offence u/s 306/34 IPC
60. Earlier Bail bonds of both the accused namely Abhishek Jain and Shwetanshu Jain stand discharged. The original documents of their previous respective sureties, if any be returned to them after cancellation of endorsement and upon the identification of the sureties.
61. The bail bonds furnished u/s 437 A Cr.P.C of both the accused Abhishek Jain and Shwetanshu Jain are extended for a period of six months for the purpose of Section 437A Cr.P.C.
After the expiry of six months, their bail bonds shall stand cancelled and surety bonds discharged. Original documents of sureties, if any be returned after cancellation of endorsement and upon the identification of the sureties. Case property, if any be destroyed after the expiry of period of appeal.
62. File be consigned to Record Room.
Digitally
signed by
HEM HEM RAJ
Date:
RAJ 2024.11.23
15:31:02
Pronounced in the open +0530
Court on 23-11-2024. (HEM RAJ)
Addl. Sessions Judge-08 (West)
Tis Hazari Courts Delhi
State Vs Abhishek Jain & Ors SC No. 57330/16 FIR No.99/2011 42/42