Delhi District Court
The State vs 1. Praveen Kumar S/O Shyam Sunder on 1 April, 2014
FIR no. 482/11
P.S Sultanpuri
u/s 304 B/498A/34 IPC and
alternatively 302 /34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 112/14
UID NO . : 02404R0023992012
FIR no :482/11
P. S : Sultan Puri
u/s 304 B/498 A/34 IPC
alternatively u/s 302/34
IPC
The State versus 1. Praveen Kumar s/o Shyam Sunder
R/o P -2/16, DDA Market Sultan Puri,
Delhi.
2. Kamlesh w/o Shyam Sunder
R/o P -2/16, DDA Market Sultan Puri,
Delhi.
3. Shyam Sunder s/o Gurmukh Ram
R/o P -2/16, DDA Market Sultan Puri,
Delhi.
Date of committal to session court : 09.05.2012
Date of argument : 02.04.2014
Date of order : 02.04.2014
SC No. 112/2014 State vs Praveen Kumar & Others (Page 1 of 51 )
FIR no. 482/11
P.S Sultanpuri
u/s 304 B/498A/34 IPC and
alternatively 302 /34 IPC
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
a) On 16.10.2011, on receipt of DD no. 29 A (ExPW7/A) , S.I Badami Lal (PW20) alongwith constable Rajsh(PW9) reached at house no. P-2/16, Sultanpuri Delhi where at the first floor one lady Neha ( deceased) was found hanging with the ceiling fan with the help of the sari . Matter was informed to the SHO, SDM and Crime team was called.
Dead body of the deceased was removed from the ceiling fan and thereafter was removed to Sanjay Gandhi Hospital where she was declared brought dead. Dead body of the deceased was shifted to the Mortuary of Sanjay Gandhi Hospital. In the meanwhile Tehsildar-cum- Executive Magistrate Sh Ramphal Singh (PW10) has reached the hospital and recorded the statement (ExPW10/A) of Vikas Gupta ( brother of the deceased) and made his endorsement (ExPW10/B) on the said statement . Executive Magistrate also recorded the statement( ExPW10/C) of the mother of the deceased. S.I Badami Lal(PW20) came back at the spot and prepared site plan . IO made his endorsement( ExPW20/A) on the statement (ExPW10/A) and got registered the case u/s 498A/406/304B/34 IPC through Constable Sandeep (PW18).
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b) The saree which was used by the deceased for hanging herself was seized and sealed with the seal of BL and was taken into possession vide memo ExPW18/A. The ceiling fan was taken into possession vide memo ExPW18/B. Plastic chair was seized vide memo ExPW18/C , Executive Diary 2010 was seized vide memo ExPW18/D .
c) On the next date i.e 17.10.2011, postmortem of the deceased Neha was got done and after the postmortem dead body was handed over to her legal heirs.
d) Accused Shyam Sunder( father-in-law) was arrested vide memo ExPW18/G and accused Parveen(husband) was arrested vide memo ExPW18/E. Accused Kamlesh( Mother
-in-law) was arrested vide memo ExPW20/ E.
e) After the completion of investigation, since there were allegation of demand of dowry soon before the death of deceased Neha and her death was caused otherwise then normal circumstances within seven years of her marriage therefore, all the accused persons were chargesheeted for offences u/s 498 A/406/304 B/302/34 IPC.
g) Vide order dated 13.1.2012, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 304 B /302 IPC was exclusively triable by the court of sessions, threfore vide order dated 25.4.2012, case was committed to the court of sessions.
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2. Vide order dated 10.7.2012, ld predecessor of this court decided the charges and accordingly, all the accused persons were charged for the offences u/s 498A /304B/34 IPC and alternatively for offence u/s 302/34 IPC.
3. In order to prove its case, prosecution has examined as many as twenty witnesses. Public witnesses
4. PW11 Smt Meenakshi Devi is the mother of the deceased Neha . She deposed that Neha( deceased ) was married on 12.3.2011 with accused Praveen. Two days prior to marriage, her daughter Neha refused to marry Praveen Kumar for the reason that she wanted to marry someone else. However, they have made her understand and compelled her to marry Parveen Kumar and she got married SC No. 112/2014 State vs Praveen Kumar & Others (Page 4 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC to the accused Parveen. On 16.10.2011, accused Parveen Kumar informed them telephonically that Neha had committed suicide by hanging herself. PW11 further deposed that her daughter Neha(deceased) did not complaint against her husband or her in -laws of any kind and there was no demand of dowry at the time before or after the marriage from the side of accused persons and she was never harassed for not bringing the dowry articles as per demands of accused persons. PW 11 was declared hostile and she was cross examined by the ld APP for the state . PW11 was not cross examined by the accused persons.
