Delhi District Court
State vs Rakesh Kumar on 6 July, 2018
In the Court of
Dr. Satinder Kumar Gautam: ASJ-03(East):
Karkardooma Courts: Delhi.
S.C. No: 677/2016
State Versus Rakesh Kumar
S/o Late Sh. Surat Singh
R/o H. No. 30/351,
Trilokpuri, Delhi
FIR No. 120/2015
PS. Mayur Vihar
U/s. 498-A/306 IPC
Chargesheet Filed On : 17.04.2015
Chargesheet Allocated On : 03.06.2015
Court Presided over on : 06.11.2017
Judgment Reserved On : 06.07.2018
Judgment Announced On : 06.07.2018
JUDGMENT:
1. Smt. Rani, deceased, was brought to LBS Hospital and was declared brought dead. About it, a Daily Diary (herein after referred as DD) No. 41-A dated 14.02.2015 was recorded at Police Station Mayur Vihar. The said DD was assigned to SI (Sub Inspector) Mohd. Ghani who along with Const. Sunil reached at LBS (Lal Bahadur Shastri) Hospital. MLC (Medico Legal Case) of the deceased was obtained and on the MLC - History of frothing from mouth was mentioned. Dead body was reported to shifted to mortuary. SDM and SHO concerned were informed about the facts. Smt. Kamla Devi, mother of deceased, was found present in the hospital and she got recorded her statement inter alia SC No. 677/2016 State Vs. Rakesh Kumar Page 1 of 22 alleging therein that Rani (deceased) had performed love marriage with the accused on 29.01.2008 against their wishes and she was not visiting her parental home. It is also alleged that she (complainant/PW Kamla Devi) used to meet her daughter to enquire about her well being. It is also alleged that Rani was not happy with her married life, as accused used to torture her mentally and physically. It is further alleged that she (complainant) used to make understand accused and deceased but accused did not mend his ways and even used to taunt her daughter (deceased) that he has no impact, if deceased would die. It is further alleged that on 14.02.2015 at about 1 p.m. (afternoon) she along with her other children namely Poonam, Sheetal and Ashish went for shopping and Rani, as per earlier scheduled plan, met them at chowk of 26 Block and after shopping at about 9 p.m. Rani was left at her matrimonial home and at that time, Rakesh and Nitin (dewar of Rani i.e. PW-9) were present. Rakesh became annoyed and started quarrelling with her and after stating that she may die, he left the house. Complainant along with her other children came back to her own house. Sheetal telephoned Rani after sometime and said call was picked up by her Dewar Nitin (PW-9) who informed that Rani and accused were quarrelling with each other and advised to reach there. Complainant rushed towards the house of Rani and on the way he noticed that Rani was being taken by accused on his lap and at that time, Rani was unable to speak and froth was coming from her mouth. She further alleged that all of them rushed to LBS Hospital where Rani was declared brought dead. Complainant further alleged that Nitin told her that after the quarrel between the couple, Rani consumed a poisonous substance. Complainant SC No. 677/2016 State Vs. Rakesh Kumar Page 2 of 22 further alleged that on account of torture and abet to commit suicide at the hands of the accused, Rani committed suicide. On the said statement of complainant, present FIR bearing no. 120/2015 under Sec. 498-A/306 IPC PS Mayur Vihar was registered against accused.
2. It is also the prosecution case that post-mortem on the body of deceased was got conducted and body was handed over to its legal heirs after its post-mortem. Spot was got photographed. Other formal proeedings were conducted by the investigating agency. Accused Rakesh Kumar was arrested. On completion of investigation, chargesheet was filed against the accused to face trial for the offence punishable under Sec. 498-A/306 IPC before the court of ld. MM.
3. After compliance of provisions of Sec. 207 CrPC by the court of learned MM, case was committed to the court of Sessions, as one of the offence is exclusively triable by it.
4. Vide order dated 04.01.2016 charge under Sec. 498-A and 306 IPC was framed against the accused. To the said charges, the accused pleaded not guilty and claimed to be tried.
