Delhi District Court
State vs . 1 Rakesh Kumar on 8 July, 2011
1
IN THE COURT OF SHRI H.S.SHARMA
ADDL SESSIONS JUDGE, NEW DELHI
S.C. No. 42/2007/2010
State Vs. 1 Rakesh Kumar
S/o Amresh Kumar
V&PO Chandpura
PS Indl. Area Hazipur
Distt. Vaishali, Bihar
2 Amresh Kumar,
Vaidnath Prasad Singh
V&PO Chandpura
PS Indl. Area Hazipur
Distt. Vaishali, Bihar
FIR No.1154/2006 Ms. Usha Mann, Addl. PP for the State.
PS: Kalkaji Sh.S P Kaushal, Advocate for both the accused.
U/S 498A/304B/34/406 IPC
Date of institution of the case : 06.02.2007
Date on which it was received in this court : 02.03.2007
Date of hearing arguments : 13.06.2011
Date of announcement of judgment : 08.07.2011
J U D G E M E N T :
1 This is yet another case u/ss 498A/304B IPC.
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2 Sanjana @ Gudia (hereinafter the deceased) was the
daughter of Smt. Shakuntla (PW1) and Sh.Vyas Kumar (PW2) 3 The marriage of the deceased had taken place with accused Rakesh on 6.6.2003. Accused Amresh is the father of accused Rakesh.
4. On 12.11.2006 the deceased committed suicide by hanging herself. An intimation about it was given to the Police Control Room. The information was recorded by Constable Balkishan (PW23) in the PCR Form Ex.PW23/A. A request to send the PCR vehicle to the spot was sent.
5. S.I Balbir Singh (PW15) was handed over copy of DD No. 30A (Ex.PW14/B) for investigation. He reached the place of occurrence. He found the deceased lying on the bed. She was already dead. She was having ligature (chunni) around her neck. Accused Rakesh was also present. Since it was disclosed by accused Rakesh that his marriage with the deceased had taken place in 2003, therefore he (SI Balbir Singh) called the members of the Crime Team and informed brother of the deceased. He also informed SHO P.S Kalkaji and the area Executive Magistrate State vs. Rakesh Kumar 2 of 45 DJ/ASJ 3 Sh.Trilok Sharma (PW5).
6. Shri Trilok Singh (PW5) recorded statement Ex.PW5/A of Kumar Gaurav (brother of the deceased). He also recorded statements Ex.PW 5/C of Manish Kumar and Ex.PW4/A of Kishore Sharma. He gave necessary directions to get the post mortem examination conducted. He also visited the scene of incident.
7 The members of crime team took photographs Ex.PW15/P1 to P5. The chunni which was found tied around the fan was seized vide memo Ex.PW15/A. On the basis of the statement Ex.PW5/A of Kumar Gaurav (PW7), FIR, copy of which is Ex.PW14/A was registered. Since the statement Ex.PW5/A is the basis of this case, therefore, it is necessary to mention the contents of Ex.PW5/A, in its entirety. Infact it is decisive.
8 Kumar Gaurav (PW7) stated before the SDM that "the marriage of his sister had taken place on 6.6.2003 with the consent of both the parties. At the time of marriage accused Rakesh and his father Amresh had demanded a motor cycle. It State vs. Rakesh Kumar 3 of 45 DJ/ASJ 4 could not be given before marriage. Because of it, he (Kumar Gaurav) and his family members were not allowed to meet the deceased. In those circumstances he considered it proper to end this matter by arranging money. His mother gave Rs. 40,000/ to accused Rakesh. Thereafter they used to meet the deceased. Thereafter there had not been any difficulty either to them or to the deceased".