5. PW12 Vikash Gupta (complainant) and PW17 Udit Gupta are the brothers of the deceased . They have also deposed on the lines of PW11 and have not supported the case of the prosecution. PW12 & PW 17 were also declared hostile and were cross examined by the SC No. 112/2014 State vs Praveen Kumar & Others (Page 5 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC prosecution. PW12 and PW17 were not cross examined by the accused persons.
6. PW13 Sh Hari Shankar Aggarwal is a shop keeper who was running a retail cloth shop from whom on 21.2.2011, PW11 Meenakshi mother of deceased had purchased cloths etc., vide invoices ExPW13/A, ExPW13/B and 1135 ExPW13/C.
7. PW15 Vipin Kumar is a witness who on 16.10.2011, made a call to police at 100 number from his mobile phone 9873233221 when he came to know that one lady has committed suicide by hanging and later on police recorded his statement.
8. PW19 Jitender deposed about selling of furniture to Vikas (PW12) for the marriage of his sister vide receipt SC No. 112/2014 State vs Praveen Kumar & Others (Page 6 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC ExPW19/A. POLICE WITNESSES
9. PW2 HC Constable Govind Singh is the witness who was posted as MHC(M) at PS Sultanpuri with whom S.I Badami Lal had deposited following things :
i) On 16.10.2011, Two sealed pullandas sealed with the seal of BL, one plastic chair, one ceiling fan make Orient PSPO , one diary having reckcene cover of badami colour in the malkhana entered at serial no. 13144 of register no.19. Entries are ExPW2/A.
ii) On 17.10.2011, Two sealed pullanda with the seal of SGMH Mortuary alongwith sample seal which was entered at serial no. 13149 on register no. 19 . Entries are ExPW2/B.
iii) On 22.12.2011, one diary and one note book were sent to FSL Rohini through Constable Daulat vide RC No. 197/21/11 and thereafter he deposited the receipt with MHC(M). The copy of relevant entry of register no. 21 is ExPW2/C and the copy of the receipt is ExPW2/D. SC No. 112/2014 State vs Praveen Kumar & Others (Page 7 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC
10. PW3 LCt Kiran was posted at P.S Sultanpuri as computer operator on 16.10.2011 from 8:00 am to 8:00 pm. PW3 deposed that on that day at about 6:05 pm , duty officer HC Devender got the FIR of the present case recorded through computer from her. The certificate u/s 65 B Indian Evidence Act to that effect was also prepared which is ExPW3/A.
11. PW4 HC Devender is the duty officer who proved the registration of FIR vide ExPW4/A .
12. PW5 Retd S.I Prem, on 16.10.2011 was posted as Incharge Mobile Crime Team , Outer Distt. He inspected the scene of occurrence and prepared crime report ExPW5/A .
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13. PW6 Ct Harish Kumar is the witness who on 16.10.2011, accompanied Incharge Crime team He took 13( thirteen) photographs ExPW6/B1 to ExPW6/B12 of the scene of occurrence at the instance of the IO. Negatives of those photographs are Ex PW6/A1 to ExPW6/A 13.
14. PW7 WHC Chand Kiran proved the recording of DD no.29 A dated 16.10.2011 which is ExPW7/A.
15. PW8 Ct Daulat is the witness who on 22.12.2011, on the instruction of the IO had collected one diary and one notebook containing exhibits from the MHCM and deposited the same at FSL Rohini vide RC No. 197/21/11 and after return , handed over the copy of RC and receipt acknowledgment to the IO.
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16. PW9 Constable Rajesh is a witness who was with the IO during investigation.
17. PW14 Constable Arvind deposed that on16.10.2011, he was on duty at channel no.108 from 8:00 am to 2 P.M at CPCR, PHQ. At about 12:13 , he received a call from 9873233221 . He filled up PCR form ExPW14/A and flashed the information on concerned NET.
18. PW 18 HC Sandeep deposed that on 16.10.2011, he joined investigation of the present case with S.I Badami Lal . At about 5:25 , upon instruction of SHO, he reached at SGM Hospital where S.I Badami Lal was present with the relatives of the deceased. At about 5:45, S.I Badami Lal had given him one rukka for registration of FIR . He reached PS and got present FIR registered and SC No. 112/2014 State vs Praveen Kumar & Others (Page 10 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC thereafter returned at P-2/16 , Sultan Puri and handed over the same to IO . He deposed that IO had prepared the cloth pullanda of the green colour saree piece and sealed with the seal of BL and taken into possession the same vide memo ExPW18/A. IO had seized the ceiling fan of Orient PSPO Brand vide seizure memo ExPW18/B. , one plastic chair from the spot was seized vide memo ExPW18/C, one executive diary 2010 was seized vide memo ExPW18/D. IO had prepared site plan of the spot. PW18 further deposed that accused Praveen Kumar was arrested vide memo ExPW18/E and his personal search was conducted vide memo ExPW18/F. Accused Sham Sunder was arrested vide arrest memo ExPW18/G and his personal search was conducted vide memo ExPW18/H. PW18 was cross examined by the accused persons.