5. To prove the guilt against the present accused, prosecution examined fifteen witnesses who are as follows:
PW-1 Smt. Kamla Devi is the complainant/mother of deceased. She deposed that her daughter Rani performed love marriage with accused on 29.01.2008 and after said marriage, Rani never visited her parental home but she (complainant) used to meet her off and on. She further deposed that Rani SC No. 677/2016 State Vs. Rakesh Kumar Page 3 of 22 used to tell her that accused used to beat her and quarrel with her. She furtrher deposed that on 14.02.2015 on account of marriage in the family, she along with her children and Rani left for shopping and at about 9 p.m. when Rani was left for her matrimonial home, accused and her (deceased) Dewar were present there and on seeing Rani, accused became angry and asked Rani to go away and to commit suicide and then left the house. She further deposed that she pacified Rani and after leaving Rani she along with her children came back to her house and when she directed other daughter Sheetal to make a phone call to Rani to enquire about the matter, said call was picked up by Nitin, dewar of Rani, who directed them to reach there earliest as Rani was being beaten by accused on which she (this witness) along with Sheetal and Poonam, other daughters, left her house, for house of Rani and on reaching there, she noticed that accused was holding Rani in his lap and was coming outside. Rani was desperate to breath and she was declared dead in LBS Hospital. She further stated that Nitin told them that after the quarrel, Rani had consumed some poisonous substance.
Kamla Devi proved her statement vide Ex.PW1/A stating that Rani committed suicide on account of ill-treatment and atrocities committed by accused.
PW-2 Om Prakash identified body of deceased vide Ex.PW2/A and after its post-mortem, same was handed over vide memo Ex.PW2/B. PW-3 Poonam, sister of deceased, deposed that deceased and accused performed love marriage and deceased never visited her parental home after the solemnization of marriage. She further deposed that she was on talking terms with her and on 14.02.2015 she along with her mother, other sister, brother and SC No. 677/2016 State Vs. Rakesh Kumar Page 4 of 22 Rani left for shopping and after leaving Rani at her matrimonial home at around 9/9.30 p.m. she came back to their house. She further deposed that later on she was informed on phone by Nitin that Rani had consumed some poisonous substance and on reaching there Rani was found unable to speak. Accused took her (Rani) to hospital where she was declared brought dead. This witness was declared hostile and was cross-examined by ld. Addl. PP and during said cross- examination she has been confronted with previous statement.
PW-4 Sheetal, sister of deceased, also toed the lines of PW-3. This witness was also declared hostile and was cross-examined by ld. Addl. PP and during said cross-examination she denied having made any statement earlier.
PW-5 ASI Satya Pal, Duty Officer, proved the copy of DD No. 41-A dated 14.02.2015 as Ex.PW5/A. PW-6 HC Surender, Duty Officer, proved the copy of FIR as Ex.PW6/A. PW-7 Ram Prasad also identified the body of deceased Ex.PW7/A. PW-8 Ashish, brother of deceased, deposed that on 29.01.2008 Rani, his sister, performed love marriage with accused and was not on visiting terms at her parental home, however he used to meet her and on 14.02.2015 he came to know about the death of Rani. This witness was also declared hostile and was cross-examined by ld. Addl. PP and during said cross-examination, he denied having made any statement against the accused and confronted with his earlier statement recorded by the police under Sec. 161 CrPC.
PW-9 Nitin, stated to be dewar of deceased and cousin of accused, deposed that deceased and accused performed love marriage in the year 2008. SC No. 677/2016 State Vs. Rakesh Kumar Page 5 of 22 On 14.02.2015 he had gone to school and when he came back he found Rani (bhabhi) and accused were not present in the house and at about 9.15 p.m. Rani had come back and prior to that accused had also come and on arrival of Rani, accused had left the house and he (this witness) also left the house for about 20 minutes and when he came back he noticed accused was holding Rani in his lap and at that time Rani was in unconscious condition. On receipt of call from parents of Rani, he informed about the incident. This witness was also declared hostile and was cross-examined by ld. Addl. PP and during said cross- examination he denied having made any statement to the police.