9. "Once accused Rakesh, in January 2005, had, through the deceased gave a suggestion to him (Kumar Gaurav) to start a factory. He (accused Rakesh) had earlier been doing that work. Inspite of his (Kumar Gaurav's) refusal, he thought that it would be for the happiness of the deceased and to get her and her husband settled properly, he started the business of computerized embroidery. He started this business in June 2005. After 6 or 7 months of start of this business when he found that it i.e. business was not yielding any profit, he (Kumar Gaurav) asked accused Rakesh to close the business. Accused Rakesh was advised by him (Kumar Gaurav) to take a job. However, accused Rakesh refused to do the same and told State vs. Rakesh Kumar 4 of 45 DJ/ASJ 5 him (Kuamr Gaurav) that he (accused Rakesh) would return the amount invested by him (Kumar Gaurav) within one year and he (accused Rakesh) would feel happy because of this arrangement. The deceased had however opposed this particular suggestion of accused Rakesh and she had enquired as to from where the money would come and how would he (accused Rakesh) run the business as he (accused Rakesh) was not having money. On this accused Rakesh had scolded the deceased and told her that she did not want that her husband should progress, although she was his wife. Accused Amresh had also asked him (Kumar Gaurav) to give accused Rakesh a chance and assured him (Kumar Gaurav) that the money will be returned within a year. He (Gaurav) enquired from accused Rakesh as to what would be the cost of the factory. Accused Rakesh told that he would pay Rs.8,00,000/ and sought time of one year. He also assured that till the entire amount is not paid, he (accused Rakesh) shall pay Rs.15,000/ p.m. He (Kumar Gaurav) then left the responsibility of the factory on accused Rakesh and became busy in his other State vs. Rakesh Kumar 5 of 45 DJ/ASJ 6 business. After six months, he came to Delhi and found that accused Rakesh had taken a loan of Rs.4,60,000/ on the factory. An amount of Rs.38,000/ was payable as electricity charges. An amount of Rs.92,000/ was payable to the labours. He (Kumar Gaurav) then snubbed accused Rakesh and enquired from him as to from where he would bring money to clear all these dues. Because of his having snubbed accused Rakesh, he (accused Rakesh) started illtreating the deceased and asked her to tell him (Kumar Gaurav) to make the payment of the amount. When the deceased had opposed it, accused Rakesh had, under the influence of liquor, gave beatings to the deceased. On coming to know about it, he had obtained an agreement in writing from accused Rakesh. Accused Rakesh had admitted that whatever loan had been taken by him, the same had been obtained by him without his (Kumar Gaurav's) knowledge. That loan shall be repaid by him (Kumar Gaurav). He (accused Rakesh) would not have any share in the factory from that day onwards. From August 2006 he (Kumar Gaurav) th started running the factory. On 9 August 2006, he came to State vs. Rakesh Kumar 6 of 45 DJ/ASJ 7 know that accused Rakesh had taken a computerized embroidery machine on lease and in order to run that machine he had again been taking loan. On coming to know about it, he (Kumar Gaurav) gave a public notice in the newspaper advising the public to give loan (to accused Rakesh) at their own responsibility. Till October, Rakesh had taken loan of lakhs of rupees. When those persons who had given the loan had started demanding money from him (accused Rakesh), he (accused Rakesh) started illtreating the deceased. He (accused Rakesh) told the deceased that in case the amount is repaid by her brother, he (accused Rakesh) would leave the business and shall join service. When the deceased had not been telling it to him (Kumar Gaurav) he (accused Rakesh) started giving her beatings. The deceased was told that she should beg for money otherwise (accused Rakesh) he would not survive because of the loan. This fact was told to him th (Kumar Gaurav) by the deceased on 9 November. He (Kumar Gaurav) asked his mother to have a talk with the deceased. His th mother had had a talk with the deceased on 12 at 9.30 p.m. State vs. Rakesh Kumar 7 of 45 DJ/ASJ 8 At that time the deceased was disturbed very much and had told her mother that she was very much frightened. His mother had assured her that everything shall be alright. She had told the deceased that she would have a talk with the father of accused Rakesh. On that very night he received an information from the police that his sister has committed suicide.
10. In Ex.PW5/A it was asserted by Kumar Gaurav that it was not a suicide but was a murder.
11. During investigation rough site plan Ex.PW25/A was prepared. Another site plan (Ex.PW10/A) on scale was prepared. List of the dowry articles Ex.PW2/A was handed over by the parents of the deceased to the police. It was seized. A copy of the letter Ex.PW1/A written by the deceased to her parents and a copy of the letter (Ex.PW1/B) written by accused Amresh to the parents of the deceased were also taken into possession. During investigation the accused were arrested. After completion of investigation, the challan was filed.
12. My learned predecessor vide order dated State vs. Rakesh Kumar 8 of 45 DJ/ASJ 9 26.3.2007 framed charges u/s 498A/34 IPC against both the accused. Charge u/s 304B IPC was framed against accused Rakesh. Both the accused pleaded not guilty to the charges and claimed trial.
13. The prosecution has examined 26 witnesses to substantiate the charges.
14. Both the accused were examined u/s 313 Cr.P.C. They denied the prosecution case. According to them "this case has been registered because of the business differences and financial condition between Kumar Gaurav and accused Rakesh".
15 In defence Raj Kishore Singh, DW1, has been examined.
16 Smt.Shakuntala PW1 (mother of the deceased), Sh.Vyas Kumar PW2 (father of the deceased), Krishan Kant Sahai PW3 (cousin brother of the deceased), Kumar Gaurav PW7 (elder brother of the deceased) and Manish Kumar PW13 (another brother of the deceased) have supported the prosecution.