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19. PW20 SI Badami lal is the IO. He deposed that on 16.10.2011, he was posted at P.S Sultan Puri and was on emergency duty from 8:00 am to 8:00 pm. On that day on receipt of DD no.29 A ExPW7/A, he alongwith ct Rajesh reached at the spot i.e P-2/16, Sultan Puri, Delhi where they found one lady Neha hanging with the ceiling fan with the help of the saari. He informed the concerned SHO , SDM and crime team was called at the spot. Executive Magistrate inspected the spot. Dead body of the deceased was removed to the SGH hospital where doctors declared her brought dead. Dead body was shifted to mortuary of SGH and gold and other articles were taken out from the dead body and same were kept in pullanda and sealed with the seal of BL and seized vide ExPW9/A. Meanwhile Executive Magistrate Ramphal reached at the hospital and recorded the statement of Vikas Gupta vide ExPW10/A .
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20. PW20 further deposed that he made his endorsement ExPW20/A on ExPW10/A and got registered the FIR through Sandeep. He prepared site plan ExPW20/B and seized remaining portion of saari which was tied from the ceiling fan and was kept in pulanda and was sealed with the seal of BL and taken into possession vide memo ExPW18/A. Ceiling fan was seized vide memo ExPW18/B. Plastic chair was seized vide memo ExPW18/C. Diary ExP-2 was seized vide memo ExPW18/D. Accused Shyam Sunder and Parveen Kumar were arrested vide arrest memo ExPW18/G and ExPW18/E and their personal was conducted vide memo ExPW18/H and ExPW18/F respectively.
21. PW20 Badami Lal further deposed that on 17.10.2011, he alongwith brother of the deceased reached SC No. 112/2014 State vs Praveen Kumar & Others (Page 13 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC Mortuary, SGM Hospital . Executive Magistrate Ramphal also came to the hospital. Dead Body after postmortem was handed over to the legal heirs of the deceased vide ExPW20/C . After the postmortem doctor handed over two pulandas sealed with the seal of SGMH Mortuary and one sample seal to him and same were taken into possession vide memo ExPW9/B . On 26.10.2011, the Note book of deceased ExP-6 was taken into possession vide ExPW12/D. On 10.11.2011, Wedding card ExP-7, invoice of furniture ExPW19/A and invoice of jewellary ExP-8 and three photographs ExP-9(colly) were also taken into possession vide memo ExPW20/D. He alongwith with lady ct. Uganta and brother of the deceased reached at the house of accused persons from where accused Kamlesh was arrested vide arrest memo ExPW20/E and her personal search was carried out vide memo ExPW20/F. Upon his instruction, the case diary and copy of admitted handwriting SC No. 112/2014 State vs Praveen Kumar & Others (Page 14 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC was sent sent to FSL , Rohini by MHC(M) through Ct Daulat Ram vide RC NO. 197/21/11 . During investigation , Mr. Udit Gupta brother of deceased handed over the receipt/invoice ExPW13/A, ExPW13/B and ExPW13/C of Aggarwal Saree Emporium and same were taken into possession vide memo ExPW20/G. OFFICIAL WITNESSES
22. PW10 Rampal Singh Tehsildar cum Executive Magistrate deposed that on 16.10.2011, he was working as Tehsildar, Sarswati Vihar and was also doing work of Executive Magistrate for Sub Division , Saraswati Vihar. On reciept of call from IO P.S Sultan Puri, SDM Saraswati Vihar instructed him to reach place of incident in the area of Sultan Puri. At about 1:10 pm he reached at P-2/16, Sultan Puri. At the first floor of the house he found one Neha SC No. 112/2014 State vs Praveen Kumar & Others (Page 15 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC aged about 22 years hanging with the ceiling fan with the saree. He instructed the IO to remove the body from the ceiling fan and to shift the same to mortuary. He reached SGMH to record the statements of witnesses. He further deposed that he got recorded the statement of Smt Meenakshi Devi( Mother of the deceased ) at 4:00pm from his assistant and in between Meenakshi became unconscious and recording of her statement was suspended.