PW-10 Dr. Abbas Ali proved the MLC of deceased as Ex.PW10/A. PW-11 Const. Dharmender Kumar joined the investigation ofthis case and proved memos Ex.PW11/A to C regarding arrest of accused.
PW-12 Const. Satya Naryan proved photographs Ex.PW12/A1 to 12/A9 with negatives Ex.PW12/B1 to B9.
PW-13 SI Mausam Ghani is the Investigating Officer of the case and proved memos Ex.PW13/A toC.
PW-14 Const. Ashok took the sealed parcels and deposited the same to FSL, Rohini in intact condition.
PW-15 Sh. Surender Kumar, Nodal Officer, proved CDR in respect of mobile phone no. 9650372903 as Ex.PW15/A to C. The accused in his statement recorded under Sec. 294 CrPC admitted post-mortem report; FSL report as Ex. C1 and statement of Const. Sunil; HC Virender; SI Narender (Crime Team) as Ex.C1 to C4 respectively. SC No. 677/2016 State Vs. Rakesh Kumar Page 6 of 22
6. Statement of accused was recorded under Sec. 313 CrPC in which accused pleaded his innocence. Accused further pleaded that parents of Rani were not happy with their marriage and mother of the deceased used to taunt her on this ground. Accused further pleaded that on the fateful day, Rani demanded money for shopping of marriage of her cousin and he had given Rs. 20,000/- to her for said purpose and she went for shopping with her mother and sisters. Accused further pleaded that Rani also left their son and he (accused) was at his home to look after their son as he was very young at that time. Accused further pleaded that Rani came late in the evening around 9 p.m. and by that time, his son was hungry. He (accused) along with his son went outside to take food for him and also for them. Accused further pleaded that when he came back, he noticed that Rani has consumed something on which he immediately rushed her to hospital. Later on, he came to know that some nuisance had taken between Rani and her mother. In the hospital parent of Rani came there and later on he was implicated falsely in this case. Accused also pleaded that he and his wife were happily married couple. Accused earlier opted to lead defence evidence but later on did not lead any witness in his defence.
7. Learned Addl. PP for the State argued that admittedly deceased died with unnatural death at her matrimonial home and it is clear cut case of abetment which prosecution has proved from the ocular and medical evidence on record. Ld. Addl. PP, thus, prayed for conviction to the accused.
8. Per contra, learned defence counsel submitted that on perusal of the record it is clear that all the material witnesses including mother of the SC No. 677/2016 State Vs. Rakesh Kumar Page 7 of 22 deceased did not utter any single word against the accused for which accused can be held guilty for the offence punishable under Sec. 498-A IPC. Hence, it is prayed for acquittal of the accused under Sec. 498-A IPC. Aqua, offence punishable under Sec. 306 IPC, ld. counsel for the accused submitted that except mother of the deceased no other prosecution witness utter any single word against the accused for abetment to commit suicide by deceased. It is also submitted that even in the statement of mother of the deceased, there are improvements and same are enough to demolish the prosecution case.
9. Ld. defence counsel further submitted that marriage between the accused and deceased was love marriage and there was no reason for abetment on the part of the accused and rather he lost his beloved in this incident only because of the taunts of the mother of the deceased as she was not happy with the love marriage of the accused and deceased. Ld. defence counsel further submitted that since there was no reason for abetment on the part of the accused, as such, prosecution case is liable to be demolished and prayed for acquittal of the accused.
10. Rival submissions considered and record perused with law on issue.
11. Case against the accused is for the offences punishable under Sections 498-A/306 IPC.
12. To facilitate the matter, Section 498-A IPC is re-produce as under
498-A : Husband or relative of husband of a woman subjecting her to cruelty - Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with xxxxx..
SC No. 677/2016 State Vs. Rakesh Kumar Page 8 of 22
Explanation -For the purpose of this section, "cruelty" means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, Iimb or health (whether mental or physical) of the woman; or
(b) harassment or the woman where such harassment is with a view to coercing her on any person related to her to meet any unlawful .....