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17 Kishore (PW4) (maternal uncle in the village
brother hood) was to depose that the relationship between the deceased and accused Rakesh were not cordial. However, he did not support the prosecution. He was cross examined by learned Addl. P P. Though his statement Ex.PW4/A had been recorded by the SDM, yet he clarified that he had heard about the fact that the matrimonial life of the deceased was not happy from the parents of the deceased. He denied the suggestion that he (witness) was having a personal knowledge about the deceased being unhappy. In the cross examination he admitted that he had not attended the wedding of the deceased. He had never visited the house of the deceased in Delhi. His statement was not recorded by the police. 18 Trilok Sharma (PW5) was the area Executive MagistratecumTehsildar, Kalkaji Subdivision, New Delhi. He has deposed that on 13.11.2006, Kumar Gaurav, Manish and their paternal uncle Kishore Sharma had come to his office with police officials. He had recorded statement Ex.PW5/A of Kumar Gaurav, Ex.PW5/B of Manish and Ex.PW4/A of Kishore. He State vs. Rakesh Kumar 10 of 45 DJ/ASJ 11 had also attested the death report Ex.PW5/C. He had given a direction vide letter Ex.PW5/D to get the post mortem examination conducted. He had received the post mortem report Ex.PW5/E. 19 Hira Lal PW6 had attended the marriage of the deceased as he was the Village Pradhan. According to him dowry articles as per the financial status of father of the deceased had been given at the time of marriage. 20 Inspector Vinod (PW8) was the incharge of Crime Team. He had visited the place of incident. He had found that the dead body of a female was lying on the bed. Half chunni was found tied around the neck and half chunni was found tied with the ceiling fan. He (witness) has prepared his report Ex.PW8/A. 21 Parmanand Sharma (PW 9) has deposed that after 6 months of the marriage of the deceased he (witness) along with one Lotan Thakur had gone to the house of the accused Rakesh with sweets etc. The deceased had given him a letter to be delivered to her father. The witness was to State vs. Rakesh Kumar 11 of 45 DJ/ASJ 12 depose that the sweets etc. had been thrown by accused Amresh and his family members. However, he did not support this particular part. He was got declared hostile and was cross examined by learned Addl. P P for the State. 22 The witness denied the suggestion that sweets etc. had been thrown by accused Amresh and he (Amresh) had told that father of the deceased had not given motor cycle as dowry and he (Amresh) was unhappy. He was also to depose that accused Amresh had told him that he would not accept the sweets etc. and would not allow the deceased to meet them or that the sweets etc. were brought back by them and given to father of the deceased. The witness was duly confronted with his statement Ex.PW9/A where it was so recorded in the marked portions.
23 The witness (PW9) has, however, stated that two letters had been given to them - one by the deceased and the other by accused Amresh to be given to Vyas Kumar and they (witness) had delivered both those letters to Vyas Kumar.
24. In the cross examination conducted on behalf of State vs. Rakesh Kumar 12 of 45 DJ/ASJ 13 the accused the witness deposed that Vyas Kumar was not related to him in any manner. They had not worked together. He did not have visiting terms with Vyas Kumar. He was unable to recollect the exact date on which he had gone to the house of the deceased. He had left his house at about 9 a.m and had reached the house of the accused at around 10 a.m. They had gone in a tempo. No family member of Vyas was with them. They had stayed there for about one hour. They had taken tea and snacks. He did not have conversation with the deceased. He denied the suggestion that during those days accused Rakesh was in Delhi. However, he did not have any conversation with Rakesh at that time. The witness denied the suggestion that he had not visited the matrimonial house of the deceased.
25 SI Mahesh Kumar (PW10) had prepared the site planEx.PW10/A on scale.
26 Hemant Kumar Tiwari (PW11) had performed the marriage of the deceased with accused Rakesh. The witness deposed that in March/April 2005 he had come to Delhi with State vs. Rakesh Kumar 13 of 45 DJ/ASJ 14 Vyas Kumar to perform Puja at the opening ceremony of the factory. Kumar Gaurav alone had sat in the Puja. He had met the deceased. However, nothing was given in his presence nor any conversation took place. This witness was also cross examined by learned Addl. P P without any success. In the cross examination of the accused the witness admitted that exchange of dowry articles do not take place at the time of performance of marriage. According to him it takes place at the time of Tilak ceremony.
27 Dr.Bharat Verma (PW12) had conducted the post mortem examination vide his report E x.PW8/E. As per the report the cause of death was asphyxia as a result of ante mortem hanging.
28 Head Const. Mahender Kumar (PW14) was the duty officer on 13.11.2006. He had registered the FIR copy of which is Ex.PW14/A. He has also proved copy of DD No.38A (Ex.PW14/B).
29 SI Balbir Singh (PW15) had investigated the matter.
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30 Constable Vikram Singh (PW 16) and ASI Satbir
Ahmed (PW20) have deposed that on 12.11.2006 they were on patrol duty. On receipt of a wireless message, they had rushed to J3/86 DDA Flats, Kalkaji. A lady was found hanging from the ceiling fan with the help of a 'chunni'. Her husband Rakesh was also present. ASI Balbir Singh had also reached there. The dead body was brought down after cutting the chunni. It was placed on the bed. Thereafter, both of them had again gone back to patrol the area.
31 Constable Girdhar Singh (PW17), a member of the crime team had taken the photographs Ex.PW15/P1 to P5. 32 Head Const.Sambhaji Rao (PW18) was on patrol duty. He had also reached the place of incident. In his presence, accused Rakesh was arrested vide his personal search memo Ex.PW18/B. In his presence the dead body of the deceased was handed over to her brothers. 33 ASI Ram Bhool (PW19) had on 13.11.2006 produced the brothers and uncle of the deceased before Sh.Trilok Sharma. He had taken the request letter Ex.PW 7/A State vs. Rakesh Kumar 15 of 45 DJ/ASJ 16 to get the post mortem examination conducted. He had handed over the post mortem report and a sealed pulanda. The same were taken into possession by him vide memo Ex.PW18/C. He had deposited the pulanda in the malkhana. 34 Head Const. Surender (PW21) was on duty in the PCR Van. On receipt of the information about a lady having hanged herself, he had reached house No.J3/86 DDA Flats, Kalkaji. He has also deposed the facts as stated by PW16 and PW20.