23. PW10 further deposed that Vikas Gupta brother of the deceased Neha gave his written statement to him which is ExPW10/A and he made endorsement ExPW10/B beneath his statement and suggested for necessary action as per law. Statement of Smt Meenakshi was also completed . Statement of Meenakshi is ExPW10/C and his endorsement is at point Mark X on ExPW10/C. On SC No. 112/2014 State vs Praveen Kumar & Others (Page 16 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC 17.10.2011, postmortem of deceased Neha was got done. He went to mortuary of SGMH and inquest proceedings were completed.
24. PW16 Mr Deepak , Nodal Officer, Vodafone Mobile Services Ltd brought the CDR pertaining to mobile no. 9711005278 for the period from 1.3.2011 to 31.10.2011 alongwith certificate u/s 65 B of Indian Evidence Act. He deposed that the phone is registered in the name of Vikas s/o Anil Kumar r/o E-1/25, Phase I, Block E1, Budh Vihar, Delhi. Attested call detail records are ExPW16/A running into 97 pages.
MEDICAL EVIDENCE
25. PW1 Dr. Manoj Dhingra conducted postmortem on the body of deceased Neha and gave SC No. 112/2014 State vs Praveen Kumar & Others (Page 17 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC report ExPW1/A. PW1 opined that the death in this case is Asphyxia as a result of anti mortem hanging.
26. Thereafter prosecution evidence was closed and statement of accused person u/s 313 Cr. PC was recorded by the ld Predecessor of this court. . During the statement u/s 313 CrPC , accused persons have not denied the fact that deceased Neha was married with the Praveen on 12.3.2011 and after the marriage the deceased was residing with them. Accused persons did not opt to lead any evidence in their defence.
27. I have heard the ld Addl P.P for state and ld counsel for the accused person. I have also perused the record very carefully.
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28. Accused persons have been charged for offences u/s 304B/498A/34 IPC and alternatively 302/34 IPC. Although, prosecution has examined twenty witnesses but the evidence is not sufficient to convict the accused persons for the offences alleged.
29. In Kans Rajiv. State of Punjab, (2000) 5 SCC 207 the ingredients of an offence under Section 304-B of the IPC were held to be as follows:
"In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:
(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years of her marriage;
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased should have been subjected soon before her death."
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30. The term 'dowry' has not been defined in Section 304-B of IPC, but, since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of under Section 304-B IPC as held by Hon'ble Supreme Court in Satvir Singh v.State of Punjab 2001 (4) Crimes 45. Section 2 of Dowry Prohibition Act defines dowry as under:
"2. 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 parent 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 or persons to whom the Muslim Personal Law (Shariat) applies."
31. A careful analysis of the above-referred definition would show that dowry would include that property or valuable security which is actually given or which is agreed SC No. 112/2014 State vs Praveen Kumar & Others (Page 20 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC to be given, in relation to the marriage of person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. But, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agree to give some cash, valuable security or property to her husband or in-laws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry. SC No. 112/2014 State vs Praveen Kumar & Others (Page 21 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC
32. If the husband of the girl or any other person related or connected to him, demands something from the girl or her parents or any other person related to or connected with her, saying that the article being demanded by them was expected to be given or ought to have been given in marriage, that also, to my mind, would constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized.
33. Now, we take the case in hand . In the present case , it is not in dispute that deceased Neha got married SC No. 112/2014 State vs Praveen Kumar & Others (Page 22 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC with accused Parveen on 12.3.2011 and she has committed suicide on 16.10.2011 at her matrimonial house. During the statement recorded u/s 313 CrPC, all the three accused persons i.e Parveen(husband) , Kamlesh ( mother-in-law) and Shyam Sunder ( Father-in-law) have admitted that deceased was married with accused Parveen on 12.3.2011.
34. It is also not denied that accused Kamlesh is the mother-in-law and Shyam Sunder is the father-in-law. As far as the death within seven years of marriage is concerned , it has also not been disputed. PW1 Dr. Manoj Dhingra , who conducted postmortem on the dead body of deceased Neha gave report ExPW1/A and the cause of death was opined as Asphyxia as a result of anti mortem hanging.
35. From the testimony of prosecution witnesses, documents on record and the statement of the accused SC No. 112/2014 State vs Praveen Kumar & Others (Page 23 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC persons, it stands established beyond reasonable doubt that deceased got married with accused Parveen on 12.3.2011 and after her marriage, deceased Neha started living with accused Parveen( husband) , accused Shyam Sunder( father-in-law) and accused Kamlesh( mother-in-law) at her matrimonial house i.e P2/16, Sultan Puri, Delhi. It also stands proved beyond reasonable doubt that on 16.10.2011, she committed suicide by hanging herself i.e death of the deceased was within seven years of marriage and death was caused by otherwise then normal circumstances.