Admittedly, marriage between the accused and deceased was a love marriage against wishes of the parents of deceased. Admittedly, there is not even any whisper that accused harassed the deceased on account of dowry demands. But even plain reading of the Sec. 498-A IPC itself is clear that Sec. 498-A IPC is not introduced only for dowry demands but explanation (a) is also exist there to show the untoward behaviour of husband and/or in-laws. Now, the court has to see whether this case covers under Explanation (a) of the Sec. 498-A IPC or not.
13. Accused is also charged for the offence punishable under Sec. 306 IPC. Same is reproduced as under:
306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years....".
14. From perusal of the statement of PW-1 Kamla Devi, it is to be considered that there are event or incident to show the conduct of the accused which is of such a nature as is likely to drive the deceased to commit suicide. Though it is matter of record that the marriage between the accused and deceased was lover marriage and there was no demand of dowry nor there are any allegations to the effect that accused ever demanded any dowry. Nothing has come on record to show that accused or any member of his family ever SC No. 677/2016 State Vs. Rakesh Kumar Page 9 of 22 demanded any dowry from the deceased or his in-laws.
15. Qua, offence punishable under Sec. 306 IPC for which accused is charged, court has to see whether there was abetment on the part of the accused for which deceased committed suicide. Ld. counsel for the accused took a plea that since it was a love marriage, abetment on the part for committing suicide by deceased is not possible. For this, court is of the view that it cannot be taken as gospel truth. It cannot be said that love marriage cannot be fail one. Human nature is beyond expectation. Lover can even murder his/her lover at any point of time. Contention of ld. counsel for the accused does not carry any weight.
16. Accused in his statement recorded under Sec. 313 CrPC admitted the fact that deceased along with her mother and sisters had gone for shopping for marriage function in her parental side and returned to her matrimonial home around 9/9.30 p.m. PW-1 Smt. Kamla Devi (mother of deceased); PW-3 Poonam and PW-4 Sheetal (sisters of deceased) also affirmed this fact that deceased accompanied them for shopping and reached her matrimonial home around 9/9.30 p.m. Even there is also no denial to the fact that at that time, accused was present in his house when deceased arrived her matrimonial home from market. Even accused in his statement recorded under Sec. 313 CrPC admitted that when Rani (deceased) had reached at her matrimonial home, he was present in his house. There is also no denial to the fact that sister of deceased phoned Rani and said call was attended by PW-8 Nitin whereas stated that the quarrel took place between deceased and the accused. It is also admitted case of the SC No. 677/2016 State Vs. Rakesh Kumar Page 10 of 22 prosecution that Rani was rushed to LBS Hospital by her husband and she was declared "brought dead" at that time. MLC also reflects that Rani was brought by her husband around 10.47 p.m. Now, it has to be seen what happened between 9/9.30 p.m. and prior to 10.40 p.m. for which deceased has taken this extreme step to end her life without thinking of her husband with whom she performed love marriage against wishes of her parents and of her own minor son. As per the record, from oral and medical evidence, it is clear that deceased Rani died of unnatural death by consuming poisonous substance. PW-1 Kamla Devi; PW-3 Poonam and PW-4 Sheetal who are sisters of the deceased and PW-8 Nitin who is from the side of accused in clear and unequivocal terms deposed that Rani was rushed to hospital by accused in his lap and at that time Rani was desperate to breath and unable to speak and froth was coming from her mouth. What happened between during this short span of between 9.30 to 10.45 p.m. on account of which deceased was forced to take this extreme step. Accused in his statement recorded under Sec. 313 CrPC took a plea that by that time as dinner was not ready, his son was hungry, it was late for dinner as she arrived at 9.30 p.m. he was angry upon her and left his house to fetch dinner for him, his son and family. PW-9 Nitin also deposed that accused left the house and there was quarrel. Rather accused took a plea that later on he came to know that on account of taunts of her mother, Rani committed suicide. Further, to attract the provisions of Sec. 306 IPC, the ingredients of abetment of suicide are as follows:
The prosecution has to prove -
(i) the deceased committed suicide;SC No. 677/2016 State Vs. Rakesh Kumar Page 11 of 22
(ii) the accused instigated or abetted for committing suicide; and
(iii) direct involvement by accused in such abetement or instigation is necessary (as held in Jagannath Mandal Vs. State of WB 2013 CrLJ 1994(Cal.).