35 Head Constable Arvind (PW22) has deposed that he had joined the investigation and in his presence accused Amresh was arrested.
36 Constable Balkishan (PW23) was on duty in the Police Control Room. He had received a telephonic call at 1.39 a.m from Rakesh Kumar. He was told that a lady had committed suicide. He recorded the information in the PCR Form and sent this information to the Wireless Staff for sending the information to the PCR vehicle near the spot. Copy of that PCR form is Ex.PW23/A. State vs. Rakesh Kumar 16 of 45 DJ/ASJ 17 37 Rajinder Singh (PW24) was the Asstt. Junior Ambulance Officer. On receipt of the information that a lady had hanged herself, he had reached the spot i.e. House No. J3/86 DDA Flats, Kalkaji. He had helped in brining down the lady. He had examined her and found that she had already expired.
38 ACP Ranbir Singh (PW25) was the Addl. SHO at that time. He had partly investigated the case. 39 Inspector Suresh Dabas (PW26) had also investigated the case.
40 The statements of PW 25 and PW25 are not being mentioned in detail as the factum of death by suicide, the presence of accused Rakesh at the time when the police officials had reached there and post mortem examination on the dead body of the deceased have not been seriously challenged. 41 Sh.Raj Kishore Singh (DW1) has deposed that he had attended the marriage of the deceased with accused Rakesh. During his visit, he never came to know about any complaint with the deceased. After about 6 or 7 months of State vs. Rakesh Kumar 17 of 45 DJ/ASJ 18 death of the deceased, when he had gone to the house of accused Rakesh and father of the deceased, he came to know that a dispute had arisen between Kumar Gaurav, the brother of the deceased and Rakesh and due to that reason the deceased was under depression and consequently she had hanged herself. The witness was a mediator of the marriage between the deceased and accused Rakesh.
42 I have heard learned Addl. P P for the State and learned counsel for the accused.
43 Learned counsel for the accused has submitted that the marriage had taken place in 2003. As per the prosecution case the amount of Rs.40,000/ had been paid after six months of the marriage. The matter regarding demand of payment of dowry, if any, as alleged by the prosecution, had come to an end. Therefore, it cannot be said that it was a dowry death. Learned counsel for the accused has referred section 304B IPC to fortify his arguments. According to him it cannot be said that "soon before the death", the deceased had been harassed for dowry. It has been emphasized that there State vs. Rakesh Kumar 18 of 45 DJ/ASJ 19 had been a dispute between Kumar Gaurav (PW7) and accused Rakesh. The deceased could not sustain the pressure of depression.
44. Ld. Counsel for the accused has placed reliance on the following judgments:
1 Hans Raj Sharma & Ors Vs State (Govt. of NCT of Delhi), 2010 III AD (Delhi) 598;
2 Dinesh Seth & Ors Vs State, 2003 VI AD (DELHI) 146; 3 B. Venkat Swamy Vs Vijaya Nehru & Anr, 2008 XI AD (S.C.) 264;
4 Shallender & Anr. Vs State ( Govt. of NCT of Delhi) 2010 V AD (DELHI) 104;
5 Bisno & Ors (Smt) Vs State ( Govt. of NCT of Delhi) 2011 II AD (DELHI) 501;
6 Sunil Bajaj Vs. State SC Acq Cr.J 1573 (2002 SCC (Cri)
608);
7 Budh Ram @ Pappu & Ors Vs State, 2010 VI AD
(DELHI)966; and
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8 Hari Gopal Wadhwa & Anr Vs State, 2007 IX AD
(DELHI) 325.
39. Learned Addl. P P has refuted these arguments.
45. In order to appreciate the arguments, it is necessary to mention the relevant sections.
46 Section 2 of Dowry Prohibition Act 1961 Definition of 'dowry'. In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies".
47 Section 498A IPC Husband or relative of
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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 imprisonment for a term which may extend to three years and shall also be liable to fine.
48 Section 304B IPC 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 subsection, 'dowry' shall have the same meaning as in case 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
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imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 306 IPC. 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, and shall also be liable to fine. 49 I have gone through the judgments.
A judgment cannot be applied in a mathematical or mechanical manner. Our own Hon'ble High Court has in Laxman Dass Bhatia vs. Asstt. Commissioner 2011 I AD (Delhi) 537 dealt with this aspect. Hon'ble the Chief Justice, speaking for the bench, observed as under: " A judgment has to be read in the context and discerning of factual background is necessary to understand the statement of principles laid down therein. It is obligatory to ascertain the true principles laid down in the decision and it is inappropriate to expand the principle to include what has not been stated therein''(para - 25).
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It was further held that "the decision is only an authority for what it actually decides and it is the duty to ascertain the real concrete or ratio decidendi which has the binding effect. While dealing with the principle of precedent, it is to be borne in mind that a judgment is neither to be read as Euclid's theorem nor is to be read out of context '' (para 26). 50 First of all I shall take the judgments cited by learned counsel for the accused.