36. Next ingredients of the offence u/s 304 B are that soon before the death, the deceased has been subjected to cruelty or harassment in connection with the demand of dowry by her husband or relatives of her husband. In this regard testimony of PW11 Smt Meenakshi SC No. 112/2014 State vs Praveen Kumar & Others (Page 24 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC Devi ( mother of the deceased Neha), PW12 Vikash Gupta and PW17 Udit Gupta ( brothers of the deceased Neha) is relevant.
37. PW11 Smt Meenakshi has categorically stated that two days prior to marriage , her daughter Neha( deceased) refused to marry Praveen Kumar for the reason that she( deceased) wanted to marry some one else. However, they made her understand and compelled her to marry accused Praveen Kumar and then she got married to accused Praveen Kumar. After marriage, she started living with the accused person at her matrimonial house and she was normal . On 16.10.2011, accused Praveen Kumar informed them telephonically that Neha had committed suicide by hanging herself.
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38. PW11 has further deposed that the day before it was "Karvachauth" and she spoke to Neha who told her that she had not observed the fast as she has not accepted Praveen Kumar as her husband . She (deceased Neha ) did not complained against her husband (accused Praveen Kumar) or her in-laws ( co-accused persons) of any kind. There was no demand of dowry at the time before or after the marriage from the side of accused persons and she (deceased Neha) was never harassed for not bringing the dowry articles as per demands of accused persons. PW11 further deposed that relations between the two families were cordial and deceased Neha used to pretend that she was living happily but I ( PW11) know that she was disturbed with her marriage and even after her marriage as she wanted to let off accused Praveen Kumar and wanted to go with her earlier friend.
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39. PW12 Vikas Gupta and PW17 Udit Gupta, who are real brothers of the deceased Neha have deposed absolutely on the lines of PW11. They have also stated nothing against the accused persons in respect of any demand of dowry and cruelty. There is nothing in the testimonies of these material witnesses, which could even prima facie show that deceased Neha was ever subjected to cruelty or harassment for or in connection with demand for dowry soon before her death . The prosecution has miserably failed to prove these prime ingredients of the offence of the section 304 B IPC.
40. In the present case prosecution is placing reliance heavily upon diary ExP-2( not proved), though exhibit mark was given during the examination of HC Sandeep( PW18). In this regard testimonies of PW9 Constable Rajesh, PW 12 Vikas, PW18 HC Sandeep and SC No. 112/2014 State vs Praveen Kumar & Others (Page 27 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC PW20 S.I Badami Lal (IO) are relevant.
41. PW9 Constable Rajesh deposed that on 16.10.2011, on receipt of DD no. 29 A Exhibit PW7/A , he alongwith S.I Badami Lal (PW20 ) reached at the spot i.e P-2 Sultan puri where the deceased was found hanging with the ceiling fan with the saree. He further deposed that on the slab in the room one diary of chocolate colour of raxene type colour cover was recovered. Few pages of the diary were found torn and those torn pages of the diary were also kept in the diary. On the first page of diary name of Neha was written.
42. If testimony of PW9 constable Rajesh, who admittedly was present with the IO, when at the first time they reached at the spot, at that time itself aforesaid diary came to their knowledge. Not only that, it was checked as SC No. 112/2014 State vs Praveen Kumar & Others (Page 28 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC PW9 Constable Rajesh says that few pages of the diary were found torn and those torn pages were kept in that dairy. This testimony suggest that diary was lifted by the IO S.I Badami Lal from the spot immediately after reaching there but record is contrary to that.
43. PW 18 HC Sandeep in respect of the diary deposed that after getting registered the FIR he returned back at the spot. HC Sandeep(PW18) is talking about his visit to the SGM hospital at around 5:25 pm firstly and then to the police station for registration of the FIR and thereafter he came back at the spot. He deposed that IO has seized the executive diary 2010 on which name of deceased Neha was written and diary was seized vide ExPW18/D . Similar facts have been deposed by PW20 Badami Lal, IO who deposed that he came back at the spot from the hospital and prepared the site plan ExPW20/B. A little further he says that SC No. 112/2014 State vs Praveen Kumar & Others (Page 29 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC ceiling fan was also taken into possession vide Exw18/B and diary ExP-2 was taken into possession vide ExPW18/D.
44. If the testimony of PW18 HC Sandeep , PW20 S.I Badami Lal and PW9 Constable Rajesh is put to close scrutiny then it become crystal clear that same is not free from doubt qua the recovery of diary in question. It has not been explained when IO S.I Badami lal (PW20) was present at the spot alongwith constable Rajesh (PW9) and admittedly noticed the diary at the slab in the room where deceased hanged herself with the ceiling fan , then why the said diary was not seized in the background of the fact that diary was checked and some pages were found torn and those pages were kept in diary. IO has allegedly seized the diary subsequently. In these circumstances, the tempering or manipulation with diary in that room cannot be ruled out completely. It is not the case of the prosecution that from the SC No. 112/2014 State vs Praveen Kumar & Others (Page 30 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC time when the dead body was removed from the ceiling fan and till it was taken to the hospital nobody had entered into the said room. There is a time gap between two acts of the Investigating Officer. It ultimately has created doubt on the recovery of diary itself.