17. No doubt, court has to focus on the (ii) and (iii) ingredient as about
(i) there is no denial even by prosecution and accused.
18. In Ramesh Kumar Vs. State of Chattisgarh, 2001(9) SCC 618, Hon'ble Apex observed that - "where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option but to commit suicide, an "instigation" may be inferred." In another case reported as M. Mohan Vs. State, 2011 (3) SCC 626, Hon'ble Apex Court clearly observed that there should be live link or a proximate link between the act of the accused and the act of committing of suicide and if the live link is missing, it cannot be said that the accused has instigated or intentionally aided the commission of offence. All the material witnesses except PW-1 Kamla Devi, who is mother of the deceased, did not utter any single word against the accused and even during their cross-examination conducted by ld. Addl. PP nothing could be brought on record to connect the accused in any manner with the crime in question. Accused suggested that deceased committed suicide on account of taunts of PW-1 Kamla Devi, though said witness denied the said suggestion. Accused also took this plea in his statement recorded under Sec. 313 CrPC which has no substance or force.
19. It is well settled law that every criminal case has to be proved by the SC No. 677/2016 State Vs. Rakesh Kumar Page 12 of 22 prosecution beyond all reasonable doubts and benefit of doubt for each flaw be given to the accused.
20. This section reflected the anxiety to extend protection of the weaker spouse. Traditionally in any society a woman is subjected to whims and caprices of man especially when it related to the regulations of the husband and life of the woman in the family of the man sometime is so intolerable and miserably that it dragged a woman toward suicide. The basis difference between two sections is that "intention". Under Sec. 498- A IPC cruelty committed by husband or his relative dragged the woman to commit suicide while Sec. 306 IPC related to suicide abetted and intended. The accused was charged for harassing the deceased who as a result of which had committed suicide, it was held in case of Public Prosecutor High Court of A.P. Vs. Mohd. Hosan, 1996 Crl.L.J. 2834 (AP) that the accused were liable to be convicted under Sec. 306 IPC & 498-A IPC.
21. In the instant case, PW-1 Kamla Devi, the complainant - mother of the deceased, deposed that the deceased Rani used to tell her that the accused i.e. her husband used to beat her and quarrel with her. On 14.02.2015 when the Rani left for her matrimonial home. Accused and Dewar (PW-9) present there and on seeing Rani accused became angry and asked her to go away and commit suicide and left the house. PW-9 Nitin, dewar of the deceased, also corroborated the statement of PW-1 Kamla Devi while stating that on 14.02.2015 he came to know that there was a quarrel between deceased and accused and when the accused left his house. Even though all the public witnesses including SC No. 677/2016 State Vs. Rakesh Kumar Page 13 of 22 the sisters and parents of the deceased had categorically stated that Rani married accused without consent of her parents and it was love marriage. The deceased never visited her parental home after her marriage and sometime she used to meet her family members outside her house and often used to talk them on phone. PW-1 Kamla Devi in her examination supported the story as alleged by the prosecution and in the cross-examination on behalf of the accused she denied the suggestion that accused never ill-treated or did not abet Rani to commit suicide. Even while corroborating her statement PW-1Kamla Devi stated that accused also stated to the deceased - tu mar ja, muje tujse koi matlab nahin hai.