51 In Hans Raj Sharma's case (supra), the appeal of brother of husband of the deceased had been disposed off. The husband had already undergone the sentence awarded to him and he did not want to pursue the appeal. He had withdrawn the appeal. Since the witnesses did not state the fact that the husband of the deceased used to beat the deceased at the instigation of the appellants, therefore, the benefit was given to parents and brother of husband of the deceased.
52 However, this particular judgment shall be used by
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me as it extensively deals with the proposition of law.
53. In Dinesh Seth's case (supra), the evidence was lacking, therefore the benefit was given to the accused so far as offence u/s 304B IPC is concerned. The husband was however, convicted u/s 498A IPC.
54 In B.Venkat Swamy's case (supra), there was contradictory opinion of the doctor about cause of death. On the basis of the evidence available, the matter was decided by the Hon'ble Supreme Court.
55 In Shailender's case (supra) there was evidence of Dr.Gopal Sharma that the deceased was suffering from personality disorder, a type of mental illness and as such a patient could develop suicidal tendency. In those circumstances the accused was acquitted u/s 304B IPC. However, the husband of the deceased was convicted u/s 498 A IPC. In the present case neither it is the defence of the accused nor is there any evidence.
56 In Bisno's case (supra), there had been a number of dying declarations which were taken into account by State vs. Rakesh Kumar 24 of 45 DJ/ASJ 25 the Hon'ble High Court.
57 In Sunil Bajaj's case (supra) there was no evidence of demand for dowry or subjecting the deceased with cruelty. The statements of the witnesses were vague and inconsistent. The Hon'ble Supreme Court, in view of the nature of evidence, gave the benefit of doubt to the accused. 58 In Budh Ram's case (supra), the marriage of Sunita had taken place in 2002 and she had continued to remain with her parents till 2005. In 2007 she had sustained burn injuries. Her statement was recorded which became the dying declaration. She had died on 3.5.2007. In those circumstances and in view of the nature of evidence i.e. the dying declaration, benefit of doubt was given to the accused. 59 In Hari Gopal Wadhwa's case (supra), the matter had been dealt with at the stage of bail.
60 Thus the judgments cited by learned counsel for the accused are distinguishable on facts.
61. I shall take the case accused wise.
Accused Rakesh
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62 Accused Rakesh has been charged u/ss 498A/
304B IPC.
63. The marriage of the deceased with accused Rakesh had taken place on 6.6.2003. It has come in the cross examination of Vyas Kumar (PW2) that the deceased had remained at her inlaws house at the native village for about 6 to 7 months. Similarly Kumar Gaurav (PW7) in his cross examination deposed that Sanjana (the deceased) had shifted to Delhi after about 5 or 6 months of her marriage. Before shifting to Delhi, she was staying at her inlaws house at Village Chandpura, Hazipur, Vaishali.
64. The case of the prosecution is that after marriage there had been a demand of motor cycle from the side of the accused. It has also come in evidence that a sum of Rs. 40,000/ had been arranged by Smt.Shakuntala (PW1) and was given to accused Rakesh. This fact has been so stated by Smt.Shakuntala (PW1), Vyas Kumar (PW2) and Krishan Kant Sahai (PW3).
65. Learned counsel for the accused has pointed out State vs. Rakesh Kumar 26 of 45 DJ/ASJ 27 that there are contradictions in their statements with regard to the booking of the motor cycle. It may appear that there is contradiction with regard to the fact as to who had booked the motor cycle. However, it is inconsequential as the motor cycle had not been given. I need not elaborate the contradictions as suffice it to say that payment of Rs.40,000/ in lieu of the motor cycle stands amply proved and there is no material to discard the statements of these witnesses, so far as this particular deposition is concerned. PW1, PW2 and PW3 have been cross examined at length but there is no material to jettison their statements. The demand of car or money in lieu thereof was considered to be a demand for dowry. ( See Pawan Kumar vs. State 1998 II, AD (SC) 1).
66. The fact that the motor cycle had been demanded was also to be stated by Parmanand Sharma (PW9. However, he did not support the prosecution.
67 The prosecution case is that the deceased had handed over a letter E x.PW1/A to Prmanand Sharma (PW 9). Another letter E x.PW1/B written by accused Amresh was also handed State vs. Rakesh Kumar 27 of 45 DJ/ASJ 28 over to the father of the deceased. This fact was stated by Parmanand Sharma (PW9). It was not suggested to the witness that these letters were not handed over to him.
68. On 13.6.2011 when the arguments of learned Addl. P P had been heard, it was enquired from accused Rakesh as to whether the letter Ex.PW1/A was in the handwriting of the deceased. He admitted that this letter Ex.PW1/A, which is a photostat copy, was in the handwriting of the deceased. The original of Ex.PW1/A is also on the file. He also clarified that Ex.PW1/B which is photostat copy of the letter, was written by his father to the parents of the deceased.
69. Here I would like to mention that when question No.14 with regard to Ex.PW1/A and Ex.PW1/B was put to accused Rakesh, he had replied in the negative. However, no specific question as to whether Ex.PW1/A was in the handwriting of the deceased or not, had been put to him at that time. It has now been put to him in the supplementary statement recorded today.