45. Further, the diary was seized vide memo ExPW18/D on 16.10.2011. PW2 HC Govind who was working as MHC(M) deposed that the dairy was deposited with him on same day vide entry number 13144 register no. 19 ExPW2/A. PW2 HC Govind further deposed that on 22.12.2011, the said diary alongwith one notebook were sent to FSL, Rohini through constable Daulat .
46. Meaning thereby the diary was with the MHC(M) for about two months and it was sent to FSL through Constable Dualat( PW8). Constable Daulat deposed that he SC No. 112/2014 State vs Praveen Kumar & Others (Page 31 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC collected the diary and one notebook and deposited the same with FSL. There is nothing on record which could show that the moment the diary was allegedly seized from the spot by the IO, it was sealed and it was not tempered with. None of the prosecution witness particularly who handled the dairy from the stage of its recovery till it was deposited with the FSL has stated so. It has also not been explained why the dairy was not sealed as it was material piece of evidence. This also goes against the prosecution and give benefit of doubt to the accused persons.
47. Now the next question which falls consideration for this court is that even if for the sake of argument it is presumed that diary ExP-2 was actually recovered from the room and it was seized vide ExPW18/D still it would not help the prosecution. The prosecution was under obligation to prove that the writing and signatures in the diary belonged to SC No. 112/2014 State vs Praveen Kumar & Others (Page 32 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC deceased Neha but prosecution has miserably failed on that count also.
48. As per the case of the prosecution the brother of the deceased Vikash Gupta (PW12) handed over the notebook having the admitted hand writng of the deceased to the IO but during his examination Vikas Gupta(PW12) has deposed that his signatures were obtained by the police on some blank papers . He was cross examined by the ld PP for the state. During his cross examination also he replied that the signatures were obtained on some blank papers and he had not handed over any notebook containing handwriting of deceased Neha to the police. He further replied that he cannot identify the handwriting of his sister Neha( deceased) as he has not seen her writing or signing. He has denied the suggestion that on 26.10.2011, he had handed over the notebook containing admitted handwriting of deceased Neha SC No. 112/2014 State vs Praveen Kumar & Others (Page 33 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC to the police and same were taken into possession after sealing the same by the IO . That being so, the testimony of S.I Badami Lal (PW20) regarding handing over of said notebook does not inspire confidence and cannot be believed. Accordingly, prosecution has further failed to prove beyond reasonable doubt handing over of any note book by Vikas Gupta ( PW12) to S.I Badami Lal(PW20) .
49. We may go now one step further. Even if we presumed that diary ExP-2 was recovered from the room of the deceased Neha, where she hanged herself and her brother Vikas Gupta (Pw12) actually handed over the notebook to S.I Badami Lal (PW20) still it would not be of any use for prosecution for the reason to be detailed hereinafter .
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50. It has not been explained that on what basis prosecution is claiming that the note book ExP-6 was having the admitted handwriting of deceased Neha which was sent for examination alongwith diary. Although, as per FSL result ExD-1, the handwriting and signatures in the diary were found matched with the handwriting or signature of the notebook, but the main question is on what basis this court can hold that the handwriting in the note book ExP-6 could be termed as an admitted handwriting. PW12 Vikas Gupta has categorically stated that he cannot identify the handwriting or signatures of her sister Neha ( deceased). Except this , there is nothing on record which could suggest that the notebook ExP-6 was in the handwriting of the deceased Neha . The investigating agency have not taken care of collecting other conclusive evidence to prove the handwriting or the signatures of the deceased. Therefore, in these circumstances, the contents of the diary cannot be SC No. 112/2014 State vs Praveen Kumar & Others (Page 35 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC read in evidence as it has not been proved as per law. Accordingly benefit of doubt definitely goes to the accused persons.
51. Here it is pertinent to mention that accused persons were charged alternatively for offence u/s 302 /34 IPC by the ld Predecessor of this court. There is no such allegations against the accused person as the same has already been discussed herein above while giving the findings qua offence u/s 304 B IPC. It has come on record that the deceased Neha has committed suicide for which accused persons cannot be held responsible. Evidence is not sufficient to convict the accused persons for the offence u/s 302 IPC. Accordingly, accused persons stands acquitted for offence u/s 302 IPC also.