22. PW-15 Surender Kumar, Nodal Officer, proved CDR in respect of mobile phone no. 9650372903 used by Rani as Ex.PW15/A to C along with Certificate issued under Sec. 65-B Indian Evidence Act which proved to show that she has talk to her family members sometime from her mobile phone number 9650372903 before the incident took place. Even duration while she departed from the matrimonial home to join them for shopping and when she come back after shopping around 9/9.30 p.m., it seems to late hours and dinner was not ready, deceased start preparing meals quickly and as per the deposition of the accused in his disclosure statement, he quarreled with the deceased and passed sarcastic remarks and left the house along with his minor on by contending that he was going to buy the food.
23. Accused in his statement recorded under Sec. 294 CrPC admitted post-mortem report; FSL report and statement of Ct. Sunil, HC Virender and SI SC No. 677/2016 State Vs. Rakesh Kumar Page 14 of 22 Narender as Ex.C1; Ex.PW13/D and C2 to 4 respectively.
24. It is clear that PW-9 Nitin stated that - I saw that my brother was holding my bhabhi on his lap outside the house and at that time, Rani was unconscious. This fact has been corroborated by all the witnesses including the family member which shows that the accused was present in the house at the time of consuming the alleged substance by Rani - deceased. The deceased was brought to the hospital at 10.47 p.m.
25. PW-9 Nitin stated that at 9.30 p.m. his bhabhi had come to their house from market and prior to that his brother had also came there. When his bhabhi had come there his brother had went outside and after about 20 minutes when he came back he saw the deceased was being taken by accused in his lap.
26. As per the Ex.C1 deceased was brought to the hospital on 14.02.2015 at 10.47 p.m. There was no external mark of injury on the body of the deceased. There is no evidence to proof of source of Rs. 20,000/- given by the accused to the deceased for marketing nor accused brought any witness that he left the house. As per the call detail records, PW-15 Sh. Surender Kumar, Nodal Officer, the mobile no. 9650372903 used by the deceased and mobile phone no. 9650216239 was used mother of the deceased i.e. Kamla Devi (PW-
1) and mobile number shown in the CDR for the relevant time on 14.02.2015 between 9.30 p.m. to 10.30 p.m. are pertaining to the sister and other family members of the deceased.
27. Deceased wife Rani committed suicide by consuming poison and SC No. 677/2016 State Vs. Rakesh Kumar Page 15 of 22 the deposition of PW-1 Kamla Devi proved that the husband/accused prior to the incident has harassed, taunted her daughter and treat her with cruelty. The presumption under Sec. 113-B of Indian Evidence Act is not available but inference can be drawn that the such conduct of the accused lead and provoked her to commit suicide. Each and every misunderstanding of petty quarrels between husband and wife no doubt cannot be lead to commit suicide. However, the harassment and cruelty go to an extent an unbearable tolerance within the four corners of the matrimonial home where there is no other eye-witness except the husband and in-laws of the deceased who will not came forward to depose against themselves as being in-laws and interested persons. Though the accused made disclosure statement Ex.PW11/C but the same cannot be read against him, however it lead the accused towards guilt by examining the supporting evidence and story as framed by the prosecution against him who had corroborated that several times accused had beaten the deceased and on 14.02.2015 without his permission his wife had left for shopping and she came at late hours as food was not ready and children was also hungry and quarrel had taken place on these such issues. This part of the statement is co-related with the testimony of other prosecution witnesses. In case of P. Ratinam Vs. Union of India, 1994 Crl.l.J. 1605 (SC) that right of life under Article 21 of Constitution does not include the right to die but in Tramachandra Sagwan Vs. Union Of India, AIR 2011 SC 1190 held that euthanasia can be allowed under exceptional circumstances under the strict monitoring of the court.