70. A perusal of Ex.PW1/A reveals that the deceased had tried to convey her feelings that accused Rakesh remains State vs. Rakesh Kumar 28 of 45 DJ/ASJ 29 under tension for which she is being blamed. He is unable to save money. He gets angry. Because of the demand of loan, he gets disturbed and starts irrelevant talks. He keeps on thinking. He had dreamed and because of nonfulfillment of the dreams, he (accused Rakesh)talks of death. He does not behave properly with her. It has also been mentioned that " in case something happens to him (accused Rakesh) what would happen to her. In one month he (accused Rakesh) remains normal for 10 - 5 days. She is having physical problem". It has also been mentioned that " they (parents of the deceased) should not contact her on phone". Thus, in Ex.PW1/A something about the conduct of accused Rakesh has been mentioned. Parmanand Sharma (PW9) has in his examination in chief deposed that he had gone to the matrimonial house of the deceased after 4 months of the marriage.
71. I am inclined to take this letter Ex.PW1/A into consideration to find out as to how accused Rakesh had behaved with the deceased, in the initial stage.
72. As mentioned earlier, the fact that payment of Rs.
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40,000/ in lieu of the motor cycle had been made within 6 months of the marriage stands proved. It has come in the examination in chief of Kumar Gaurav (P7) that after payment of Rs.40,000/ the deceased had started residing happily in her matrimonial house and they used to meet her. Thus the cruelty, if any, with regard to demand of motor cycle, came to an end on payment of Rs.40,000/. The deceased had committed suicide on 13.11.2006.
73. The prosecution case is that accused Rakesh had been in service. He used to deal in computerized embroidery. He wanted to start his own business. Kumar Gaurav (PW7), after having a talk with accused Rakesh, started business in July 2005. It did not give any profit. Accused Rakesh was asked to stop the business and to take up some job. The deceased was also of this very view. However, accused Rakesh had requested Kumar Gaurav (PW7) to allow him (accused Rakesh) to continue with the business for another year and he had agreed to pay Rs,15,000/ p.m to clear Rs. 8,00000/. Accused Rakesh had allegedly taken loan of Rs.4.6 State vs. Rakesh Kumar 30 of 45 DJ/ASJ 31 lakhs. He was also to pay the labour charges and the electricity charges. Thus, according to prosecution, it had given a cause of unrest not only to accused Rakesh but also to the deceased. I have already mentioned the other facts relating to the business, while referring the contents of Ex.PW7/A. These facts have been substantiated on oath by Kumar Gaurav (PW7). His lengthy cross examination has not brought any material to discard his statement.
74. Learned counsel for the accused has tried to show that because of these transactions, the relations between Kumar Gaurav (PW7) and accused Rakesh did not remain cordial. It was for this reason that this case was foisted on the accused.
75. Now, so far as the charge u/s 304B IPC is concerned, even as per Kumar Gaurav (PW7), the matter relating to demand of motor cycle had come to an end with the payment of Rs.40,000/ within 6 months of the marriage. The marriage had taken place on 6.6.2003 therefore, it can be said that by the end of 2003 there had not been any further demand of dowry or any article in connection with the marriage. U/s 304B State vs. Rakesh Kumar 31 of 45 DJ/ASJ 32 IPC, the harassment has to be in connection with or any demand for dowry and that too soon before death. Reliance can be placed on Narinder Singh vs. State 2011 (1) AD (SC) 450. In this case the marriage had taken place in 1984. The demands of dowry made in 1986 were fulfilled. However, the cruelty had continued, as is in our case. Similarly reliance can be placed on Surender vs. State 2004 (4) SCC 109 where the demands were made about 2 ½ years prior to death. It was not held to be 'soon before death'. These things are lacking in the present case.
76. The start of the business by accused Rakesh with the help of Kumar Gaurav (PW7) in 2005 and its subsequent failure, can not be termed to be in connection with any demand for dowry, which is sinequa non for an offence punishable u/s 304B IPC. Therefore, in my view the charge u/s 304B IPC has not been substantiated.
77. However, the accused has also been charged u/s 498A IPC.
78. Ex.PW1/A, the original of which had been handed State vs. Rakesh Kumar 32 of 45 DJ/ASJ 33 over by the deceased to Parmanand Sharma (PW(9) after four months of the marriage indicates the behavior of the accused. Had the marriage been successful, it could have been taken as the initial hiccups which do take place in the initial stages of almost all the marriages. However, in the present case it had continued. The accused could not resist the temptation to become rich in a very short period. He had been helped by Kumar Gaurav (PW7). The accused himself has put forth the defence that there had been business differences and financial transactions between him and Kumar Gaurav (PW7). Therefore, the statement of Kumar Gaurav (PW7) with regard to start of the business; accused Rakesh having suffered the losses; accused Rakesh having taken the loan and having been in debt, are being taken against him. Surprisingly, the accused in his statement u/s 313 Cr.P.C has denied each and every fact regarding start of the business, his having suffered a loss, his having been in debt etc. The only plea put forth by him in reply to the question " Have you anything else to say" is as under: "The deceased was only disturbed State vs. Rakesh Kumar 33 of 45 DJ/ASJ 34 because of the business differences and financial transactions between Kumar Gaurav and me. I am innocent and have been falsely implicated in this case".