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52. My attention was drawn to the provision of section 306/498A IPC and it was submitted that even if charges u/s 304 B fails still accused can be convicted for the offence u/s 306/498A , if there are sufficient material on record. During the argument, ld counsel for the accused persons countered the aforesaid contention on two grounds . Firstly, he submitted that no separate charges u/s 306 IPC have been framed and secondly, even for the offence u/s 306 IPC evidence are not sufficient.
53. As far as the first contention is concerned , in this regard , I may mention that though the accused persons were not charged under section 306 of IPC, there would be no necessity of framing a separate charge under section 306 of IPC against them considering that they were charged under section 498 A as well as 304 B of IPC. SC No. 112/2014 State vs Praveen Kumar & Others (Page 37 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC
54. In, K. Prema S. Rao and another state of Andhra Pradesh , ( 2003) 1 SCC 217, the Apex Court found that though the deceased woman was subjected to cruelty and harassment, that was not in connection with any demand of dowry, referring to the definition of cruelty as given in Section 498 A of IPC and the statutory presumption under section 113 A of Evidence Act, the Apex Court noticing that the wife had committed suicide within seven years of her marriage, held that the case of conviction and sentence under section 306 of IPC had been clearly made out even though acquittal for the offence under section 304 B of IPC could not be disturbed. The Apex court, rejected the contention of accused that in the absence of charge, he could not be convicted under the aforesaid section, noticing that all the facts and ingredients constituting the said offence were written in the statement of charge. SC No. 112/2014 State vs Praveen Kumar & Others (Page 38 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC
55. In the case before this court also, the charge against the accused persons referred to subjecting deceased Neha to mental and physical cruelties as also to her death other than those under normal circumstances within seven years of her marriage. Moreover, as noted by the Apex court, mere omission or defect in framing the charge does not disable the criminal court from convicting the accused for the offences which is found to have been proved , on the basis of evidence on record and mere omission on the part of the court to mention section 306 of IPC does not preclude the court from convicting the accused, for the said offence, when found proved.
56. A similar view was taken by the Apex Court in Rajeev Kumar vs state of Haryana , 2013 (13) Scale 410, where the Hon'ble Supreme Court, referring to the decision in K. Prema S. Rao ( Supra) and relying upon section 113 SC No. 112/2014 State vs Praveen Kumar & Others (Page 39 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC A of the Evidence Act, convicted the appellant under section 498 A and 306 of IPC. Therefore, the first argument of the ld counsel for the accused person that in the absence of specific charges u/s 306 IPC, accused persons cannot be convicted for the same, is not tenable.
57. Now, let me advert to the next contention of the ld counsel for the accused person regarding the case on merits qua section 306/498 A IPC. The two most vital circumstances which must be kept in mind while dealing with this case are that Neha had committed suicide in the matrimonial home and her death took place within seven years of her marriage. Presumption under Section 113A of the Indian Evidence Act, 1872 springs into action which says that when the question is whether the commission of suicide by a woman had been abetted by her husband and it is shown that she had committed suicide within a period of SC No. 112/2014 State vs Praveen Kumar & Others (Page 40 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. The question is whether the accused person has been able to rebut this presumption.
58. Section 498-A Indian Penal Code, is extracted below for an easy reference:
498-A. 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.
Explanation.-For the purposes of this section, 'cruelty' means-
(a) any willful 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, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any SC No. 112/2014 State vs Praveen Kumar & Others (Page 41 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.
Explanation to Section 498-A gives the meaning of 'cruelty', which consists of two clauses. To attract Section 498-A, the prosecution has to establish the wilful conduct on the part of the accused and that conduct is of such a nature as is likely to drive the wife to commit suicide.
59. I have already indicated no offence under Section 304-B Indian Penal Code has been made out against the accused person . Section 306 Indian Penal Code reads as under:
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.
60. Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 Indian Penal Code, SC No. 112/2014 State vs Praveen Kumar & Others (Page 42 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC abetment must attract the definition thereof in Section 107 Indian Penal Code. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 Indian Penal Code that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by act or illegal omission in the commission of suicide.
61. In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113A of the Evidence Act could be raised. Section 113 A of the Evidence Act reads as follows:
113A. Presumption as to abetment of suicide by a married woman.-when the question is whether the commission of suicide SC No. 112/2014 State vs Praveen Kumar & Others (Page 43 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband and subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
62. I am of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A Indian Penal Code, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband.
The term "the Court may presume, having regard to all the SC No. 112/2014 State vs Praveen Kumar & Others (Page 44 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary.
63. So far as the present case is concerned, I have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor the evidence produced by the prosecution would be sufficient enough to draw a presumption so as to fall under Section 113A of the Evidence Act.