28. The deceased was also having one minor male child and other SC No. 677/2016 State Vs. Rakesh Kumar Page 16 of 22 family members and the accused is elder one in his family. Parents of the accused were already expired. The accused and other witnesses have categorically testified that she was residing happily. If she is living happily with one male child, why she has committed suicide? This is also an adverse presumption which is to be explained by the accused. Accused under Sec. 313 CrPC has denied all the prosecution evidence while stating that he is innocent and not committed any crime. Parents of deceased were not happy with this marriage and and on the fateful date, accused had given Rs. 20,000/- for marketing. She went for shopping with her mother and sisters after leaving their son. As son was minor he was present in the house to be look after by accused. She came in the night at about 9/9.30 p.m. At that time son was hungry and accused left the house to fetch food for him, his son and family, when he came back, he noticed she consumed something. He rushed the deceased to hospital. Later on, he came to know that some mischief had committed by mother of deceased Rani. It is alleged by the accused that parents of deceased came at matrimonial home and falsely implicated him in this case while he was leading happy married life with deceased Rani and his son.
29. PW-1 Kamla Devi, mother of deceased, did not utter that deceased kept a sum of Rs. 20,000/- for shopping and even in the disclosure statement Ex.PW 11/C this version is inconsistent as no corroborative evidence lead in defence about the source of Rs. 20,000/- or whether the same was being given by the accused to deceased and even there is no evidence in defence to show that accused brought any food article from the market when he alleged that he SC No. 677/2016 State Vs. Rakesh Kumar Page 17 of 22 had gone to market to buy food articles.
30. Hon'ble Supreme Court in Raj Kumar Vs. State of M.P. (2014) 5 SC 353 observed in relation to duty of the accused to furnish explanation under Sec. 313 regarding any incriminating material which adverse inference will be drawn as permissible in accordance with law.
31. The accused did not lead any defence evidence or brought on record the source of Rs. 20,000/- which was allegedly given to deceased for shopping. Even though, contrary version is there from testimony of Nitin, who is the brother of the accused, who stated that while Rani came back to house after shopping, accused started quarellilng with her and he has not given any reference of Rs. 20,000/-, as such adverse inference can be drawn against the accused. Accused did not deny his presence on the fateful day, though he has not explained as to under what circumstances Rani had died. Evidence available on record pointed niddle of guilt towards the accused through the circumstantial piece of evidence of the prosecution by supporting the testimony of PW-1 has drive the conclusion that her testimony is credible and unimpeachable, trustworthy even there is no infirmity or lacuna in the prosecution case. The prosecution has succeeded to bring home the guilt of the accused for the charges framed against him.
32. In the given circumstances, evidence and material on record, as well as testimony of the prosecution witness especially of PW-1 Kamla Devi, whose testimony is supported technical and medical evidence as well as statement under Sec. 294 CrPC cannot be ruled out with fair degree of certainty. SC No. 677/2016 State Vs. Rakesh Kumar Page 18 of 22
33. In case State Vs. Meh Reguladda Sanand Rav 1996 Crl LJ 4503 wherein the wife had filed a complaint against her husband and in-laws for torturing and harassing but hostile witnesses did not support statement, it was held that this would not render the incredible as fact of cruelty by husband was proved. The husband was hence held guilty for offence of cruelty alone. The explanation (a) of 498-A IPC speaks about any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, Iimb or health (whether mental or physical) of the woman.