79. In my view the accused should have elaborated as to what were the business differences and financial transactions. It was a fact which was within special knowledge of the accused. He could have spelt it out in clear terms as to what were those differences. I have already mentioned a few portions of Ex.PW1/A. The deceased was not feeling secured because of the conduct of the accused. Even after four months of the marriage, she had questioned as to what would happen to her in case something happens to him (the accused). This feeling had continued till the time of death of the deceased. Accused Rakesh, instead of taking a suitable job, had continued with the business, which had not yielded any profit. Accused Rakesh could have placed on record documentary evidence to show that he had earned profit from the business. He could have produced his passbook or the income tax return to State vs. Rakesh Kumar 34 of 45 DJ/ASJ 35 substantiate this particular fact. It be not taken that people do not suffer losses in the business and in all those cases where a loss is suffered in the business, suicide is the only way out. However, in the present case the accused Rakesh had created such an atmosphere for the deceased that she took the extreme step of ending her life. Why the accused did not stop the business when it was not yielding any profit? He had been in private job. He could have taken up another job. 80 In Hans Raj Sharma's case (supra) it was held as under: " The cruelty, so as to attract penal provisions, contained in Section 498A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression ' willful' in the explanation to section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the State vs. Rakesh Kumar 35 of 45 DJ/ASJ 36 women or bringing misery to her. If the accused knows or is reasonably expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman State vs. Rakesh Kumar 36 of 45 DJ/ASJ 37 is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A of IPC. Of course, the expression ' cruelty' would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in section 498A of IPC. "
It was further held that 'such acts should be aimed at persuading or compelling the women or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.'
81. I have already reproduced the contents of section State vs. Rakesh Kumar 37 of 45 DJ/ASJ 38 306 IPC. This section does not require that the suicide should have been committed for anything connected with demand for dowry. The evidence of Kumar Gaurav (PW7) appears to be without any exaggeration. Infact, a document Ex.PW7/P4 has been put to him in the cross examination and was not disputed. With regard to this particular document (Ex.PW7/P4) which is infact a declaration, a number of questions had been put to Kumar Gaurav (PW7). The witness deposed that it was torn into pieces by the accused. The witness admitted that it was signed by the accused in the month of September 2006. He denied the suggestion that it was got signed by him from the accused at his residence, in the presence of the deceased. The witness admitted the suggestion that the deceased was there. The witness denied the suggestion that Ex.PW7/P4 was torn into pieces by the deceased as she was not in favour of signing such paper by the accused. Thus, the existence of Ex.PW7/P4, which is dated 18.9.2006, is not denied even by the accused. If the deceased was there at the time of obtaining signature of the accused on Ex.PW7/P4, it can be said that the State vs. Rakesh Kumar 38 of 45 DJ/ASJ 39 deceased was aware of the creation of such a document because of losses suffered in the business. If we read Ex.PW7/P4, it would be clear that the accused was willing to execute a declaration (mutual agreement) to the following effect: "the cost for the formation of the company was divided between us (Gaurav Kumar as the director and Rakesh Kumar) in which 20 percent of the total cost was beared(sic) by me (Mr.Rakesh Kumar) and the remaining 80 percent was beared (sic) completely by Mr. Gaurav Kumar. he (Rakesh Kumar), in complete sense and do hereby declare that I have decided to walk out of the company (RamaGDesigning) as an authorized signatory w.e.f. today. I have also offered and received my part of share with Mr.Gaurav Kumar and I have got nothing to do with the profit or loss by the company from today onwards".
82 In the other part of the agreement, which bears signature of the accused, it is mentioned that he (Rakesh State vs. Rakesh Kumar 39 of 45 DJ/ASJ 40 Kumar) had taken loan on behalf of the company M/s RamaG Designing which amounts to Rs.3,94,815/ in total without putting into the knowledge of Mr.Gaurav Kumar. In this documents, the details of the loan taken by accused Rakesh have also been mentioned.
83 Thus, the accused had created such an atmosphere for the deceased to take her own life. It is not the defence of the accused that the deceased was short tempered or was suffering from any mental ailment. No such suggestion had been given to the prosecution witnesses.
84 Although it was suggested to PW1 that some document was given to the accused to obtain his signature, yet no such alleged document was produced by the accused.
85. The defence as had been put to PW 1 Smt.Shakuntala was that the name of accused Rakesh was added in this case as he was unable to pay the agreed amount. It was also suggested to her that the deceased was disturbed because of the business differences and financial transactions between Kumar Gaurav and accused Rakesh or for that reason State vs. Rakesh Kumar 40 of 45 DJ/ASJ 41 she (deceased) took the extreme step.
86. Now so far as the statement of Raj Kishore Singh (DW1) is concerned, it is of no help to the accused. This witness in the cross examination has deposed that he does not have knowledge as to what dispute had arisen between Kumar Gaurav and the accused Rakesh.