64. In this connection, I may refer to the judgment of Hon'ble Supreme Court in Hans Raj v. State of Haryana (2004) 12 SCC 257, wherein the Court has examined the scope of Section 113A of the Evidence Act and Sections 306,107,498-A etc. and held that, unlike Section 113B of the Evidence Act, a statutory presumption does not arise by SC No. 112/2014 State vs Praveen Kumar & Others (Page 45 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC operation of law merely on the proof of circumstances enumerated in Section 113A of the Evidence Act. The Court held that, under Section 113A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the Court is not bound to presume that suicide has been abetted by her husband. Section113A, therefore, gives discretion to the Court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word 'cruelty' in Section 498-A Indian Penal Code.
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65. I am of the view that the circumstances of the case pointed out by the prosecution, as discussed herein above, are totally insufficient to hold that the accused persons had abetted deceased Neha to commit suicide and the circumstances enumerated under Section 113A of the Evidence Act have also not been satisfied as there is no allegation against the accused persons that deceased Neha was subjected to cruelty by her husband or other in-laws .
66. Keeping in view the above observation , facts and circumstances of the case , I hold that prosecution failed miserably to prove its case beyond shadow of doubt against the accused person namely Praveen Kumar, Kamlesh and Shyam Sunder . Thus, I am left with no option but to acquit the accused person . Accused person namely Praveen Kumar, Kamlesh and Shyam Sunder therefore stands acquitted from the charge u/s 498 A/304 B/302/34 IPC . Their SC No. 112/2014 State vs Praveen Kumar & Others (Page 47 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC bail bond cancelled and sureties stands discharged.
67. Here it is pertinent to mention that during the argument , ld APP for state has drawn my attention towards the testimony of Vikash Gupta (PW12) and submitted that proceedings u/s 182 IPC against him may be initiated . I do not find any force in the argument of the ld APP for state for the simple reason that there is nothing on record which could show that this witness have given false evidence. Even if he has turned hostile , it cannot be presumed that he has given false evidence. Rather the testimony of Tehsildar Ram Pal Singh( PW10) suggests that the proper procedure for recording the statement of the witnesses by him (Pw10) has not been adopted.
68. Ram Pal Singh (PW10), Tehsildar deposed that he reached at the hospital after receiving information from SC No. 112/2014 State vs Praveen Kumar & Others (Page 48 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC SDM Saraswati Vihar Sh Ajay Kumar, and got recorded the statement through his assistant. Although , he has deposed that Vikas Gupta (PW12) gave the written statement which bears his signatures but PW20 S.I Badami Lal , who is the IO, deposed that SDM recorded the statement of Vikas Gupta. There is doubt if the statement given by Vikas Gupta (PW12) to the IO S.I Badami Lal ( PW20) was handwritten or it was got recorded through Assistant or Tehsildar Ram Pal Singh himself had recorded the statement.
69. It is not the case of the prosecution that statement of Vikas Gupta (PW12) was not recorded in the presence of S.I Badami Lal( PW20). Had it been the case that Vikas Gupta (PW12) has given the complaint in his handwriting to the Tehsildar Ram Pal Singh ( Pw10), there was no occasion for PW20 S.I Badami Lal to depose that SC No. 112/2014 State vs Praveen Kumar & Others (Page 49 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC Tehsildar (PW10) recorded the statement of Vikas Gupta (PW12).
70. Moreover, PW10 Tehsildar Ram Pal Singh deposed that while recorded the statement of the PW11 Meenakshi (mother of the deceased Neha) , she got disturbed and became unconscious and the process of recording her statement was suspended. Purported statement of said Meenakshi ( PW11) is lying on record. There is nothing on record which could show that the statement of PW11 Meenakshi was deferred and it was recorded in breaks.
71. Rather, during the cross examination of PW10 Tehsildar Rampal Singh, it has come on record that there is no such reference in the statement that her statement has been recorded after giving break to the witness. This all has SC No. 112/2014 State vs Praveen Kumar & Others (Page 50 of 51 ) FIR no. 482/11 P.S Sultanpuri u/s 304 B/498A/34 IPC and alternatively 302 /34 IPC created a doubt . This court is not happy with the manner in which inquest proceedings were carried out by the Tehsildar PW10 Ram Pal Singh and the statements of family member of deceased were recorded. In these circumstances, I do not deem it appropriate to proceed against the aforesaid public witness u/s 182 CrPC and the request of the ld APP is declined.
72. File be consigned to record room.
Announced in the open (Rajesh Kumar Goel)
Court today i.e 2.4.2014 ASJ-5, North
Rohini Court
SC No. 112/2014 State vs Praveen Kumar & Others (Page 51 of 51 )