34. It is difficult to straitjacket the term 'cruelty' by means of a definition because cruelty is a relative term. What constitutes cruelty for one may not constitute for another person. Sporadic incident of ill treatment by husband do not attract definition cruelty as these were aimed at pressuring wife for divorce and not aimed at pressuring her to satisfy demand of property. Except vague allegations of cruelty, no specific accusation were made against the in-laws. The accused/husband was guilty of wilful conduct of physical abuse, ornaments pledging and drunkenness and no other circumstantial was brought on record which could drive wife to commit suicide. It was held that cruelty was established and conviction was proper in case of Devassia @ Roy Vs. State 2006 CrllJ 3480 (Ker.) and similarly in case of Jagdish Rai Khatta Vs. State 2008 Crll J 269, it was observed that deceased due to ill-treatment meted out in her matrimonial home committed suicide. Medical report supported the prosecution case as led by deceased was meted out ill-treatment done by the accused. It was held that presumption of guilt can be drawn Sec. 113 Indian Evidence Act. SC No. 677/2016 State Vs. Rakesh Kumar Page 19 of 22
35. From the record, it is clear that Rani (deceased) committed suicide by consuming poisonous substance. Plea that the accused has not committed any such offence as alleged. Even there is no proximity of time between the quarrel in the matrimonial home of deceased of arrival of PW-1 Kamla Devi time and again deposed about physical and mental cruelty caused by the accused in the past events. On the fateful day, the deceased little bit late to reach the home and the food was not ready. On this pretext accused started quarrelling with the deceased and taunted her, resultant which she took drastic step. Even for the poisonous substance lying in the matrimonial home itself may have within the knowledge of the accused and in-laws. In a case reported as M. Mohan Vs. State, (surpa), it is clearly observed that in order to convict a person under Sec. 306 of the Code there has to be clear "mens rea" to commit the offence. It also required an "active act or direct act" which led deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide. The plea of the accused to give Rs. 20,000/- to the deceased for shopping has not been proved by any authentic document or oral evidence. It is evident as stated by PW-9 Nitin as deceased came late, food was not prepared in time, a quarrel took place and after passing sarcastic remarks, accused left the house on the pretext to fetch food but while came home very soon without bringing any food articles etc. nor any evidence to show that his son was with him. The accused has also made disclosure statement which has been corroborated with the statement of PW-1 Kamla Devi and PW-9 Nitin whereas testified that on arrival of the deceased a quarrel had SC No. 677/2016 State Vs. Rakesh Kumar Page 20 of 22 taken place between deceased and accused while accused left his house by using taunting remarks with the false pretext to take food articles and the deceased was abetted to consume the poisonous substance which is very much available in the matrimonial home.
36. Under Sec. 106 of the Evidence Act, the burden of proof of any particular fact which is in the knowledge of person who alleged, has to be proving that fact is upon him.
37. Section 106 of the Indian Evidence Act 1872, illustrations
(a) when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving hat intention is upon him.
(b) A is charged with travelling ona railway without a ticket. The burden of proving that he had a ticket is on him.
38. Section 106 would apply to the cases where the prosecution has succeeded in proving the fact from which a reasonable inference can be drawn regarding the existence of the other settled fact. Unless the accused was virtue of special knowledge regarding such facts, failed to offer any explanation which drive the court to draw a different inference.
39. The deposition of the accused in his statement u/s 313 CrPC does not corroborate of his own version. He failed to examine even any witness in his defence either the shopkeeper or documentary proof i.e. bill etc that he has purchased or any neighbour who had seen him going away from the spot and brought food etc or payment of any amount of Rs. 20,000/- to the deceased.
40. A reference is made to a judgment of Delhi High Court reported in 2015 (216) DLT 599 titled as Rajender Thakur Parokar Vs. State, Hon'ble Mr. SC No. 677/2016 State Vs. Rakesh Kumar Page 21 of 22 Justice Pradeep Nandrajog and Hon'ble Mr. Justice R.K. Gauba wherein it was laid down that "if the accused fails to substantiate the plea of alibi, an adverse presumption has to be drawn against him and ought to result in conviction of the accused which was done in the said case."
41. In the judgment Vijay Pal Vs. State by the Hon'ble Supreme Court of India in Criminal Appeal no. 2153/2011, wherein plea of alibi was considered and failure to establish plea of alibi was responsible for conviction of the accused.
42. With the above discussion, court is of the view that prosecution has been able to prove its case beyond all reasonable doubts against the accused namely Rakesh Kumar for the offence punishable under Sec. 498-A IPC and 306 IPC. As such, accused Rakesh Kumar S/o Late Sh. Surat Singh is held guilty under Sec. 498-A IPC and 306 IPC and is convicted accordingly.
Announced in open court SATINDER Digitally signed by SATINDER KUMAR GAUTAM on 06th day of July, 2018 KUMAR GAUTAM Date: 2018.07.06 16:01:30 +0530 (Dr. Satinder Kumar Gautam) ASJ-03 (East): KKD Courts: Delhi. SC No. 677/2016 State Vs. Rakesh Kumar Page 22 of 22