87. The prosecution has thus discharged the initial burden. Therefore we can take the help of presumption u/s 113A Evidence Act. This section was inserted because of the necessity felt by the legislature. Since in most of the cases of suicides by bridges the offence was found to have been committed in the matrimonial home, therefore, the legislature, in its wisdom, considered it proper to introduce this section. The prosecution is required to prove that the bride had committed the suicide within a period of 7 years from the date of her marriage and she had been subjected to cruelty by her husband or relatives of her husband. The moment these facts are proved by the prosecution to the satisfaction of the court, it (the court) was allowed to draw a presumption to the effect that State vs. Rakesh Kumar 41 of 45 DJ/ASJ 42 such suicide had been abetted by her husband or such relative of her husband. The word 'cruelty' used in this section has the same meaning as is u/s 498A IPC.
88. In the present case Pritish, son of the deceased was aged around 17 months at the time of the incident. The deceased would not have committed suicide without there being compelling circumstances for her to do so.
89. From a bare reading of section 306 IPC read with section 107 IPC, it is clear the a person can be said to have abetted in doing a thing if he instigates any person to do that thing. The meaning of the word 'instigation' has been considered by the Hon'ble Supreme Court in Ramesh Kumar vs. State of Chhatisgarh (2001) 9 SCC 619. " A bench of three Hon'ble judges had observed that 'instigation' is to goad, urge, forward, provoke, insist or encourage to do "an act". To satisfy the requirement of 'instigation', though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequences. Where the accused had by State vs. Rakesh Kumar 42 of 45 DJ/ASJ 43 his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an instigation may have to be inferred."
90. Ex.PW7/P4 contains a recital from the side of the accused that he had taken loan on behalf of the company M/s Rama G without the knowledge of Mr.Gaurav Kumar. I need not mention the other contents of this document in detail.
91. The defence put forth by the accused is not only vague but also unintelligible.
92. Thus, in my view, accused Rakesh had by his conduct instigated, the deceased to commit suicide.
93. It is well settled that even in the absence of a charge u/s 306 IPC, the accused can be convicted under this particular section though he has been charged u/s 304B IPC. Reliance in this regard can be placed on Narinder Singh's case (supra).
94. In view of the above discussion, I convict accused Rakesh u/s 498A/306 IPC.
Accused Amresh Kumar
State vs. Rakesh Kumar 43 of 45
DJ/ASJ
44
95. Accused Amresh Kumar has been charged u/s 498A IPC. The prosecution case against him is that after the marriage of the deceased with his son Rakesh, he had also demanded motor cycle. It is also the case of the prosecution that accused Amresh had also asked Kumar Gaurav (PW7) to give accused Rakesh a chance in the business. He had assured Kumar Gaurav that the money will be returned within a year.
96. As mentioned earlier, it has come in evidence that the deceased had stayed in the house of her inlaws for about 45 months. During this period Parmanand (PW9) had gone with Lotan Thakur to the house of accused Amresh, with some sweets etc. The sweets etc. had allegedly been thrown by accused Amresh and he had demanded the motor cycle. A letter copy of which is Ex.PW1/A had also been handed over by the deceased to Parmanand Sharma (PW9). Accused Amresh had also handed over a letter copy of which is Ex.PW1/B.
97. Now so far as the throwing away of the sweets etc. and demand of motor cycle, as conveyed to Parmanand State vs. Rakesh Kumar 44 of 45 DJ/ASJ 45 Sharma (PW9) are concerned, this witness PW9 has not supported the prosecution.
98. The deceased, after staying in her inlaws hosue, had come to Delhi, after 4 or 5 months of her marriage. Thereafter, till the time of her death, she had stayed in Delhi with her husband.
99. As mentioned earlier the demand of dowry, if any, had come to an end after payment of Rs.40,000/ within six months of the marriage. In the letter Ex.PW1/A, which is, as per accused Rakesh, is in the handwriting of the deceased, it is mentioned that her mother inlaw and father inlaw do not say anything to her. However, all the members say something about her father. In my view the prosecution has failed to prove the charge against accused Amresh. Accordingly he is acquitted of the charge.
Announced in open court
dated 08.07.2011 ( H.S.SHARMA )
ADDL. SESSIONS JUDGE
sj NEW DELHI
State vs. Rakesh Kumar 45 of 45
DJ/ASJ
46
State vs. Rakesh Kumar 46 of 45
DJ/ASJ
47
IN THE COURT OF SH. H.S.SHARMA DISTRICT JUDGE & ADDL.SESSIONS JUDGE; NEW DELHI S.C. No. 42/2007/2010 State Vs. Rakesh Kumar & anr.
FIR No.1154/2006PS: Kalkaji U/S 498A/304B/34/406 IPC Supplementary Statement of accused Rakesh Kumar S/o Amresh Kumar r/o V&PO Chandpura, PS Indl. Area Hazipur, Distt. Vaishali, Bihar.
U/s 313 Cr.P.C without oath Q. It is in evidence against you that the original letter copy of which is Ex.PW1/A is in the hand writing of the deceased Sanjana. What have you to say? (The original letter is also available on the file and has been shown to the accused. After going through the original , the accused has replied ) Ans. It is in the handwriting of Sanjana.
Q Have you anything else to say?
Ans. I am innocent. I do not want to add anything else. Q. Will you lead evidence in defence?
Ans. No. RO & AC (H.S.SHARMA) DISTRICT JUDGE/ASJ NEW DELHI/08.7.2011 State vs. Rakesh Kumar 47 of 45 DJ/ASJ